6. Guest Constitutional Scholar Essayists - Constituting America

A Look At Another Proposed Amendment: Women’s Equal Rights

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Proposed Amendment

Guest Essayist: Allison R. Hayward, political and ethics attorney

Another Proposed Amendment: Women’s Equal Rights:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all. But the ERA has also been used as a political tool in efforts to secure electoral advantage. As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.

The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women. This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality. But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.

But other social reformers saw women’s rights as a tool. Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages. A coordinated campaign began around the turn of the 20^th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws. The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910. Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19^th Amendment in 1920. Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.

In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848. By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.

As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees. Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972. Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.

Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex. Some read like the ERA, but others are narrower. For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”

Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women. But others argue that a constitutional amendment could be both too broad and ineffective. Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities. ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.

What laws and practices would ERA abolish? Could there be unintended consequences? Interestingly, labor reformers in the early part of the 20^th century thought so. They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.

Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter. Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.” If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.

Allison R. Hayward is a political and ethics attorney in California

June 20, 2012 – Essay #88

June 19, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Proposed Amendment: Child Labor Ban

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44317424

Proposed Amendment: Child Labor Ban Amendment:

Section 1: The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.Section 2: The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

The Child Labor Amendment is a proposed and still-pending amendment to the US Constitution offered by Ohio Congressman Israel Moore Foster in1924, during the 68^th Congress.

Perhaps one of the biggest political fights of the 20^th century involved the question of whether the federal government had or should have authority to regulate child labor. Alexander Hamilton and Horatio Alger stood on one side representing those who thought that child labor was a positive influence and on the other side stood influential novelist Elizabeth Stuart Phelps and a host of high society New Englanders who believed that this constituted a completely unnecessary and even ruinous exploitation of the nation’s youth.

Estimates varied about the size and scope of the problem. The 1880 census reported that roughly 17% of all children were “gainfully employed.” By 1910 that number had risen to nearly 19%. However even at its highest point, the lion share of the youths working did so on a farm, and mostly that of their own families. Fewer than 25% worked in canneries or any manufacturing plants.

The first state to restrict child employment was Massachusetts. In 1836 they banned 15 year olds from manufacturing jobs and then six years later adopted a law making it illegal to allow 12 year olds to work for more than 10 hours a day. By the turn of the century 28 states had adopted child labor laws.

However, leaders of the Teddy Roosevelt wing of progressivism within the Republican Party felt that state action was insufficient. They argued that it was essential that the feds take over these regulations in order to make them uniform and also in order that the rules could be as aggressive as was practical to end the scourge of child labor.

Historians report that they started by trying to ban the interstate transport of articles produced in factories or mines that employed children under 14. The Department of Commerce announced the creation of a Federal Children’s Bureau and began a full-throated contribution to the fight with updates and missives about the need for federal action.

Senator Albert Beveridge an early backer of a federal ban solicited and reported on the claims by known socialist agitators that there were thousands of “thumbless boys and girls who don’t know how to play.”

The promoters of federal action even went so far as to include a ban in the 1912 Republican platform causing President Taft to break with the party when he declared federal child-labor law unconstitutional. Unfortunately by the time that President Wilson would come into office – even after having opposed the concept while campaigning – he would determine that it was expedient to sign a ban into law. The Supreme Court would promptly strike down the measure arguing that “Freedom of Commerce will be at end, and the power of states over local matters may be eliminated” if the law were allowed to stand.

Nevertheless, Congress was undaunted. Congress came back this time with a measure that proposed a 10% profits tax on all industries that violated the recommended child labor standards. This too the Supreme Court struck down – this time 8-1.

It was then that the advocates decided that a Constitutional Amendment was in order. Congressman Israel Foster of Ohio and Senator Samuel Shortlidge of CA introduced the measure. They worded the amendment to cover not just employment, but work generally. In other words, the amendment purported to give the federal government the power to intervene on behalf of any child under the age of 18 who was responsible for “chores” as well as those who actually worked at factories.

Starting off with support from the NEA, the American Legion, the YWCA, the PTA, and even Presidents Warren and Harding the amendment seemed unstoppable.

The Child Labor Amendment has been ratified by the legislatures of the following 28 states:

Arkansas in 1924
Arizona in 1925
California in 1925
Wisconsin in 1925
Montana in 1927
Colorado in 1931
Illinois in 1933
Iowa in 1933
Maine in 1933

10. Michigan in 1933

11. Minnesota in 1933

12. New Hampshire in 1933

13. New Jersey in 1933

14. North Dakota in 1933

15. Ohio in 1933

16. Oklahoma in 1933

17. Oregon in 1933

18. Pennsylvania in 1933

19. Washington in 1933

20. West Virginia in 1933

21. Idaho in 1935

22. Indiana in 1935

23. Utah in 1935

24. Wyoming in 1935

25. Kentucky in 1936

26. Kansas in 1937

27. Nevada in 1937

28. New Mexico in 1937.

However, two arguments would ultimately stop the Child Labor Ban amendment in its tracks. The first was the claim that alcoholism and drunkenness among fathers was the reason why so many young people were in the workplace. And secondly, groups like the Women’s Constitutional League of Maryland effectively explained that at the end of the day, “The fathers and the mothers are better prepared to pass judgment upon the needs and the welfare of their children than this Congress is.”

A new opposition coalition developed made up of the Catholic Church, farmers, and ordinary families. Together along with the claim that most of the “childsavers” were childless caused much of the momentum to slow and then ultimately reverse.

In true ironic fashion, it was Massachusetts where the amendment would face its major defeat. The Archbishop of Boston mounted a vigorous campaign against the amendment as being anti-family and claimed that it would “take from parents the right and duty to educate and guide their children.” Suddenly the Lutherans joined in the effort. An advisory referendum was scheduled for the state and the amendment lost in a lopsided vote 697,563 to 241,461. This was the beginning of the end.

Perhaps the most significant consequence of the introduction of the Child Labor Ban Amendment is that the right of the people to determine ultimately what the policies and rules of their nation would be remain with the people through the state legislatures. In a landmark case, Coleman v. Miller the US Supreme Court in a dispute over the Child Labor Ban Amendment officially recognized that if Congress does not specify a ratification deadline, then the proposed amendment remains pending business. Today, with 50 states in the Union, the ratifications of 10 additional states would be required to incorporate the proposed Child Labor Amendment into the Constitution.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 19, 2012

Essay #87

June 18, 2012/3 Comments/by Janine Turner and Cathy Gillespie

A Look Back in History: Proposed Amendment – Slavery and the States

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment, The Constitution of the United States of America

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44223606

Proposed Amendment: Slavery and the States Amendment:

State’s sole right to regulate slavery proposal:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

This proposed amendment is the so-called Corwin Amendment. Passed by the 36^th Congress on March 2, 1861, the Corwin Amendment offered by Ohio Representative Thomas Corwin was presented as a means of forestalling the secession of Southern states prior to the beginning of the Civil War.

It had become increasingly clear to many in Congress that a conflict was occurring over the status of slave versus non-slave states that could have cataclysmic effects on the Union. In the 36^th session alone, there were more than 200 different measures introduced regarding the subject of slavery including nearly 60 Constitutional amendments.

The Corwin Amendment sought to forbid any future attempts to amend the Constitution to empower the Congress to “abolish or interfere” with slavery as a way to ensure that southern states would not feel obligated to leave the American Union. Presented as a last ditch effort to prevent the collapse of the Union, the proposal didn’t have the intended effect. The newly formed Confederate States of America organized and declared that it would pursue a path of independence completely ignoring Congress’ intentions with the Corwin Amendment.

Notably the Corwin Amendment has the distinction of being the only constitutional amendment to have an actual numerical designation assigned to it by Congress—the proposing resolution includes the name “Article Thirteen.”

After passing the House and Senate, congressional leaders prevailed upon incoming President Lincoln to send a letter to each governor alerting them that the amendment had passed. While President Lincoln never endorsed the measure, he acquiesced to the request.

By the time President Lincoln had been elected, seven southern states had seceded and within a few months four others would join them. While Lincoln had not campaigned on a platform to end slavery where it existed, he had pledged to use the power of the federal government to prevent slavery from spreading to territories that were not yet states. His willingness then to send the letter was yet another demonstration of the lengths he was attempting to go to prevent the dissolution of the union.

Ohio has the distinction of the being the first legislature to ratify the amendment on May 13, 1861. However by March 31, 1864 the commencement of the Civil War and changing public sentiment led the legislature to rescind its ratification. Since Congress did not include a final ratification date for this proposed amendment, it technically is still pending. In 1963 more than a century after it was ratified, Texas state representative Henry Stollenwerck introduced a resolution to ratify in the Texas statehouse. It was referred to the House of Representatives’ Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.

It is noteworthy that the Confederate Constitution contained no provision like that found in the Corwin amendment. Even though the Confederate charter explicitly authorized slavery in the Confederacy, it didn’t seek to prevent or bar future amendments that might restrict or abolish slavery.

Most scholars believe that even if the Corwin Amendment had been adopted it would not have been irreversible. That is to say, Congress and the states could bar Congressional interference with slavery if they wanted but they couldn’t bar a subsequent Congress and the states from either repealing the amendment the same way they did when they adopted prohibition and then repealed it later or adding new amendments that had the same effect. In other words, the mere adoption of the Corwin Amendment would not have prevented a subsequent Congress from passing an amendment to ban slavery or to protect the voting rights of blacks who were formerly slaves.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 18, 2012

Essay #86

June 17, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Proposed Amendment: Titles of Nobility Amendment

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44084644

Proposed Amendment: Titles of Nobility Amendment:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them

Introduced in 1810, the so-called Titles of Nobility Amendment (TONA) was sponsored primarily by Maryland Senator Philip Reed. Historians argue that this amendment’s purpose was two-fold. One to make it more difficult for foreign agents to buy or influence votes in state and federal elections, and secondly to prevent saboteurs and enemies of America from promising land, wealth, and titles to officers in the military or other prominent appointees in government as a way to undermine their loyalty to the United States.

Senator Reed, the primary sponsor, was quite a character. A revolutionary war hero, purportedly during the battle of Stony Point, he cut off the head of an American deserter and had it displayed on a pike as a deterrent to other deserters.

As a Senator from Maryland, Senator Reed and his constituents were keenly aware of the younger brother of French Ruler Napoleon Bonaparte’s marriage to the daughter of wealthy Baltimore merchant William Patterson. Jerome Bonaparte’s marriage to Elizabeth Patterson (the Paris Hilton of her day) not only scandalized Northeastern American society, suggestions that the marriage would result in a lifetime annuity and a title for Ms. Patterson and her heirs was sufficient to remind American leaders of the need to minimize the ability of foreigners to influence American society and its political structure.

Primarily supported by Federalists, the amendment’s substance galvanized the Congress getting broad support. The resolution passed both houses of Congress in 1810: the United States Senate by a vote of 19 to 5 and by the House of Representatives by a vote of 87 to 3. It was sent to the states and awaits action for ratification. According to the Supreme Court, in a case entitled Coleman v. Miller, the amendment is still available to be considered and ratified by the various states, as there is no deadline for ratification specified when Congress initially proposed the amendment. As least 26 more states would have to ratify the amendment in order for it to become part of the Constitution today.

This amendment was ratified by 12 state legislatures:

1. Maryland (December 25, 1810)

2. Kentucky (January 31, 1811)

3. Ohio (January 31, 1811)

4. Delaware (February 2, 1811)

5. Pennsylvania (February 6, 1811)

6. New Jersey (February 13, 1811)

7. Vermont (October 24, 1811)

8. Tennessee (November 21, 1811)

9. North Carolina (December 23, 1811)

Georgia (December 31, 1811)^[1]
Massachusetts (February 27, 1812)
New Hampshire (December 9, 1812)

Senator Reed lived to be 69 years of age, dying in 1829. A memorial marks his grave to this day as one of Kent Maryland’s most distinguished citizens.

Today the only controversy about this so-called “Titles of Nobility Act” is whether it was already ratified. Historians overwhelmingly agree that the amendment was not ratified. In 1833, the brilliant and highly regarded judge and commentator Joseph Story wrote “it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary” and the 1848 edition of Bouvier’s Law Dictionary recorded that TONA “has been recommended by Congress, but it has not been ratified by a sufficient number of states to make a part of the constitution.”

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 15, 2012

Essay #85

June 14, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Proposed Congressional Apportionment Amendment

Analyzing the Amendments in 90 Days 2012 Project, The Honorable David Eastman 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment XXVII, Constitutional Amendment XXVII, David Eastman, Federalist No. 55, Proposed Amendment, The Constitution of the United States of America

Guess Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

http://vimeo.com/44015708

Before we conclude our 90 Day Amendment Study, we now take a look at some pending Constitutional Amendments, which have not been adopted:

The first in this short series is an amendment on Congressional Apportionment – Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Proposed Congressional Apportionment Amendment

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Few today may be able to tell you, but the most immediate concern in the minds of many Americans following the adoption of the Constitution was not first amendment rights concerning freedom of speech, but rather first amendment rights concerning the number of representatives in Congress. And though it receives comparatively little attention in our own day, it was this issue that the Congress was compelled to tackle in the very first constitutional amendment it adopted (September 25, 1789).

Concerns over congressional apportionment predated ratification of the Constitution and were the subject of fully three of the Federalist Papers, in one of which Madison remarked “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention by the weight of character and the apparent force of argument with which it has been assailed” (Federalist 55). The initial apportionment scheme that generated such high-spirited controversy was as follows:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”

New Hampshire (3)
Massachusetts (8)
Rhode Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
Total (65)

Madison defended this portion of the proposed Constitution against a two-pronged attack: first, that the number of representatives in Congress, being too few, was inadequate to prevent corruption of the legislative body; and second, that such a number would deprive the body of sufficient knowledge owing to the inability of members of Congress to effectively represent such a large number of constituents. Also relevant was the concern that if the House of Representatives were ever to become too numerous, its character as a representative body would be undermined. Despite Madison’s best efforts to answer these concerns, they persisted, leading several states to propose amendments to this portion of the Constitution, which they submitted to the Articles Congress with their respective ratification documents.

These, and other requests submitted by the states, resulted in the first twelve amendments passed by the United States Congress and submitted to the states on September 25, 1789. Ten of the twelve were soon adopted as the Bill of Rights, and the eleventh would lay silently awaiting ratification until approved by the State of Michigan and finally added to the Constitution 202 years later, on May 7, 1992.

The twelfth and final amendment, the Congressional Apportionment Amendment, was ratified by a majority of states at the time of its passage, but less than the three-fourths required for adoption. This could be due in part to a transcription error that resulted in a mathematically impossible apportionment formula once the population of the United States reached 8 million and before it reached 10 million. The apportionment scheme now in use is determined by Congress, in keeping with the original text of the Constitution.

As it has already secured the approval of Congress, the Apportionment Amendment could follow the path taken by the 27th Amendment and be adopted if ratified by additional states. However, its passage today is unlikely, not only due to the passage of time but also due to the fact that approval would be of limited practical effect as the scheme currently approved by Congress is already in harmony with the Amendment. It seems Congress has been successful, at least as concerns this particular amendment, in fixing a number that is neither so numerous that passions become unwieldy, nor so few that states come to question the ability of their representatives to be independent voices amidst the representatives of other states.

David Eastman is a former U.S. Army Captain, a Claremont Lincoln Fellow. He can be reached at david@davideastman.org.

June 14, 2012

Essay #84

June 14, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XXVII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXVII, James D. Best 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment XI, Constitutional Amendment XI, Constitutional Amendment XXVII, Constitutional Amendment XXVII, James D. Best, The Constitution of the United States of America

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXVII:

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

The 27^th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.

On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.

The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27^th Amendment.

The 11^th Amendment took less than a year to ratify. Prohibition (18^th Amendment) took 14 months, while repeal (21^st Amendment) took only nine months. Women’s suffrage (19^thAmendment) took 14 months to ratify. Giving 18 year olds the right to vote (26^th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27^th Amendment?

In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27^th Amendment.

The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief). It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.

Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States. This is backward. The Constitution was not written for politicians. Our political leaders have no motivation to abide by a two hundred year old restraining order. Americans must enforce the supreme law of the land. The first outsized words of the Constitution read We the People. It’s our document. It was always meant to be ours, not the government’s. It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

June 13, 2012

Essay #83

June 13, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XXVI, Section Two

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXVI, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Horace Cooper

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Amendment XXVI:

Section 1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

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

18-Year Olds Right to Vote

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

Perhaps one of the few instances where the issue of congressional power was litigated prior to passage of the amendment, section 2 of the 26^th amendment has this distinction. Many Americans today do not realize that the debate over the minimum age to vote in the U.S. began during World War II and the issue continued to grow even as the War wound down. President Dwight Eisenhower was the first U.S. president to officially endorse lowering the voting age to 18. For most of its history, the U.S. had adopted 21 as the minimum age.

President Eisenhower, like a growing number of American policymakers, recognized a clear disparity between 18 year olds being old enough to fight for their country in war and yet they were not considered responsible enough to cast a vote in electing the representatives that could decide the policy. This sensible argument was powerful enough to persuade Georgia and Kentucky to lower the minimum voting age during World War II.

Unfortunately the process of state-by-state reform didn’t appear to be moving fast enough for its advocates. By the time of the Vietnam War, it had become increasingly clear that Congress had to take some action in this area. Between the budget pressures, anti-war efforts, and the need to rely on the draft, Washington policymakers determined that they should act affirmatively to lower the voting age.

Taking the lead nearly 20 years after serving as Vice-President to President Eisenhower, President Nixon agreed to sign a law that amended the Voting Rights Act to lower the voting age to 18 for all Federal, State, and local elections. There was a problem with this solution: it didn’t meet Supreme Court muster.

The act signed into law in 1970 was challenged in the federal courts. In Oregon v. Mitchell the Supreme Court declared that the Congress didn’t have the authority to set a minimum age requirement for voting in state and local elections.

President Nixon would then call upon Congress to adopt a Constitutional amendment to remedy the matter. It passed Congress in March 1971 and would set a record – 4 short months – as the fastest ratification of any of the amendments to the Constitution. By July, President Nixon would certify that the amendment had indeed been ratified.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 12, 2012

Essay #82

June 12, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Janice Brenman, Attorney

http://vimeo.com/43824641

Amendment XXVI:

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

The Twenty-Sixth Amendment: Empowering America’s Youth

Throughout our nation’s history the right to vote has remained a cornerstone of cherished civil liberties and democratic processes. This right, however, was granted to select members of the populace until a century and a half ago. The end of the Civil War brought about 3 “Reconstruction Amendments” aimed to bring constitutionally granted “blessings of liberty” to the black male populace – the 3rd of these, the 15th Amendment, ratified in 1870, granted voting rights regardless of “race, color, or previous condition of servitude.” Half a century later, women were also granted the right to vote, after various organizations staged a protracted series of processions and protests. Several countries, such as Sweden, Finland (then known as the Grand Duchy (Dutch-ee)), Britain and Australia, had already forged ground in this area at the end of the 19th century. The resulting 19th Amendment was ratified in 1920, which prohibited state and federal sex-based voting restrictions. Additional suffrage privileges were granted with ratification of the 24th Amendment in 1964 – which guaranteed that voting rights of citizens

“shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

Age was the next obstacle to overcome.

The Constitution allowed states to dictate voting qualifications, subject to restrictions incorporated into Amendments. One of these Amendments, the 14th, mandated an age 21 minimum for male suffrage, with the caveat of withholding any state’s representation in Congress should this right be denied. With the onset of World War II, many young men and women under age 21 entered military service, sparking discussions about reducing the voting age to 18. It seemed ironic that one could be called up for military service at 18 and denied the right to vote for the country one was entrusted to defend. So, in 1942, four Congressmen introduced resolutions to reduce the age to 18. Over 150 proposals were initiated, some setting the age to 19. In the early 1950s, Senate debated one of “18” resolutions, but it failed by a vote of 34 to 24. By the late 1960s, the Vietnam War was rapidly escalating and thousands of young Americans enlisted, or, were drafted for active duty overseas. As of 1968, 25% of the troops were under age 21 and made up an even higher percentage of casualties. ‘Old enough to fight, old enough to vote’ became a mantra for the burgeoning Baby Boom generation.

The resolutions for lowering the voting age began to gain momentum once again. Congress held hearings on the subject between 1968 and 1970. These hearings touched on the link between military service and voting, but primarily focused on the increased educational levels of modern youth. Their discussions also focused on the ever-increasing responsibilities of the 18-21 year old demographic: attending college, driving automobiles, drinking alcohol (in subsequent years, states raised this age to 21), holding jobs, starting families, being tried as adults in court. Concurrently, in a narrow 5-4 vote, the United States Supreme Court ruled in Oregon v. Mitchell (1970) that 18 year olds could vote in federal elections, but not in those held at the state, or, local levels.

States now were tasked with evaluating their suffrage-age laws, and sixteen states did just that in 1970. Six states lowered the age and ten remained unswayed. Other states began to weigh administrative and cost advantages in matching the new federal framework. Congress then added a provision to the Voting Rights Act in 1970 setting the minimum voting age to 18 for both national and state elections, arguing it had broad power to protect voting rights under Section 5 of the 14th Amendment. With that, Congress accelerated its commitment to incorporate the youth suffrage movement within the framework of the Constitution. Congress passed the 26th Amendment March 23, 1971. In the fastest ratification process on record (107 days), three fourths of the states ratified this landmark proposal July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh(Grow), Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

June 11, 2012

Essay #81

June 11, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XXV, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXV, Constitutional Amendment XXV, Horace Cooper

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/43652085

Amendment XXV, Section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 is the only part of the 25th amendment which has never been invoked. It was created especially to empower the Vice President, together with a majority of the Cabinet or of “such other body as Congress may by law provide”, to declare when necessary that the President of the United States is disabled. This would occur by formally submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. Upon its delivery, the Vice President would become Acting President.

Section 4 is meant to be invoked if Vice President and the Cabinet determine that the President’s incapacitation prevents him from discharging the duties of his office and the President does not voluntarily proffer a written declaration to that effect.

Since this provision may involve a conflict between the President and the rest of his administration there are safeguards to prevent the invocation occurring unfairly. Therefore, the President may resume exercising his Presidential duties in response to the Vice President’s declaration by sending a written declaration to the President pro tempore and the Speaker of the House explaining that he is able to assume his duties.

It is only then that if the Vice President and Cabinet remain unsatisfied with the President’s condition, they may within four days submit another declaration to the House Speaker and the Senate President Pro Tempore that the President is incapacitated.

If this occurs, Both Houses of Congress must assemble within 48 hours if not already in session to make a determination. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress, Section 4 states that the Vice President would “continue” to be Acting President.

Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would “resume” discharging all of the powers and duties of his office.

If for some reason the Congress sides with the President yet the Vice President and Cabinet determine later that the President is incapacitated, the Vice President can continue to invoke Section 4. The President could send a declaration stating that he is capable of handling his duties and presumably the allotted 21-day Congressional procedure would start again..

History notes that there have been at least two occasions where there was serious consideration of invoking Section 4. The first involved the March 30, 1981 assassination attempt against Ronald Reagan. A group of Presidential advisors gathered at his bedside following his surgery and in conjunction with the doctors findings, determined that he was competent to carry on the affairs of state. The second occasion also involved President Reagan.

Late in his term, President Reagan replaced his chief of staff – Donald Regan – with Howard Baker. Howard Baker was pressed according to media reports to make an assessment as to whether President Reagan then 76 was “mentally sharp.” After holding a meeting with the President and the rest of his staff, Baker easily concluded that President Reagan was capably handling his duties as President.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 8, 2012

Essay #80

June 8, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXV: Presidential Succession Section 3

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Horace Cooper 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II, Constitutional Amendment XXV, Constitutional Amendment XXV, Horace Cooper, The Constitution of the United States of America

Guess Essayist: Horace Cooper, legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

Amendment XXV Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Since the nation’s founding there have been lingering questions about the presidential succession process. As drafted by the framers, Article II of the U.S. Constitution provided that the vice president shall “discharge the Powers and Duties” of the president in the case of the president’s “Death, Resignation, or Inability.”

Seemingly clear enough in 1787, it increasingly became obvious there were serious gaps in the process. Congress was given the responsibility to work out the details for what might occur if both the Vice President and President were incapacitated. At the same time the Constitution was opaque over what constituted inability or scenarios in which a previously incapacitated President might have his authority restored.

Until the 25^th amendment was ratified, the vice presidency had been vacant 16 times after a president or vice president had died or resigned. *

President Garfield tragic assassination was a major case in point regarding Presidential Succession. Assassin Charles J. Guiteau disgruntled over not being able to obtain a federal post shot President Garfield. The president would slip in and out of comas over the next 80 days. As a result he would perform only one official act during this period – the signing of an extradition paper. President Woodrow Wilson was disabled by a stroke in 1919–1921. Many presidents have suffered shorter periods of disability. In no instance were the disability provisions invoked. *

Many in Washington thought that President Eisenhower’s heart attack in 1955 and then subsequent stroke in 1957 made clear that the modern presidency needed a succession plan. However, the subsequent campaign between Nixon and Kennedy, either of whom would set the record for youngest president in US history moved the issue to the back burner.

Ironically, it was the assassination of President John F. Kennedy in 1963, which brought the issue immediately to the forefront. This far into the 20^th century the United States couldn’t answer long-standing questions such as when the president died, did the vice president automatically become president, or only serve as acting president? What happened when the vice presidency was vacant? The Twenty-fifth Amendment, would at long last answer these questions.

Stymied during the Eisenhower administration, this time the urgency was clear. Even The American Bar Association endorsed the proposal. On January 6, 1965, Senator Birch Bayh formally proposed the amendment. It was passed by Congress on July 6, 1965, and ratified on February 10, 1967, making it the 25th Amendment to the Constitution.

Reportedly Presidents G HW Bush and Bill Clinton established detailed plans in compliance with Section 3 to deal with incapacity during their terms although ultimately they never needed to be invoked.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

* THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS,” BY JOHN FEERICK (1992)

June 7, 2012

Essay #79

June 7, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Hadley Heath Manning 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Constitutional Amendment XXV, Constitutional Amendment XXV, Hadley Heath Manning, The Constitution of the United States of America

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/44178578

Amendment XXV, Section 2:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The 25^rd Amendment, Section 2, explains that in a vacancy in the office of Vice President, the President must act to select a new Vice President, and the Congress must confirm the President’s choice. More broadly, this Amendment (ratified in 1967) clarifies the line of succession in the executive branch as established in Article II of the Constitution.

Without this Section or this Amendment, it was unclear what to do in the case of a Vice Presidential death or disqualification. Would the Speaker of the House ascend to this office? Would the people elect a new Vice President? Actually, neither happened. But before the 25^th Amendment, the office of the Vice President was simply left vacant 16 times, and it stayed that way until the next election.

Eight times the President of the United States died, and the Vice President left office to become President. Seven times the Vice President died. Once, Vice President John Calhoun resigned in order to become a U.S. Senator.

But for the sake of continuity, and in order to keep the important office of Vice President filled, the U.S. ratified this Amendment. It makes it clear that the President will nominate someone, and the Congress will confirm. The Congressional confirmation also ensures that the people have a representative voice in approving the new Vice President.

After all, the office of the Vice President carries with it unique Constitutional duties and shouldn’t be left empty. According to Article I of the Constitution, the Vice President also serves as President of the U.S. Senate, and must cast a vote if there is a tie. The Vice President is also charged with overseeing, counting and presenting the votes of the Electoral College.

The Vice President also serves an important informal role as the assistant to, or spokesperson for the President. This role varies from administration to administration, depending on the relationship between the two leaders.

In American history since 1967, only two back-to-back occasions have called for the selection of a Vice President in the manner prescribed by Amendment XXV. In 1973, Vice President Spiro Agnew resigned. President Richard Nixon nominated Gerald Ford to the Vice Presidency, and Congress confirmed him.

The following year, 1974, President Nixon resigned. This meant that Gerald Ford would ascend to the Presidency, allowing him to select a nominee for Vice President to fill his now-vacant office. He selected Norman Rockefeller, who was also confirmed by the Congress. This situation resulted in both a President and a Vice President who were not elected in a general election by the Electoral College.

Elections are essential to the American system of governance: They allow the people to select their own leaders. But, on the rare occasion that these elected leaders cannot perform their duties, Amendment XXV prescribes how new leadership will take charge.

Amendment XXV, Section 2, ensures that the people are at least represented in the selection of this new leadership; the requirement of the new Vice President’s confirmation by Congress means that Members of the House and Senate – the representatives of the people – can check the power of the executive in making this new appointment.

This Section of Amendment XXV serves the important purpose of maintaining the offices of President and Vice President in a manner consistent with government for, of, and by the people.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 6, 2012

Essay #78

June 6, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXV, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Hadley Heath Manning 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II, Constitutional Amendment XXV, Constitutional Amendment XXV, Hadley Heath Manning, The Constitution of the United States of America

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/43441510

Amendment XXV, Section 1:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The 25^th Amendment was ratified in 1967 to clarify the Presidential line of succession established in Article II of the Constitution. For the sake of national security, and to avoid the turmoil of contested authority – with which the Founders were familiar after a revolutionary war – the new nation established a clear, indisputable contingency plan in the case of a Presidential death, resignation, or removal from office.

This provision in the Constitution points to the underlying idea that America’s destiny does not live or die with one person or one leader, but that she is always ready to continue thriving, even in the face of a national tragedy or crisis.

Fully nine U.S. Vice Presidents have come to the office of President in this way – eight because of the death of a President. One occasion, the resignation of President Richard Nixon, resulted in Vice President Gerald Ford taking the office of President in 1974. This has also been the only such occasion (of a Vice President ascending to the office of President) that occurred after the ratification of Amendment XXV.

Previous to this Amendment, the nation looked to Article II, Clause 6 for guidance. This clause states that in case of a Presidential disqualification or death, the “powers and duties” of the President will devolve to the Vice President. However, the language of this clause left unclear whether the Vice President would indeed become the next President, or if he would simply execute the duties of the office until a new President could be elected.

Precedent resolved this controversy, when the first Presidential death occurred in 1841. President William Henry Harrison died in office, and Vice President John Tyler took the oath of office to succeed him as President.

Amendment XXV finally clarified in supreme Constitutional law that the successor to the office of President would indeed become President, not simply become “acting President.”

Because they are established as first in line for succession, the Vice Presidents of the United States are subject to the same eligibility requirements as Presidents. According to Article II of the Constitution, these requirements are that the person be a natural-born citizen, at least 35 years old, and have spent at least 14 years residing in the U.S.

The Constitution gives Congress the authority to further define the line of succession. The Presidential Line of Succession Act of 1947 established that the next successors would be the Speaker of the House of Representatives, the President Pro Tempore of the Senate, followed by the members of the Presidential Cabinet in order of their department’s establishment.

The 25^th Amendment – along with Article II of the Constitution and the Presidential Line of Succession Act – make provision for the United States to have continuous leadership, even in the event of the disqualification or death of the national leader. This important establishment, in law, is meant to guarantee a peaceful and seamless transition.

So far in our history, although the occasions have been rare, this part of our government’s structure has provided new leadership in the face of national tragedy and hardship. This clearly serves to underscore the American idea that the future of our nation is not in the hands of one man or one executive, but that as a people we’ve consented to the leadership of duly elected and vetted leaders, as designed by the Constitution.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 5, 2012

Essay #77

June 4, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIV, Joerg W. Knipprath 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article V, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XXIV, Joerg W. Knipprath, The Constitution of the United States of America

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

http://vimeo.com/43382879

Amendment XXIV:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 4, 2012

Essay #76

June 3, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIV, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIV, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXIV, Constitutional Amendment XXIV, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXIV, Section 1:

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

In an effort to circumvent the Fifteenth Amendment’s requirement that the States not deprive a citizen of the right to vote based on race, in the decades from 1890 to 1910 some States began implementing various requirements which were purportedly neutral regarding race but which had the (intended) effect of preventing black citizens from voting. One of the requirements was a poll tax, a specific fee for voting that prevented the poor from voting. (Often the laws were written in a way that would allow white citizens to vote without paying the fee or implemented in this way, such as where a politician bought votes by paying poll taxes for the voters.)

As the moral wrongness of this kind of restriction became harder to deny, States began to remove some of these requirements. Some States had repealed their poll taxes by World War II and others removed them for soldiers in the 1940s. As the national government became more involved in promoting civil rights and ending racial discrimination in the 1950s, the number of states with poll taxes was down to five (Alabama, Arkansas, Mississippi, Texas, and Virginia).

In 1959, the report of the Commission on Civil Rights (created by the Civil Rights Act of 1957) suggested a national law to allow all Americans to vote subject only to age and residency requirements. One result was the proposal of an amendment to the Constitution to specifically prohibit the imposition of poll taxes. President John F. Kennedy supported the “uncontroversial” amendment. The lack of controversy stemmed from the fact that only five States had such taxes.

Federal courts had previously held poll taxes were not prohibited by the Constitution, so an amendment was necessary. Congress proposed the amendment in August 1962 and it was ratified less than a year and a half later in January 1964.

The Twenty-fourth Amendment only applied to federal elections but not long after its ratification, the U.S. Supreme Court ruled that poll taxes in State elections were unconstitutional because they discriminated against the poor. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) at http://scholar.google.com/scholar_case?case=10289081725638058283&q=harper+v.+virginia+state+board+of+elections&hl=en&as_sdt=2,45&as_vis=1.

Virginia passed a law which gave voters a choice between paying the poll tax “or filing a certificate of residence six months before the election.” Congressional Research Service, “Abolition of the Poll Tax” at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-25.pdf. The U.S. Supreme Court ruled this law conflicted with the new amendment because it created a significant barrier to voting as the only alternative to paying the poll tax. Harman v. Forssenius, 380 U.S. 528 (1965) at http://scholar.google.com/scholar_case?case=1269987767365696368&q=harman+v.+forssenius&hl=en&as_sdt=2,45&as_vis=1.

Additional source: Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books: 2000)

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

June 1, 2012

Essay #75

May 31, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIII, Julia Shaw 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXIII, Constitutional Amendment XXIII, Federalist No. 43, Julia Shaw

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XXIII:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

The 23^rd Amendment

The Twenty-third Amendment grants residents of the District of Columbia the electoral votes to participate in the election for the country’s President and Vice President. From 1800 until 1960, when Congress passed the Twenty-third Amendment, residents of the District of Columbia were not constitutionally able to participate in presidential elections. Residents voted for President for the first time in 1964 after the states ratified the Twenty-third Amendment. To understand the significance of this Amendment, one must first understand the Founders’ purpose in creating District of Columbia.

The Founders designed the District of Columbia to protect the federal government. Since the federal government exercises certain powers over state governments, having the capital city located in one particular state would give that state tremendous influence over the federal government. Allowing one state to control the federal government would violate the principle of federalism. Here’s how James explained it in Federalist No. 43:

The indispensable necessity of complete authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.

The Twenty-third Amendment gives D.C. a voice in selecting the president and vice president through the Electoral College, but clarifies that D.C. is not a state: D.C. receives the number of electoral votes “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.”

The Amendment also empowers Congress to decide the method by which the District selects presidential electors. This is comparable to the power given to state legislatures. Currently, the District of Columbia has a maximum of three electoral votes, regardless of population. Congress chose a winner-take-all system (the same system used in every state but Maine and Nebraska) to choose presidential electors, meaning that the candidate who receives the majority of votes in a popular vote receives all of the District’s electors.

The Twenty-third Amendment underscores the Founders’ wisdom in designing the federal city. The Founders wisely crafted a federal district for the seat of government. They made the capital independent from, and therefore not subservient to, the authority of a particular state.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 31, 2012

Essay #74

May 30, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XXII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXII, James D. Best 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, James D. Best, The Constitution of the United States of America

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment XXII: Reform or Revision?

Until 1940, presidents honored the George Washington precedent of serving for only two terms. In that year Franklin Roosevelt defied tradition and won a third term, then later a fourth term. Roosevelt died in office in 1945. Presidential term limits became a huge issue in the 1946 watershed election, and a new generation swept into office, many of them returning soldiers. The new congress was young, idealistic, and committed to change. One of their first priorities was the XXII Amendment, which was ratified by the states in early 1951. Since then, we have had eleven presidents, but so far only four have been restricted from another term by this amendment.

There have been many proposals to reform or revise the XXII Amendment. Congress has repeatedly submitted bills to repeal the amendment, but none has ever made it out of committee. Some have proposed that the restriction be revised to consecutive terms, and others want a super-majority of both houses to have the ability to override the restriction.

The XXII Amendment ought to be left in place without revision.

The president is often called the most powerful person in the world. To a great extent, that is true. Over the centuries, presidential power has increased enormously, both domestically and internationally. This was not the intent of the delegates to the Constitutional Convention. The president was supposed to be a co-equal partner in a three-branch government focused on the needs of Americans.

The greatest increase in presidential power came from the growth in government. As the national government grew, from around 4 percent of gross domestic product in the 1920s to 25 percent in 2010, presidential power grew exponentially because all but a smidgeon of that money ended up in the executive branch. The bigger the national government grows, the more powerful the executive is as an individual.

In United States v. Curtiss-Wright Export Corp (1936), the Supreme Court ruled that the president has almost unrestricted powers in international affairs. The Court said that this singular authority over foreign affairs is “the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” One of the few exceptions to this exclusive power is Senate approval of treaties.

This ruling by itself did not make the president the most powerful person on the world stage. Three other developments made that happen. The first was that the American free enterprise system built the largest, most robust economy in the world. The second development was the vacuum of power after World War II. The Soviets were dangerous, and their ambitions for empire threatened the world. Someone had to step into the breach. The third development was the devastating power and global reach of modern weaponry.

Both inside and outside the United States, the president is enormously powerful. The Framers of the Constitution feared concentrated power, and they were especially fearful of concentrated power in single person. The Framers would have immediately searched for ways to curtail this power, and term limits would be at the forefront of their consideration. We need an ironclad XXII Amendment to bolster the idea that this power is only on loan for a limited period.

Power corrupts. Let us hope it takes longer than eight years.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 30, 2012

Essay #73

May 29, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment XXII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXII, Michaela Goertzen 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XXII, Constitutional Amendment XXII, Declaration of Independence, Declaration of Independence, Michaela Goertzen

Amendment XXII:

A Terminal Debate

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once…”

Presidential term limits in America are conventional, not controversial. They are an accepted fact of today’s executive cycle – one of the few things in politics that doesn’t provoke divided public comment. Yet, a brief review of executive eligibility reveals that the issue has not gone uncontested.

As I considered the political philosophy behind this amendment, I had to confront the tension between the precedent set by George Washington (he reluctantly accepted a second presidential term, and declined a third) and the Federalist Papers’ appeal for indefinite eligibility:

“Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates – I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after.” (Federalist #72)

The Federalist Papers are pretty much the gold standard in analyzing human motivation/selfish ambition and how it can be expected to play out in political office; so when Alexander Hamilton says that term limits could not be more ill-founded, I am prone to believe him.

He goes on to enumerate a convincing list of the disadvantages of putting an expiration date on a qualified president – namely, that term-limits discourage the accountability of the man and the stability of the office. Furthermore, he argues that it is counterintuitive to drain the collected wisdom and experience from the office of the president, while that president remains the popular choice.

But for all of Hamilton’s logic, when George Washington – the first practitioner of American political principle – voluntarily retired his post after eight years, I am inclined to respect that, as well. There was nothing to withhold him, but Mt. Vernon and principle. Given Washington’s outstanding record of public service, I am more inclined to believe it was principle.

One of the most central principles of our republic – underscored in the Declaration of Independence – was the rejection of tyranny. Washington demonstrated that a self-effacing executive was just as important as separation of power and an educated public to guarding against it.

FDR was the only president to breach the unspoken, two-term rule by winning four consecutive elections. A few years after, the 22^nd amendment was ratified to make it a written rule. The occasional congressman will try to repeal it, but so far their legislation has never made it out of committee. Subsequently, both Presidents Reagan and Clinton could have won third terms, but, per the amendment, none have thrice been president. Still, the philosophy of the Federalists has not undone the precedent of the founder.

Michaela Goertzen is a speechwriter at the office of Alaska Lt. Governor Mead Treadwell

May 29, 2012

Essay #72

May 28, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XXI, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, The Honorable Frank M. Reilly 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Constitutional Amendment XXI, Constitutional Amendment XXI, Frank M. Reilly

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P

Amendment XXI, Section 2:

Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

The 21^st Amendment is the only amendment to the Constitution which repeals another amendment. The amendment which it repealed, the 18^th, became effective in 1920 and it prohibited

“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”

and its territories. The passage of the 18^th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition. The Prohibition era lasted a little over 13 years until the states ratified the 21^st Amendment in 1933.

The framers of the 18^th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place. President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30^th president, called Prohibition the “greatest social experiment of modern times.” Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that

“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”

Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law. The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition. “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars. It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals. Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld. Bootlegging gangsters, such as Al Capone, had their heyday. Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition. For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.” Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side. People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.” While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture: NASCAR races and the cocktail. In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis. These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it. These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south. Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of: Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression. In 1932, Congress passed a resolution to send the 21^st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment. The law began to fracture even before the amendment became effective. In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content). After the 21^st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 28, 2012

Essay #71

May 28, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXI, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXI, Lawrence J. Spiwak 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment XXI, Constitutional Amendment XXI, Lawrence J. Spiwak, The Constitution of the United States of America

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Amendment XXI, Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition: Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21^st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18^th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes. As a result, Prohibition was repealed in 1933 by the 21^st Amendment. (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21^st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong. Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder: let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts? Probably. As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law. Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution? Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society. What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.” Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example. As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms. Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.” In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom? Of course not. In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty. If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center or its staff.

May 25, 2012

Essay #70

May 24, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XX, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

May 24, 2012

Essay #69

May 23, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XX, Section 3

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, David J. Bobb, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, Constitutional Amendment XXV, Constitutional Amendment XXV, David J. Bobb PhD, The Constitution of the United States of America

Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics

http://vimeo.com/42675773

Amendment XX, Section 3:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

On January 6, 2001, Vice President Al Gore presided over his own political funeral. On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House. Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.

Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes. That’s the main scenario the third section of the Twentieth Amendment is designed to address.

Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered. Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.

As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.” The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.

What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December? “What is a faithful elector to do here?” Amar queries. The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.

Push the dismal early death scenario even earlier, and the problems mount. What if a candidate perishes just before the November election? Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?

The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required. In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.

Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment. As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.

David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.

May 23, 2012

Essay #68

May 22, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XX, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, Marc S. Lampkin 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, Marc S. Lampkin, The Articles of Confederation, The Constitution of the United States of America

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XX, Section 2:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3^rd day of January, unless they shall by law appoint a different day.

The XXth Amendment is fairly straightforward. Often referred to as the “Lame Duck Amendment” the XXth Amendment’s purpose is to update gaps in the original draft of the Constitution setting the time and dates for the Congress and the President — in particular the amendment changed when terms of elected federal officials begin and end in order to line their terms beginning and ending with the election process.

The amendment’s purpose is to limit the chances that when Congress meets the legislators casting the votes were duly elected, rather than retirees or those who had failed to win re-election.

The primary sponsor of the XXth Amendment was Senator George W. Norris of Nebraska. Senator Norris believed it to be his greatest legislative achievement. It was passed on March 2, 1932.

When the Constitution was originally ratified, the outgoing Congress under the Articles of Confederation had set March 4, 1789 as the date for which the new federal government would begin. On an ongoing basis the Constitution provided that the Congressional session would begin on the first Monday in December.

In addition, the second session would begin a month after the election and continue until March 3. This had the effect of allowing Members to serve during the second session even if they had retired, were defeated, or simply had not chosen to run for re-election.

Initially the schedule made sense as it accommodated the travel and weather difficulties that faced the new nation. At the time of the founding, roads were bad and travel long distances was often difficult. Having four months from Election Day to the start of the session seemed prudent. However, over time, the improvement in road building and the use of trains and boats made such a delay unnecessary.

In addition, the time delay had other pernicious effects. When President Roosevelt was first elected he was required to wait four months before he could begin any steps to respond to the Great Depression. Many across the nation believed that the provisions in the Constitution setting the dates for a 19^th century world were particularly unhelpful in the 20^th century.

This led to the push for passage of the XXth Amendment.

In addition to limiting “lame-ducks” from setting policy at the national level, the XXth Amendment also means that there was a shorter period between the election and the convening of the new Congress and that the outgoing President would have time to consider the outgoing Congress’ legislation.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 22, 2012

Essay #67

May 21, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XX, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, The Honorable Frank M. Reilly 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XII, Constitutional Amendment XXII, Frank M. Reilly, Marbury v. Madison by John Marshall, The Constitution of the United States of America

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

http://vimeo.com/42528708

Amendment XX, Section 1:

The terms of the President and Vice President shall end at noon on the 20^th day of January, and the terms of Senators and Representatives at noon on the 3^d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Terms of the President and Congress

Prior to the 20^th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress. The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders. Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date. As a result, officeholders remained in office after the November elections for about four months until the 4^th of March of the following year. During the 18^th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18^th century and into the 20^th century, the lack of efficient and speedy transportation made the election process necessarily slow. Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet. It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President. It could take as long for members of Congress and the elected executives to then travel to Washington to take office. Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office. For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election. Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20^th Amendment. After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32^nd president, Congress passed the resolution proposing the amendment on March 2, 1932. The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set. The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections. The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20^th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent ̎lame duck ̎ sessions of Congress. However, the 20^th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment. Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1^st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980. In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session. Some argued that these actions violated the spirit, if not the letter, of the 20^th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20^th Amendment, and the 12^th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president. During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20^th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66

May 20, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIX

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XvIX, Julia Shaw 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Julia Shaw, The Constitution of the United States of America

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XIX:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

The Nineteenth Amendment

The Nineteenth Amendment prohibits the federal government or state governments from denying individuals the right to vote on the basis of sex. It also grants Congress the power to impose this rule through legislation.

The Constitution introduced in 1787 was a gender-neutral document: It actually did not prohibit women from voting. The Framers gave individual states the power to determine who could participate in elections. All states granted men suffrage. In 1797, though, New Jersey made history by recognizing the right of women to vote. Never before in all of recorded history had women exercised the right to vote.

Because the Constitution did not prohibit women from voting, no constitutional amendment was technically necessary for women to exercise suffrage. This is evident in the variety of strategies that the women’s suffrage movement used to secure the right to vote.

The first strategy involved the interpretation of the Fourteenth Amendment. Section 2 of that amendment prohibited denying “male inhabitants” the right to vote, suggesting that the Constitution granted only men the right to vote. Proponents of women’s suffrage argued that the Citizenship Clause and the Privileges or Immunities Clause of the Fourteenth Amendment prevented states from denying women the right to vote in federal elections. In Minor v. Happersett (1874), however, the Supreme Court dismissed this argument.

The second strategy focused on convincing individual states to remove voting qualifications related to sex. These efforts were eventually quite successful. Wyoming entered the Union in 1890 with women’s suffrage, becoming the first state since New Jersey to allow women to participate in elections on an equal basis with men. By the time the Nineteenth Amendment was ratified, 30 states already granted voting rights to women for members of the House, members of the Senate, or the President.

The third and final strategy involved amending the Constitution to prevent states from imposing sex-based voting qualifications. The first of such amendments was proposed in 1869. In 1897, a California Senator proposed what would become the Nineteenth Amendment. The Amendment was ratified in 1920 with essentially the same wording as the Fifteenth Amendment.

There has been little litigation over the Nineteenth Amendment. The Supreme Court addressed the amendment directly in Breedlove v. Suttles (1937), a case in which Georgia law exempted women from a tax but required men to pay it upon registering to vote. The Court ruled that the amendment protected the right of both men and women to vote but did not limit a state’s authority to tax voters.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 18, 2012

Essay #65

May 18, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XVIII, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVIII, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Federalist No. 45, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Amendment XVIII, Section 2

The Prohibition amendment only lasted in force for fourteen years from 1920 to 1933 (though it was ratified in 1919 by its terms it did not become effective until one year later) remains the only amendment to have been repealed in its entirety. The substance of the amendment has already been addressed so is there any more to learn from this footnote in constitutional history?

There is one important lesson we can learn from the amendment’s enforcement section about federalism and the respective roles of the national and state governments

Section two of the 18^th Amendment provides: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” This language is unique among the constitutional amendments. Beginning with the Civil War Amendments, drafters often began to include some kind of enforcement language in amendments, typically specifying that Congress could pass legislation to ensure the amendment’s intent was carried out. The 18^th Amendment provided for “concurrent” jurisdiction between the national government and the States.

The concept of jurisdiction is central to our constitutional system. Because we have a federal system, with authority and responsibility divided between two different entities—the national government and the States—and because ours is a government of enumerated powers in which the Constitution gives to the national government authority to do only what that document specifies it may do, a grant of authority to carry out a new role must be specified in an amendment to the Constitution unless the amendment’s effect is self-executing.

The significance of the enforcement provision of the 18^th Amendment is first that is specifies the branch of the national government responsible for enforcement is Congress and that it is to carry out this responsibility through legislation. Even this Progressive Era enactment respected the separate roles of branches of the national government. Consistent with every other aspect of the Constitution, this amendment was to be made effective not by judicial opinion or administrative branch lawmaking. So, the 18^th Amendment reminds us that under the United States Constitution lawmaking is the prerogative of the legislative branch.

Second, the amendment specified that Congress will be exercising power concurrently with the States. Since the States had already been making alcohol policy previous to the 18^th Amendment, it is clear that the amendment’s proponents recognized their inherent power to do so and only amended the Constitution so as to provide a new power of Congress; a power that (a) it did not have before and (b) it could not have unless specifically provided (enumerated) by an addition to the Constitution.

Thus, though the amendment is no longer enforceable it still provides a helpful reminder of the way in which our system is intended to function. While the powers of the national government and to be “few and defined” (Federalist 45), the states are free to do whatever they are not specifically prohibited from doing by the Constitution or the reserved powers of the people themselves.

Even the most cursory glance at current political controversies would remind us of exactly how important this reminder is.

May 17, 2012

Essay #64

May 17, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Guest Essayist: Gordon Lloyd, Ph.D., Professor of Public Policy at Pepperdine University

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section One of the 18^th Amendment contains only forty-four words. These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen. In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages. But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding. Language matters and the thoughts behind the words also matter. In addition, sometimes, what isn’t said is as important as what is said.

We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.

This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time. The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920. Why designate a one-year delay? The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.

Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector. The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.

True, the 14^th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do. Specifically, no state could deny the civil rights and voting rights of recently freed African Americans. And the 13^th Amendment also constitutionally limited what Americans could own: it declared that no American could own another person.

A second feature to Section One of the 18^th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages. Not having a drink is made the moral equivalent of not owning a slave?

The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War. The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century. Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917. Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.

The fascinating interrelationship between the 16^th, 17^th, 18^th, and 19^th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay. But we do need to ask: What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.

But, once again, language is important. The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America. But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life. This is the third feature that is important in Section One.

Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned. What is found there instead is the phrase “intoxicating liquors.” This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?” What about “sacramental wine,” and “medicinal alcohol?” Shall they be exempt? After all, the prohibition is “for beverage purposes.” Nor is anything said about eating purposes. This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.

Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

May 16, 2012

Essay #63

May 16, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XVII: Reform or Revision?

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, Ralph A. Rossum, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Ralph A. Rossum PhD

Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913. Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism. The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money. While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

May 15, 2012

Essay #62

May 14, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Amendment XVII: Direct Election of Senators

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, John S. Baker, Jr., Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03, Constitutional Amendment XVII, Constitutional Amendment XVII, John S. Baker Jr. PhD, The Constitution of the United States of America

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII:

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments. As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state. Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body. As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government. As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures. Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures. Over time, the number of senators elected de facto by popular election increased. Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators. As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement. This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government. The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states. Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states. Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally. Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states. What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate. Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

May 13, 2012/11 Comments/by Janine Turner and Cathy Gillespie

Amendment XVI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVI, James D. Best 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVI, Constitutional Amendment XVI, Federalist No. 10, James D. Best

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Reform or Revision?

The infamous XVI Amendment gave the national government the authority to tax income … from whatever source derived. Income tax has always been divisive. In the early twentieth century, the amendment was promoted with the phrase “soak the rich,” and the level of progressiveness in the tax codes has been contentious ever since. Many feel that it is only fair that those with more money should pay the lion’s share, while others think fairness means that every American should contribute at least something to the national coffers.

In Federalist 10, James Madison wrote, “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” For the hundred years that the XVI Amendment has been in place, exact impartiality has been a rarity.

There are many odious aspects of our current income tax. T. Coleman Andrews, commissioner of the IRS under Eisenhower said, “It opened up our homes, our papers and our effects to the prying eyes of government agents.” An IRS appeal is through tax courts without juries, and if a taxpayer loses, the individual must pay before suing the government. Congress relishes playing three-card Monte with the tax code by deftly moving taxes up, down and sideways, while slipping loopholes to favored constituents. Tax policy seldom has any relationship to economic growth, keeping markets free, or preserving personal liberty. For those of us who are recordkeeping impaired, the laws are a nightmare and a huge waste of valuable time. And last, we work and struggle to make ends meet, and instead of getting thanks for all the money we send to Washington, there’s always some politician trying to make us feel guilty because we didn’t send more.

Should the XVI Amendment be reformed or revised? Probably. Revision of the XVI Amendment could potentially fix many issues about the application of income tax, but it would not resolve our growing debt issues. The federal government spends about a quarter of our national production, much of it financed with debt that has climbed to unfathomable levels. Reforming or revising the XVI Amendment might squeeze the revenue side, but it won’t guarantee spending restraint. The government has no restrictions on borrowing or printing money.

Congress has shown that it won’t fix the tax code or spending. As we’ve witnessed since the Tax Reform Act of 1986, tax cuts and simplification only buy a short recess from offensive rates and burdensome regulations.

Without an ironclad restraint, government will continue to tax and spend recklessly. If permanent change is desired, it will require amending the Constitution. The real question is what kind of constitutional reform is needed. It’s possible we could have a public debate and resolve the fairness issue once and for all. For example, a flat tax would be good for the individual and boost economic growth, but most Americans have come to believe progressive rates equate to fairness. Another proposed reform would repeal the XVI Amendment in favor of a national sales tax—sometimes called the fair tax. Critics have pointed out that these reforms have their own problems, but even if they present an improvement, they seem unlikely to get out of Congress or be ratified by thirty-eight state legislatures.

If the goal is to make income tax fairer or trade it for a different tax, then a revision of the XVI Amendment could do the trick. However, if the goal is to collapse the deficit—and eventually the debt—then reform needs to address both the income and spending sides. This means that revision of the XVI Amendment should probably be done in conjunction with a Balanced Budget Amendment. A consolidated reform approach would provide the best chance of ratification and fixing our country’s finances. Alas, that would take leadership. Where is Alexander Hamilton when you need him?

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 11, 2012

Essay #60

May 11, 2012/5 Comments/by Janine Turner and Cathy Gillespie

Amendment XVI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVI, Marc S. Lampkin 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVI, Constitutional Amendment XVI, Marc S. Lampkin, The Constitution of the United States of America

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Power to Tax Incomes

The 16^th Amendment is an excellent example of why it is important to act judiciously and cautiously when it comes to amending the Constitution. Most Americans recall that when our nation was founded, the framers did not agree to allow the federal government to tax the income of its citizenry. In fact they specifically included a proviso that provided that neither income taxes nor any other type of direct taxes could be collected by the federal government. Instead of collecting taxes in that manner, up until passage of the 16^th Amendment the federal government was funded primarily by indirect taxes – duties and sales taxes.

One of the reasons that the founders wanted to limit the type of taxing authority of the federal government was that it was a way to ensure that the individual citizen was protected from an overbearing federal authority. The consensus was that if Congress had the power to assess taxes directly on individuals they could single out certain individuals or all individuals for excessive taxation and there would be no upper limit on the amount assessed.

Sales taxes or import duties were indirect taxes that while affecting the livelihoods of individuals could be more readily avoided if individuals felt they were unfair or unwise. Nevertheless, a direct tax combined with Congress’ power to control the military meant that taxation power could reach any individual for any reason and it was for that reason viewed as a threat on liberty.

Although this understanding waned after the first 50 years or so of the Constitution’s ratification, the Supreme Court acted vigilantly to ensure that federal lawmakers accepted the restraint on Congress’ taxing power. However, there was at least one period when the Court relented – the Civil War. The Supreme Court upheld the Revenue Act of 1861. This law assessed a 3% flat tax on almost all income.

Nevertheless, subsequently the Court returned to form and refused to allow Congress to continue income taxes or other direct taxes.

Around the turn of the century far more conversation among policy makers focused on ways to increase revenues for the treasury.

Fairly quickly a rift was revealed. More Democrats than Republicans supported the idea of an income tax. Moreover, when the measures were introduced GOP Senators would delay or filibuster action on the measure. This practice over about a decade led to some of the first campaign themes that one party – the Republicans – was “the party of the rich.”

By the time President Taft came to office, due to the failure of the GOP to explain to the public why it thought a federal income tax as a concept was a bad idea, most Americans generally held favorable views about the income tax and were suspicious that the Republicans were solely motivated by a desire to protect wealthy individuals from taxation.

Additionally due to the shellacking the GOP took in the federal elections of 1892, it was felt by party leaders that the GOP’s position advocating steady increases in tariff rates on household goods was a non-starter. It was in this environment that President Taft began publicly advocating alternatives to tariff funding for the federal government including advocating an income tax.

Some of his critics in the Democratic Party thought they saw an opening to once again push the income tax but the same pattern of the last decade continued. A bill would be introduced and then quietly killed in the Senate. Only difference was that now the bills being introduced were by Republicans and but since nothing changed in terms of enactment the Republicans were given a pass in the political arena.

In April 1909, Texas Senator Joseph W. Bailey, a conservative Democrat who also opposed income taxes, came up with a plan that would ultimately upset the apple cart. He decided to embarrass the Republicans by trying to get them to publicly admit that they actually opposed income tax bills.

The progressives within the GOP including Teddy Roosevelt, Hiram Johnson, and Robert La Follette waxed enthusiastically on behalf of the bill. This placed President Taft in an awkward position. He wanted to be seen as being for an income tax, yet he wasn’t ready to actually enact one.

Perhaps his plan was too clever. In any event, the strategy that he came up with to once again kill the measure would ultimately fail. Recognizing that the same plan of having GOP members block it wouldn’t work with so many “progressive Republicans” supporting the measure, the new strategy was predicated on making the income tax measure a Constitutional amendment. Taft and his team counted on conservative state legislatures refusing to go along with the idea and letting it stall out in the hinterlands.

As part of the plan, President Taft formally requested the amendment and the House and Senate duly acted. The House vote was 318-14 and the Senate voted unanimously. However, the states didn’t balk as anticipated. In February of 1913 it was ratified just 4 years after Congress has submitted it to the states.

Today income taxes are the principle source of income for the federal government.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 10, 2012

Essay #59

May 10, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment XV, Section Two

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XV, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Joerg W. Knipprath

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

Amendment XV:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 9, 2012

Essay #58

May 8, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment XV

Analyzing the Amendments in 90 Days 2012 Project, Colin Hanna, Constitution Amendment XV 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Colin Hanna, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Declaration of Independence, Declaration of Independence, The Constitution of the United States of America

Guest Essayist: Colin Hanna, President, Let Freedom Ring

Amendment XV:

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

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

The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26^th 1869, and ratified by the States on February 3^rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprivedof the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.

It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19^th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.

Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.

The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.

Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.

May 8, 2012

Essay #57

May 7, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV – The 14th Amendment’s Impact on the Constitution

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Robert P. George 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Dred Scott v. Sanford by Justice Roger Taney, Robert P. George

Guest Essayist: Robert P. George, McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions, Princeton University

Amendment XIV:

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

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Some Key Aims of the 14^th Amendment

With the defeat and collapse of the Confederacy, President Lincoln and other Republican leaders began designing and putting into place policies to heal the bitter divisions of civil war and to make good on the promises of freedom and justice on which the nation—“conceived in liberty and dedicated to the proposition that all men are created equal”—was founded. These policies centrally included amendments to the Constitution to abolish slavery and deal with the all-too-predictable reality of intimidation and discrimination against the newly freed slaves and their descendants. The assassination of the President did not shut down these efforts. In 1866, slavery and involuntary servitude were abolished by adding a thirteenth amendment. Then, in 1868, a fourteenth and fifteenth were added. This brief essay will focus on some (though not all) of the principal aims of the fourteenth.

The first sentence of the Amendment overturns a key provision of the notorious 1857 case of Dred Scott v. Sandford—a Supreme Court decision that not only purported to invalidate congressional authority to restrict slavery in U.S. territories, but also held that blacks (even free blacks) could not be citizens of the United States. The sentence says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” So a former slave who was born, let us suppose, in Virginia and resides there, or in any other state, is a citizen of the United States and of the Commonwealth of Virginia (or whatever state he happens to reside in).

The second sentence of the Amendment does the work of protecting the former slaves and their descendants from various forms of legally sanctioned discrimination and mistreatment. It says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In exercising power (especially that of a legislative nature), a worry was that state officials would attempt to deny the former slaves and their progeny the privileges and immunities they possessed by virtue of their American citizenship. Their right to travel between states, for example, might be unfairly restricted. The privileges and immunities provision would stand as a bulwark against such abuses.

In exercising power of a judicial nature, the framers and ratifiers of the 14^th Amendment worried that state officials, such as judges, would mistreat the former slaves. And so the due process provision was included to make clear that no person could be executed (deprived of life), jailed or imprisoned (deprived of liberty), or subjected to a forfeiture of goods or a monetary fine (deprived of property) without a fair and impartial hearing before a duly constituted tribunal in which proper procedures (including such things as a presumption of innocence, a right to examine or cross-examine witnesses, and a right to introduce exculpatory evidence) were observed.

In exercising yet other forms of power (especially executive power), the concern was that state officials would abuse their authority by failing to afford to blacks the protections of law given to whites. Even perfectly fair laws, if applied differently based on race, will result in substantive unfairness. Having a law against murder that on its face protects everyone is not worth much to a victim or potential victim if officials charged with the execution of the laws can with impunity apply them discriminatorily. Therefore, the Republicans included a specific provision prohibiting states from denying to any person within their jurisdiction the equal protection of the laws.

Notice that nowhere in these two sentences (that together constitute Section One of the 14^th Amendment) does the word “blacks” (or “negroes,” or the words “persons of African descent”) appear. Nor is the word “race” or any synonym for the word used. Rather, the terms of these provisions are general. The privileges and immunities provision refers to “citizens,” without specifying race, color, ethnicity, or anything of the type. The due process and equal protection guarantees refer to “persons,” again without specifying race, etc. And so these provisions protect everyone against certain abuses by states—not just blacks, though it was, to be sure, a concern to protect the former slaves and their descendants that provided the motivation for the 14^th Amendment.

How would the guarantees of Section One of the 14^th Amendment be enforced against states that attempted to strip persons of their privileges and immunities as citizens, or deprive them of life, liberty, or property without due process of law, or deny them the equal protection of the laws? For the answer, we must skip down to Section Five of the Amendment, which specifically addresses the enforcement question. The first thing to note, is that neither in this Section nor anywhere else in the Amendment is it contemplated that the courts will be the enforcers of its guarantees. The second thing to notice is that enforcement power is expressly granted to the Congress, to wit, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” And so the 14^th Amendment adds a new delegated power to those already possessed by the people’s representatives in the national legislature: the power to enact laws protecting the privileges and immunities of citizens and the rights of all persons within the jurisdiction of states to due process of law and the equal protection of the laws.

Does this mean that the 14^th Amendment radically alters the constitutional system under which the national government is a government of delegated and enumerated (and, therefore, limited) powers and the states are governments of general jurisdiction possessing plenary authority (“police powers”) to protect public health, safety, and morals, and advance the common good? No, that system of federalism and “dual sovereignty” remains in place. But in certain key respects the Amendment adds to the authority of the national government and restricts the power of states. So it is an error to suppose that the 14^th Amendment changes everything; and it is no less an error to suppose that it changes nothing.

Robert P. George is McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions at Princeton University

May 6, 2012/5 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Amendment XIV:

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In his Notes on the Constitutional Convention of 1787, James Madison observed “the real difference of interest” between states “lay, not between large & small but between N. & Southn.” “The Institution of slavery & its consequences,” Madison maintained, “formed the line of discrimination.” At several points, the original Constitution struck a compromise between these competing interests. The most obvious: slaves would be counted as three-fifths of a person for the purposes of representation (Art. 1§2), Congress would not proscribe the African slave trade until 1808 (Art. 1§9), and runaway slaves would be returned to the state from which they fled (Art. 4§2).

Yet even in these provisions, the word “slavery” never appeared. As Supreme Court Justice John McLean noted, one reason the Constitution crafted in Philadelphia did not mention slavery directly is because “James Madison, that good and great man, was solicitous to guard the language of the instrument.” Indeed, Madison recorded in his notes on the convention that “it would be wrong to admit in the Constitution the idea that there could be property in men” because men, by nature, were not consumable merchandise. And so in “the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor,” McLean maintained, “slaves were referred to as persons, and in no other respect are they considered in the Constitution.”

McLean’s comments came in a spirited dissenting opinion in Dred Scott v. Sandford (1857), a case in which the Chief Justice of the Supreme Court claimed, among other things, that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” and that African slaves and their descendents (including free blacks) were not and could never become citizens of the United States. The Dred Scott decision, in turn, set off a firestorm of controversy and was among the precipitating causes of the Civil War– a conflict that would claim some six hundred thousand American lives.

Although the war wrought enormous damage to the southern infrastructure and exacted a heavy price in both blood and treasure, one of the enduring legacies of the conflict was the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution during the first few years after Appomattox. Collectively known as the Reconstruction or Civil War Amendments, these provisions ended slavery, granted birth citizenship, protected the privileges and immunities of citizens, prohibited states from denying anyone the equal protection of the laws or the due process of law, and prohibited racial discrimination in state and national voting laws.

Section 1 of the Fourteenth Amendment, in particular, was written with the Dred Scott decision in mind. “All persons born or naturalized in the United States,” the Amendment declares, “. . . are citizens of the United States and the state wherein they reside.” No longer is there room for debate about whether the descendants of slaves are full citizens of the American republic. The Amendment also introduced into the Constitution several restrictions on state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Initially, there was some debate about how radical a transformation the Fourteenth Amendment worked in the American federal system. According to some members of the Thirty-Ninth Congress, the answer (at least theoretically) was “not much.” As Iowa Congressman James Wilson contended, the amendment established “no new right” and declared “no new principle.” Rather, it was in line with the general principles that had always undergirded American government. In this, Wilson echoed the sentiment of the runaway-slave-turned-abolitionist, Frederick Douglass, who argued that the “Federal Government was never, in its essence, anything but an anti-slavery government . . . If in its origin slavery had any relation to the government, it was only as the scaffolding for the magnificent structure, to be removed as soon as the building was completed.”

The Fourteenth Amendment, which held out the promise of meaningful freedom to newly freed slaves, was also interpreted as something emanating from the principles of the founding. “Let it be remembered,” the Fourteenth Amendment’s principal architect John Bingham declared, quoting an address by the Continental Congress in 1783, “that the rights for which America has contended are the rights of human nature.” To borrow a metaphor made popular by Abraham Lincoln, the end of slavery and the protection of equal civil rights was the working out of an aspiration already present in the American founding, an aspiration summarized by the core political teaching in the Declaration of Independence that “all men are created equal and endowed by their Creator with certain inalienable rights.”

And yet the story of Reconstruction begins, rather than ends, with the Civil War Amendments. Although the post-war Constitution guaranteed equal protection to all persons and an equality of civil rights among citizens, the reality on the ground has often been much different. From the history of Jim Crow to the twentieth century civil rights movement to the debates about fundamental rights today, the tension between the principles of the revolution and the realities of American constitutional politics is one of the enduring features of American government.

Justin Dyer teaches political science at the University of Missouri. He is the author of Natural Law and the Antislavery Constitutional Tradition and the editor of American Soul: The Contested Legacy of the Declaration of Independence.

May 7, 2012

Essay #56

May 6, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV – The 14th Amendment’s Impact on the Constitution

Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

Amendment XIV:

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments. Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence. The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.” The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery. While the 13^th Amendment prohibits de jure slavery and the 15^th Amendment secures voting rights, the 14^th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action. No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war. Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen. Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution. The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples. This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government). The 14^th Amendment fundamentally changed this.

Section 1 of the 14^th Amendment reads:

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship. The privileges and immunities clause placed alien and resident persons in a state on equal footing. The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state. Additionally section 2 of the 14^th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14^th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees. That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14^th Amendment has changed over time and with it the direction of federal influence over state affairs. Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937). Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups. Through 14^th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14^th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions. For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives. And there is Roe v. Wade (1973), a 14^th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states. These last two cases raise an important question. Was the 14^th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

May 6, 2012

Essay #56

May 6, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV, Section 5

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Declaration of Independence, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41556485

Amendment XIV, Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Section 5 of the Fourteenth Amendment seems unprepossessing, but it has become the focus of some of the most important constitutional disputes in recent decades. That section gives Congress the power to enforce the Fourteenth Amendment “by appropriate legislation.” But what kind of legislation is “appropriate”?

It seems obvious that these words were added to allow Congress to pass civil rights laws; indeed, the Amendment was partly written in response to President Andrew Johnson’s assertion that the Civil Rights Act of 1866 was unconstitutional. By allowing Congress to pass legislation to protect the “privileges or immunities” of all Americans, along with their rights to due process of law and the equal protection of the laws, the Fourteenth Amendment’s authors hoped that the new guarantees would give real substance to the nation’s “new birth of freedom.” The 1866 Civil Rights Act was followed by others in 1871 and 1875. But the latter Act—which prohibited racial discrimination in “public accommodations” like theaters and restaurants—was held unconstitutional in an 1883 decision called the Civil Rights Cases. The Supreme Court ruled that the Amendment only allowed Congress to prohibit state governments from racial bias, but that Congress could not forbid private citizens from discriminating. The only dissenter in that decision was Justice John Marshall Harlan, who years later would also write the only dissent in Plessy v. Ferguson. He argued that the Civil Rights Acts should still be held constitutional under the Thirteenth Amendment, because racial discrimination was a component of the “slavery” that that Amendment prohibited.

After the Civil Rights Cases, Congress began relying on another constitutional provision for power to prohibit discrimination: the Commerce Clause. The Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and other laws bar businesses from discriminating or impose other restrictions on them do so only on the theory that their activities have some effect on interstate commerce. Although in the 1976 case of Runyon v. McCrary, the Court seemed to agree with Justice Harlan that the Thirteenth Amendment allowed Congress to ban private racial discrimination, Congress and the courts have still continued to rely on the Commerce Clause.

The difference between using Section Five of the Fourteenth Amendment and using the Commerce Clause became especially important in the wake of a 1990 Supreme Court decision involving religious freedom—a decision that provoked a showdown between Congress and the Court. That case, Employment Division v. Smith, was interpreted by some religious conservatives as watering down the First Amendment’s protections for religious liberty. Congress responded to those by passing the Religious Freedom Restoration Act, which tried to instruct courts on how to address First Amendment Claims. Congress said it was using the powers given to it by Section Five, because the law was designed to provide greater protection for federal civil rights. But the Supreme Court disagreed in a follow-up case called City of Boerne v. Flores. It ruled that Section Five does not give Congress limitless power to protect rights in whatever way it pleases; in order to qualify as “appropriate legislation,” a law passed under this Section must be “congruent and proportional” to the harms that Congress wants to prevent. Congress cannot simply create new “rights” under this provision, or alter the meaning of existing rights as understood in judicial precedents. It can only remedy specific wrongs to actual, existing rights.

This “congruence and proportionality” rule for deciding what laws are “appropriate” under the Fourteenth Amendment has remained controversial ever since. On one hand, it makes sense, because the Amendment was meant to give Congress power to enforce the constitutional guarantees that states had regularly ignored before the Civil War, not to dictate what those rights mean, let alone to give federal lawmakers limitless power to implement whatever programs they see fit. On the other hand, the Constitution contains no explicit “congruence and proportionality” requirement, and allowing judges to decide what laws are “congruent and proportional” seems to weaken Congress’s ability to check or balance the courts. City of Boerne is a prime example: Congress perceived the Smith case as a threat to constitutional values, and enacted what it hoped would be a remedy—but the Court struck down that law, also, thus creating a constitutional trump card. When Congress responded to that decision with yet another law expanding protection for religious freedom, it did so under a different constitutional provision entirely.

The conflict between the Commerce Clause and Section Five has also been at the center of recent cases involving the principle of “sovereign immunity”—the long-standing legal privilege under which states cannot be sued without their consent. The Supreme Court has held that Congress cannot simply eliminate this privilege, except under Section Five of the Fourteenth Amendment, if doing so meets the “congruent and proportional” test. Thus in Nevada v. Hibbs (2003), the Court ruled that Congress could nullify the state’s legal immunity in order to enforce federal laws that were “narrowly targeted” against sex discrimination by employers. The law in question there was the Family and Medical Leave Act of 1993, which requires employers—including state governments—to give employees time off to care for sick family members. But the same law requires employers to give workers time off for their own medical needs. When a Maryland state employee was denied leave to care for his own medical condition, he sued the state, which tried to have the case thrown out on sovereign immunity grounds. The case went to the Supreme Court, which ruled against the employee last month. The self-care provisions of the Act, wrote Justice Anthony Kennedy, were not the same kind of civil rights protections that were at issue in the Hibbs case. That meant that “abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy.”

Decisions like these show how the constitutional tensions that led to the Civil War live on. In the wake of an awful war caused in part by the states’ resistance to federal authority, the Fourteenth Amendment’s authors wanted to give Congress power to enforce the civil rights of all Americans. But they also preserved the autonomy of state governments, because they understood that a decentralized federal system can be essential to protecting individual freedom. Today, courts and Congress struggle to find an acceptable balance between different constitutional clauses and between different conceptions of the role of government in safeguarding civil rights.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Friday, May 4, 2012

Essay # 55

May 4, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, The Constitution of the United States of America, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41471364

Amendment XIV, Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The fourth section of the Fourteenth Amendment is rather obscure, or was until recently. It declares that “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” In a 1935 case, Perry v. United States, the Supreme Court held that the do-not-question provision applies to all federal debts, and bars the federal government from repudiating debts.

Barring the repayment of Confederate debt was not only a blow to southern rebels, but to their supporters worldwide. The Civil War was vastly expensive, and raised the national debt to over a billion dollars, and its financial consequences reverberated for decades afterwards. The victorious Union was especially bitter about international support for the Confederacy; in one instance, that anger nearly led to war with Britain, which refused to pay U.S. claims for damages inflicted by an English-built Confederate warship called the CSS Alabama. That dispute was only resolved in 1871 by a treaty.

In the years since, this section has rarely given rise to much debate—until the summer of 2011, when Congress began debating the Obama Administration’s request to extend the nation’s “debt ceiling.” Federal law requires Congress to authorize incurring more debt to pay for federal programs, and by last summer, when the national debt stood at more than $14 trillion, Republicans in Congress resisted allowing more red ink. They demanded concessions from the White House, and refused to agree to the tax increases demanded by the President. In mid-July, as the negotiations grew strained, some of the President’s supporters argued that Congressional refusal to allow further debt would violate the Fourteenth Amendment. South Carolina Congressman James Clyburn urged Obama to invoke Section Four and raise the debt ceiling by executive order, and Yale Law Professor Jack Balkin, Treasury Secretary Timothy Geithner, and even former President Bill Clinton (who, like Obama, was once a law professor) agreed. They argued that failing to raise the debt limit would increase the risk of a national default, which would amount to an unconstitutional “questioning” of the debt.

But Harvard Law School professor Laurence Tribe disagreed. In an article in the New York Times, Tribe explained that the Amendment does not bar Congress from making financial choices that might increase the risk of default. And even if it did, other constitutional provisions give Congress—not the President—the responsibility for borrowing money. Worse still, the government would probably lose more than it would gain from unilateral presidential action, because investors would then fear that the Administration might take other unprecedented actions undermining their investments. To his credit, President Obama showed little interest in invoking the Fourteenth Amendment, and within a month, Republicans and Democrats had reached a compromise.

Still, the debt ceiling debate revealed an important point about the Constitution. Some of its provisions seem to hibernate for years, little studied by law students, and rarely the subject of lawsuits, until a crisis draws public attention back to clauses that were written in anticipation of future problems. The Constitution is a promise, not only about how the government will operate on a daily basis, but about how we will act when the unexpected occurs. It must, as Justice George Sutherland once said, be obeyed as much when it pinches as when it comforts.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Thursday, May 3, 2012

Essay # 54

May 3, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV, Section 3

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41401565

Amendment XIV, Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

America has never faced another crisis, like the Civil War. Art historian Robert Hughes has called it “America’s Iliad,” and that is an apt term, because the War was not only a bloody struggle for the nation’s future; it was also the emblematic crisis of the American soul. All of the cross-currents and crises of our Constitution can be found to intersect there, or to be prophesied in its still resounding clashes. This is true not only of such legal controversies as whether a state has the power to secede, or whether the president can suspend the writ of habeas corpus in an emergency, but also of much more personal issues as the sense of betrayal and recrimination that arose from a struggle of brother with brother, of father with son. Section 3 of the Fourteenth Amendment reflects this personal element of the War. It bars any person from serving in state or federal office who, having taken an oath to serve as a state or federal officer, had broken that oath to serve the Confederacy. The Amendment gives Congress power to remove the disability by a two-thirds vote.

This provision was not just aimed at Confederate soldiers, but also at prominent citizens, as well. Former President, John Tyler had given up his citizenship when the war began and was elected to the Confederate Congress; former Vice President John Breckenridge became a Confederate general, and Justice John Campbell resigned from the U.S. Supreme Court to become Jefferson Davis’ Assistant Secretary of War. Leaders of the victorious union realized that, as with so many military conflicts, a triumph at arms would prove futile in the long run if the enemy’s political leaders were allowed to retain political power, and they saw the removal of the Confederacy’s elite from political power as a necessary step toward reconstructing the nation on the principles of equality and liberty for which the union had fought.

Yet the goal of reconstruction was not merely to exclude the former confederates, but to reintegrate them into American society, and barring people from participating in society would prove counterproductive. Presidents Abraham Lincoln and Andrew Johnson preferred simply requiring former Confederates to swear that in the future they would support the Constitution. And a year before the Fourteenth Amendment was ratified, the Supreme Court struck down a particularly harsh oath requirement imposed by the state of Missouri, which barred people from certain private occupations if they had participated in the rebellion. That prohibition, declared the Court in Cummings v. Missouri, amounted to retroactive punishment in violation of the ex post facto clause. The authors of the Fourteenth Amendment, therefore, held open the opportunity for former confederate leaders to return to the mainstream of political life in the restored union.

Yet section 3 had stranger consequences for reconstruction than its authors could have imagined. In May, 1865, Confederate President Jefferson Davis was arrested in Georgia and held on charges of treason. Some Republican leaders insisted he be prosecuted, but moderates were more interested in moving on, and the Johnson Administration sought some way to postpone the prosecution. As Judge C. Ellen Connally explained in a 2009 Akron Law Review article, Chief Justice Salmon Chase found an opportunity for such delay in section 3 of the Fourteenth Amendment. Chase, who along with another federal judge, presided over Davis’ treason trial, argued that the case must be dismissed because, like the Missouri law at issue in Cummings, the Amendment’s prohibition on serving in public office was a criminal punishment. That meant Davis could not also be tried for treason without violating the constitutional ban on “double jeopardy.” The other judge disagreed, which sent the issue to the full Supreme Court for resolution—but before the Court could decide, President Johnson issued a general amnesty, bringing a permanent end to Davis’ prosecution.

A civil war is a great tear in the fabric of a nation, which can never be wholly mended. Section 3 of the Fourteenth Amendment is a testament to the profound political and personal wounds that “America’s Iliad” inflicted on the country.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Wednesday, May 2, 2012

Essay # 53

May 1, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Declaration of Independence, The Constitution of the United States of America, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41338488

Amendment XIV, Section 2:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The end of the Civil War brought radical changes to the United States Constitution. Leaders of the victorious Republican party hoped now to make the principles for which they waged such a punishing war into a permanent part of the Constitution. The Fourteenth Amendment renounced the “states’ rights” theories that so prevalent before the war, by declaring first that all Americans are citizens of the United States first and foremost, and only secondarily of the states where they reside. States had formerly, enjoyed authority to determine both state and federal citizenship; now the nation would determine both. Second, the Amendment prohibited states from depriving Americans of their “privileges or immunities”—i.e., of the rights that belong to all Americans—or of equal protection of the law, or of life, liberty or property without due process of law. These new guarantees ensured that the theory of “paramount national citizenship,” for decades the backbone of the Republican anti-slavery crusade, would be enshrined forever in the nation’s highest law.

But the Amendment was not concerned only with these crucial abstract principles. It was also a matter of practical politics. The second section of the Amendment—pointing toward the future Fifteenth Amendment—punished any state that deprived people of the right to vote. Southern states, after all, could be expected to take steps to bar their former slaves—now citizens—from exercising their new rights as citizenship. Rather than banning such interference outright, as the Fifteenth Amendment would do, this provision declares that if a state deprives “any of the male inhabitants” who are 21 or older from voting in a federal or state election, that state will lose seats in the House of Representatives.

This provision that overrode the Constitution’s infamous “three-fifths” clause, whereby Congress was apportioned on the basis of the white populace along with “three-fifths” of the slaves, and it marked the first steps toward a democracy in which all races could participate. Of course, there was also a steely political reality behind Congress’s choice of language: if southern states were restored to the union, and apportioned Congressmen on the direct basis of population, the Republicans might soon find themselves outvoted in Congress, destroying their unique opportunity for constitutional reform. Thus the Amendment permitted states to deprive people of the right to vote on account of their having “participat[ed] in rebellion, or other crime.”

The inclusion of the world “male” was also a calculated political move, and it also sparked a clash among the Amendment’s friends. Never before had the U.S. Constitution conditioned the right to vote on sex, and in fact, at the time the Constitution was originally ratified, some states allowed women to vote. But no state allowed women to vote in 1868, and had the Amendment been written in language that included female suffrage, the proposal would have faced far more opposition within the Northern political coalition. But adding a provision that explicitly allowed states to disenfranchise women put the nation’s imprimatur on discrimination, and offended many of the same female activists who had helped lead the Abolitionist movement. Some of them—including Elizabeth Cady Stanton and Susan B. Anthony—now opposed any guarantee of voting rights that was not gender-neutral. The former slave Frederick Douglass was more pragmatic. He believed strongly in women’s suffrage, but that was a goal for another day. “Woman has a thousand ways to attach herself to the governing power of the land and already exerts an honorable influence on the course of legislation.” But “the Negro is mobbed, beaten, shot, stabbed, hanged, burnt, and is the target of all that is malignant in the North and all that is murderous in the south.”

Although section 2 was largely rendered obsolete by the Fifteenth and Nineteenth Amendments—which barred states from discriminating on the basis of race or sex when it comes to the right to vote—it has still played an important role in shaping the power of states to deprive certain groups of voting rights. In a 1974 case, the Supreme Court ruled that states may disenfranchise felons, pointing out that the Fourteenth Amendment explicitly allowed this. And in 1970, Justice John Marshall Harlan, whose grandfather had been the lone dissenter in Plessy v. Ferguson, relied partly on the language of section 2 to conclude that the Fourteenth Amendment did not allow Congress to interfere with a state’s power to determine voter qualifications.

That the Amendment’s language regarding the right to vote was so quickly superseded by the Fifteenth Amendment should come as no surprise. The Fourteenth Amendment was just one step in a long-overdue effort to make the Declaration of Independence’s promise of equal liberty a reality for all.

Tuesday, May 1, 2012

Essay # 52

April 30, 2012/1 Comment/by Janine Turner and Cathy Gillespie

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

http://vimeo.com/41276250

Amendment XIV, Section 1:

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

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

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

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

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

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

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

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

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

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

Monday, April 30, 2012

Essay #51

April 29, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

http://vimeo.com/41124226

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

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

April 27, 2012

Essay #50

April 26, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV Privileges or Immunities

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article IV Section 2, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Kevin R. C. Gutzman M.P. Aff. J.D. PhD, The Articles of Confederation

Guest Essayist: Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D., Associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University

http://vimeo.com/41058151

Amendment XIV, Section 1:

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

Section 1, Clause 2 of the 14th Amendment says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This Privileges or Immunities Clause applies a prohibition previously limiting the Federal Government’s powers to the state governments.

From the Federal Government’s earliest days, the Supreme Court, the Congress, and the president assumed that when the Constitution used technical legal terms having fixed historic meanings, those terms were to be read as having those meanings. If we apply this rule of construction to the Privileges or Immunities Clause, the precedent to which we must look is Justice Bushrod Washington’s decision in the case of Corfield v. Coryell (1823). In that case, Washington—sitting as circuit justice for Pennsylvania—described the “privileges and immunities of citizens in the several States,” mentioned in Article IV, Section 2.

According to Washington:
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign…. They may … be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State…; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…[,] to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”

The first case in which the Supreme Court had an opportunity to construe the Privileges or Immunities Clause was The Slaughter-House Cases (1873). There, the Court divided the privileges and immunities of American citizens between those that are protected by state governments and those that are, as Section 1 of the Fourteenth Amendment puts it, “privileges or immunities of citizens of the United States.” While it declined to list all of the ones that fell under the Fourteenth Amendment, it did say that virtually all of our rights remained rights of state citizenship, not rights “of citizens of the United States”—just as they had been before the Fourteenth Amendment.

So, some of the “privileges or immunities of citizens of the United States” that it listed were “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions[;] … the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States[;] … [a citizen’s right] to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government[;] … [t]he right to peaceably assemble and petition for redress of grievances[;] the privilege of the writ of habeas corpus[;] … the right to use the navigable waters of the United States, however they may penetrate the territory of the several States[;] … all rights secured to our citizens by treaties with foreign nations[;] … [the] privilege … to become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State[; … and] the rights secured by the thirteenth and fifteenth articles of amendment, and by the [rest of the] fourteenth….”

Nowadays, liberal critics commonly decry the Court’s decision in Slaughter-House for not creating numerous new rights for federal courts and Congress to enforce against the states under the cover of the Fourteenth Amendment. However, as the Slaughter-House majority pointed out, to have taken a different position would have made the Court the “censor” of all state and local legislation with a supervisory power over all state laws. While the 20th-century Supreme Court carved out precisely such a role for itself, the Reconstruction-era justices remained committed to the Founders’ vision of a decentralized government in which most decisions were made by elected officials. It is unsurprising that they did not behave as modern liberal judges would behave.

Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. is an American historian and New York Times bestselling author. He is an associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University.

April 25, 2012/4 Comments/by Janine Turner and Cathy Gillespie

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

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

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

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

The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.

Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.

Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?

The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.

How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.

Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.

Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.

Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.

Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.

April 25, 2012

Essay #48

April 24, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIII: Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIII, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Amendment XIII, Section 2

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment to the United States Constitution officially made all forms of slavery and involuntary servitude except as punishment for a crime unlawful.

Introduced by Ohio Rep. James Ashley originally in 1863, it languished for over a year until companion legislation was introduced in the United States Senate. To give the resolution a final strong push, President Abraham Lincoln had pushed for its inclusion in the GOP platform in 1864 and personally persuaded Democrats from pro-union states to support the effort.

Ultimately, it was passed by the Senate on April 8, 1864, by the House on January 31, 1865, and adopted on December 6, 1865.

Historians record that when the House vote was announced the galleries cheered, congressmen embraced and wept, and Capitol cannons boomed a 100-gun salute. One Representative, Congressmen George Julian of Indiana wrote in his diary, “I have felt, ever since the vote, as if I were in a new country.”

On December 18, Secretary of State William H. Seward declared that it had been officially ratified by the states. It was the first such change to the Constitution in 61 years, and it happened just two and a half months before President Lincoln would be tragically assassinated.

Since our country’s founding the issue of slavery had bedeviled our nation. At the Constitutional Convention good men like George Mason of Virginia argued vehemently against slavery, warning his fellow delegates: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, providence punishes national sins by national calamities.”

While the Constitution that was ultimately adopted failed to completely resolve the slavery issue, it was neither completely silent nor neutral.

The oft-criticized 3/5^th compromise specially limited the ability of southern slave-holding states to obtain equal representation in the House of Representatives with that of the non-slave-holding northern states. Ultimately this would result in a pro-freedom tilt in the House of Representatives. The Constitution also gave Congress the power to prohibit the importation of new slaves after 1808, which Congress promptly did once it was legally allowed to.

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

With the passage of the 13^th Amendment (specifically clause 2) Congress was given full power to stamp out slavery in all its forms. The motivations of the Members of Congress give us a great degree of insight into the meanings and operations of clause 2 of the 13^th Amendment. While most discussions of the 13^th amendment include the 14^th and 15^th, Congress’ treatment is quite different. At the time of its introduction, its Republican supporters in Congress and abolitionists across the land saw this amendment and Section 2 in particular as a comprehensive tool to root out not just slavery, but all of its vestiges.

It is for this reason that they didn’t stop with just banning or ending slavery; they empowered Congress to root it out. Their goal was to assure that the ending of slavery wasn’t a hollow victory, that passage lead to a national commitment to adopt whatever substantive changes were needed to eliminate all “badges and incidents of slavery.”

The men surrounding the introduction were very clear in their objectives. Leaders like Senator James Harlan, Rep. Thaddeus Stevens, Sen. Charles Sumner, and Rep. Wilson were virulently anti-slavery. They worked assiduously to draft language that would cover “every proposition regarding slavery.” And they also saw the 13^th amendment as the affirmation of the founder’s principles. Rep. Godlove Orth (R-IN) said that the 13^th Amendment to “be a practical application of that self-evident truth” of the Declaration of Independence “that all men are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”

It was in this context that within days of passage of the 13^th Amendment, Members of Congress began debating new statutes to achieve the Thirteenth Amendment’s purposes. The first bill introduced roughly a week after the amendment was ratified was S. 427 by Senator Henry Wilson (R-MA). This bill prohibited states, municipalities, corporations and all persons from excluding any person on account of race from travel on railroads or navigable waters. Although this bill ultimately stalled in Congress, within 2 years four laws using the congress’ enforcement power would be enacted: The Civil Rights Act of 1866, The Slave Kidnapping Act of 1866, the Peonage Act of 1867, and the Judiciary Act of 1867. The Civil Rights Act of 1866 in particular set the pace for an aggressive intervention on the part of Congress on behalf of the newly freed slaves. It provided litigants the right to transfer their legal disputes to federal court when the local and state court system failed to allow them an opportunity for relief. Across the nation the new law aided families and individuals that had never had access to the court or to equal protection of the law.

Unfortunately for the abolitionists, subsequent elections and the deaths of key leaders would result in an ebbing of enthusiasm for use of the 13^th amendment’s authority to remediate the wrongs of slavery. The deaths of Salmon P. Chase, Thaddeus Stevens, and Edwin Stanton were huge losses for the freedom agenda. And new President Andrew Johnson was particularly hostile to their efforts going so far as to veto many of the remaining anti-slavery measures that could pass Congress. But the final death knell for robust authority arising under the 13^th amendment came from the Supreme Court.

In a series of lawsuits groups together as the Civil Rights cases, the Supreme Court struck down parts of the Civil Rights Act of 1875 (18 Stat. 335) originally proposed by Senator Charles Sumner and Representative Benjamin F. Butler (both Republicans) in 1870, passed by Congress in February, 1875 and signed by President Grant on March 1, 1875.

The Act protected everyone, regardless of race, color, or previous condition of servitude, to the same treatment in “public accommodations” (i.e. inns, public conveyances on land or water, theaters, and other places of public amusement). Violators could face a penalty anywhere from $500 to $1,000 and/or 30 days to 1 year in prison. In a setback that the drafters of the 13^th amendment would not have expected, the Supreme Court ruled that the 13^th amendment like the 14^th and 15^th amendment didn’t authorize Congress to intervene in private non-government areas. The Court’s ruling would stifle Congress’ ability to exercise its Section 2 power for nearly a century.

It is ironic that many of the 1875 Act’s provisions were later enacted in the Civil Rights Act of 1964 and the Fair Housing Act, this time using the federal power to regulate interstate commerce.

Eventually the Court would reverse itself. In 1968, in a case called Jones v. Alfred H. Mayer Co. the US Supreme Court case once again dealt with the Civil Rights Act of 1866. In that case they held that Congress could regulate the sale of private property in order to prevent racial discrimination: “42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.”

A long time coming, the view of the framers was finally validated. Today as during Reconstruction, Congress, the President and the Courts recognize that Section 2 gives Congress the power to “determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation” to prevent its effects.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation and is a legal commentator

April 24, 2012

Essay #47

April 24, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XIII: Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIII, W.B. Allen, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Declaration of Independence, The Missouri Compromise, The Northwest Ordinance, W. B. Allen PhD

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

Amendment 13 – Slavery Abolished, Ratified December 6, 1865.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

An Ordinance for the Government of the Territory of the United States, North- West of the River Ohio, known as the Northwest Ordinance or “The Ordinance of 1787,” an act of the Congress of the Confederation of the United States, passed July 13, 1787.
Article 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

The 13th Amendment is often referred to as the first of the “Reconstruction Amendments.” While it is true that the abolition of slavery was certainly the first priority for the Congress that conducted the War for the Union, it is not exactly correct to pair the 13th Amendment with the 14th and 15th Amendments, which were literally debated in the context of the aftermath of the war and specifically adopted to extend the “privileges and immunities” of citizenship to the ex-slaves. The 13th Amendment, by contrast, was debated and adopted by the Congress while the war yet raged, and specifically as blow against the rebellion as well as an affirmation of the principle of equality at the heart of the Declaration of Independence. As such, the 13th Amendment represents the cashing of the promissory note that Lincoln issued at Gettysburg in 1863.

The best way to analyze the 13th Amendment, therefore, is to recognize that it was adopted before the Reconstruction Congress took office. Then one may review the dramatic debates in the House of the Representatives and the Senate over the period from early 1864 until spring of 1865, when the resolution sending the 13th Amendment to the States was adopted. The debates of that era opened with a reports and discussion on “equality before the law,” “emancipation in the District of Columbia,” employment rights for American blacks, streetcar discrimination, and similar issues before eventuating in the direct discussion of national abolition.

What makes this progression of interest is that it reveals the Congress tentatively, cautiously, approaching the tricky question of national emancipation, although having a firm grasp of the fundamental rights at stake. What all conceded the Congress had the authority to legislate for the District of Columbia, some doubted that the Congress could even propose to the nation at large. In the end the idea of the authority of the people as a whole — the ultimate ratification authority — trumped arguments about “dispossession of property” and interfering with the “police power” in the states. The matter was sensitive not so much on account of the attitudes of the states in rebellion; it was sensitive because several Border States still held slaves but had been loyal to the Union. The idea of an uncompensated emancipation seemed a hard blow to many of their advocates and was, besides, a departure from the precedent of British emancipation in the West Indies a generation earlier The argument was summed up by Senator Lazarus Powell, Democrat from Kentucky, April 8, 1864:

“We were told by the Government in every form in which it could speak, at the beginning of this revolution, that whatever might be the result, the institutions of the States would remain as they were. The President in his inaugural address, announced that he had no constitutional power to interfere with the institution of slavery in the States. The Secretary of State announced it in a communication which he sent abroad. Congress, by a resolution, announced virtually the same thing when they declared that the object of the war was to restore the Union as it was and to maintain the Constitution as it is.”

Senator Henry Wilson, Free Soiler and Republican from Massachusetts, however, would have none of it. The question for him was a matter of setting the nation “right” and removing a fundamental flaw in its fabric:

Throughout all the dominions of slavery republican government, constitutional liberty, the blessings of our free institutions were mere fables. An aristocracy enjoyed unlimited power while the people were pressed to earth and denied the inestimable privileges which by right they should have enjoyed in all the fullness designed by the Constitution.

Senator Charles Sumner, Republican from Massachusetts, summed the matter up with the observation that the proposed amendment was nothing less than the fulfillment of a promise first expressed at the founding and periodically renewed (as in the Missouri Compromise) only with great controversy. He pointed out, accordingly, that the proposed amendment was nothing less than “the idea of reproducing the Jeffersonian ordinance.”

A quick comparison of the text of the 13th Amendment with the language of Article 6 from the Northwest Ordinance will reveal the point of Sumner’s observation. What Jefferson authored and the Confederation Congress adopted and the new government under the Constitution of 1787 solemnly re-affirmed was, effectively, the incompatibility of republicanism and slavery. While that early declaration applied only to the Northwest Territory, and subsequently, the territorial division established by the Missouri Compromise (1820), its purpose and language were to declare the fundamentals of republican government, as the Northwest Ordinance on the whole does expansively (leading some to call it the “first national bill of rights”).

Although the 13th Amendment avoids the Ordinance’s language with regard to fugitive slaves, that omission is understandable where the objective is no longer to admit slavery anywhere, rather than to temporize with it where it already existed. It is safe to say, therefore, that the meaning of the 13th Amendment is authoritatively to be recovered from the intentions and meaning of the Northwest Ordinance — not a mere administrative regulation concerning slavery, but rather a dramatic recovery of the fundamental meaning of republican freedom.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

Monday, April 23, 2012

Essay #46

April 22, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XII: Circumstances Allowing the Senate to Choose the Vice-President

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Hans Eicholz 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article II, Constitutional Amendment XII, Constitutional Amendment XII, Declaration of Independence, Declaration of Independence, Hans Eicholz, The Constitution of the United States of America

Guest Scholar: Hans Eicholz, Historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana

http://vimeo.com/40700181

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Circumstances allowing the Senate to choose the Vice-President

The twelfth Amendment of the U.S. Constitution was born out of the immediate political experience of the fledgling republic as it strove to apply the provisions of its written fundamental law just over a decade after ratification.

Historically the powers associated with the executive branch have been among the most dreaded of all governmental functions. In the political struggles of seventeenth century England, the friends of both English and American liberty drew lessons about the need to constrain the prerogatives of monarchs and tyrants. That understanding shaped the indictment against the King of England in the Declaration of Independence, and shaped an important part of the debate over the original Constitutional provisions respecting the election of the American President and Vice-President.

What method of appointment would best assure the selection of leaders with the temperament and virtues necessary to remain under the law? This was the essential question discussed in the Philadelphia Convention when the second Article of the Constitution respecting the selection of the presidency was originally crafted.

Initially, no distinction was to be made in casting ballots for the election of the President and the Vice-President, but each elector was to nominate two individuals. It was hoped that such a process would filter out the influences of local prejudice if each elector were required to vote for a second person not of his or her state. Some consideration, it was believed, would then likely be given to criteria beyond merely local interests. Thus Madison observed, “The second best man in this case would probably be the first in fact.” It was hoped that such a mode of selection, combined with an electoral college, would result in a process far removed from political intrigue and discourage political commotions.

In point of fact, however, that process resulted in considerable discord when the electoral vote was equally split, as happened in the election of 1800 between the two Democratic-Republican candidates of Jefferson and Burr. The equal division of electoral college votes caused the election to be thrown into the House of Representatives.

At this point, and against all expectations, Burr attempted to negotiate with the Federalist representatives in Congress, to obtain the highest office. Eventually thwarted in his machinations, Burr’s dishonorable conduct negated Madison’s initial hopes, revealing that a man of lesser character could yet hold the second position, and if the process of election was not remedied, might at some later election, even take first place through political intrigue and backroom negotiations! For this reason, the Congress set in motion the process to amend the Constitution in the selection of both President and Vice-President on the 9th of December 1803.

The primary alteration of the 12th Amendment required the explicit designation of the office for which each candidate was being designated. It preserved, however, certain aspects of the older provisions of Article II.

The process of the electoral college was maintained to ensure the independence of the executive from the legislative branch.

In matters of tied elections, it continued to send the selection of the Presidency to the House of Representatives, but with the selection of the two officers now split, the selection of a Vice-President in cases of an electoral tie, would go directly to the Senate.

In both cases, this process arose from the general principle of the Founders that in addition to the popular element reflected in the selection processes of the electoral college, regional considerations should continue to have their influence. The United States was not to be seen as simply one homogeneous national democracy, but was also a federal union of distinct state governments, a vital part of ensuring against the over concentration of power.

To this end, when breaking a Presidential tie, the House was to assemble its delegates by states and each state was to determine its votes as one: “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.”

Likewise, the Senate, being already organized on the federal principle, would break an electoral tie vote for Vice-President. Indeed, under the old system, the Senate was to perform this function in the event that the next most popular electoral candidates after the Presidential selection, were also tied. This portion of the 12th Amendment merely preserved that order of selection.

Hans Eicholz is an historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana.

April 20, 2012

Essay #45

April 19, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XII: A Tie in the Electoral College

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Tara Ross 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 2, Constitutional Amendment XII, Constitutional Amendment XII, Tara Ross

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

Amendment XII: A Tie in the Electoral College

Anti-Electoral College activists sometimes worry that the presidential election could end in a tie. Such a scenario, they might grouse, would create a “stalemate” and could even lead to “The Apocalypse.”

But an electoral tie has occurred already. This election did not result in the Apocalypse, but, as yesterday’s post discussed, there were a few days of congressional stalemate before a President was elected. The then-new nation did not devolve into chaos and rioting. Instead, the biggest consequence of the electoral tie was the Twelfth Amendment. These provisions replaced Article II, Section I, Clause 3 of the Constitution and make it harder (but not impossible) for a presidential election to end in a tie.

The Twelfth Amendment works hand-in-hand with the still operative Article II, Section I, Clause 2: This clause makes each state responsible for deciding how to appoint its own electors. In early elections, state legislatures employed a wide variety of methods—sometimes even selecting electors on their own. Today, all states conduct statewide popular elections for this purpose.

In short, when you go to the polls on Election Day, you are not voting for presidential candidates, even if it seems that way. In reality, you are voting for a slate of individuals, called electors. Most states award their electors in a “winner-take-all” fashion, so the winner of the state receives the state’s entire slate of electors. As an example, Barack Obama “won” the State of Rhode Island in 2008. But what that really meant is that four Democratic electors—not Obama himself—were elected by Rhode Islanders on that day.

The Twelfth Amendment dictates the constitutional responsibilities of electors. The primary responsibility of these Rhode Island electors, along with other electors from the remaining states, was to represent their states in a second election—the real presidential election.

This election among states’ electors occurs on a congressionally designated day in December. The Twelfth Amendment requires that each elector cast two ballots: one for a presidential candidate and one for a vice-presidential candidate. This requirement was a change from the Article II provision, which did not allow electors to distinguish between their votes for President and Vice-President. Both Article II and the Twelfth Amendment require that electors cast at least one ballot for someone who is not “an inhabitant of the same state with themselves.”

In practice, this means that a political party will handicap itself if it nominates presidential and vice-presidential candidates from the same state, because it automatically loses some votes from the home state of one candidate. In 2000, this provision caused Dick Cheney to make a point of establishing his residence in Wyoming. Had both Cheney and George W. Bush hailed from Texas, those electors would have been unable to vote for Cheney and Bush simultaneously.

After electors cast their ballots, their votes are recorded on “Certificates of Vote,” one of which goes to the President of the Senate, as required by the Twelfth Amendment. The President of the Senate presides over a joint session of Congress on January 6, and the votes are counted publicly at that time.

To be elected President, a candidate needs a majority of electoral votes. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate. If no candidate wins a majority, the Twelfth Amendment provides a back-up method for presidential selection. In this secondary election, the election of the President is sent to the House and the election of the Vice-President is sent to the Senate.

In the House vote, the Twelfth Amendment provides that each state delegation is granted one vote. (This remains unchanged from the original Article II procedure.) California, with its current delegation of fifty-three Congressmen, would cast one vote, as would South Dakota, with its single Congressman. A President is elected when one candidate wins a majority of states. Article II had allowed the House to choose from the top five presidential candidates (or two in the event of certain ties), but the Twelfth Amendment now requires the House to choose from only the top three presidential candidates.

The Twelfth Amendment also added a new procedure for election of the Vice-President: In the event that no candidate receives a majority, the Senate chooses from the top two vice-presidential candidates. Each Senator has one vote; Senators may vote for either of the top two vice- presidential contenders.

This system exists largely as it was originally proposed by the Constitutional Convention. The Twelfth Amendment tweaked the process, but substantively left the original procedure in place. Unfortunately, this system is now under attack.

The National Popular Vote movement seeks to convince a critical mass of states to award its electors to the winner of the national popular vote, instead of the winner of each state’s popular vote. NPV asks states to sign an interstate compact—basically, a contract—promising to take such action if enough other states sign on. If the movement succeeds, the constitutional election processes described in the Twelfth Amendment will remain only in theory. In practice, they will be gone. Instead, Presidents will be selected through a direct election system.

Surely the Founders would be disappointed in such a result. The Electoral College was a compromise between large and small state delegates at the Constitutional Convention. The delegates wanted the voice of the people to be reflected in the presidential election process, but they also recognized the need to protect minority groups—especially the small states—from the tyranny of the majority. Just as the composition of Congress reflected compromises between the large and small states, so did the presidential election procedure. Even the House contingent election, so disparaged by Electoral College opponents, was an important part of this compromise because of the advantage that it gave to small states.

The delegates would view efforts to abandon the Electoral College as unwise. Max Farrand reports on the delegates’ views in The Framing of the Constitution of the United States: “[F]or of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Yes, the Electoral College is the solution for any country and any decade. The system that has served Americans so well for so long will continue to do so. If we let it.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 19, 2012 – Essay #44

http://vimeo.com/40636737

April 18, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment XII: Reforming the Electoral College

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Tara Ross 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XII, Constitutional Amendment XII, Electoral College, Tara Ross, The Constitution of the United States of America

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

Amendment XII: Reforming the Electoral College

America’s first four presidential elections were governed by Article II of the Constitution. The process worked well initially, which is perhaps unsurprising in retrospect. Nearly everyone expected that the revered General George Washington would be the nation’s first President. These expectations came to fruition when he was unanimously elected twice, in 1789 and 1792. The first contested presidential election did not occur until 1796.

This contested election nearly revealed a flaw in the voting process. But the next election, in 1800, brought the flaw more sharply into view, and it laid the groundwork for the introduction and ratification of the Twelfth Amendment. The provisions of this Amendment would replace Article II, Section 1, Clause 3 of the Constitution.

The problem stemmed from the fact that the original constitutional provision did not allow presidential electors to differentiate between their votes for President and Vice-President. Electors were simply expected to cast two ballots for President. When these votes were tallied, the first place winner became President and the second place winner became Vice-President. Such a process made sense in 1787, before the appearance of political parties. It made less sense after, as demonstrated during the election of 1800.

That year, the Democratic-Republican Party nominated Thomas Jefferson for President and Aaron Burr for Vice-President; the Federalist Party nominated John Adams and Charles Pinckney. Today, such nominations might seem rather routine, but in 1800, the practice of nominating separate candidates for President and Vice-President was relatively new.

When the vote was tallied, it was discovered that Jefferson and Burr had tied. Although the electors had intended to elect Jefferson for President and Burr for Vice-President, they were not permitted to distinguish between their votes for the two offices. The result was an electoral tie that threw the election into the Constitution’s secondary election procedure, known as the House contingent election.

At the time, the House was still controlled by the outgoing Federalist Party. Many Federalists did not like Jefferson and hoped to thwart his election by supporting Burr. Meanwhile, the Democratic-Republican congressmen continued to support their intended presidential candidate, Jefferson. A stalemate continued for the better part of a week. Neither Jefferson nor Burr could obtain the nine state votes needed for victory. Six days and thirty-six ballots later, one Congressman finally yielded, paving the way for Jefferson’s victory.

In the wake of such events, it was not long before a constitutional amendment was proposed to separate the voting for President and Vice- President. Such a solution might seem obvious to modern ears, but it was controversial in the early 1800s. The minority party, the Federalists, argued that the election process, as it then stood, made it possible for the minority party to have a representative in the executive branch. Some Democratic-Republicans also hesitated to change the election procedure. The Article II process had helped them in 1796 when John Adams, a Federalist, was elected President. Despite Adams’s victory, Jefferson had been able to defeat the Federalist vice presidential candidate, Thomas Pinckney.

The proposed constitutional amendment failed to pass the Senate by a single vote when it was first proposed in 1801. In 1803, however, the Twelfth Amendment finally gained enough support to pass both the Senate and the House. North Carolina became the first state to ratify the amendment on December 21, 1803. The amendment became effective when New Hampshire ratified it on June 15, 1804. Tennessee ratified it later, on July 27, 1804. Three states rejected the amendment.

The election process was tweaked and adjusted following the election of 1800, yet today it remains largely as the Founders created it. As a first step, the states cast electoral votes in the nationwide presidential election. If no candidate wins a majority of these state votes, then the House of Representatives must decide which of the top candidates will be the next President.

Tomorrow’s post will explain how this process—created by Article II and slightly modified by the Twelfth Amendment—continues to operate in presidential elections today.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 18, 2012 – Essay #43

http://vimeo.com/40570764

April 17, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XI: Right of States to Sovereign Immunity

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XI, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Constitutional Amendment XI, Constitutional Amendment XI, Federalist No. 81, Joerg W. Knipprath, The Constitution of the United States of America

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

http://vimeo.com/40522514

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6^th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

April 17, 2012

Essay #42

April 16, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment X: Modern Issues of States’ Rights

Analyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment X 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Bill of Rights, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, The Constitution of the United States of America

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40431786

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:

“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.

The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.

The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.

All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.

In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,

[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.

And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 16, 2012

Essay #41

April 15, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Amendment X: Rights Reserved to the States and the People

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment X, George Landrith 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment X, Constitutional Amendment X, George Landrith, The Constitution of the United States of America

Guest Essayist: George Landrith, an attorney and President of Frontiers of Freedom

http://vimeo.com/40278141

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment:
Protecting Freedom Against Big Government

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment protects Americans from big, intrusive federal government action. The heart of the Tenth Amendment is that the federal government has only those powers explicitly listed in the Constitution and all other powers are reserved to the States and to the people, and therefore explicitly denied to the federal government.

In contrast, state governments have all powers not explicitly prohibited or withheld by the state constitution or by the U.S. Constitution. Thus, states have broader powers and can, do things that Congress cannot do. For example, states can require young students to attend school and drivers to purchase automobile insurance.

Too often those in Congress and the White House assume that the federal government can do whatever the majority wishes. However, the Founders clearly and explicitly intended to prevent the majority from doing whatever it wished. Thus, they gave the federal government a very limited and carefully chosen list of powers and they reserved all other powers for the states and the people. They also provided an elaborate system of checks and balances – all to limit the power of the majority to impose its will.

The Founders felt so strongly about limited federal power as a bulwark of liberty that they added the Ten Amendment as the final exclamation point in the Bill of Rights – the federal government could not trample the rights of the people by assuming powers that it did not have, and that had been reserved to the states and the people.

At the heart of the debate over Obamacare before the Supreme Court is the question – does the federal government have the authority under the U.S. Constitution to require citizens to purchase a product? If the justices can read and understand the simple language of the Constitution, they will strike down the law because the federal government does not have the authority to do what it attempted to do in this statute.

This author is not a supporter of the Massachusetts healthcare law, but it is constitutional. There are significant differences between the Massachusetts law and ObamaCare, but perhaps the biggest difference is that Massachusetts had the authority to pass its healthcare law. That doesn’t mean it was a good idea, it just means it was constitutional. But the federal government did not have the authority to pass Obamacare. Obamacare exceeds the enumerated and limited powers given to the federal government and the limitations of the Tenth Amendment.

The Tenth Amendment is also an explicit statement of the governing principle of federalism. Federalism is the idea that there is a national government with limited powers and there are state governments with broader powers, both receiving their authority from the people. Simply stated, federalism recognizes the fact that the states are not merely political subdivisions of the federal government, but that they are separate governmental units that derive their power directly from the people and not from the federal government.

These are not old fashioned or outdated ideas. They constitute real and practical protections against the bullying powers of big government on the federal level. The Founders put in place checks and balances, limitations on power, and divisions of power – all designed to keep federal government from becoming too big, too powerful, and too intrusive. The Tenth Amendment is key to their wise designs to limit the power and scope of the federal government.

George Landrith is an attorney and the President of Frontiers of Freedom

April 13, 2012

Essay #40

April 12, 2012/2 Comments/by Janine Turner and Cathy Gillespie

– Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

http://vimeo.com/40200787

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE TENTH AMENDMENT

Statements about the Tenth amendment tend towards opposing extremes. Some cite the Amendment in claiming more powers than the Constitution actually leaves in the states. On the other side, some claim that the Amendment is merely a “truism,” implying it does virtually nothing. The actual meaning of the Amendment lies in between these two one-sided views.

The Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The most important word is the one that does not appear in the text, i.e., “expressly.” It is common for those who place great weight on the Tenth Amendment to state incorrectly that the Amendment says “powers not expressly delegated to the United States…” The Amendment, however, pointedly omits the word expressly.

By contrast, somewhat similar language in the Articles of Confederation did include the word expressly.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (emphasis added)

What difference in meaning does the word “expressly” make? The difference is that which distinguishes a confederation from a government. The Articles of Confederation provides that “The said States hereby severally enter into a firm league of friendship with each other…” (emphasis added). The Articles recognize that the States retained their full sovereignty and entered into a special kind of alliance or league. The Articles constitute a treaty involving multiple sovereignties and having several purposes. As a treaty, however, it is still a contract and each State delegates only those powers expressly written into the contract. Although “[t]he Articles thereof shall be inviolably observed by the States,” the document creates no government having the power to enforce its provisions. It provides only for states to send representatives to meet as the “United States in Congress” and to manage those powers expressly given.

The Constitution that emerged from the Convention, as all understood, was not a confederation or simply a league of friendship. Opponents of the Constitution, known as the Antifederalists, concluded that therefore the Constitution would create a consolidated or centralized government. The Federalist (written by Madison, Hamilton and Jay under the pseudonym of “Publius”) countered that the Constitution created a federal government of only limited powers and left most powers of government in the states.

Not persuaded, the Antifederalists contended that the Constitution’s limits on the federal government could and would be swept aside by its “necessary and proper clause.” Their arguments in opposition to the Constitution emphasized the document’s lack of a bill of rights. They urged that a statement of rights was necessary to protect liberty by limiting the power of the federal government and specifically to undo the effect of the “necessary and proper” clause.

The Constitution drafted at the Constitutional Convention contained no bill of rights. This was not an oversight. The Convention voted down George Mason’s proposal that a bill of rights be added. Moreover, during the Ratification period, The Federalist (#84) argued “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” A bill of rights was unnecessary because “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation.” It was dangerous because it “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than was granted.”

The Federalists and Antifederalists held opposing ideas about the best means to protect liberty. Whereas the Antifederalists gave priority to bills of rights, the Federalists distrusted the efficacy of such “parchment barriers.” Rather the Federalists drafted the Constitution on the premise that protecting liberty requires a structure of separation of powers within the federal government and a division of powers between the federal and state governments. For that reason, The Federalist said “The truth is … that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

Predictions of both the Antifederalists and Federalists have proved in part to be accurate. As the Antifederalists feared, the Necessary and Proper Clause has been used to expand the powers of the federal government greatly at the expense of the states, a trend aided (as discussed in a later essay) by the Seventeenth Amendment. The Federalists were correct that the Bill of Rights, aided by the Fourteenth Amendment’s judicially-developed doctrine of Incorporation, has been used to expand the powers of the federal government at the expense of the states.

The foundational explanation of the Necessary and Proper Clause came in Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). The opinion addressed the Necessary and Proper Clause as an additional, not the primary, reason for upholding the constitutionality of the Bank of the United States. Jeffersonian Republicans, many of whom had been Antifederalists, opposed this decision as an unconstitutional expansion of Congress’s powers. Chief Justice Marshall’s opinion, however, was perfectly consistent with, and generally tracked language in several essays from, The Federalist.

Over the years, especially since the New Deal, the centralizers of national power have often relied on a distorted interpretation of the Necessary and Proper clause which disregards the fundamental principle that the federal government is one of limited powers. Accordingly, they dismiss the Tenth Amendment as simply a “truism.” The defenders of state power, on the other hand, emphasize the Tenth Amendment, almost as if nothing else in the Constitution matters. They generally fail to understand The Federalist explanation – confirmed by Chief Justice Marshall’s opinion in McCulloch – that Congress has the fullness of those powers actually given to Congress and that the Constitution includes the Necessary and Proper Clause in order to leave no doubt about the fullness of the powers actually given.

When during the First Congress James Madison spoke for the Bill of Rights he had introduced, among other points he argued that they were of “such a nature as will not injure the Constitution.” Specifically, what became the Tenth Amendment did not injure the Constitution because it did not convert it to a confederation. That is to say, the Tenth Amendment pointedly did not use the word expressly.

As to any power actually given by the Constitution, Congress has the fullness of that power. Congress’s exercise of power is nevertheless limited– first by the fact that it is not given every power of government. Secondly, Congress encounters procedural limits on the implementation of its enumerated powers due to bicameralism and separation of powers. The division of powers between the federal and state governments which effectively limited Congress’s exercise of enumerated powers has been undermined by the Seventeenth Amendment’s provision for direct election of senators.

The U.S. government has over the years consolidated power to a degree feared even by the Federalists, and much more so by the Antifederalists. To point solely to the Tenth Amendment, however, as the primary limit on the expansion of federal power is to misunderstand the Constitution. The Tenth Amendment is a ‘truism” in the sense that it merely confirms that the Constitution creates a federal government with a limited number of powers, those related to national defense, foreign affairs, foreign trade, and trade among the states. See Federalist # 23 and #45. Like the Necessary and Proper Clause, a proper interpretation of the Tenth Amendment must be connected to the Constitution’s structure of divided and separated power.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

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April 12, 2012

Essay #39

April 11, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment IX

Analyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment vIX 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 84, The Constitution of the United States of America

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40152775

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the waning days of the Philadelphia Convention in 1787, George Mason of Virginia, Elbridge Gerry of Massachusetts and Luther Martin of Maryland began pressing for the addition of a comprehensive bill of rights to the final draft of the Constitution. Roger Sherman of Connecticut immediately rejected their plea. A bill of rights, he said, was unnecessary because “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….” Sherman, a man who Thomas Jefferson regarded as one of the finest statesmen of the founding generation, reasoned that because the Constitution was mute on civil liberties and because it was a document with delegated and enumerated powers for the general purposes of the Union—the States United—the general government could no more legislate on matters of trial by jury than it could on the minutia of state law. Gerry’s proposal to form a committee to draft of a bill of rights was unanimously defeated (votes were by State), and as a result Mason said he would rather cut off his right hand than sign the document. This exchange began the process for codifying the language of the Ninth Amendment.

During the ratifying process in the State conventions, several leading proponents of the document made arguments against a bill of rights that mirrored those Sherman gave in the Philadelphia Convention. James Wilson of Pennsylvania, perhaps the most ardent nationalist among the founding generation, said in the Pennsylvania Ratifying Convention that “A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

Alexander Hamilton of New York, the most famous nationalist of the founding period, echoed Wilson in Federalist No. 84. Adding a bill of rights, he said, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Both Hamilton and Wilson contended that a bill of rights would destroy liberty rather than protect it by allowing scheming men to enlarge the power of the central authority. In short, if a particular liberty was not protected by the list of rights, they believed it could be assumed that the government had the power to abridge that liberty. And, since all powers delegated to the general government were enumerated in the Constitution, they wondered why open that Pandora’s Box?

Thus, the modern Ninth Amendment was born. As proposals for a bill of rights flooded into James Madison’s hands in the months after the Constitution was ratified, he quickly realized that individuals needed assurances that their liberties would not be circumscribed by the Constitution nor would they be left to flutter in the wind should ambitious men usurp power from the States or the people. The Tenth Amendment protects the States and most importantly the federal compact among the States. The Ninth does the same for the people individually by implicitly recognizing the validity—and to the founding generation supremacy—of the several State declaration of rights. It is an enhancer. The original preamble to the Bill of Rights expressly stated that they were “restricting clauses” on the general government only. The Ninth Amendment ensured that the powers of the general government as operating on individuals would be further checked by the States. State declaration of rights often tended to be more detailed and comprehensive and therefore served as a more effective shield for the people.

Madison said in 1789 that Hamilton’s argument against the Bill of Rights was “one of the most plausible…I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.” He was referring to the Ninth Amendment. Of course, the powers of the general government in the modern era have spiraled out of control and today the two most ignored Amendments in the Bill of Rights are the Ninth and Tenth, arguably the most important Amendments to the founding generation. The States have always stood at the vanguard of individual liberty. American citizens should remember that their first line of defense against both the State and Federal government rests in their separate State bill of rights. The founding generation believed that those declared rights coupled with the Ninth Amendment would prevent the modern leviathan in Washington D.C. We need to protect their legacy.

April 11, 2012

Essay #38

April 10, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

http://vimeo.com/40060581

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9^th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789. Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.” An eleventh, the 27^th Amendment, was ratified May 7, 1992. The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified. However, the Supreme Court in the 20^th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14^th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9^th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.” The Supreme Court has never provided clear guidance concerning the 9^th Amendment itself. A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution. In that sense, we may take the 9^th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.” This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government. The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states. That argument is made most forcefully in essay number 84 of The Federalist Papers. An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights. The 9^th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration. In that sense, the 9^th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1^st Amendment, namely, that “Congress shall make no law respecting” such additional rights. It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception. It was because of the incorporation doctrine through the 14^th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states. Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government. For the language of the 9^th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12^th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States. Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

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April 10, 2012

Essay #37

April 9, 2012/8 Comments/by Janine Turner and Cathy Gillespie

Amendment VIII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, Matthew Mehan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VIII, Constitutional Amendment VIII, Matthew Mehan, The Constitution of the United States of America

Guest Essayist: Matthew Mehan, Publius Fellow and U.S. History Teacher

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

The adoption of this terse amendment, the shortest of them all, inspired very little debate among our founding fathers. These sixteen words reflect the hard-won and long-defended consensus of free society that just government remains so only if its punishments correspond proportionally to the crimes committed. The 8^thAmendment stands as a testament to the humanism of our Constitution, which makes clear that the government of a free people must be known not for its severity, but instead for its measured humanity.

Each of the three components of the amendment aim to limit one of the government’s discretionary powers: (1) setting bail; (2) imposing fines; and (3) sentencing. The amendment implicitly recommends that the legislature specify proportional guidelines for these broad powers: how much bail; how high the fines; and how long or difficult the sentence. The wisdom of having such an amendment stems from abuse of these powers dating back as far as the expansion of monarchical courts under William the Conqueror. William’s descendent, King John, saw these powers greatly limited by the Magna Charta, which sought to reign in the king’s unlawful use of royal courts. And the language of the 8^thAmendment is taken almost word for word from the 1689 English Bill of Rights, which reaffirmed these limitations on the monarch, in this case, the Stuart dynasts. And in our own day, for the “excessive fines” clause to be applied, the Supreme Court ruled as recently as 1993 that “there must be a payment to a sovereign as punishment for some offense.” From its historical origins to the present day, the amendment’s primary focus has remained the same: the restriction of the sovereign government in favor of the liberty of a defendant. The 8^th Amendment goes further than enumerate a federal power; it advises the legislature to do what the common law has always done, namely specify, as Blackstone put it, “the nature, though not the quantity or degree, of punishment…for every offence….” By doing so, the amendment protects the liberty of all, “for,” as Blackstone continues, “if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under.”

A humane and just government, therefore, must permit reasonable accommodation for pre-trial liberty for those accused of a crime but not yet convicted. Thus, (1) “excessive bail shall not be required” because, if a citizen is innocent until proven guilty, then the citizen ought to have his or her liberty by means of reasonable bail even when accused. The Supreme Court has upheld some exceptions for those accused of particularly dangerous crimes, but overall, the amendment and subsequent case law have protected citizens’ pre-trial liberty and right to post bail.

A humane and just government must not (2) impose “excessive fines.” The 8^th Amendment has been used by the courts to limit fines and penalties on the basis established in a 1998 case that those fines were “grossly disproportional to the gravity of a defendant’s offense.” By limiting the potentially capricious punishment of excessive fines, the amendment has made for a more peaceful and predictable civil society, one freer from unforeseen onerous fines, which confiscate property and lead to possible imprisonment.

And finally, a humane and just government does not (3) inflict “cruel and unusual punishment.” The Supreme Court first saw this clause as a bar on brutal punishments extant at the time of the founders, horrors such as disembowelment or being dragged to execution. But the Warren court and due process has expanded this clause’s application to a whole host of considerations as to what constitutes “cruel and unusual punishment,” including deciding whether capital punishment is a disproportional penalty for certain crimes. While perhaps our founders would not have approved of its modern and wider application, nevertheless, the 8^thamendment continues to function as a warning to government lest it become too severe or capricious in its task of punishment.

Matthew Mehan is, among other things, a U.S. history teacher in Washington DC.

April 9, 2012

Essay #36

April 8, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment VIII: Right Against Cruel and Unusual Punishment

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, Nathaniel Stewart 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Constitutional Amendment VIII, Constitutional Amendment VIII, Declaration of Independence, Nathaniel Stewart, The Constitution of the United States of America

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39872908

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Early Origins of the 8^th Amendment’s

“Cruel and Unusual Punishments” Clause

Like many provisions of the Constitution and the Bill of Rights, the protection against “cruel and unusual punishments” prescribed in the 8^th Amendment has deep English roots. The text of the 8^th Amendment is taken almost verbatim from England’s Declaration of Rights of 1689, an indictment of King James II that reads rather like our own Declaration of Independence and accuses the king and his government of mistreating the people and subverting the law.

Historians generally agree that the “cruel and unusual punishments” clause of the English Declaration of Rights was in response to abuses by the infamous Lord Chief Justice Jeffreys of the King’s Bench during James II’s reign. Lord Chief Justice Jeffreys presided over the “Bloody Assizes”—a special commission that tried, convicted, and executed hundreds of suspected rebels following the failed rebellion in 1685. The Bloody Assizes carried out punishments that included drawing and quartering, burning, beheading, and disemboweling those convicted. But these punishments, as vicious as they might sound to us today, were specifically authorized by law at the time. More recent scholarship suggests that it was not the nature of the punishments that led to the Declaration of Rights provision, but the arbitrary sentencing power that Jeffreys had used in sentencing those found guilty. Many believed that Jeffreys was merely inventing special penalties for enemies of the king, and that those penalties and punishments were not authorized by the common law or by statute.

Thus, the Declaration of Rights objects to the “illegal and cruel punishments inflicted . . . All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.” 1 Wm. & Mary, Sess. 2, ch. 2 (1689). Legal discussions at the time of the Declaration of Rights indicated that a punishment was not considered wrong only because it was severe or even disproportionate to the crime; but a punishment was “cruel and unusual” if it was “out of the Judges’ power,” “contrary to the law and ancient practice,” “without precedent,” “illegal,” or imposed by “pretence to a discretionary power.” The phrase “cruel and unusual” was often synonymous with “cruel and illegal.”

By the time of America’s founding many of the colonies had constitutions with provisions very similar to the “cruel and unusual punishments” clause of England’s Declaration of Rights. In 1791, five States prohibited “cruel or unusual punishments, and two more States prohibited “cruel” punishments. The U.S. Constitution’s Bill of Rights ultimately followed Virginia’s prohibition of “cruel and unusual punishments.”

Because there were no federal common-law punishments, the clause effectively served as a check upon the Congress, not upon federal judges, so there is some question as whether “unusual punishment” continued to mean a punishment “contrary to law” as it had meant under English law. Instead, “unusual punishment” came to mean one that “does not occur in ordinary practice.” Webster’s American Dictionary (1828). It is widely believed that by forbidding “cruel and unusual punishments,” the 8^th Amendment prevents Congress from authorizing particular kinds or modes of punishment, especially cruel methods of punishment that are not regularly or customarily used.

The debates in the state ratifying conventions support the idea that the “cruel and unusual punishments” clause was designed to prohibit certain forms of punishment. In the Massachusetts Convention in 1788, for example, one objection to the Constitution (without a Bill of Rights) was that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on it, but that racks and gibbets may be amongst the most mild instruments of discipline.” 2 J. Elliot, Debates on the Federal Constitution 111 (2d ed. 1854). A Bill of Rights was needed, they argued, in order to prevent Congress from “inventing” such punishments and resorting to vicious types of discipline.

Early commentaries on the Amendment also indicate that it was designed to outlaw certain types of punishment: “The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 154 (1840). And, as Justice Story observed in his Commentaries on the Constitution, the 8^th Amendment was “adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.” 3 J. Story, Commentaries of on the Constitution of the United States § 1896 (1833).

As the history and origins of the 8^th Amendment make clear, criminal punishments should not be arbitrary or exacted by judges contrary to the law; and neither should they be “unusual” or torturous methods of discipline that are beyond the ordinary forms of reproach. The 8^th Amendment helps to protect against such punishments, and is yet another example of the Founders drawing upon their understanding of the rights of Englishmen, adapting the rights and laws of England to their own circumstance and government, and learning the lessons of history so as not to repeat the same mistakes.

Nathaniel Stewart is an attorney in Washington, D.C.

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April 6, 2012

Essay # 35

April 5, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment VIII: Right Against Excessive Fines

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment VIII, Constitutional Amendment VIII, Virginia Declaration of Rights by George Mason

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/39813188

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive Fines Clause

The Eighth Amendment declares excessive fines to be unconstitutional. Along with the other clauses of the amendment, which prohibit excessive bail and cruel and unusual punishment, this clause sought to protect Americans against prosecutorial overreach by the government.

The Eighth Amendment echoed Art I, § 9, of the Virginia Declaration of Rights, which itself appropriated from the English Bill of Rights. Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, stated that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”

The 1689 English version was meant to curb abuses by English judges. During the reigns of the Stuarts, judges had imposed heavy fines on the King’s enemies. In the 1680’s in particular, the use of fines became even more excessive and selective, and opponents of the King who could not pay were imprisoned. The authors of the 1689 Bill of Rights knew this only too well – having been themselves subjected to selective and heavy fines by the King’s judges.

The Eighth Amendment in general received little debate in the First Congress, and the Excessive Fines Clause received even less attention. Perhaps this is because the wisdom of these limitations was obvious to the Framers; at least eight of the original States that ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.

Even so, there are two obvious ambiguities in the clause that have required interpretation. First, what kinds of payments are “fines?” Second, what fines should be considered “excessive?”

I. What is a fine?

Given that the Eighth Amendment is identical to a clause from the English Bill of rights, it is useful to know what a “fine” was thought to be in English law. English cases immediately prior to the enactment of the English Bill of Rights stressed the difference between civil damages and criminal fines. Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1677). A fine was defined as a payment to the state, not a state-ordered payment to another private citizen. Accordingly, court-ordered damages paid to a private litigant, even punitive damages, have been held not to implicate the Eighth Amendment. Browning-Ferris Industries v. Kelco Disposal, 492 US 257 (1989). However, asset forfeiture, which requires property to be awarded to the government as punishment for some offense, is subject to the Eighth Amendment. Austin v. United States, 509 U.S. 602, 622 (1993).

II. When is a fine “excessive?”

Whether a fine is excessive depends on its proportionality. That is, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is intended to punish. Austin v. United States, 509 U. S., at 622-623. In the case of a monetary fine, a court would consider whether the value of the fine is in relation to the seriousness of the offense. A hypothetical extreme example would be exacting a million dollar fine to punish jaywalking. Closer cases are naturally harder to judge.

Unfortunately, the fines English judges had imposed were never described with much specificity. None of these sources suggests how out of proportion a fine must be in order to be deemed constitutionally excessive.

The Supreme Court has addressed this issue in a handful of cases. It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense. As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis. She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit. Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics. She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34

April 4, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment VIII: Right to Reasonable Bail

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VIII, Constitutional Amendment VIII, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39746844

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail (http://www.forbes.com/sites/walterpavlo/2012/03/05/extradited-u-k-citizen-chris-tappin-denied-bail/) as was the doctor accused of causing the death of a pop musician (http://abcnews.go.com/US/michael-jacksons-doctor-conrad-murray-denied-bail/story?id=15784437#.T3C6BTFBt2A).

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 (http://avalon.law.yale.edu/17th_century/england.asp) as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story (http://www.syracuse.com/news/index.ssf/2012/03/judge_questions_then_lowers_1.html) describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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April 4, 2012

Essay # 33

April 3, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment VII: Trier of Fact Versus Law

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VII, Eric Wise 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Constitutional Amendment XIV, Constitutional Amendment XIV, First Inaugural Address by Ronald Reagan, Eric Wise

Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/39680022

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table. Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience. In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm. Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial. The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . 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.” The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.” However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states. The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact. Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court. Judges further instruct the jury as to what is the law to which the facts are to be applied. In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case. Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law. Commercial parties frequently waive the right to a jury trial. Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries. This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury. Left and Right take varying and perhaps contradictory positions on this. Some on the Right advocate for removal of juries in medical malpractice cases. The plaintiffs bar howls. The Left admires administrative law and great bureaucracies. They call it job creation. Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best. In his First Inaugural Address he said first: “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32

April 2, 2012/4 Comments/by Janine Turner and Cathy Gillespie

Amendment VII: Right to Trial in Civil Disputes

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VII, Julia Shaw 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Julia Shaw, The Constitution of the United States of America

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39609587

Amendment VII:

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day, Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012

Essay #31

April 1, 2012/6 Comments/by Janine Turner and Cathy Gillespie

Amendment VI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Nathaniel Stewart 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VII, Constitutional Amendment VII, Nathaniel Stewart, The Constitution of the United States of America

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39459584

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.

Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure. It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime. As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society. To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen. It was approved by the First Congress without discussion. The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation. It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself. Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away. The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations. A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles. The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent. As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel. A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict. We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial. If the government can martial its lawyers to prosecute, the accused must be entitled to the same. If the government can prepare its case for accusation, the accused must know of the charges. If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf. These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30

[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

March 29, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment VI: Right to Have Assistance of Counsel

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Kyle Scott PhD, The Constitution of the United States of America

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

http://vimeo.com/39386194

Amendment VI:

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

March 28, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment VI: Right to Confront Accuser

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VIII, Constitutional Amendment VIII, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/39322192

Amendment VI:

“…Right to confront your accuser…”

Perhaps more so than any other provision, the 6^th Amendment’s confrontation clause is one of the greatest criminal justice protections of the Constitution.

While many Americans today may not be aware, there was a time when trials didn’t operate with the protections that we rely upon today. Consider the trial of Sir Walter Raleigh. Well known for promoting tobacco in England, he was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer.

In 1603, Sir Walter Raleigh was arrested and accused of treason against King James. Raleigh was allegedly one of the primary conspirators of the so-called “Main Plot,” an effort to end the rule of King James an install his cousin in his place.

The trial was held in the Great Hall of Winchester Castle and the primary evidence relied upon by the crown was the signed confession of Henry Brook, the Baron of Cobham. Throughout the trial, Raleigh requested that Baron Cobham be called in to testify so that he might demonstrate the falsity of the claims, “[Let] my accuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!”

Even though criminal law prevented the use of so called “hearsay” evidence, the crown’s tribunal refused to compel Baron Cobham’s testimony. Without the ability to publicly force the baron’s testimony or to challenge his veracity, ultimately Raleigh was found guilty and imprisoned in the famous Tower of London.

This experience was a powerful one for the colonists coming to America and would significantly influence the contours of the 6^th Amendment.

The modern Supreme Court has made it clear that the “Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish.”

The power of the government to use its resources to accuse, indict and try an individual is considerable. The framers understood this concern and therefore provided for a means whereby the individual could have the ability to limit the impact of the government’s power in this arena. The confrontation clause explicitly places a limit by requiring that evidence be presented by a bona fide witness capable of being “cross examined” or challenged on the witness stand.

Thus instead of unknown witnesses or unidentified individuals presenting allegations secretly to convict a person, the confrontation clause requires not only that the government identify those individuals as part of the trial, but to also allow the defendant to rebut or challenge any evidence they attempt to present.

Typically the confrontation rule requires that this occur in open court. This rule not only applies to witnesses, but also to any written documentation or other types of evidence that the government may wish to present in a trial. In other words, not only must a homeowner – who was an eyewitness — submit to “cross examination” in a burglary trial, any finger print or blood evidence must also be subject to a challenge by experts in finger print and forensic science.

Normally, evidence is testimonial, that is there is a person making the statement which is considered by the judge or jury and he or she must generally be available for cross examination. While there may be an exception for a circumstance wherein the witness is unavailable, generally speaking the defendant must have had a prior opportunity for cross-examination of the witness before that testimony is allowed.

Furthermore the confrontation clause is one of the reasons that so-called “hearsay” evidence is limited in court. Hearsay simply covers the type of information that may prove useful for a trial that is presented by someone other than an eyewitness about information that typically only the eyewitness could recount. Because of the confrontation clause, even the limited evidence that is allowed to be presented under hearsay exemptions still must be presented by witnesses that can be challenged. For example, a so-called deathbed confession may be allowed to be entered as evidence. However the person or document presenting the evidence must be capable of being challenged regarding their motive or accuracy etc.

Without the confrontation clause, a valuable right would not exist that protects individuals against the power of the state. Per the terms of the confrontation clause, Ex Parte or out of court statements are generally not allowed, defendants are guaranteed the right of “personal examination” of the witness, the witness must testify under oath, and the jury must be allowed to observe the demeanor of the witness in making his statement.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

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March 28, 2012

Essay #28

March 27, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment VI: Right to be Informed of the Charge

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article III, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment XIV, Constitutional Amendment XIV, Joerg W. Knipprath

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

http://vimeo.com/39239148

Amendment VI:

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17^th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

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March 27, 2012

Essay #27

March 26, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment VI: Right to an Impartial Jury

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Julia Shaw 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment VI, Constitutional Amendment VI, Declaration of Independence, Julia Shaw

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39171149

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

The Jury Trial Clause

The right to a trial by jury is essential to the American legal tradition. The Charter of the Virginia Company in 1606 guaranteed the colonists all the traditional rights of Englishmen, including the right to trial by jury. The Declaration of Independence recognized the importance of the right, when it condemned the King “for depriving us in many cases, of the benefit of Trial by Jury.”

When drafting the Constitution, the framers made the jury part of the structure of government: Article III states “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.” In drafting the Bill of Rights, the framers separately protected the right to a trial by an impartial jury in federal criminal cases in the Sixth Amendment.
In the early history of the United States, a jury consisted of 12 individuals who were drawn from the community in which the crime was committed. Though members may have some knowledge of a case before they enter the courtroom, they would consider the evidence presented to reach unanimous verdict. A jury decided both questions of fact and questions of law. Meaning, judges would not tell jury members what the law meant; instead, lawyers argued questions of law before the jury, and the jury decided how the law should be interpreted and applied.

The Sixth Amendment does not mention who can serve on a jury. Initially, federal courts looked to state laws to determine who could serve on a jury. In early American history, all states limited jury service to men, and all states except Vermont required jurors to be property owners or taxpayers. A few states prohibited blacks from serving on juries.

Since the Framing, the interpretation of the Jury Trial Clause has changed in several significant respects. First, juries now decide questions of fact and not question of law. Since the Supreme Court’s ruling in Sparf and Hansen v. United States (1895), judges tell the jury what the law means, and jurors are obliged to follow that definition. Although their power to determine questions of law has been eroded, juries still retain the raw power to check general laws, because a verdict of non-guilty is not reviewable.

Second, the clause now applies to both state and federal proceedings, according to the Supreme Court’s ruling in Duncan v. Louisiana (1968).

Third, the Supreme Court has also altered the rules regarding the size of a jury and the requirement of unanimity. For hundreds of years, juries consisted of 12 individuals. In 1970, though, the Supreme Court ruled that juries could consist of as few as six members. Six-person juries must reach a unanimous decision, and unanimous decisions are required in federal cases. But, non-unanimous verdicts are permissible for 12-person juries in state courts: that means convictions by a vote of 11–1 and 10–2 are possible.

Fourth, the Supreme Court has ruled that both the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit the jury qualifications of the Founding era. Race and sex are no longer grounds for preventing individuals from serving as jury members.

Perhaps the greatest change today is how few criminal cases ever go before the jury. Nearly half of felony convictions are achieved without juries. Guilty pleas and plea bargains account for the vast majority of felony cases. Guilty pleas were rare and discouraged during the Founding era, when jury trials were routine. Though these individuals are sentenced without jury trials, the Supreme Court recently concluded that certain federal sentencing guidelines violate the right to trial by jury.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

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March 26, 2012

Essay #26

March 25, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment VI: Right to a Public Trial

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39033167

Secret trials are the stuff of nightmares and a hallmark of a totalitarian state. The U.S. Supreme Court has noted that institutions employing secret trials “symbolized a menace to liberty.” In re Oliver, 333 U.S. 257, 269 (1948).

When the Framers of the Sixth Amendment included the requirement of a “public” trial, they were enshrining a longstanding protection of liberty. William Blackstone, a bestseller in the Framing era, noted public trials dated back to the Roman Republic. England had public trials before the Norman Conquest and a “right” to a public trial seems to have existed in the 1600s. The important American treatise writer, Joel Bishop suggested the right in the Sixth Amendment is attributable to “immemorial usage.” Richmond Newspapers v. Virginia, 448 U.S. 555, 565-568 (1980); Harold Shapiro, “Right to a Public Trial” 41 Journal of Criminal Law & Criminology 782 (1951).

The right is borrowed from the common law of England and contrasts with the civil law system (more common in Europe) which allows for private examination of witnesses. The Pennsylvania and North Carolina constitutions of 1776 both provided for open trials. There was little discussion of the provision in the debates over the Sixth Amendment. In re Oliver, 333 U.S. 257, 269 (1948); Max Radin, “The Right to a Public Trial” 6 Temple Law Quarterly 381 (1931).

For the individual being tried a public trial provides crucial protections. Quoting In re Oliver again: “the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Page 270. Having proceedings out in the open provides “assurance that the proceedings were conducted fairly to all concerned” and discouraged “decisions based on secret bias of partiality.” Richmond Newspapers v, Virginia, 448 U.S. 555, 569 (1980).

For society at large public trials also serve valuable purposes. They discourage lying by witnesses (since someone who knows the truth could be in the courtroom), discourage bad behavior by participants, and provide an education on the legal system.

Put more simply, everyone (judge, attorney and witnesses alike), is likely to be on their best behavior when they know they are being observed. This is why parents whisper (or hiss) when they threaten their children at the grocery store.

This is a serious matter, though. In 1948, the Supreme Court could note: “we have been unable to find a single instance of a criminal trial conducted in camera [meaning in the judge’s chambers and not in open court] in any federal, state, or municipal court during the history of this country.” In re Oliver, page 266. That same year, an American citizen was arrested in Czechoslovakia and convicted of espionage in a secret trial ultimately escaping in 1952. Ken Lewis, “Leaving an Imprint” St. Augustine Record, September 26, 2003 at http://staugustine.com/stories/092603/new_1830364.shtml.

How many Americans have been spared a similar fate because of the wisdom of the Framers? Yet another debt of gratitude we owe them.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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March 23, 2012

Essay #25

March 22, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment VI: Right to a Speedy Trial

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Cynthia Dunbar 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment XIV, Constitutional Amendment XIV, Cynthia Dunbar

Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

http://vimeo.com/38961672

Amendment VI:

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government. Rather, they are rights that are deemed to already exist preserved from governmental deprivation. The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice. The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence. Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty. The protections of the 6^th Amendment have been said to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice. First, it minimizes the threat that mere public accusation could create in its absence. Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen. The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify. Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice. Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right. But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins. This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers. They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial. The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence. This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends. A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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March 22, 2012

Essay #24

March 21, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Amendment V

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Michelle Griffes 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Michelle Griffes, The Constitution of the United States of America

Guest Essayist: Michelle Griffes, Manager of Programs and Curriculum Development at the Bill of Rights Institute

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.

Movies and television shows have popularized Fifth Amendment protections like “grand jury indictment,” “double jeopardy,” “pleading the Fifth,” and “due process,” but do Americans truly know what these clauses protect? Do Americans understand what their lives would be like without the protections of the Fifth Amendment? In order to explain the Fifth Amendment in its entirety, we will explore each of the five clauses of the Fifth Amendment, the basic history of the clause, and the protections provided by the clause.

The first clause in the Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” According to the Handbook for Federal Grand Jurors, a grand jury hears evidence against an accused person from the United States Attorney or Assistant United States Attorney in order to determine whether he or she should be brought to trial. The U.S. Attorney then has to approve the indictment as a check on the grand jury. [1] Grand juries were first recognized in the Magna Carta in 1215. As British subjects moved to North America,, they brought English common law practices, including grand juries, with them. Eventually, indictments for capital crimes by grand juries were ensrhined in the Bill of Rights.

The second clause in the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is commonly known as “double jeopardy” and prevents a defendant from being charged for the same crime after acquittal, conviction, certain mistrials, or multiple punishments. The portion of the clause that refers to “life and limb” is derived from the possibility of capital punishment. [2] Protections against double jeopardy can be found as far back as the Old Testament and ancient Roman law. [3] Double jeopardy can be complicated by the differences between criminal and civil cases and state and federal cases. O.J. Simpson, for example, was acquitted in a criminal murder case, but he was found guilty in a civil case. Hate crime statues also challenge double jeopardy protections, with some arguing that trying defendants for a hate crime after acquittal in a criminal case constitutes double jeopardy.

The Fifth Amendment also promises: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” This is the famed “pleading the Fifth” assertion we often hear in American vernacular. The clause protects individuals from answering questions or making statements that might be used as evidence against them. [4] This protection was expanded outside the courtroom with the United States Supreme Court case Miranda v. Arizona, 1966. The Court ruled that the self-incrimination clause also applied in police interrogation. [5]

“[No person shall] be deprived of life, liberty, or property, without due process of law” is the fourth clause of the Fifth Amendment. Due process was first protected under the Magna Carta in which King John promised that he would act in accordance with the law through procedures. The U.S. government provided for due process rights in the Fourth Amendment and in the Equal Protection clause of the Fourteenth Amendment. In order to ensure justice, established procedures must be followed before depriving people of life, liberty, or property. These procedures include the rights to a speedy jury trial, an impartial jury, and to defend oneself. [6]

Property is first mentioned as part of the due process clause of the Fifth Amendment, but private property is mentioned again in the final clause. The clause states, “nor shall private property be taken for public use, without just compensation.” If the state or federal government decides to take private property for public use, they must compensate the owners for that use. This is known as the “takings clause” or “eminent domain.”[7] Supreme Court has held that just compensation is measured by the current market value of the property. [8]

While Americans may hear about the Fifth Amendment protections regularly, they may not really understand the specific rights enumerated in each clause. The Fifth Amendment provides for grand jury indictments in capital crimes, protections against double jeopardy and self-incrimination, and protections of due process rights and just compensation for public use of private property. Each of these rights has a history in English common law or as far back as the Roman Empire, and the Founding Fathers believed that they needed to be explicitly provided for in our own government documents to ensure their protection.
1. Administrative Office of the United States Courts, Washington, D.C. “Handbook for Federal Grand Jurors.”

October, 2007. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/FederalCourts/Jury/grandhandbook2007.pdf
2. Find Law. “Cases and Codes, U.S. Constitution: Fifth Amendment.” http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html
3. David S. Rudstein. “A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy.” 14 Wm. & Mary Bill of Rts. J. 193 (2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/8
4. Find Law. “Fifth Amendment Right Against Self-Incrimination.” http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
5. The Oyez Project. “Miranda v. Arizona, 1966” http://www.oyez.org/cases/1960-1969/1965/1965_759
6. Cornell University School of Law. “Due Process.” http://www.law.cornell.edu/wex/due_process
7. Missouri Bar Center. “What is Eminent Domain?” http://library.findlaw.com/1999/May/25/130971.html
8. The Oyez Project. “United States v. 50 Acres of Land, 1984.” http://www.oyez.org/cases/1980-1989/1984/1984_83_1170

Michelle Griffes is the Manager of Programs and Curriculum Development at the Bill of Rights Institute, an Arlington, Virginia-based educational non-profit. Michelle obtained degrees from Michigan State University in Public Policy and Olivet College in Elementary and Secondary Education. The Bill of Rights Institute teaches students about the Founding Documents through teacher professional development seminars, curriculum production, and student programs including the annual Being An American Essay Contest.

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March 21, 2012

Essay #23

March 20, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment V: Right to Just Compensation in Eminent Domain Matters

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Gordon S. Jones 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Declaration of Independence, Dred Scott Decision, Gordon S. Jones, The Constitution of the United States of America

Guest Essayist: Gordon S. Jones, Utah Valley University

http://vimeo.com/38825685

Amendment V:

“…nor shall private property be taken for public use, without just compensation.”

The power to take private property is not one of the “enumerated” powers set forth in the Constitution. But as a practical matter, one of the things that makes a government a government appears to be the power to take property. That right is called “condemnation,” or the power of “eminent domain.”

The theory is that without government, any private property is subject to confiscation by anybody stronger. Governments (and especially ours) exist to protect property from such arbitrary takings. The Declaration of Independence identifies “life, liberty, and the pursuit of happiness” as among the “inalienable rights,” but the Founding Fathers, relying on English theorist John Locke, understood “happiness” to include the right to private property. Early uses of this phrase actually say “life, liberty, and property.” Alexander Hamilton described “the security of property” as one of the primary purposes of government.

With the “takings” clause of the Fifth Amendment, Founding Father James Madison was only trying to provide property owners with at least the assurance that proper procedures would have to be observed in takings, and that owners would at least get something for their loss.

There are a number of concepts that need to be explored in understanding the Takings Clause: what is a “taking,” what is “public use,” and what is “just compensation”?

If the government takes your farm and builds a military base on it – occupies it – that is obviously a “taking.” But what if you own property on top of a mountain, and you want to build five houses on it that you can sell for $1 million each. Government tells you that you can only build one house there, and that house will sell for only $1.5 million. Has the government “taken” $3.5 million from you?

If a Forest Ranger discovers a spotted owl nesting in your tree farm, you may not be allowed to cut the trees. Has government “taken” the value of the timber?

These are the kinds of questions governments and courts ask in deciding whether property has been “taken.” It would be nice to think that, after more than 200 years, we had clear answers to these and similar questions, but the fact is, we don’t. One Supreme Court Justice said that government could impair the value of property by regulation without paying compensation as long as it didn’t go “too far.” Not exactly the clearest standard.

What about “public use”?

If your county government takes your property and builds an airport on it (or a school or hospital), most would agree that the property had been taken for a “public use.” On the other hand, what if the property was taken and sold to a private developer who built an office building on it? Would that be a “public” use? Probably not, but if the property were in a run-down (“blighted”) area of town, and the development eliminated a row of crack houses and re-vitalized the economics and livability of the neighborhood, the courts might find such a taking justified (and therefore constitutional).

Again, you might think that there is a lot of “wiggle room” in these judgments, and you would be right. Some years ago, the State of Hawaii forced private landowners to sell their land to tenants. The Supreme Court upheld the forced sales as being for a “public use.” We might think such a judgment obviously wrong, but we might change our mind if we knew that in Hawaii at that time 72 owners had inherited from ancient times more than 90 percent of the private land in the islands.

A more questionable case occurred in 2005, when the city of New London, Connecticut took several private homes and sold them to a private developer for an office building. There was no question of “blight” in this case, but the city argued that it would get more tax revenue from the office building than it was getting from the private homes, so that the “public” would benefit. This case (Kelo vs. New London) generated a firestorm of opposition, moving many states to strengthen the safeguards on their eminent domain procedures. Critics of the Kelo decision argue that it has changed the words “public use” to the much looser “public purpose.”

Finally, what is “just compensation”? If the city wants to build a road across my property and offers me $1 million for it, I might consider that “just,” and be happy to take it. On the other hand, if my grandfather is buried there, no amount of money could tempt me to sell willingly.

Governments have set up procedures for determining what the “fair market value” is for any property subject to condemnation. These involve the use of real estate appraisers, economists, and planning forecasters. They also typically involve extensive negotiations, which can be expensive for a private landowner – so expensive that the landowner eventually gives up and gives in to the government, which has all the resources of the taxpayer to call on to finance its battle.

The right to own property is part of what the Founding Fathers called the “natural law,” one of the “inalienable rights” mentioned in the Declaration of Independence. The Constitution was written for the purpose of “ensuring” those rights, so we should be very suspicious of governmental power that infringes the enjoyment of property rights. But it is obvious that completely unfettered use of property by one person could infringe the rights of other property owners. At the present time, the system we use to reconcile conflicting – or potentially conflicting – rights is the power of eminent domain, hedged up, as it must always be, with the procedural safeguards guaranteed by the Fifth Amendment: that the “taking” be for a “public use,” and that it be accomplished by “just compensation.”

Gordon Jones, a long-time policy analyst in Washington, studied constitutional Law with Robert Horn at Stanford University, has his Master of Philosophy in Political Science from George Washington University, and teaches Law and Politics at Utah Valley University.

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March 20, 2012

Essay #22

March 19, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment V: Right to Due Process to Prevent Deprivation of Life, Liberty, or Property

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Eric Wise 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Eric Wise

Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/38759291

In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck. Laugh now. In 9^th Century England, procedure was scarcely better. Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.

In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede. That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.” It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of “save by the lawful judgment of his peers or by the law of the land.”

The Constitution originally had no bill of rights. Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people. Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights. Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”

“No, no!” said the Queen in Alice in Wonderland. “Sentence first — verdict afterwards.” Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained. Exigencies and circumstances affect the extent of procedural requirements through balancing tests. In circumstances requiring emergency injunctive relief, minimal notice, if any, is required. Due process is not the same as judicial process. Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.

Substantive due process is perhaps of a more controversial sort. Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application. Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.

Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law. Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg. Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965). In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.

It is important to remember that the due process clause of the Fifth Amendment restricts only federal power. Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia. It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves. Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.

March 19, 2012

Essay #21

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

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March 18, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment V: Right Against Self- Incrimination

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment V, Constitutional Amendment V, Kyle Scott PhD, The Constitution of the United States of America

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

http://vimeo.com/38615563

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

March 15, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Amendment V: Right Against Double Jeopardy

Analyzing the Amendments in 90 Days 2012 Project, Charles Rice, J.S.D., Constitution Amendment V 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Charles Rice J.S.D., Constitutional Amendment V, Constitutional Amendment V

Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

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.

DOUBLE JEOPARDY

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.– U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection? “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity… as well as enhancing the possibility that even though innocent he may be found guilty. In accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959). (citations omitted.)

The importance of the double jeopardy protection is obvious. But its applications raise technical questions. For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.” Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state. The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States. Barron v. Baltimore, 32 U.S. 243 (1833). For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions. Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states. Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ … the same constitutional standards apply against both the State and Federal Governments…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.” Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system. “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority. Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.” U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present. When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense. Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.) The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct. Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938). But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application. Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes). Because a main purpose of the double jeopardy clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, an exception to the general rule prohibiting appeals from nonfinal orders. Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental. That basic character should not be obscured by the necessity of making technical distinctions in its application. Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012

Essay #19

March 15, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment V: Right Against Double Jeopardy

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VIII, Constitutional Amendment VIII, Joerg W. Knipprath, The Constitution of the United States of America

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

http://vimeo.com/38540555

Amendment V:

The 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8^th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

March 15, 2012

Essay #19

March 14, 2012/1 Comment/by Janine Turner and Cathy Gillespie

Amendment V: The Right to a Grand Jury

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment V, Constitutional Amendment V, The Constitution of the United States of America

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/38478927

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system. It does not prosecute, but the power of a federal prosecutor depends on the grand jury. It does not judge, but it can expose or shield defendants from judgment. It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy. The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members. The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction. It allows for free deliberations without threat or pressure from outside. It also discourages witness tampering. And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity. At the same time, their proceedings are not adversarial. The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism. Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice. While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run. For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

March 14, 2012

Essay #18

March 13, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment IV: Warrants Must Describe the Place and Persons With Particularity

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment IV, Constitutional Amendment IV, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/38416219

Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.

Amendment IV: Particularity of Warrants

Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,

The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.

The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.

The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.

The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”

The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.

These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.

A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.

Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?

Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.

The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.

March 13, 2012

Essay #17

March 12, 2012/9 Comments/by Janine Turner and Cathy Gillespie

Amendment IV: Warrants to Have Probable Cause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Boston Tea Party, Constitutional Amendment IV, Constitutional Amendment IV, Declaration of Independence, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/38333110

“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”

Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights. One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of. Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.

The 2^nd clause of the 4^th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed. Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.

As is the case with much of America’s legal system, British history is a good starting point to understand this provision.

Let’s start with the “Star Chamber” or camera stellata as it was called in Latin. It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.) Reports of its existence suggest it operated early as the 13^th Century and sat at the royal Palace of Westminster until 1641.

Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent. Its sessions were held in secret. It made no pretense of operating under traditional court rules involving criminal or civil procedure. There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify. However perhaps more offensive than these predations was its authority to issue “general warrants.” These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.

In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item. The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith. The items typically weren’t returned and even when they were, they were often damaged or destroyed.

Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.

Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants. Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.

One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.

Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration. Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel. Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see. As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end. Within the next 5 years he’d be charged again and again. Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.

Wilkes fled to France but eventually returned to England. Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government. Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.

But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767. Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.

As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion. These warrants issued under the authority of the crown were particularly troublesome. They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches. Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other. Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.

Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”

The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so. Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law. Rather than quelling the situation, this dramatic escalation made matters worse. Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.

It is that framework which influenced the writers of the 4^th amendment. Although far more jurisprudence is placed on the importance of the first clause of the 4^th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

March 12, 2012

Essay #16

March 10, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment IV: Protection Against Unreasonable Searches

Analyzing the Amendments in 90 Days 2012 Project, Charles K. Rowley, Ph.D., Constitution Amendment IV 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Charles K. Rowley PhD, Constitutional Amendment IV, Constitutional Amendment IV

- Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

March 9, 2012 – Amendment IV: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. – Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

Although my assignment is to discuss the first clause of the Fourth Amendment, I cannot do so effectively without referring also to the second clause. Therefore, my Essay embraces both clauses, while focusing primary attention on the first.

Like many other areas of American law, the Fourth Amendment is rooted in English legal doctrine. Sir Edward Coke, in Semayne’s case (1604) stated: ‘The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.’ In this judgment, the Court determined that the King was not endowed with unlimited authority to intrude upon his subjects’ dwellings, while recognizing that the King’s agents were permitted to conduct searches and seizures under specified conditions, when their purpose was lawful, and when a warrant had been secured.

The 1760s witnessed a significant growth in the rate of litigation against government agents using general warrants to locate and seize materials relating to John Wilkes. Wilkes’ publications attacked vehemently not only government policies, but the King himself. The most famous of these cases was Entick v. Carrington (1765) in which Charles Pratt, 1^st Earl Camden, ruled that the forcible entry by the King’s Messenger into the home of John Entick, and the search for and seizure of pamphlets and other materials under a general warrant was unlawful. This case established the English precedent that the executive is limited by common law in intruding upon private property.

Unlike other provisions in the ‘Bill of Rights’, however, the Fourth Amendment was grounded mainly in American colonial experience, rather than in English history. In order to stem rampant smuggling by tariff-evading colonialists, the British parliament had conferred vast powers of search on British customs officials. The Writ of Assistance was a general search warrant granting such officials virtually unlimited discretion to search, and was valid throughout the lifetime of a sovereign. Casting its net widely, such a writ required neither ‘probable cause’, nor any description of persons or premises, nor even a magistrate’s authorization of a particular search. The arbitrary nature and capricious application of this writ enraged many colonialists and drove post-revolutionary arguments in favor of the Fourth Amendment (Jacob Landynski, ‘Fourth Amendment’, The Oxford Companion To The Supreme Court Of The United States. Edited by Kermit L. Hall, Oxford University Press, 1992).

Despite its apparent comprehensiveness, the Fourth Amendment actually provides very little guidance concerning how to deal with potential search situations. Its historical justification teaches us a preference, wherever feasible, for a search under warrant over a judicially unsupervised police action. Its text requires a standard of ‘probable cause’, and a description of the persons and premises involved. However, the text does not define ‘probable cause’, nor does it even define a ‘search’. In such circumstances, the United States Supreme Court has played a significant role, both in construing the text, and in determining how closely to hew to the history of the amendment.

Early on, the Court construed the text strictly and interpreted history narrowly. In a changing environment, such construction allowed many avenues for government agents to evade the reach of the Amendment. For example, for some time, the Court determined that electronic eavesdropping did not fall within the reach of the Amendment. Similarly, administrative inspections were exempt because they were viewed as invading ‘only’ the privacy interest of the individual rather than his security interest. Only after the Court moved away from strict construction, was it willing to hold that these new forms of search fell within the scope of the Amendment.

The great dilemma of interpretation concerns the relationship between the Amendment’s two clauses. The first clause bans unreasonable searches while the second clause defines the conditions for issuance of a warrant. Three possible interpretations emerge, each of which has been sanctioned by the Court at one time or another.

The most obvious interpretation is to consider the warrant clause as explanatory of the reasonableness clause. This interpretation has been followed in most of the Court’s cases. In the judgment of Justice Potter, ‘searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ (Katz v. United States, 1967)

A second interpretation reinforces the first, by inferring that some searches are sufficiently offensive to civilized standards of behavior as to be unreasonable even under warrant. In this interpretation, the Court in 1886 proscribed the search and seizure of private papers even though such search was authorized by judicial process. In 1921, the Court limited a search to contraband and the fruits of crime, banning the seizure of mere evidence. These restrictions, however, no longer apply.

The third interpretation treats the two clauses as separable, as was implied in the nature of my commission for this Essay. The reasonableness of a search, in this interpretation, is not dependent on the existence of a warrant, but on what Justice Minton called, ‘the facts and circumstances – the total atmosphere of the case’ (United States v. Rabinowitz, 1950). Between 1950 and 1969, this interpretation ruled and the Court sanctioned extensive warrantless searches of premises where arrests were made.

Either of the first two interpretations is faithful to the purpose of the Amendment. The third interpretation, however, is not. Once a standard of reasonableness is segmented from the warrant requirement, it provides no standard whatsoever. A determination of probable cause, even in non-exigency situations is then simply made by the police, and citizen protection is completely denied. Unfortunately, at the present time, the Court is leaning once again in favor of the third interpretation – under a Hobbesian pressure from a terrorist-infested environment – even while it continues to pay lip-service to the first.

The Amendment covers arrest as well as search, albeit with an important difference between the two. An outdoor felon arrest is always viewed as an exigency, not requiring a warrant. An entry into a person’s house, in order to make an arrest, requires a warrant, unless an exigency can be demonstrated.

Perhaps the most controversial feature of the Court’s Fourth Amendment jurisprudence is the rule requiring exclusion of evidence seized in violation of constitutional standards. Suppressing evidence merely because of the wrongful manner in which it was acquired is unique to American law. This exclusionary rule first appeared in Boyd v. United States (1886). It was made explicit for the federal courts in Weeks v. United States (1914). It was extended to state prosecutions in Mapp v. Ohio (1961). The exclusionary rule was rigorously enforced until 1984, when the Court retreated somewhat in United States v. Leon. The justices ruled that ‘good faith’ reliance by police on a defective warrant does not require exclusion.

This back-track coincides with a more general retreat by the Court into the feel-good fuzziness of a living constitution. Eventually, such a retreat may leave the Court sanctioning warrantless searches under non-exigent circumstances. At such time, an unconstitutional Supreme Court, to all intents and purposes, will have arbitrarily repealed the Fourth Amendment to the Constitution of the United States.

Charles K. Rowley, Ph.D. is President and General Director of The Locke Institute in Fairfax, Virginia and Duncan Black Professor Emeritus of Economics at George Mason University. For further details see www.thelockeinstitute.org and www.charlesrowley.com

March 9, 2012

Essay #15

March 8, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Andrew Dykstal, a Junior at Hillsdale College

Amendment III

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Third Amendment seldom enjoys press or study; one high school-level text dismisses it with a single sentence to the effect of “This amendment has been unimportant since its adoption.” Nevertheless, the Third Amendment offers valuable insight into the Constitution’s intended restraints on standing armies and the relationship between civil and military authorities. The Third Amendment directly protects the property and freedom of individual citizens, but it also imposes an additional limit on the power of the executive to maintain military power without the consent of the legislature.

The surface-level meaning of the Third Amendment is quite straightforward: In peacetime, the federal government cannot use any residence to house soldiers without the consent of the owner. Only in wartime–a condition that only Congress can declare–can soldiers be housed in private residences. Even in this case, Congress must provide for this mediation of property rights by an act of law distinct from a declaration of war. In the only significant court case (Engblom v. Carey, 1982) involving the Third Amendment, the Second Circuit Court of Appeals held that the concept of “soldier” can be broadly construed to include National Guardsmen. More significantly, the court held that “house” includes dwellings not owned by the inhabitant, such as apartments and rented rooms. The Third Amendment therefore constitutes a broad protection of the citizenry against legislative power in peacetime and the executive at any time.

In contemporary times, this protection may seem unnecessary or redundant with, say, the Fourth Amendment. But when the Bill of Rights was drafted, memories of royal abuse were still fresh in American minds, and the question of abusive military was a subject of intense debate between the Federalists–the people who supported the ratification of the Constitution–and the Antifederalists–the people who opposed it. The Third Amendment addresses on of the Antifederalists’ historically-grounded concerns. The Declaration of Independence reads, in part, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power….For Quartering large bodies of armed troops among us…” This indictment of King George III bridges two separate but equally significant issues. First was the traditional, specific aversion to the quartering of troops in private homes. Parliament passed a series of Quartering Acts beginning in 1765, directly contravening the 1689 English Bill of Rights. These acts called into question the Americans’ rights as Englishmen and subjected them to treatment unconscionable for citizens of the Empire. More pragmatically, the conduct of British troops, stationed far from home in what was often considered a colonial backwater, was often reprehensible, and crimes against colonists increased in frequency and severity as political tension grew. The colonists experienced a direct, vivid reminder of why the quartering of soldiers in homes had been explicitly forbidden under British law for decades.

The second issue at the heart of this indictment of King George III (and at the heart of the Third Amendment) is substantially more interesting from a contemporary perspective. The very existence of a standing army in the colonies was generally taken as offensive, and this sentiment influenced the development of the Constitution. The Third Amendment renders significantly more difficult the maintenance of “in times of peace, Standing Armies without the Consent of our Legislatures.” Specifically, the Third Amendment checks executive and military power by increasing the cost of maintaining a standing army. In Federalist 26, Alexander Hamilton describes the way in which regular funding renewal forces the legislature to continuously revisit the question of a standing army. Under Article One, Section 8, the executive is reliant on legislative approval to fund the military, and the Third Amendment helps to prevent an end run around these measures; the federal government must make appropriations via Congress to support the military. The military cannot support itself directly from the people unwilling hospitality. With the memory of the threat a standing army can pose to liberty in mind, the Constitution’s framers put in place both primary and incidental restrictions on the nature of executive and military power.

The specific protection afforded by the Third Amendment has not, thankfully, seen as much use as those afforded elsewhere in the Bill of Rights, but the ideas and intent behind this amendment can still educate us about our nation’s history and inform our current policies. The Third Amendment speaks to the grave responsibility in the hands of the legislature as long as the United States maintains a powerful military in war and peacetime alike, and it speaks to the care necessary in the exercise even of necessary power.

March 8, 2012

Essay #14

March 7, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment III: Freedom From Quartering Soldiers in Peacetime

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment III, William Morrisey, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment III, Constitutional Amendment III, Constitutional Amendment IV, Constitutional Amendment IV, The Constitution of the United States of America, William Morrisey PhD

Guest Essayist: William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Amendment III

“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.” So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes. They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders. And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry. By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?” Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.” By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes. Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.” Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight. After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments. One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia. Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.” With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat. Times of extreme emergency may require the risk and burden of quartering troops in private homes. Accordingly, Congress provided that the practice might be renewed by legislative act. The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them. Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense. It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained. It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures. The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

March 7, 2012

Essay #13

March 6, 2012/2 Comments/by Janine Turner and Cathy Gillespie

Amendment II: The Right of the People to Keep & Bear Arms, Shall Not Be Infringed

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment II, John Lott, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, John Lott PhD

Guest Essayist: Dr. John Lott, author of More Guns, Less Crime (University of Chicago Press, third edition, 2010).

“The right of the people to keep and bear Arms, shall not be infringed”

To an overwhelming percentage of Americans, the constitutional question over DC’s and Chicago’s gun bans seemed simple enough. The plain meaning of the amendment was clear, and the Supreme Court agreed. In 2008 and 2010, Supreme Court decisions struck down gun bans and gunlock laws and decided that Americans have a right to self-defense. These were contested decisions, both being decided by close 5 to 4 votes. The four dissenting liberals claimed that there exists no individual right to “self-defense,” and even if such a right existed, it could be overridden by the public interest of reducing gun crimes and suicides.

In his 2008 dissent, Justice Stephen Breyer claimed that the “thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers . . . .” is unrelated to the fears that Americans face today from crime in urban areas. He claims that the proposition that “householders’ possession of loaded handguns help to frighten away intruders” as “a question without a directly provable answer.” And that “none of the studies can show that [handgun bans are] not worthwhile.”

But a simple word count shows how Breyer’s fear over letting law-abiding Americans own guns fills his dissent. Just the words “crime,” “criminal,” “criminologist,” “death,” “homicide,” “murder,” “life-threatening,” “injury,” “rape,” “robbery,” “assault,” “safety,” and “victim” were used a total of 163 times in 44 pages. The terms “accidents” and “suicide” by themselves were mentioned an additional 13 times each. While other words could be included, these words alone averaged 4.3 per page of his dissent.

Many others shared Breyer’s concerns that murder and violent crime rates would soar after the Supreme Court struck down the Washington, D.C. and Chicago gun control laws. Politicians predicted disaster. “More handguns in the District of Columbia will only lead to more handgun violence,” Washington’s Mayor Adrian Fenty warned the day the court made its decision. Chicago’s Mayor Daley predicted that we would “go back to the Old West, you have a gun and I have a gun and we’ll settle it in the streets . . . .” The New York Times even editorialized this month about “the Supreme Court’s “unwise” decision that there is a right for people “to keep guns in the home.”

Yet, Armageddon never happened. Indeed, in the year after the 2008 Heller decision, the murder rate fell two-and-a-half times faster in DC than in the rest of the country. It also fell more than three as fast as in other cities that are close to DC’s size.

And murders in DC have continued to fall. If you compare the first six months of this year to the first six months of 2008, the same time immediately preceding the Supreme Court’s late June Heller decision, murders have now fallen by 34%.

To top it off, gun crimes fell more than non-gun crimes. Robberies with guns fell by 25%, while robberies without guns have fallen by 8%. Assaults with guns fell by 37%, while assaults without guns fell by 12%. Just as with right-to-carry laws, when law-abiding citizens have guns some criminals stop carrying theirs.

Similarly, the experience with crime data for Chicago shows that, as in DC, murder and gun crime rates didn’t rise after the bans were eliminated — they plummeted. They have fallen much more than the national crime rate. On this topic, the national media has remained completely silent.

In the first six months of last year, there were 14% fewer murders in Chicago compared to the first six months of last year – back when owning handguns was illegal. It was the largest drop in Chicago’s murder rate since the handgun ban went into effect in 1982. Meanwhile, the other four most populous cities experienced a total drop at the same time of only 6 percent.

The benefit could have been even greater. Getting a handgun permit in DC and Chicago is an expensive and difficult process, meaning only the relatively wealthy go through it. Only a few thousand people had handguns registered in Chicago by the middle of last year. That limits the benefits from the Supreme Court decisions since it is the poor who are the most likely victims of crime and who benefit the most from being able to protect themselves.

For DC, the biggest change was the Supreme Court striking down the law making it illegal to possess a loaded gun. Over 70,000 people have permits for long guns that they can now legally used to protect themselves.

Lower crime rates in Chicago and DC by themselves don’t prove that gun control increases murders, even when combined with the quite familiar story of how their murder rates soared and stayed high after the gun bans were imposed.

But these aren’t isolated examples. Around the world, whenever guns are banned, murder rates rise. Gun control advocates explained the huge increases in murder and violent crime rates Chicago and DC by saying that those bans weren’t fair tests unless the entire country adopted a ban. Even island nations, such as Ireland and the UK — with no neighbors to blame — have seen increases in murder rates. The same horror stories about blood in the streets have surrounded the debate over concealed handguns. Some said it was necessary to ban guns in public places. The horror stories never came true and the data is now so obvious that as of November, only one state, Illinois, will still completely ban law-abiding citizens from carrying concealed handguns. Forty-one states will have either permissive right-to-carry laws or no longer even require a permit.

The regulations that still exist in Chicago and DC primarily disarm the most likely victims of crime. Hopefully, even the poor in these areas will soon also have more of an opportunity to defend themselves also.

Dr. John Lott is the co-author with Grover Norquist of the just released book: Debacle: Obama’s War on Jobs and Growth and What We Can Do Now to Regain Our Future. He has held research positions at academic institutions including the University of Chicago, Yale University, the Wharton School at the University of Pennsylvania, Stanford, Rice, and the University of Maryland, College Park and at the American Enterprise Institute. Lott was the chief economist at the United States Sentencing Commission during 1988 and 1989. He has published over 100 articles in peer-reviewed academic journals related to his research areas, and has authored seven books, including “More Guns, Less Crime”, “The Bias Against Guns” and “Freedomnomics.” He is a contributor and columnist for Fox News. Lott earned his Ph.D. in economics from UCLA in 1984.

March 5, 2012/11 Comments/by Janine Turner and Cathy Gillespie

Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment II, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 25, Federalist No. 84, Joerg W. Knipprath, The Constitution of the United States of America, The Northwest Ordinance

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

Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

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

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

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

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

March 5, 2012

Essay #11

March 4, 2012/27 Comments/by Janine Turner and Cathy Gillespie

Amendment I: Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, Justin Dyer, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Justin Dyer PhD, The Constitution of the United States of America

Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”

But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.

Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?

To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).

Friday, March 2, 2012

Essay #10

March 2, 2012/11 Comments/by Janine Turner and Cathy Gillespie

Amendment I: Right to petition the Government for a redress of grievances

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment I, Constitutional Amendment I, Declaration of Independence, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

It is a commonplace to trace the origins of the right to petition the government for a redress of grievances to Magna Carta in 1215. There, Barons displeased with King John’s pretension to absolute, forced him to agree to specific limitations on his authority in deference to that of the nobility. Chapter 61 of the Great Charter (http://www.constitution.org/eng/magnacar.htm) provides:

Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. [Emphasis added]

Philip Kurland and Ralph Lerner’s invaluable The Founders’ Constitution contains in its section on the First Amendment the report (http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys6.html) of the 1688 “Trial of the Seven Bishops for Publishing a Libel.” The bishops were accused of libel when they attempted to petition King James II in protest of his declaration of limited religious freedom for Catholics and other dissenters from the Church of England. They were found not guilty after a trial in the Court of King’s Bench in which Justice Holloway told the jury:

Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be: so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king’s command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.

The 1689 Bill of Rights (http://www.fordham.edu/halsall/mod/1689billofrights.asp) explicitly protected “the right of the subjects to petition the king” and said “all commitments and prosecutions for such petitioning are illegal.”

By the time the first amendments to the new United States Constitution were being considered in 1789, the right to petition was well established in U.S. practice. The colonies had widely recognized and employed the right of citizens to petition their government. The Declaration of Independence (http://www.archives.gov/exhibits/charters/declaration_transcript.html) singled out the Crown’s treatment of colonists’ petitions for redress (“Our repeated Petitions have been answered only by repeated injury.”) in its list of grievances. The debate over the initial proposal of the First Amendment recognition “that these rights belonged to the people” and the drafters “conceived them to be inherent; and all that they meant to provide was against their being infringed by the government.” The First Amendment’s explicit protection of the right from Congressional interference was not a novel development.

After John Quincy Adams left the presidency in 1829, he became embroiled in the most significant right of petition controversy in U.S. history. He had been elected to Congress and began presenting petitions in behalf of citizens calling for the abolition of slavery in the District of Columbia. In the 1830s, a swelling number of petitions from abolitionists were being presented to Congress and the practice at that time of considering all petitions made the growing number seem unmanageable to some. Additionally, defenders of slavery preferred to silence the clamor over the terrible practice. In 1836, Congress adopted (117-68) a resolution: “That all petitions, memorials, resolutions, propositions, or papers, relating in any way or to any extent whatever, to the subject of slavery, or to the abolition of slavery, shall, without being printed or referred, be laid upon the table, and that no further action whatever shall be had thereon.” Adams called this new “gag rule” “a direct violation of the constitution of the United States, the rules of this House, and the rights of my constituents” and worked for eight years to see it repealed. In 1844, Representative Adams moved a resolution to revoke the rule (which had become a standing rule in 1840) that was adopted 108-80. This marked the high water mark of petitioning and in the aftermath, the right was “little exercised in the aftermath of the gag rule.” David C. Frederick, “John Quincy Adams, Slavery, and the Right of Petition” 9 Law & History Review 113 (Spring 1991).

These stories trace in broad outlines the “rise and fall” of the petition right; more accurately, the slow development, acceptance and constitutionalization, and relatively swift descent into disuse of this valuable right. Since the antebellum period, the right of petition has been largely neglected, though it is occasionally the subject of litigation and the U.S. Supreme Court decided a petition clause case, Borough of Duryea v. Guarnieri, in 2011 (http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf).

Joseph Story describes the petition right as resulting “from the very nature of [the] structure and institutions” of “a republican government.” (Joseph Story, Commentaries on the Constitution, vol. 3, §1887 at http://www.constitution.org/js/js_344.htm) This comment may provide a clue to the relative disuse of the right since the Civil War. With the extension of the franchise to more and more Americans, the ability to directly communicate desires and disapproval to elected representatives by voting and through political parties, has probably eclipsed the importance of petitioning. Coupled with the enhanced status of the right of free speech and advances in communications technology, which fill many of the practical roles (such as providing information to legislatures and allowing citizens to express their opinions) that formal petitions served, the practice of petitioning Congress is not likely to make a resurgence.

This is not to say that the principles it protected are not still vital. The tendency of courts and the executive branch to make decisions previously understood to be only the province of the legislature, threaten the principles of representative government and can serve to exclude all but the most well-connected from influencing government. A proper understanding of what the right to petition was meant to protect could be a helpful spur to citizens to insist that its spirit—the ability of citizens to affect the legislative process—be respected and re-enthroned as a foundation of constitutional government.

William C. Duncan is director of the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 1, 2012

Essay #9

March 1, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment I: Congress Shall Make No Laws….Abridging the Right of the People to Peacefully Assemble

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, William Morrisey, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, William Morrisey PhD

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

The Right to Effective Citizenship

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution. These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others. Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?

The right to assemble in public did not prevail in most places, in most times. Public assemblies endanger rulers. They can endanger the peace. During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion? In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent. In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so. After all, he argued, do men not meet peaceably every day in local markets? Do they not circulate freely on the streets of cities? Why then do rulers fear religious assemblies? “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous…. Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.” Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution. The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison. In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done. “If people converse together, they must assemble together,” one Member quite sensibly remarked. But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.” That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others I will begin to see things I had overlooked. This is the advantage of deliberation in common over mulling things over by oneself. Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.” We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved. The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens. Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government. Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England. But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining. Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people. Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw. There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments. Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary. To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’ In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do. Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less. Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

February 29, 2012

Essay #8

February 29, 2012/3 Comments/by Janine Turner and Cathy Gillespie

Amendment I: Freedom of the Press

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, James C. Duff 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, James C. Duff, The Constitution of the United States of America

Guest Essayist: James C. Duff, CEO of the Newseum and the Diversity Institute, and President and CEO of the Freedom Forum

“Congress shall make no law … abridging the freedom of … the press ….” Those words, along with all others in the First Amendment to the Constitution of the United States, are engraved in the 74 foot high marble wall on the front of the Newseum on Pennsylvania Avenue in Washington, D.C. The words are simple. Enforcing those words – though not always easy or successful – is crucial to our democracy.

I recently saw a friend touring the Newseum who told me of a Russian visitor’s observation about our freedoms. The visitor said, “We have freedom of the press in Russia too. The difference in America is you remain free after you publish.” His comment is both humorous and profound.

Many countries have a Bill of Rights. Very few have mechanisms to enforce and preserve those rights. What distinguishes our system of government from most others in the world? What breathes life into our Constitutional freedoms? We are indebted to our founders for the brilliant system of checks and balances of power built into our Constitution. One of the most important checks on power is an independent and free press, “designed to serve as a powerful antidote to any abuses of power by governmental officials” as the Supreme Court noted in Mills v. Alabama (1966).

How do the mechanics and the design of the “powerful antidote” work? Suppose Congress does make a law that abridges the freedom of the press. In the United States, the press is free to challenge the law not only in print and other media, but also in court. Once in court, an independent Judiciary is free to declare such a law unconstitutional and preserve the press’ freedom. If Congress attempts to undercut the power of the Judiciary by, for example, requiring judges to explain their decisions to a Congressional committee or face impeachment for an unpopular decision, the press can expose the attempt and bring public pressure to bear on Congress. Such critical analysis, coupled with an engaged and educated public can prevent the evisceration of an independent Judiciary (in this example) or other intrusions by one branch on another’s responsibilities. The mechanics are circular and the gears work – most of the time.

Our history is certainly full of examples of a free and independent press exposing abuses of power by governmental officials. Unfortunately, there are also examples in our history in which we have failed to enforce the freedom of press embodied in the First Amendment.

Only seven years after the ratification of the First Amendment, a Federalist-dominated Congress passed the Sedition Act of 1798, a tool used to suppress the contrary views of Democratic – Republican newspaper editors. For example, Matthew Lyon, a member of the U.S. House of Representatives from Vermont and newspaper owner, was put in jail for referring to President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” It became abundantly clear that the Act was unconstitutional, and a new Congress allowed the Act to expire in 1801 but not before several egregious suppressions of a free press had occurred.

There are several other examples of suppression of the press in our history, notably during periods of war. Abolitionist newspapers were torched in the 1830’s. During the Civil War, the Lincoln Administration ordered the closure of several newspapers and the arrests of several newspaper editors who opposed the Union efforts. During World War I, Congress passed the Espionage Act of 1917, President Woodrow Wilson invoked it aggressively to suppress publications opposing to the draft, and in 1919 the Supreme Court unanimously upheld the convictions of Charles Schenck and Elizabeth Baer who had been convicted of violating the act when they printed leaflets urging draftees to resist the draft. Similarly, the mailing privileges of the Milwaukee Leader were revoked by the Postmaster General during World War I because he concluded that their articles were interfering with the military’s efforts. The Supreme Court upheld the Postmaster General’s actions.

In retrospect, it might appear that many of these historic suppressions of a free press could not occur in the United States today and that we have made significant progress and learned from those experiences. During times of conflict, however, our country has compromised on freedom of the press. Whether these particular examples could be repeated or not, they demonstrate that even with the protections clearly provided in our Constitution, and even with the best form of government ever devised to ensure those protections, ultimately the best defense of our Constitutional freedoms depends on an attentive, educated and engaged citizenry.

That is why the civic education efforts of Constituting America and the Freedom Forum are so vitally important to our future.

James C. Duff is the President and chief executive officer of the Freedom Forum and CEO of the Newseum and the Diversity Institute. Mr. Duff is the former Director of the Administrative Office of the U.S. Courts, former Counselor to Chief Justice William H. Rehnquist, and former Chairman of the U.S. Supreme Court Fellows Commission.

February 28, 2012

Essay #7

February 27, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Listen to Janine Turner Interview Andrew Langer, President of the Institute for Liberty on the Janine Turner Radio Show – on Amendment I: Congress Shall make no law….abridging the freedom of speech

Analyzing the Amendments in 90 Days 2012 Project, Andrew Langer, Constitution Amendment I 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment I, Constitutional Amendment I

February 27, 2012 – Janine Turner Interviews Andrew Langer, President of the Institute for Liberty on The Janine Turner Radio Show!

Listen to Andrew & Janine discuss Andrew’s essay: The First Amendment: Congress Shall make no law….abridging the freedom of speech!

February 26, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment I: Congress Shall make no law….abridging the freedom of speech

Analyzing the Amendments in 90 Days 2012 Project, Andrew Langer, Constitution Amendment I 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment I, Constitutional Amendment I, The Constitution of the United States of America

Guest Essayist: Andrew Langer, President of the Institute for Liberty

http://vimeo.com/37493542

Congress shall make no law… abridging the freedom of speech.

In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment. It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens. Fundamentally, there are always two questions that accompany any dissection of free speech rights: what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?

People say things with which we might vehemently disagree. They may make us angry, they may make us outraged. And the feeling might very well be mutual. Yet both their speech, and your own, are equally protected under the US Constitution. For the United States, this creates a true marketplace of ideas. A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.

It is the latter that is perhaps free speech’s greatest asset in our society. Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors. In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.

In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly. That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want. It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.

Just as important, however, are the limits to those free speech rights. It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others. In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.

Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1^st Amendment.

One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living. Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater. Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.

But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do. The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.

Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.

If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business? While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.

Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse. As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.

Andrew Langer is President of the Institute for Liberty, and host of The Broadside, a weekly internet radio show, which can be heard on the Institute for Liberty website.

February 27, 2012

Essay #6

February 26, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Watch or Listen to Janine Turner Read: Amendment I: The Free Exercise Clause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, Eric Rassbach 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Eric Rassbach

Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

Watch or Listen to Janine Turner Read: The First Amendment: The Free Exercise Clause – Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

http://vimeo.com/37355534

February 23, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment I: The Free Exercise Clause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, Eric Rassbach 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment I, Constitutional Amendment I, Eric Rassbach

Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

http://vimeo.com/37355534

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

The Free Exercise Clause is perhaps the least commonly understood part of the First Amendment. The mythical “average American” presumably understands what freedom of speech means – we protect the right of almost anyone to say almost anything – and the Establishment Clause has been given the catchy, if mostly inaccurate, shorthand of “separation of church and state.” But were one to ask this hypothetical average American what protecting free exercise of religion means, she might respond with a blank stare.

So why is the Free Exercise Clause so unknown, and what does it really mean today? Some blame for the Clause’s obscurity must lie with its checkered history. That history can be divided into roughly five stages. The first stage lasted 87 years, from 1791 to 1878, and was characterized by judicial silence. Although the Clause was ratified as part of the Bill of Rights in 1791, the Supreme Court had no occasion to address it, other than to say briefly, in 1842, that it applied only to the federal government, not states and cities. This silence does not mean that the Clause had no public meaning; indeed, it was cited time and again in debates over religion in the public square. But it did not appear in court, and its meaning remained rhetorical and political, not legal.

That first phase came to an end in 1878, with the Reynolds case. In that case, the Supreme Court held that the Free Exercise Clause did not protect the practice of religious polygamy. Thus began an unsettled period for the Court’s Free Exercise jurisprudence. Two separate strands of caselaw emerged—one rooted in Reynolds and limitations on religious exercise, and another rooted in the ability of churches, synagogues, and other religious institutions to manage their own internal structures and their property.

The tensions in Free Exercise jurisprudence became apparent in a series of cases involving Jehovah’s Witnesses during the 1940s. These cases at first resulted in at first narrow readings of the Clause and then increasingly broader readings that provided protections to the Jehovah’s Witness plaintiffs.

This second and turbulent stage ended, and the third began, with Sherbert v. Verner, decided in 1963. In that case, the Court took a very strong stand in favor of individual religious liberty, holding that a Seventh-day Adventist could not be denied unemployment benefits because she was fired from her job for observing the Sabbath. The Court said that any government-imposed “substantial burden” on religious activity would be very difficult for the government to justify. This standard, extremely protective of religious liberty, represented a high-water mark in the history of the protection of Free Exercise.

The Clause’s course took a sharp turn in a less religion-friendly direction 28 years after Sherbert was decided. In Employment Division v. Smith, decided in 1990, the Court held that Native Americans who had been convicted for smoking peyote in accordance with their religious beliefs did not have a right to state unemployment benefits. Because the Oregon anti-narcotic law at issue was a “neutral rule of general applicability” the Free Exercise Clause would provide no protection to the religious plaintiffs.

This was true even though, like the Sherbert regulation, the rule imposed a “substantial burden” on their religious activity. The Smith ruling represented a dramatic shift in the law of Free Exercise, making it much more difficult for religious people to protect themselves against religion-restrictive laws. For a time, it seemed that the only way to evade Smith’s rule would be by convincing Congress and state legislatures to provide relief in the form of civil rights statutes protecting religion.

But in 2012, the Court announced a fifth and entirely new stage of the Clause’s existence in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor, the Court held, in a 9-0 decision,that federal and state employment discrimination laws do not apply to “ministerial” positions. The Court thus made clear that Smith’s rule did not apply in the same way to religious institutions as it did to religious individuals. Indeed, religious activities related to “internal church decisions” would fall outside the Smith rule entirely, a result that shocked many long-time observers of the Court’s religion decisions.

The next steps for the law of Free Exercise are not clear, but they are much more hopeful for religious people and institutions than they were before Hosanna-Tabor was decided.One could argue that this up-and-down history shows a kind of national, or at least judicial, schizophrenia when it comes to the place of religious people in public life. But that schizophrenia may simply mirror Americans’ uncertainty about the role of religion in public life, especially given the increasing religious diversity of our nation. The law could move in the direction of France or other Western European countries that have in effect attempted to drive religion out of public life, or to control it directly. But the law might also move in the direction of increasing religious freedom for every American, and decreasing government interference with religious people.

So what should the Free Exercise Clause mean, at its most fundamental level? There is a case to be made that the Clause stands for the idea that every person, and every religious group, gets to decide for themselves what they believe about the good and the true, and to act on those beliefs in public. In that sense, the Clause carves out a kind of sacred space in the American body politic—a place where Americans can work out their relationship with God free from government interference, indeed, a place where the government must fear to tread. By its nature, religious freedom cannot be without limits. But by the same token government cannot be without limits, and some areas must remain completely free from government influence.

But this sacred space is under siege in today’s ever-growing regulatory state. As they expand their influence over more and more areas of American life, governments at the federal, state, and local levels increasingly run roughshod over the claims of conscience. Prominent recent examples include the federal government’s attempt in the Hosanna-Tabor case to take over some ministerial and hiring and firing decisions, as well as the recently-issued healthcare mandates that would force Catholic, Protestant, and other religious groups to violate their consciences by paying for drugs and devices they believe cause abortion. State governments have made similar attempts to limit the conscience rights of religious institutions like churches and homeless shelters, as well as the conscience rights of individuals like pharmacists and doctors who object to participating in certain medical procedures.

These conflicts will only grow in size and number as government expands and becomes more aggressively secular. Therefore it will be important for religious Americans in coming years to fight for the sacred space staked out by the Free Exercise Clause, because government will not stay out on its own.

Eric Rassbach is Deputy General Counsel at The Becket Fund for Religious Liberty, a non-profit law firm based in Washington, D.C. that defends the free expression of all religious traditions. He led the Becket Fund team that litigated the Hosanna-Tabor case.

February 24, 2012

Essay #5

February 23, 2012/18 Comments/by Janine Turner and Cathy Gillespie

Watch or Listen to Janine Turner Read: Amendment I: The Establishment Clause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, David J. Bobb, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, David J. Bobb PhD

Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

Watch or Listen to Janine Turner Read: The First Amendment: The Establishment Clause – Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

http://vimeo.com/37285867

February 22, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment I: The Establishment Clause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment I, David J. Bobb, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIV, Constitutional Amendment XIV, David J. Bobb PhD, The Constitution of the United States of America

Guest Essayist:David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

http://vimeo.com/37285867

The First Amendment: The Establishment Clause

The Establishment Clause of the First Amendment might be less well known today than “the wall of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter. This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.

In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means. In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty. Unlike England, America would not have an official church. This is good for government, and good for religion. Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.

In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation. Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities. As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach . . . .”

Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools. Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.

The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions. For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall. State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.

For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions. Religion was affirmed as a public good, not an evil to be kept private. Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution. That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.

Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole. “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.

Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789. Nor was it first in the list the Congress sent to the states in September of that same year. When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27^th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.

The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church. In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.

David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. Hillsdale’s free online course, “Constitution 101,” starts this week. The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.

February 23, 2012

Essay #4

February 22, 2012/14 Comments/by Janine Turner and Cathy Gillespie

Watch or Listen to Janine Turner Read: *The Bill of Rights: America’s Bulwark of Liberty

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Watch or Listen to Janine Turner Read: *The Bill of Rights: America’s Bulwark of Liberty – Guest Essayist: Horace Cooper, senior fellow with the Heartland Institute

http://vimeo.com/37225842

February 22, 2012/0 Comments/by Janine Turner and Cathy Gillespie

The Bill of Rights: America’s Bulwark of Liberty

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Horace Cooper, The Constitution of the United States of America

Guest Essayist: Horace Cooper, Constituting America Fellow

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The First Ten Amendments to the United States Constitution make up what is called “The Bill of Rights.” This remarkable collection of limitations on the power of the national government was written by James Madison and heavily influenced by George Mason. Today it operates as a barrier to oppressive government at all levels and protects citizen liberty.

While most Americans at the time of the writing of the US Constitution agreed that the Articles of Confederation had failed to provide the former colonies with the powers needed to insure the experiment in self-government would succeed, there was another contingent who argued that any new and expanded powers given to the central government must be overlaid with specific limits in order to ensure that the citizens rights wouldn’t be trampled. They argued that rather than limiting principles, there should be specific prohibitions on what government is allowed to do, especially in the context of its treatment of its citizens.

The two camps generally called themselves Federalists and Anti-Federalists. While the design and makeup of the original Constitution is a triumph of the Federalists, the Bill of Rights represents the success of the Anti-Federalists.

Timeless in their rigor and value, the Bill of Rights has proven to be a brilliant tool to limit government excesses and insure that the individual has the kinds of freedoms that many of us take for granted. While the writers of the Constitution created a system of checks and balances that cause the three branches of government to be limited in their ability to achieve hegemony vis-à-vis the other, it is the Bill of Rights that has done more to protect individual liberty — doing so by specifically placing limits on government power.

While the Federalists won the day with the original draft of the Constitution, it soon became clear that the American people wouldn’t accept the Constitution unless a Bill or Rights was agreed to. Shortly after meeting, the first Congress began that process. Originally 17 Amendments or changes to the Constitution were presented and passed by the House of Representatives. Of those 12 were passed by the United States Senate and sent to the states for approval in August of 1789. 10 of these were approved (or, ratified) with George Mason’s state of Virginia becoming the last to ratify the amendments on December 15, 1791.

Indubitably, liberties that we take for granted as Americans find their origin in the Bill of Rights. One key aspect of the Bill of Rights is that instead of expanding or authorizing the powers of the central government, the Bill of Rights squarely and directly treats government power as a potential threat to citizen liberty and places clear and unequivocal barriers to government action. More a list of what government cannot do, the Bill of Rights provides a zone of liberty that makes our American system of citizenship the envy of the world.

The supporters of the concept of the Bill of Rights understood that government’s tendency was to expand and over-run the individual. And the beauty of the Bill of Rights, its simplicity is, it limits government power and by doing keeps Americans free.

Amendment I

 The government cannot make you believe in a religion.

 The government cannot keep you from practicing any religion you choose.

 The government cannot keep you from saying what you wish.

 The government cannot keep you from writing what you want.

 The government cannot stop you from publishing what you wish.

 The government cannot keep you from joining together peacefully with others to express your views.

 The government cannot prevent you from complaining about what the government or others are doing to you.

The framers understood that freedom of faith, thought, political belief and other forms of expression were central to citizen liberty and they specifically barred government action in this arena. Rather than leave to the majority whether Catholics, Protestants, Jews or even people of no faith would receive preference by the national government, the First Amendment insures that no religious group would be preferred nor would any be penalized. It also prevents the government from using coercive powers to reward certain political thoughts or writings as well as punishing the same. Finally it further insures that citizens have the right to complain specifically about the activities of the government and to engage in demonstrations as well as formally taking measures to get the government itself to change policies.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

 The government cannot take away your right to own and keep guns.

Rather than leave firearm access to the government, our Bill of Rights explicitly insures that the right to bear and own firearms is a fundamental right – not a privilege – that resides with every citizen.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

 The government cannot make you let soldiers to live in your house unless the country comes under attack and Congress specifically authorizes it.

Even though war-making activity is the quintessential government duty and activity, this power is not unlimited. While it might be cost-effective or even efficient, government has to respect that our homes are our property and may not be overtaken by the military during peace-time and during war only in a legal manner determined by Congress.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 The government cannot come into your home unless it has legal permission from a judge.

Perhaps one of the greatest threats that the citizen faces is the potential that the central government will use force to enter our property whether under pretext of solving crimes or ferreting out critics of the government residing therein. The founders recognized that the principle that the individual citizen was the “king” of his own “castle” especially when the government sought unlawful entry was a powerful limit on government excesses. Juxtaposing judges and other magistrates before the government can take, enter or search property protected liberty in the 18^th century and the 21^st as well.

Amendment V

 The government cannot hold you in jail for a major crime without the knowledge and approval of your fellow citizens.

 The government cannot try a person twice for the same crime.

 The government cannot make incriminate yourself.

 The government cannot take away your life, liberty, or property without following the law.

 The government cannot take your private property from you for public use unless it pays to you what your property is worth.

King George and his predecessors in England had the ability to falsely accuse and even imprison or execute his opponents without even a pretext of any real violation of the law. Our system rejects this idea. The Bill of Rights requires that your fellow citizens be presented with the charges against you and that those charges not be presented to you more than once or that you or your property be taken from you without having legal recourse to challenge it. Americans can’t be forced to give incriminating testimony against themselves and their assets can’t be confiscated by the government without being justly compensated.

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 defense.

 The government cannot hold you in jail for a long time without a trial if you are accused of having broken the law.

 The government cannot deny to you a speedy trial with a jury of your fellow citizens.

 The government cannot keep secret from you those who will speak against you.

 The government cannot prevent you from having your personal attorney.

 The government cannot keep you from having other people help you defend yourself in a courtroom.

Instead of the use of secret trials and star chambers, our system specifically requires that when people are accused the trials must not be unnecessarily lengthened and must be held in public. The individuals who decide guilt or innocent – jurors – must be impartial and residents of the area where the accused crime was to have occurred. Instead of announcing new charges mid-trial, the government must announce the charges with specificity and must present witnesses against him and must allow him to bring in his own witnesses to testify on his behalf and may not prevent him from having legal assistance if he chooses.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

 The government cannot keep you from having a trial decided by your fellow citizens in civil disputes and the fact-finding by the jury in those trials cannot be overturned by other courts.

Civil cases, like criminal cases provide potential opportunity for liberties to be risked. Our founders guaranteed that civil disputes will be subject to jury trials instead of the whims of government magistrates and also that the findings of jurors can’t be second guessed by judges. The government can’t pick sides or use its judicial appointees to try to influence the outcomes of civil disputes.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 The government cannot make people pay an unfairly high amount of money for bail while they wait for a judge or jury to hear their case.

 The government cannot punish you for a crime in a cruel and unusual way.

The government is not allowed to skip the trial phase by holding citizens in jail with high bails having nothing to do with the severity of their crime or any flight risks they pose. Even when citizens are found guilty, the federal government may not assess fines that aren’t connected with the severity of their crime nor may they issue punishments that are depraved and unduly harsh.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 The government cannot limit your rights to just those listed in the Bill of Rights.

Reaffirming the anti-federalists view that government tends to expand whenever and however it can and ultimately crowding out the rights and privileges of its citizens, our founders have made it clear that the Constitution and even the Bill of Rights do not attempt to outline every existing natural or inalienable right of citizens.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 The government cannot claim to possess more power and authority than what the Constitution permits, and all other powers not listed in the Constitution belong to the states or individuals.

Since the Constitution is a charter of specific and enumerated powers, there are rights that exist above and beyond those addressed in it. Those powers and rights that are not specifically addressed in the Constitution and those powers that are not banned by states through the Constitution are real and duly allowed to be exercised by the states and the people.

Horace Cooper, a Constituting America Fellow, is co-chairman for Project 21’s National Advisory Board and adjunct fellow with the National Center for Public Policy Research. In addition to having taught constitutional law at George Mason University, Mr. Cooper was general counsel to U.S. House Majority Leader Dick Armey.

February 22, 2012/6 Comments/by Janine Turner and Cathy Gillespie

Watch or Listen to Janine Turner Read:The Bill of Rights, Purpose and Benefits

Analyzing the Amendments in 90 Days 2012 Project, Richard Brookhiser

Guest Essayist: Richard Brookhiser, Author, James Madison

Watch or Listen to Janine Turner Read: The Bill of Rights, Purpose and Benefits – Guest Essayist: Richard Brookhiser, Author, James Madison

http://vimeo.com/37225503

February 21, 2012/0 Comments/by Janine Turner and Cathy Gillespie

The Bill of Rights, Purpose and Benefits

Guest Essayist: Richard Brookhiser, Author, James Madison

http://vimeo.com/37225503
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27^th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1^st Amendment) and to trial by jury (6^th Amendment) went back to Magna Carta (1215). The right to bear arms (2^nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8^th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1^st Amendment), and forbade arbitrary search warrants (6^th Amendment) and compelling anyone to testify against himself (5^th Amendment).

But the Bill of Rights added two brand-new provisions. The 9^th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10^th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

February 21, 2012 – Essay #2

February 21, 2012/17 Comments/by Janine Turner and Cathy Gillespie

Watch or Listen to Janine Turner Read: “The Amendment Process”

Analyzing the Amendments in 90 Days 2012 Project, Larry P. Arnn, Ph.D. 17. Topics, Declaration of Independence

Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

http://vimeo.com/37225231
Watch or Listen to Janine Turner Read:

The Amendment Process – Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

February 19, 2012/0 Comments/by Janine Turner and Cathy Gillespie

The Amendment Process

Analyzing the Amendments in 90 Days 2012 Project, Larry P. Arnn, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article V, Bill of Rights, Declaration of Independence, Declaration of Independence, Federalist No. 49, Larry P. Arnn PhD

- Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

Only with a large effort can the Constitution of the United States be formally amended. This was not an accident, but the intention of its framers.

If the Constitution is changed too often and for the wrong reasons, the people of America, the Founders held, will lose reverence for its principles, and respect for its rule. With reverence lost, they might cease to be a self-governing people. Tyranny itself could topple liberty.

The Constitution is difficult to amend not because the Founders distrusted the people. In fact, they trusted the American people more than any other constitution-makers had ever before trusted a people. They took pride in the fact that no separate or special class of persons would hold any authority under the Constitution. They created no aristocracy or favored group, and their design did not pit one group of citizens against another.

Instead, they rested all power in the hands of the people. Then they divided that power so as to encourage fairness and deliberation in their judgments. It is the “reason alone of the people that must be placed in control of the government,” writes James Madison in Federalist 49. “Their passions must be controlled by the government.”

Our American regime is the first in which sovereignty lies outside the government—in the people. The Constitution’s structure in its original form was designed to bring power and restraint together. The people must come to respect the restraint of the government so that its properly-limited power might be upheld. The Constitution provides for limited government so that the natural rights of citizens can best be secured.

In this sense, Alexander Hamilton noted that the Constitution itself, even before it was amended, was “a bill of rights.” Adding the first ten amendments, which the First Congress did in 1791, marked a reaffirmation and an explicit statement of rights held by the people and the states, but all of these are affirmed in the original structure of the Constitution—with its separation of powers, representative form, and limited grant of power to the government. All of these essential features of good government were stated with unmistakable clarity in the Declaration of Independence.

Today, the Bill of Rights is often confused as the source of American liberties. In fact, as both Madison and Hamilton knew, it is the Constitution’s structure that provides the surest bulwark of our liberties. Destroy the structure, and liberty will be lost. Alter the structure significantly (see the Seventeenth Amendment), and liberty is endangered.

Without reverence for it, the Constitution, like the Bill of Rights that is now part of it, will be but a “parchment barrier.”

Out of the more than 5,000 amendments to the Constitution proposed in Congress since 1789, only 27 have been adopted. There are two possible ways to amend the Constitution, both of them specified in Article V. All of the current amendments to the Constitution have been adopted following the first path, wherein votes are required by two thirds of both houses of Congress, followed by a vote of three-fourths of state legislatures.

The other path, to date not used successfully, is the convention method, in which two-thirds of the state legislatures can call a constitutional convention, after which three-fourths of the state legislatures or state conventions must then ratify the proposed amendment or amendments to the Constitution. Conventions have been avoided probably for good reason, since it is not clear to anyone whether a convention would be bound to changing only one item in the Constitution. We Americans have been pleased to have only one Constitutional Convention.

The New York Times recently noted that outside of the defunct Yugoslavian constitution, there is no other constitution in the world so hard to amend as ours. By coupling our Constitution with a failed state, the article seemed to imply that if we don’t get with the times, we will be left behind. Our country, they quote a justice of Australia’s high court as saying, is becoming a “legal backwater.”

For over a hundred years the Constitution has been assailed as undemocratic, and in need of an overhaul.

Long is the list of books written recently suggesting ways—formal and informal—to make our Constitution better. When formal amendment efforts fail, informal methods are advanced. Efforts to informally amend the Constitution—to bring it into better congruity with fashionable legal and political norms of today—can be successful only if citizen reverence for the Constitution is lost.

—Dr. Larry P. Arnn is president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It. Hillsdale’s “Constitution 101,” an online course which features lectures by Dr. Arnn and others, starts today. For more information on Constitution 101, go to: http://constitution.hillsdale.edu

Click here to watch a reading of this essay!

February 19, 2012/46 Comments/by Janine Turner and Cathy Gillespie

Horace Cooper, Senior Fellow with the Heartland Institute, discusses Article I, Section 3, Clause 2 in an Interview with Janine Turner on the Janine Turner Radio Show

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 2, Horace Cooper

Horace Cooper, Senior Fellow with the Heartland Institute, visits with Janine Turner on the Janine Turner Radio Show, Saturday, September 3 on DFW’s KLIF. Listen as they discuss Professor Joe Postell’s (University of Colorado at Colorado Springs) essay on Article I, Section 3, Clause 2 found in Constituting America’s Analyzing the Constitution project at this link: https://constitutingamerica.org/?p=732

September 8, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, Interview with Janine Turner on the Janine Turner Radio Show

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 5 and Section 03, Clause 1, William Morrisey, Ph.D.

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 27 on DFW’s KLIF.

Read Professor Morrisey’s essay here: https://constitutingamerica.org/?p=728.

August 28, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, Interview with Janine Turner on the Janine Turner Radio Show

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 5 and Section 03, Clause 1, William Morrisey, Ph.D.

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 20 on DFW’s KLIF.

Read Professor Morrisey’s essay here: https://constitutingamerica.org/?p=728.

August 22, 2011/0 Comments/by Janine Turner and Cathy Gillespie

William C. Duncan, Director of the Marriage Law Foundation and author of our “90 in 90” Article I, Section 2, Clause 4 Essay, Interview with Janine Turner on the Janine Turner Radio Show

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 4, William C. Duncan

William C. Duncan, Director of the Marriage Law Foundationand author of our “90 in 90” Article I, Section 2, Clause 4 essay, visits with Janine Turner on the Janine Turner Radio Show, on Saturday, August 13, on DFW’s KLIF!

Read Mr. Duncan’s essay here: https://constitutingamerica.org/?p=723

August 18, 2011/0 Comments/by Janine Turner and Cathy Gillespie

W. B. Allen, Dean Emeritus James Madison College, Emeritus Professor of Political Science, Michigan State University, and author of our “90 in 90” Article I, Section 2, Clause 3 Essay,

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 3, W.B. Allen, Ph.D.

Interview with Janine Turner on the Janine Turner Radio Show

W. B. Allen, Dean Emeritus James Madison College, Emeritus Professor of Political Science, Michigan State University, and author of our “90 in 90” Article I, Section 2, Clause 3 Essay, visits with Janine Turner on the Janine Turner Radio Show, on Saturday, August 6, on DFW’s KLIF!

Listen as they discuss Professor Allen’s essay on Article I, Section 2, Clause 3 found in Constituting America’s Analyzing the Constitution project at this link:

https://constitutingamerica.org/?p=719

Listen to Dr. Allen’s brilliant analysis of this often misunderstood clause of the U.S. Constitution!

August 13, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Horace Cooper, Senior Fellow with the Heartland Institute, and author of our “90 in 90” Article I, Section 2, Clause 1-2 Essay,

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 1-2, Horace Cooper

Interview with Janine Turner on the Janine Turner Radio Show

Horace Cooper, Senior Fellow with the Heartland Institute, and author of our “90 in 90” Article I, Section 2, Clause 1-2 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 30 on DFW’s KLIF. Listen as they discuss Mr. Cooper’s essay on Article I, Section 2, Clause 1-2 found in Constituting America’s Analyzing the Constitution project at this link:

https://constitutingamerica.org/?p=714

Listen to Horace’s analysis of an important detail that was not addressed when the 17th Amendment was passed!

Article I, Section 2, Clause 1-2 of the United States Constitution

https://constitutingamerica.org/?p=714

August 12, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Dr. Charles Rowley, Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute, and author of our “90 in 90” Article I, Section I Essay,

Article I, Section 01, Charles K. Rowley, Ph.D.

Interview with Janine Turner on the Janine Turner Radio Show

Dr. Charles Rowley, Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute, and author of our “90 in 90” Article I, Section I Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 23 on DFW’s KLIF. Listen as they discuss Dr. Rowley’s essay on Article I, Section 1, found in Constituting America’s Analyzing the Constitution project at this link: https://constitutingamerica.org/?p=712

Which branch of the government was intended by the founders to be the most powerful? Listen to Dr. Rowley’s interview and find out!

July 31, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Dr. David Bobb, Director of Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, and author of our “90 in 90” Preamble Essay

An Essay on The Preamble to the United States Constitution, Analyzing the Constitution in 90 Days 2011 Project, David J. Bobb, Ph.D.

Interview with Janine Turner on the Janine Turner Radio Show

Dr. David Bobb, Director and Lecturer in Politics, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship
Hillsdale College visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 16th on DFW’s KLIF. Listen as they discuss Dr. Bobb’s essay on the Preamble to the United States Constitution, found in Constituting America’s Analyzing the Constitution Project at this link: https://constitutingamerica.org/?p=703

July 30, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXVII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Charles K. Rowley, Ph.D., Constitution Amendment XXVII 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 06 Clause 1, Article I Section 06 Clause 2, Charles K. Rowley PhD, Constitutional Amendment XXVII, Constitutional Amendment XXVII

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Amendment XXVII

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

Congress is required by Article I, section 6 of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Initially members were paid per diem. The first annual salaries, in 1815, were $1,500. By 1968, pay had risen to $30,000. Since 1969 two other methods may also be used to increase the pay of members: automatic annual adjustments and a commission process. By 2009, the annual salary of Congressmen and Senators had risen to $174,000. So, even allowing for inflation, Congress has not demurred in paying itself well. The issue of constitutional constraints over the effecting of pay increases, therefore, is no minor matter.

The Twenty-seventh Amendment prohibits any law that changes – increasing or decreasing – the salary of members of the United States Congress from taking effect until the next two-year term of office for the Representatives. This allows members of Congress to reflect on potential voter rage before dipping into the pockets of their taxpayer-electors. It is the most recent amendment to the United States Constitution, ratified in 1992, just shy of 203 years after its initial submission in 1789.

The long history behind the Twenty-seventh Amendment is curious and unprecedented. Its origins lie in very early suggestions from two founding states. During the 1788 North Carolina and Virginia Conventions – called to consider the original Constitution that emerged from Philadelphia – wordings almost identical to those ratified in 1992 were requested of Congress.

Representative James Madison presented this proposed amendment to the House of Representatives in 1789. It became the second of the twelve Constitutional amendments originally submitted by the 1^st United States Congress for ratification by the states on September 25, 1789. The last 10 of these would be ratified as the so-called Bill of Rights by December 15, 1791.

The proposed compensation amendment did not fare well in the hands of the states. Between 1789 and 1791, it was ratified by the legislatures of only six states – Delaware, Maryland, North Carolina, South Carolina, Vermont and Virginia – out of the ten states then required by the Constitution. As more states entered into the union, so the ratification threshold slowly increased under the three-quarters rule. The proposed amendment was then largely ignored for the better part of a century.

Ohio was the only additional state to approve the amendment over that time-period, when its General Assembly voted in favor in 1873. This ratification vote was a method of protesting the so-called Salary Grab Act of that year, providing not only for a substantial Congressional pay raise, but making that pay raise retroactive. Almost another century would then pass until the proposed amendment was ratified by Wyoming in 1978, once again as a protest against another outrageous Congressional pay increase. The numbers required for ratification, however, remained painfully short of those required.

Young students following this invaluable educational program should be interested to note that the issue was brought to the attention of the public once again by a person very like you. In 1982, Gregory Watson, a twenty-year-old undergraduate at the University of Texas at Austin, wrote a term paper arguing the case for ratifying the amendment. For this contribution, Watson received a ‘C’ grade from his professor. Note that a ‘C’ grade in 1982, prior to the grade inflation that would follow, was an entirely respectable, though not a spectacular, evaluation.

Undeterred by this modest grade, Watson embarked on a one-man campaign for the amendment’s ratification. From his home in Austin, he wrote letters to state legislators across the country, typing each one out separately on an electric typewriter. Fortuitously his missives arrived on the desks of elected representatives, many of whom were confronting voter rage about their own budget-busting pay increases. As symbolic gestures, primarily to immunize themselves from such voter alienation, state legislatures began to ratify the amendment, rationally calculating that the requisite threshold of thirty-eight states would never be achieved.

Their expectations turned out to be misplaced. The tally of ratifying states began to rise. Maine signed off first (1983), followed by Colorado (1984). Then the ratifications began to flood, as the dam burst its banks. Five states followed in 1985, three more in 1986, four more in 1987, three more in 1988, seven in 1989, and two in 1990. Now the amendment was close, and the numbers slowed, as ratification became a real possibility. North Dakota slipped across the line in 1991, apparently as the 35^th state to ratify. Under the close scrutiny of a watchful public, Alabama and Missouri surrendered on May 5, 1992. Michigan broke the log-jam two days later, apparently providing the crucial 38^th vote.

It would later be discovered that the Kentucky General Assembly had actually ratified all twelve amendments during that state’s initial month of statehood, making Missouri the 38^th state to ratify. The official record of the federal government, nevertheless, still recognizes Michigan as the 38^th state to ratify.

Because the Twenty-seventh amendment had taken more than 202 years to ratify, a few self-seeking members of Congress challenged its validity. Under the U.S. Supreme Court’s landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment that has been submitted to the states for ratification and that does not specify a ratification deadline may be ratified by the states at any time. In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature. It cannot be assigned to the judiciary for oversight.

On May 18, 1992, the Twenty-seventh amendment was officially certified by Archivist of the United States, Don W. Wilson. On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification. In so doing, the Archivist had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code.

Immediately, Tom Foley (Democrat), Speaker of the House of Representatives, called for a legal challenge and Senator Robert Byrd (Democrat) of West Virginia scolded Wilson for certifying the amendment without waiting for Congress to scrutinize its validity. The Archivist held his ground and on May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding ratification of the Fourteenth Amendment, each house of the 102^nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified despite the 202 years that it had taken. Interestingly, the two versions of the resolution were never reconciled by the entire Congress.

From the perspective of public choice, difficulties in ratifying the Twenty-seventh amendment are understandable. The Federalists recognized from the outset the existence of a fundamental problem that over-shadows any constitutional or compound republic: who guards the guardians? It is an evident fact of life that $100 bills are rarely left lying on the sidewalk. If the representatives of the people can vote moneys into their own pockets without penalty, the expectation is that they will gladly so do.

What is true for the federal goose is equally true for the state gander. So state politicians, called upon to constrain their federal counterparts, unless hard-pressed by their own voters, will not willingly put a money-bags constraint around necks that quickly might metamorphose into their own. The more highly remunerated a state’s legislators are, the less likely they are to vote the federal ratification into law. Massachusetts, New York and Pennsylvania have not ratified the Twenty-seventh amendment. We do not need to strain our little grey cells to understand why this is so!

Even with the Twenty-seventh amendment in place, politicians find wiggle room around it in the form of annual cost-of-living adjustments (COLAs). COLAs have been upheld against legal challenges based on the Twenty-seventh amendment. In Boehner v Anderson 30 F.3d 156 (D.C. Cir, 1994) the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh amendment does not impact on annual COLAs. In Schaffer v. Clinton 240 F.3d.876 (10^th Cir. 2001) the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of Congress standing in federal court to challenge that COLA. The Supreme Court refused to grant certiorari in either case, and so has never ruled on those legal precedents.

Why should it not surprise us that the federal courts are turning a blind eye to Congressional maneuvers around the Twenty-seventh amendment? Once again, public choice saves us from straining those little grey cells. Federal salaries are related directly to Congressional salaries, by Congressional legislation. It is a rare judge or justice who is prepared to challenge a maneuver that puts money directly into his or her own pocket.

The Founders strove mightily to protect the People from the potential predations of their own representatives. Ultimately, however, only the People can protect themselves by exercising eternal vigilance at the ballot box over the behavior of the agents that they dispatch to and from Washington.

It is surely appropriate that those who guard the guardians should be the People in whose interest the Founders crafted such a beautiful Constitution, designed to protect their lives, liberties, and properties, and to allow them to engage in the pursuit of happiness as they individually define that glorious goal.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

June 24, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Amendment XXVI of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Langer, Constitution Amendment XXVI 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXVI, Constitutional Amendment XXVI

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXVI

1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

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

The final (or, more accurately, most recent) amendment to the US Constitution is the 26^th. It lowered the national voting age from 21 to 18 years of age.

The founders initially left it up to the several states to determine various eligibility requirements for voting. But following nearly a century of reform, including the passage of the 19^th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14^th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.

President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court. The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.

Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age. Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy. But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”

The issue of the draft isn’t a small one, either. The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.

By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic. In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.

But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.

The force and effect, however, has been somewhat limited. Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election. After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low. Despite this fact, there are some calling for lowering the voting age even more—to 16![1]

It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.

While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift. Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.

Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes. Few have families, fewer own homes. It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!

This belief became enshrined now in federal public policy as well. One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26. I believe such a consideration would have been unthinkable in the era when the 26^th Amendment was being considered.

Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights. What is certain is that the 26^th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process. Rarely does such tinkering with the founders’ vision produce the results that we want.

[1] This organization, the American Youth Rights Association, believes that voter turnout will increase, and that because young people may retain better knowledge of historical facts than the general population, that they will be a more informed segment of the voting electorate.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

June 23, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XXV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XXV, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 6, Article V, Constitutional Amendment XXV, Constitutional Amendment XXV, Federalist No. 68, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXV

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The 25^th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent. Section One of the 25^th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf. Section Two of the 25^th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25^th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25^th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, the vice president “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

June 22, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XXIV, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XXIV, Constitutional Amendment XXIV, Joerg W. Knipprath

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

Amendment XXIV

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

June 21, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XXIII, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 17, Constitutional Amendment XXIII, Constitutional Amendment XXIII, Horace Cooper

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Amendment XXIII

1: The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

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

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State…….

While many Americans – including many in Washington, D.C. – may not be aware, the Founders originally contemplated that Congress would be the primary authority over any and all aspects of the nation’s capital and not the residents themselves.

The 23^rd Amendment changed the U.S. Constitution to allow residents of the District of Columbia to vote in Presidential elections. Before the passage of this amendment, residents of Washington, D.C. were unable to vote for President or Vice President as the District is not a U.S. state. They are still unable to send voting Representatives or Senators to Congress.

Operating under the auspices of Article I, Section 8, Clause 17 [[The Congress shall have Power] To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.] the Congress has nearly Carte Blanche to set up rules for the operation of the capital city.

The 23^rd amendment places specific limits on Congress’ authority by its expressed grant of voting rights to DC residents. However the grant is not unlimited. It restricts the district to the number of electors of the least populous state, irrespective of its own population. As of 2010, that is Wyoming with three Electors.

The 23^rd Amendment does not change the status of DC. The language clearly establishes that D.C. is not a state and that its electors are only for Presidential elections. The House Report accompanying the passage of the Amendment in 1960 expressly states that the Amendment would not change the status or powers of the District:

[This] . . . amendment would change the Constitution only to the minimum extent necessary to give the District appropriate participation in national elections. It would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District of Columbia and to prescribe its form of government. . . . It would, however, perpetuate recognition of the unique status of the District as the seat of Federal Government under the exclusive legislative control of Congress.

History shows that the government of the city of Washington and the District of Columbia have been dominated by Congress for most of the district’s history. The Congress has expanded and restricted the franchise several times since the District’s creation. In the 1820s Congress acted to let DC citizens vote for a Mayor and City Council. After the Civil War changed course and created a territorial form of government for the district. All the officials, including a legislative assembly, were appointed by the president. This system was abandoned in 1874, when Congress reestablished direct control over the city government. From the 1870s forward until 1961 District residents had no rights to vote whatsoever.

The 23^rd Amendment opened the door at the Presidential level and in recent years Congress would expand the franchise further. First, Congress allowed DC residents to elect a School Board. In 1970, DC citizens gained a nonvoting delegate to the House of Representatives.

By 1973, Congress would pass the Home Rule Act which District residents approved in a special referendum in 1974. This act allows citizens to elect a Mayor and City Council.

This is the present system operating in Washington, DC today.

Horace Cooper is a senior fellow with the Heartland Institute

June 20, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XXII, Marc S. Lampkin 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, Marc S. Lampkin

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment XXII

The 22nd Amendment was ratified on February 27, 1951. It places terms limits on the office of the President and provides that no US President can be elected to more than two terms. It also limits the maximum time a President may serve to 10 years, if one should succeed to the office.

The issue wasn’t new – in fact the founders had specifically considered this issue. Proposed language limiting the number of terms our elected officials could serve was rejected three times during the Constitutional Convention. The Founding Fathers saw no reason why an effective and popular elected official should be arbitrarily forced out of office. On the contrary, the Founders thought that short terms of office — interrupted by frequent elections — would better ensure accountability than limited terms, which is why members of the House of Representatives, the branch designed to be the closest to “the people,” have to run for re-election every two years.

However at the same time instead of using a rule in the Constitution – America had the Washington precedent. At the founding of the United States government, a clear and consistent pattern had been created by Washington – Presidents served only for two terms. Consistent with the idea that the American president was a monarch President George Washington made clear that he had no intention of running for a third term in 1796. This pattern stayed intact for nearly 150 years and then Franklin Delano Roosevelt was elected President.

He was first elected President in 1932, and re-elected in 1936. The eight years that followed his first election saw the dramatic expansion of the federal government as part of his administration’s response to the Great Depression. Although the economy had not been revitalized by 1940, many Americans – particularly Democrats – were quite impressed with the leadership he showed in transitioning the federal government from a government of limited powers to one with far more ambitious goals. From creating a federal minimum wage and a host of public works programs to expanding federal regulation of business generally, Roosevelt fundamentally transformed the Federal Government and American society.

And since the Depression had not yet ended, Democrats were especially fearful that these changes would get rolled back so when it came time for the Democrats to nominate a candidate for the Presidency in 1940, they settled on renominating Roosevelt. At the same time WWII had begun — even though the U.S. would not enter it until 1941

When 1944 rolled around, changing leaders in the middle of World War II, which the United States was now fully engaged in, seemed extremely unwise, and FDR ran for and was elected to an unprecedented fourth term.

However he would not complete his fifth term. He died less than 100 days after his inauguraton. Within a year of the war ending Congress – pressed by Republicans – determined to insure that George Washington’s self-imposed two term limit would become enshrined in the Constistution.

Specifically excepting Truman from its provisions, the 22nd Amendment passed Congress on March 21, 1947. After Truman won a second term in 1948, it was ratified on February 27, 1951 (1,439 days).

Marc Lampkin is a Vice President at Quinn Gillespie

June 17, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXI of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Langer, Constitution Amendment XXI 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Constitutional Amendment XXI, Constitutional Amendment XXI

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXI

1: The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

If nothing else, the 21^st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18^th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States. It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months. This is because the architects of the 21^st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues. They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method. In the case of the 21^st, the architects chose the latter. The reason for this is simple: the proponents of the 21^st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18^th amendment in the first place. State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21^st Amendment was ratified just months after it was passed by Congress.

The 2^nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions. While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10^th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution. Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1^st and 14^th Amendments? The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders. But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today. Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good: health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate: Congress simply has no power to compel individual Americans to purchase a good. We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be. We need only look at the tortured history of the 18^th and 21^st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

June 16, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XX of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XX, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 04 Clause 1-2, Constitutional Amendment XX, Constitutional Amendment XX, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX

1: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

2: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

3: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

4: The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

5: Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

6: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Congress proposed the Twentieth Amendment in March 1932 and it was ratified 327 days later in January 1933. The lack of controversy surrounding the amendment’s proposal and ratification has been matched by a lack of attention to it since ratification. Unlike some other, even seemingly innocuous provisions in the Constitution, there have been no major U.S. Supreme Court cases interpreting it or significant political controversies surrounding it.

This despite the fact that it was intended to effect an important change in American political practice.

Professor Nina Mendelson explains that the main purpose of the amendment was to
increase “the responsiveness of government to the people’s will as expressed through the election.” Nina A. Mendelson, “Quick Off the Mark? In Favor of Empowering the President-Elect” 103 Northwestern University Law Review Colloquy 464, 472 (2009). The way this was to be achieved was by abolishing “lame duck” sessions of Congress.

The lame duck sessions were created by the interaction of two Constitutional provisions.

First, Article I of the Constitution originally provided that Congress would convene once a year in December (article I, section 4, clause 2). Second, prior to the Twentieth Amendment, presidential, vice-presidential and Congressional terms began in March, four months after the presidential elections. The date for the commencement of the new Constitutional officers had been set by the First Congress. The Constitution itself specified the length of the terms so, in order to be faithful to the Constitutional mandate regarding term length, newly elected officials would take office two, four and six years from the date in March the First Congress had appointed.

These two provisions taken together resulted in a long session in election years during which the president and members of Congress could continue to enact legislation and perform other functions after the election, even when those officials had been rejected by voters.

There were some obvious concerns with the lame duck sessions. For instance, the problem of accountability of elected officials to those they are meant to represent when an election has been held and an official has been rejected by voters but that official is still making law. Officials who have not been retained in office are also likely to be susceptible to other pressures, such as the need to find work following their exit from office. See John Copeland Nagle, “A Twentieth Amendment Parable” 72 N.Y.U. Law Review 470, 479 (1997).

Because the lame duck sessions were created by Constitutional provisions shortening the terms was not possible without amending the Constitution itself.

That is exactly what the Twentieth Amendment was meant to do. The Senate Judiciary Committee report on the proposed amendment specifically said one “effect of the amendment would be to abolish the so-called short session of Congress.” Congressional Research Service, Annotated Constitution: Twentieth Amendment at http://www.gpoaccess.gov/constitution/pdf2002/038.pdf.

By abolishing the lame duck sessions, the Twentieth Amendment would resolve the problems associated with them and increase the responsiveness of elected officials to their constituents.

The amendment would accomplish this by doing away with the mandatory December session, moving it instead to the subsequent January 3^rd when the amendment called for the new Congressional session to begin. The president would be inaugurated shortly thereafter. If, for instance, the November election had not resulted in a clear majority in the Electoral College, the newly elected members of Congress, rather than the old, would select the new president.

The problem is that while the framers of the Twentieth Amendment did not “expect the outgoing Congress to meet during the lame-duck period from Election Day in November until January 3” that is, in fact, what happened. Nagle at p. 485. So, even after the Twentieth Amendment was ratified, lame duck sessions continue to be held with outgoing officials enacting legislation, spending money and bailing out industries. Presidents have been particularly active during this period, issuing pardons, signing treaties and appointing judges.

The failure of the Twentieth Amendment to do away with lame duck session illustrates a truth the Founders knew well—the law cannot supply what is lacking when self-restraint fails.

June 15, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XIX of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Carol Crossed, Constitution Amendment XvIX 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Carol Crossed, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXI, Constitutional Amendment XXI, Constitutional Amendment XXVI, Constitutional Amendment XXVI

Guest Essayist: Carol Crossed, Owner and President, Susan B Anthony Birthplace Museum

Amendment XIX

It is hard to imagine that only 90 years ago, one half of the population of the United States could not vote because of their gender. But the passage of the Nineteenth Amendment in 1920 mandated that states could no longer deny women this fundamental right. It was named the Susan B Anthony Amendment, after the foremost leader for women’s suffrage.

On that first Election Day, November 2, 1920, single and married women, young and old, exercised a right they had fought for in their homes and churches, in town halls, and on the streets. Polling places swelled almost beyond capacity with voters who had never before done such a thing. Mothers, daughters, sisters, and aunts proud and eager, rushed to their polling location as early in the morning as possible, as if vying for the front row seat at the theater. Flustered by the idea of a secret ballot, one woman thought she needed to sign the back of the card. Others carried their groceries on their hips, maneuvering the crowds and chatting enthusiastically over screaming children.

The New York Times reported that while approximately one in three women, who were eligible, voted, more women than men actually voted in some districts. The Chicago Tribune credited Republican Harding’s landslide victory to the woman’s vote.

Unlike some other amendments to the constitution, the 19^th Amendment was hard fought. For instance, the 26th Amendment passed in 1971, which granted the right to vote for citizens 18 years of age, took only 3 months and 8 days to be ratified. As a matter of fact, of the 27 amendments to the Constitution, 7 took only 1 year or less to become the law of the land.

However, women struggled for72 years to pass the Nineteenth Amendment. Anti suffrage organizations were most popular in the New England states. Opponents claimed that the female brain was of inferior size. Others claimed that women did not possess a soul. Humorous postcards portrayed women taking too long to get all their petticoats on to get to the polls. Some newspaper editorials said that women would only vote the way their husbands told them to anyway.

But even the movement that supported votes for women was ripe with internal dissention. The passage of the 15^th Amendment, giving the Negro the right to vote in 1869, caused a 20 year split in the women’s movement. Some felt that Negro suffrage should only be passed if it also gave women suffrage. Others felt that the country was not prepared to enfranchise both and therefore women had to take a back seat.

Did the rights of the Negro have to diminish the rights of women, black and white?

That question was also being asked about women’s rights as it related to motherhood and family life. Would freeing women to participate in government put at risk the care of children? In other words, could the rights of all coexist?

Against this backdrop, suffrage leaders took seriously these portrayals of power and domination by their gender. They exercised their greatest skill in combating this perception put forth by their opponents that they would abandon their children. Nowhere was this made more apparent than in their opposition to ‘Restellism,’ the term given to abortion, the most heinous form of child abandonment. It was named after the infamous abortionist Madame Restell, frequently arrested and discussed in Susan B Anthony’s publication The Revolution. Suffrage leaders saw opposition to ‘ante-natal murder’ and ‘foeticide’ as an opportunity to clear their name of unfair accusations against them by anti-vice squads, who believed the decadence of the Victorian Era lay at women’s independence.

But opposing abortion was more than a political strategy. It was support for a human right, a right that was integral to their own. The organizer of the first women’s rights convention in 1848, Elizabeth Cady Stanton, made these connections in a letter to suffrage leader Julia Ward Howe. Howe believed war was the enemy of women because it destroyed their sons and husbands and brothers. Stanton made this same death connection with mothers who destroyed their children: “When we consider that women are deemed the property of men, it is degrading that we should consider our children as property to destroy as we see fit.”

Not only were anti-suffrage crusaders misinformed about the care for children that was integral to the suffrage agenda, they misunderstood that women wanted the vote not so much for their own self aggrandizement but for ‘life over material wealth’ or for the good of families and children. Child labor laws, poverty, and universal education were issues for which they sought the vote. They sought the vote for themselves because they were mothers who knew the needs of everychild. It was their maternity that they saw as their greatest gift of citizenship. As political artist J Montgomery Flagg’s winning 1913 poster proclaimed, Mothers bring all voters into the world.

Susan B Anthony did not live to see the passage of the Amendment that was named for her life’s work. A radical young new woman leader, Alice Paul, was jailed with 66 colleagues for their protest at an event honoring President Wilson and the US participation in World War I. This sparked the nation’s awakening and compassion, but more importantly, weakened the President’s opposition to the justice they demanded.

Paul created a flag with the suffrage colors: gold for the sunflower of Kansas (an early state to grant women suffrage), white for purity, and purple for eminence. She sewed on it a star for each state that ratified the Amendment. Only one more state was needed, and on August 18, 1920, Paul received a telegram proclaiming the ‘yes’ vote by the Legislature of the State of Tennessee. Paul draped the flag over a balcony in Washington DC. Women now could exercise the right to shape and determine the course of history.

Resources:

· Boston Daily Globe, Nov. 3, 1920

· NY Times, December 19, 1920

· Chicago Daily Tribune, Nov. 3, 1920

· Archive collection, Susan B Anthony Birthplace, Adams, MA

Carol Crossed is the Owner and President of the Susan B Anthony Birthplace Museum in Adams, Massachusetts.

June 14, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Amendment XVIII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XVIII, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Constitutional Amendment XXVII, Constitutional Amendment XXVII, Joerg W. Knipprath

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

Amendment XVIII

1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19^th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20^th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20^th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18^th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18^th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27^th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14^th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18^th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14^th and 15^th Amendments. Sounding like John C. Calhoun and other 19^th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18^th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18^th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21^st Amendment be decided by state constitutional conventions.

June 13, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XVII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XVII, John S. Baker, Jr., Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03, Constitutional Amendment XVII, Constitutional Amendment XVII, John S. Baker Jr. PhD, The Articles of Confederation

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature. Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures. Over time, the number of senators elected de facto by popular election increased. Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators. As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally. Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states. What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate. Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

June 9, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Amendment XVI of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XVI, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVI, Constitutional Amendment XVI, Horace Cooper

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Amendment XVI

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

At the founding of our nation, the framers decided not to allow the federal government to assess income or other direct taxes unless they were apportioned according to population. A direct tax is simply any tax that is paid directly to the federal government by the individual. Commonplace today, these types of taxes were frowned upon when the nation began. Instead of income or other direct taxes, the founders thought that indirect taxes – sales taxes, import duties and the like – were legitimate means for the federal government to raise money.

The consensus of the founders was that the power of direct taxation would shift the dynamic between the individual and the state in a powerful and oppressive way. With direct taxing power, it was feared that Congress could assess a tax on all persons with no limits on the amount. Whether assessed as a percentage or a fixed amount, these taxes couldn’t be readily avoided or evaded by the citizens. For instance, a person couldn’t simply not engage in the behavior that was subject to taxation the way you could with a sales tax or other transaction style tax. A direct tax could apply to income, land, cattle, securities transactions etc. and force people to either pay the tax or have their property confiscated. In addition, with Congress’ power of the purse over the army and the militia, the people would be powerless to prevent collection.

Although not consistently, the Supreme Court struck down several attempts by Congress to establish so-called “direct” taxes. However, during one critical period – the Civil War – the Supreme Court upheld a temporary income tax established to fund the war effort. The Revenue Act of 1861 levied a flat tax of 3% on annual income above $800 (or roughly $20,000 in today’s dollars)

In 1893, after the war was over and the temporary tax expired, Congress adopted another income tax law. In this case, the Congress attempted to assess a federal tax on income derived from real estate. In 1895, in Pollock v. Farmer’s Loan and Trust, the Supreme ruled that the income tax was unconstitutional. This view prevailed through the turn of the century.

Historians suggest that the growing needs of the Federal Government necessitated a regular and more lucrative revenue source and increasingly politicians in both parties eyed the direct or income tax as a solution. Nevertheless, it wasn’t until 1909 that the effort to push for an amendment began.

President William Taft sent a formal message to Congress requesting that an amendment be adopted that would allow Congress to have this power once and for all. The Senate approved the Sixteenth Amendment unanimously 77-0 and the House approved it by a vote of 318-14. After being ratified by 36 states in February of 1913, it became law. Ultimately, 42 of the 48 states would ratify the amendment.

Within a few years, it had become the principal source of income for the federal government. Nevertheless, its impact wasn’t obvious. In the beginning, hardly anyone had to file a tax return because the tax did not apply to the vast majority of the people in the U.S. For example, in 1939, 26 years after the Sixteenth Amendment was adopted, only 5% of the population, counting both taxpayers and their dependents, was required to file returns. Today, nearly all adults and even some youths must file an annual income tax form.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

June 8, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Colin Hanna, Constitution Amendment XV 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Colin Hanna, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Declaration of Independence

Guest Essayist: Colin Hanna, President, Let Freedom Ring

Amendment XV

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

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

The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26^th 1869, and ratified by the States on February 3^rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprived of the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.

June 8, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XIV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XIV, Kevin Theriot 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIV, Constitutional Amendment XIV, Kevin Theriot, The Emancipation Proclamation by Abraham Lincoln

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XIV

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

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fourteenth Amendment and a Return to Federalism

The Fourteenth Amendment to the United States Constitution was enacted in 1868, just three years after the Civil War. For obvious reasons, Congress didn’t trust the Southern States to voluntarily provide former slaves with all the benefits of U.S. Citizenship, so it specifically required them to do so via the federal constitution. Subsection 1 of the Fourteenth Amendment states:

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

This amendment greatly undermined federalism since before the enactment of the Reconstruction Amendments, civil rights were largely protected by state constitutions. The Bill of Rights applied only to the federal government, which was smaller, and had less power. In fact, some Southerners still maintain that the Civil War was not about slavery, but about State’s rights and the power of the federal government.

Justice Harlan described this nationalization of civil liberties as a “revolution…reversing the historic position that the foundations of those liberties rested largely in state law.” Walz v. Tax Com. of New York, 397 U.S. 664, 701 (1970) (Harlan, J., dissenting). Beginning in 1897, the Supreme Court began interpreting the Fourteenth Amendment’s prohibition on depriving any person of “life, liberty, or property, without due process of law” as incorporating the Bill of Rights in to the amendment so that they also applied to the states. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating the Fifth Amendment).

The Free Exercise Clause of the First Amendment was incorporated in 1940 in Cantwell v. Connecticut, 310 U.S. 296 (1940). Given the history of the Fourteenth Amendment, it’s assumed the Court thought it necessary to apply the Free Exercise Clause to the states because they could not be trusted to protect religious freedom with their own constitutions and statutes. But those roles are now reversed.

The Supreme Court’s 1990 decision in Employment Div., Dept. of Human Services v. Smith drastically weakened the federal Free Exercise Clause by holding that general, neutrally applicable laws do not violate religious freedom. In that case, a general law prohibiting ingestion of a hallucinogenic drug called peyote applied to everyone, so the fact that it also restricted the freedom of Native Americans who use it during religious ceremonies did not violate the federal constitutional. Smith has had a profoundly negative impact on church religious freedom in such diverse areas as land use and the ability speak out on political issues. As a result, States are now increasing the protection they provide to religious freedom because the federal courts can no longer be trusted to protect it.

To date sixteen (16) states have taken it upon themselves to enact Religious Freedom Restoration Acts protecting their citizens: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.[1] And at least twelve (12) states have interpreted their constitutions to provide the heightened protection applied by the Supreme Court of the United States prior to Smith: Alaska, Indiana (possibly), Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.[2]

So states now provide the real protection for religious freedom – an interesting return to the federalism that was undermined when it was thought states couldn’t be trusted to do so.

[1] Alabama – Ala. Const. amend. 622, § V(a); Arizona – Ariz. Rev. Stat. § 41-1493.01(B) (2003); Connecticut – Conn. Gen. Stat. § 52-571b(a) (2000); Florida – Fla. Stat. ch. 761.03(1) (Supp. 2003); Idaho – Idaho Code § 73-402(2) (Michie 2003); Illinois – 75 Ill. Comp. Stat. 35/15 (2001); Louisiana – La. R.S. § 13-5233 (2010); Missouri – Mo. Rev. Stat. § 1.302 (2009); New Mexico – N.M. Stat. Ann. § 28-22-3 (Michie 2000); Oklahoma – Okla. Stat. tit. 51, § 253(A) (2003); Pennsylvania – 71 Pa. Stat. Ann. § 2403 (2002); Rhode Island – R.I. Gen. Laws § 42-80.1-3 (2002); South Carolina – S.C. Code Ann. § 1-32-40 (Law. Co-op. Supp. 2002); Tennessee – T.C.A.§ 4-1-407 (2009); Texas – Tex. Civ. Prac. & Rem. Code Ann. § 110.003(a) (Vernon Supp. 2004-2005);Virginia – Va. Code § 57-2.02(B) (2007).

[2] Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. App. 2000) (“Indiana Constitution may demand more protection for citizens than its federal counterpart”); Stinemetz v. Kansas Health Policy Authority, (KS app., May 4, 2011), Rupert v. Portland, 605 A.2d 63 (Me. 1992), Attorney Gen. v. Disilets, 636 N.E.2d 233 (Mass. 1994); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640 (Mont. 1993); Matter of Browning, 476 S.E.2d 465 (N.C. App. 1996); Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (en banc); and State v. Miller, 549 N.W.2d 235 (Wis. 1996). See generally Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275 (1993).

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

June 7, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Amendment XIII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XIII, Hadley Heath Manning 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Hadley Heath Manning

Guest Essayist: Hadley Heath, a Senior Policy Analyst at the Independent Women’s Forum

Amendment XIII

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

The Declaration of Independence, penned in 1776, proclaimed that “All men are created equal,” and “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

God gives rights; government serves God and the people by protecting rights. America’s Founding Fathers recognized this principle, but our young country failed to protect the God-given rights of some Americans. In the U.S., the practice of slavery continued throughout the Revolutionary War and the birth of our new country, and for nearly 100 years afterward.

It was not until the ratification of the Thirteenth Amendment to the U.S. Constitution, in 1865, that our government established a protection of liberty for all Americans, specifically liberty from slavery or forced labor.

For centuries, slavery was a worldwide phenomenon, legal and socially acceptable in many empires, countries, and colonies. From their early development, the southern American colonies relied on slavery as integral to their agricultural economy. But opposition to slavery – in the colonies and abroad – was growing stronger throughout the 17^th and 18^th centuries.

In America, religious groups including the Quakers strongly opposed slavery and advocated for its abolition. Pressure from Quakers in Pennsylvania led to the passage of the state’s “Act for the Gradual Abolition of Slavery” in 1780, only four years after the establishment of the United States as a country.

The British government put an end to slavery in its empire in 1833 with the Slavery Abolition Act. The French colonies abolished it 15 years later in 1848. These worldwide events added fuel to the anti-slavery movement in the U.S.

Some American Abolitionists, including William Lloyd Garrison, called for the immediate emancipation of all slaves. Other Americans who opposed slavery did not call for immediate emancipation, but instead hoped that the containment of slavery to the southern states would lead to its eventual end.

The American Civil War broke out in 1861 when several of the southern slave states seceded from the Union and formed the Confederate States of America. This dark chapter of America’s history ultimately decided the fate of slavery when the nation came back together after the defeat of the Confederate States.

President Lincoln dreamt of an America where all people were free. In fact, he declared all slaves to be free in his 1863 Emancipation Proclamation. An amendment to our Constitution followed as the next step to make the end of slavery a permanent part of our nation’s governing document.

Together, at the end of the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments greatly expanded the civil rights of many Americans.

While the Thirteenth Amendment outlawed slavery, it did not grant voting rights or equal rights to all Americans. Nearly a century after the Thirteenth Amendment was ratified, Congress passed the Civil Rights Act of 1964 that outlawed racial discrimination and segregation.

Sadly, the Thirteenth Amendment did not bring about an immediate or total end to slavery in the U.S. Today, it is estimated that 14,500 to 17,500 people, mostly women and children, are trafficked into our borders for commercial sexual exploitation or forced labor each year. This is in clear violation of the Thirteenth Amendment, and Americans should work toward a swift end to human trafficking in the U.S. and all over the world.

Before our Declaration of Independence was written, English philosopher thinker John Locke developed the idea that individuals have the natural right to defend their life, health, liberty, and possessions (or property). While the United States has always and should always protect the property rights of individuals, the Thirteenth Amendment makes it clear that owning “property” in the United States cannot mean owning another person.

Individual liberty for all and the God-given right to pursue happiness are not compatible with slavery. The end of slavery with the ratification of the Thirteenth Amendment is one of the most “American” of all of our historical events, because this event brought our country closer in line with the principles upon which it was founded.

Hadley Heath is a senior policy analyst at the Independent Women’s Forum. (www.iwf.org)

June 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Amendment XI of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XI, Kevin Theriot 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XI, Constitutional Amendment XI, Kevin Theriot

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XI

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State

Eleventh Amendment Immunity: Good Legal Fiction

On its face, the Eleventh Amendment to the United States Constitution seems to provide a great deal of protection for states against lawsuits. The amendment says:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

Judicial interpretation has made it even broader. For instance, the amendment appears to only prevent a private citizen of South Carolina from suing the State of Georgia in federal court. But the Supreme Court has said that it also prohibits suits by citizens of Georgia from suing their own state in federal court, Hans v. Louisiana, 134 U.S. 1 (1890), and immunity even applies if the complaint is filed in Georgia’s state courts. Alden v. Maine, 527 U.S. 706 (1999).

This judicial willingness to go well beyond the language of the Eleventh Amendment is based upon the idea that it is just one aspect of the broader doctrine of sovereign immunity, a doctrine that precedes the constitution itself. Article III of the Constitution gives federal courts jurisdiction of cases “between a State and a citizen of another State.” Historians suspect that most of the Founding Fathers anticipated that this would involve cases where a state is suing a citizen of another state, but not vice versa. See 13 Charles Alan Wright, Miller, Federal Practice & Procedure § 3524 (3d ed. 2010). The founders likely thought states were protected from suits by citizens by the well-established English Common Law rule that a sovereign could not be sued without its consent. This foundational belief may explain the quick passage of the Eleventh Amendment, which was enacted shortly after the Supreme Court found in 1793 that a citizen of South Carolina could indeed sue the State of Georgia in federal court. Chisholm v. Virginia, 2 U.S. (2 Dall.) 419 (1793). It also explains why over the years the Court has viewed the Eleventh Amendment as just one aspect of a broader common law principle.

But it doesn’t explain why courts have made it so easy to circumvent the Eleventh Amendment. For instance, someone who has had their civil rights violated by the state of Georgia cannot sue Georgia, but they can sue its head executive, Governor Deal. For all practical purposes, the result for the plaintiff is the same. If the plaintiff wins, the court will enter an injunction against the governor in his official capacity, which will affect all other state officials. This principle was established in Ex Parte Young, 209 U.S. 123 (1908), and is often referred to as the “Ex Parte Young fiction.” Practically, suing governors in their official capacity is just a suit against their state. But the Court said the state officer could never really be given authority to violate the law, so it is not really a suit against the state. One can understand why it is referred to as a “fiction,” since it resembles a Star Wars Jedi mind trick. Later, the Court determined that a successful plaintiff can even obtain damages from state officials. See Hafer v. Melo, 502 U.S. 21 (1991).

Why is it the Court feels justified in reading the Eleventh Amendment so broadly, but then completely undermining it with a legal fiction? Most likely, it’s because judges understand that in a country built upon the concept of inalienable rights, state officials must be held accountable when they violate those rights. In fact, in Chisholm, the case that prompted passage of the amendment, the Justices discussed “whether sovereign immunity—a doctrine born in a monarchy and based upon the notion that the crown could (or perhaps simply should) do no wrong—ought to play any role in the new democratic republic.” Wright, Miller, supra, § 3524.

It seems unnecessarily complicated to adopt a legal fiction requiring plaintiffs to sue state officials in order to give lip service to a doctrine that shouldn’t even apply to our form of government. But we do get the right result in the end – citizens have legal recourse against state officials that violate their rights. After all, subtle nuances, complicated plots, and happy endings are what good fiction is all about.

June 2, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The last amendment in the Bill of Rights, the 10^th, is an apt bookend for the 1^st. In fact, taken together with the 9^th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.

The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states. When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government. As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]

What was envisioned was a system of “dual sovereigns,” separate, but (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people. In other words, power flows from the people to the government, and as the High Court said 70 years ago: “The amendment states but a truism that all is retained which has not been surrendered.”[2]

Abuse of the Commerce Clause led to a near-ignoring of the 10^th Amendment by federal authorities for decades. It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted. They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation. In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:

[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]

How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?

Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government. There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own. Moreover, it removes policy prioritization an additional level away from an impacted population.

Again, as the High Court said in New York v. United States:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]

Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court. In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”. The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own. The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.

In New York v. United States, Justice O’Connor called the 10^th a “tautology”, a restatement of what is obviously true. But given the erosion of the 10^th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated. When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10^th Amendment: government does not have rights. People have rights. Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights. All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.

[1] New York v. United States, Coleman v Thompson, etc

[2] United States v. Darby, 312 US 100, 124 (1941)

[3] New York v. United States, 505 US 144 (1992)

[4] Ibid.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

June 1, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Amendment IX

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment. And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility. The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others. Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish. Instead, they added a caution, by way of an afterthought. The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers. The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned. Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision – https://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?” But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance. The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct. On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion. For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920). Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment. Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract. For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments. Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .

May 31, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Amendment VIII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment VIII, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VIII, Constitutional Amendment VIII, Joerg W. Knipprath

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

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense. Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment. Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another. Capital punishment, the Court once opined, is applied too haphazardly. When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not. However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around. Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant. On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty). After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas. Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated. Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him. The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked. In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

May 30, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment VII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment VII, LaVaughn G. Lewis, W. David Stedman 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, LaVaughn G. Lewis, W. David Stedman

Guest Essayist: W. David Stedman and LaVaughn G. Lewis, Co-Editors, Our Ageless Constitution

Amendment VII

The following is excerpted with permission from the book Our Ageless Constitution [p.41]

Trial By Jury Of Peers Under Laws By Consent Of The People

The Constitution’s Ultimate Protection For Individuals From Government

“What a fine…consolation is it for a man, that he can be can be subjected to no laws which he does not make himself, or constitute some of his friends to make for him…What a satisfaction…that he can lie under…no guilt, be subjected to no punishment, lose none of his property…the necessaries, conveniences, or ornaments of life, which Providence has showered on him, but by the judgment of his peers, his equals, his neighbors…”

–John Adams

Americans often say they’re “innocent until proven guilty.” Most, however, give little thought to the very real Constitutional protections devised by the Founders for securing individual liberty from intrusion by arbitrary government power. Incorporated into their Constitution were two great methods of defending liberty:

Representation in the Lawmaking and Taxing Body

The PEOPLE, through their elected representatives, choose the laws by which they agree to be governed.

Trial By A Jury Of Peers

The PEOPLE, through a jury of twelve peers, have the final say about their guilt or innocence under those laws.

The people who settled this nation and who formed its government believed strongly that these were the two most important principles on which to build a Constitution for a free people.

As a matter of fact, the Continental Congress of 1774 had declared them to be the bulwarks of individual freedom and essential to the defense of all other freedoms, saying:

“The first grand right is that of the people having a share in their own government by their representatives chosen by themselves, and…of being ruled by laws which they themselves approve, not by edicts of men over whom they have no controul…

“The next great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor, until twelve of his…countrymen…shall pass their sentence upon oath against him.”

John Adams called these two “popular powers…the heart and lungs…and without them,” he said, “the body must die…the government must become arbitrary.”

The 7^th Amendment Defined

The Sixth Amendment assures that Americans receive a jury trial in criminal cases. Similarly, the 7^th amendment guarantees that same right for Americans in civil cases. Unlike criminal cases, civil suits don’t require unanimity of the jurors – a simple majority can suffice – and per its terms, the 7^th Amendment also provides that any conclusions of fact reached by the jurors cannot be set aside by a judge.

The following is excerpted with permission from the book Our Ageless Constitution [p.176]

Our Ageless Constitution

“The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order…”

–Justice Joseph Story – Commentaries on the Constitution of the United States, 1789

The Qualities of Agelessness

America’s Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves-their beliefs, customs, and traditions, and in the practical aspects of politics and government. (See: Part I-Roots and Genius) It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.

“The foundation of every government,” said John Adams, “is some principle or passion in the minds of the people.” The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is “instituted for those who live under it…it ought, therefore, to be so constituted as not to be dangerous to liberty.”And the American government was structured with that primary purpose in mind—the protection of the people’s liberty.

Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, “the sacred fire of liberty” might depend “on the experiment intrusted to the hands of the American people.” That experiment, they hoped, would serve as a beacon of liberty throughout the world.

The Framers of America’s Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals.

W. David Stedman is the retired Chairman of Stedman Corporation. Stedman was a founder of the National Center for America’s Founding Documents and the National Foundation for the Study of Religion and Economics. Stedman is Co-Editor with LaVaugn G. Lewis of Our Ageless Constitution and Rediscovering the Ideas of Liberty. A frequent lecturer on topics relating to the Constitution, America’s free enterprise system and role of the “business statesman,” Stedman holds earned degrees from Duke, Harvard, and Georgetown Universities and is a Distinguished Alumnus of Duke University.

LaVaughn G. Lewis is a former teacher. She served at the Stedman Corporation as Assistant to the Chairman and as researcher and writer. She is Co-Editor with W. David Stedman for Our Ageless Constitution and Rediscovering the Ideas of Liberty, and is a graduate of Pfeiffer University.

May 27, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment VI

Perhaps more than any other Amendment, the 6^th Amendment protects the liberties of the American people most directly. It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.

By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6^th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media. Prior to the adoption of the 6^th Amendment, these protections didn’t exist for large parts of Europe and Asia.

There are seven elements of the 6^th Amendment:

Speedy Trial: As recognized by the Supreme Court this provision has three obvious benefits to the accused

To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.

Public Trial: Under its terms the trial must be open to the public and accessible by the media. Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.

Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision. Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury. No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice. They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.

Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual. The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge. Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.

In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes. They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.

Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system. A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court. If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person. Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.

Counsel: Perhaps the most meaningful of all of the 6^th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case. While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice. As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government. At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense. In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice. Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.

The 6^th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government. The founders were quite familiar with the list of abuses by the English monarch. It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.

Marc S. Lampkin is a Vice President at Quinn Gillespie

May 26, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Amendment V of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Langer, Constitution Amendment V 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment V, Constitutional Amendment V

Guest Essayist: Andrew Langer, President of the Institute for Liberty

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 offence 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.

Amendment V to the Constitution, among longest in the Bill of Rights, is also one of the richest in terms of content. A transitional amendment, it is unique in that it encompasses restraints on both criminal and civil powers of government—transitionally linking the two. The first half of the amendment serves as the bedrock of protections for accused individuals under the criminal code, while the second half lays out the bedrock principles underlying private property rights.

Americans are all-too familiar with the criminal elements within the 5^th Amendment. These were borne out of the principles of English common law, stemming from the Magna Carta—principles that the revolutionary founders had seen eroded by the Crown prior to and during the War for American Independence. Given the tremendous difficulty many of the founders had in seeing power concentrated in a single federal government, they felt it important enough to further constrain those powers and enshrine basic protections to accused persons within the Bill of Rights.

The assurance of a grand jury indictment before trial, the assurance of not being subjected to perpetual trial should the government not achieve a guilty verdict, the assurance of not being made to testify against oneself, these all had roots in English common law—very basic rights that represent a check on government power run amok. The idea of the grand jury process helps to ensure that a single government official cannot arrest an individual without merit.

The prohibition against “double jeopardy” insures that these same government officials cannot hold an individual in perpetuity, for multiple trials, when a jury of his or her peers has found them not guilty of a particular crime. And the prohibition against self-incrimination is a recognition of the dignity of the individual in not being forced to act against his own interest in self-preservation and liberty.

The statement on due process really forms the transition between civil and criminal in the 5^th Amendment. In terms of criminal jurisprudence, obviously an individual accused of a crime must be afforded some fair process by which his case is heard, ensuring that his team is able to amount a fair defense.

But then the 5^th Amendment grabs onto a core value of the American founding: the importance of private property rights. Having its basis in John Locke’s theory that government’s role is to protect life, liberty, and property, Jefferson has originally written that our inalienable rights were life, liberty, and the pursuit of property. Private property undergirds the foundation of the Republic—scholars such as Hernando DeSoto have written that property rights are essential to the stability and prosperity of any free society.

As it happens, it is these rights that have come under the greatest siege in the last century and a half—eroded in an incredible number of ways, largely because they are the among the least understood rights. As it happens, the Bill of Rights sets out very simple protections.

Government has the power to take private property from people. We cede that power to it in the 5^th Amendment. But three things have to happen in order for that “taking” to be lawful:

First, the taking has to be for a “public use”. Traditionally, this was for things like public buildings, roads, even public spaces like parks;
Due Process has to be accorded to the property owner. They have to be given a fair hearing or process by which they can negotiate with the government, perhaps to avoid the taking entirely;
Should 1 and 2 be satisfied, “just” compensation has to be paid to a property owner, generally what a willing buyer would pay to a willing seller.

For many years, litigation and legal debates arising under the 5^th Amendment’s property rights provisions centered on what constituted a taking and whether or not property owners had been afforded due process—and at which point a landowner could seek compensation from the government.

A government need not physically occupy or affirmatively confiscate property, either. As government has grown, the reach of that government into the daily lives of property owners has similarly grew—and the concept of “regulatory takings” was made manifest. In the seminal 1922 Supreme Court case of Pennsylvania Coal v. Mahon the High Court stated clearly that when a regulation goes “too far” it will be considered a taking, triggering the 5^th Amendment’s requirements.

Thus, under laws like the Clean Water Act and the Endangered Species Act, when a piece of property is restricted from substantially all uses, the landowner can seek just compensation for the taking of his property under the 5^th Amendment.

What has come to the forefront in recent years is the long-time debate over what constitutes a “public use”. In the 2005 Supreme Court case, Kelo v. City of New London, the High Court ruled that the home that elderly Suzette Kelo had lived in since she was a girl could be taken by the City of New London, CT to make way for a parking lot for a Pfizer manufacturing facility.

The public outrage was palpable—after all, the taking would directly benefit a private entity, the Pfizer Corporation, and not constitute a “public use” as stated in the 5^th Amendment. People wondered how the Supreme Court could have ruled this way.

The problem was that this decision was the end-result of 130 years of Supreme Court erosion of the “public use” doctrine. Starting with a line of cases in which the High Court ruled that it was appropriate for government entities to take private property for quasi-private/quasi-public utility companies, and leading into years of cases in which the court decided that it was OK for localities to condemn wide swatches of private property in the name of urban redevelopment, we were left with an entirely different interpretation of “public use”.

By 2005, the Supreme Court’s precedent said that so long as there was a nebulous “public benefit,” the Constitution’s requirement of a taking for “public use” was satisfied. Generally, this means that if there is a net increase in a city’s tax rolls, the 5^th Amendment is satisfied.

The problem wasn’t that the High Court was making new law in Kelo. The problem was that the High Court didn’t have the courage to over-rule years of bad law.

The 5^th Amendment’s property rights protections are constantly under siege. If we hope to keep the Republic, we must defend those protections earnestly and vigorously.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

May 25, 2011/11 Comments/by Janine Turner and Cathy Gillespie

Amendment IV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment IV, Jeffrey Reed 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment IV, Constitutional Amendment IV, Jeffrey Reed

Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.

Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment. However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.

The text says:

The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.

Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.

In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.

In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”

The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.

Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.

The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.

Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.

Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.

The most recent exception was handed down by the Supreme Court on May 16^th. In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

May 24, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Amendment III of the United States Constitution

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . . which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12^th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17^th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18^th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states. Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.

[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142

Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.

May 23, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Amendment II of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment II, David B. Kopel 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 14-16, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel

Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Like most of the Bill of Rights, the Second Amendment was part of a conciliatory program by the Federalists, as promised by James Madison at the Virginia ratifying convention. For the most part, the Bill of Rights consisted of assurances that the new federal government could not do things which the Federalists never wanted to do anyway, and which the Federalists believed were not within the powers which had been granted to the new government.

For example, the Federalists had no wish to establish a national religion, and they believed that Congress’s enumerated powers (e.g., to establish post offices, to regulate interstate commerce) could not possibly be construed so as to give Congress the power to establish a religion. Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.

The Second Amendment was of a similar character. Based on knowledge of history from ancient times to the present, the Federalists and the Anti-Federalists agreed that disarmament was a direct path to slavery. Indeed, the heavy-handed English government of King George III had precipitated the American Revolution through an aggressive gun control program in 1774-76: embargoing the import of guns and gunpowder by the American colonies, confiscating the guns and gunpowder which some towns stored in central repositories (the repositories kept guns for militiamen who could not afford their own gun, and provided merchants a place to keep reserve quantities of gunpowder in a fireproof building), putting Boston under military occupation and confiscating the firearms of the Bostonians, using the military to conduct house-to-house searches for firearms at Lexington and Concord, and then naval bombardment and destruction of coastal New England towns which refused to surrender all their arms.

Accordingly, the Second Amendment’s assurance that the federal government could never disarm the people was uncontroversial.

Where Madison had refused to budge was on the subject of federal powers over the militia. The original Constitution, in clauses 15-16 of Article I, section 8, had given Congress broad authority to summon the militia into federal service, and to provide for the organization, arming, and disciplining of the militia. At the state ratifying conventions, Anti-Federalists had strongly objected to these new federal powers. But Madison refused to limit federal militia powers, just as he refused all other proposals to constrict the federal powers granted by the new Constitution.

When U.S. Representative James Madison introduced his proposed Bill of Rights into the first session of the United States House of Representatives in 1789, he proposed that the right to arms language be inserted into Article I, Section 9, after Clause 3. Clauses 2 and 3 protect individuals against suspension of the writ of habeas corpus, bills of attainder, and ex post facto laws. Madison also suggested that what were to become the First, Third, Fourth, Eighth, and Ninth Amendments, portions of the Fifth Amendment (double jeopardy, self-incrimination, due process, just compensation), and portions of the Sixth Amendment (speedy public trial, right to confront witnesses, right to be informed of charges, right to favorable witnesses, right to counsel) also be inserted there.

Madison proposed that the remainder of the Fifth (grand jury), Sixth (jury trial, in the form of a declaration that “trial by jury as one of the best securities to the rights of the people, ought to remain inviolate”), and the Seventh Amendment (civil jury trial) be inserted into Article III, which deals with the judiciary. He recommended that what would become the Tenth Amendment be inserted as a new article between Articles VI and VII. His proposed limitation on congressional pay raises was to be inserted into Article I, Section 6, which governs congressional pay. (This was eventually ratified as the Twenty-seventh Amendment in 1992.)

If Madison had seen the proposed Second Amendment as a limitation on federal militia powers, then he would have placed the Amendment in the part of the Constitution which defines federal militia powers. (Article I, § 8, clauses 15-16.) Instead, he placed the proposed language in the portion of the original Constitution which guaranteed individual rights.

However, the House objected that interpolating changes into the original Constitution would imply that the original Constitution had been defective. So Madison’s changes were eventually appended to the Constitution, as amendments following the main text.

For the speech introducing the Bill of Rights into the House of Representatives, Madison’s notes contain the following: “They relate first to private rights—fallacy on both sides—espec as to English Decln. Of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience…attaineders—arms to protest[an]ts.” James Madison, “Notes for Speech in Congress Supporting Amendments,” June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979) (bracketed letters not in original).

The English Declaration of Rights, enacted by Parliament in 1689, had declared that “The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law.”

So Madison believed that the English Declaration of Rights was defective because it was a mere act of Parliament, and thus could be over-ridden by a future Parliament. Further, the English Declaration of Rights did not go far enough, in part because its arms guarantee protected only Protestants (98% of the English population at the time).

As introduced by Madison, the Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

After approval by the House, the Second Amendment was considered by the Senate. The Senate (1) removed the religiously scrupulous clause and the phrase “composed of the body of the people,” (2) replaced “the best” with “necessary to the,” and (3) rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.” 1 Journal of the First Session of the Senate 71, 77 (1820).

The rejection of the “common defence” language made it clear that the Second Amendment right to arms was not solely for militia service.

The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18^th and 19^th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.

For example, Rhode Island’s 1842 Constitution declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” Eugene Volokh, “The Commonplace Second Amendment,” 73 NYU Law Review 793 (1998).

The right which is guaranteed in the operative clause is not limited by the purpose clause. In Rhode Island, the purpose clause refers to “the press,” but the operative clause protects the speech rights of “any person,” not just journalists. Likewise, the Second Amendment right does not belong only to the militia; it belongs to “the People,” just as the First Amendment right to assemble and the Fourth Amendment right to freedom from unreasonable searches and seizures, are rights of “the People,” and therefore rights belonging to all individual Americans.

Tench Coxe, a political ally of Madison who would later serve in Madison’s sub-cabinet, penned the most comprehensive section-by-section exposition on the Bill of Rights published during its ratification period. Regarding Madison’s proposed right to arms amendment, Coxe wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2.

After Coxe, the best evidence of the original public meaning of the Second Amendment comes from the most influential and widely used legal treatise of the early Republic, the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by the Virginia jurist St. George Tucker (1752-1827). Tucker was a militia colonel during the Revolutionary War, a Virginia Court of Appeals judge, a federal district judge, and professor of law at the College of William & Mary. Regarding the Second Amendment, Tucker’s 1803 treatise was essentially verbatim from his 1791-92 lecture notes at the College of William & Mary, almost immediately after the Second Amendment had been ratified.

Tucker’s Blackstone was not merely a reproduction of the famous English text. It contained numerous annotations and other material suggesting that the English legal tradition had undergone development in its transmission across the Atlantic, generally in the direction of greater individual liberty. Tucker’s treatment of Blackstone’s discussion of the right to arms was typical. According to Tucker: “The right of the people to keep and bear arms shall not be infringed. Amendments to [Constitution], and this without any qualification as to their condition or degree, as is the case in the British government.” St. George Tucker, 1 Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia 143-44 (1803) (reprinted 1996 by The Lawbook Exchange).

Tucker’s Blackstone also included a lengthy appendix on the new American constitution. This appendix was the first scholarly treatise on American constitutional law and has been frequently relied upon by the United States Supreme Court and scholars. Tucker’s primary treatment of the Second Amendment appeared in the appendix’s discussion of the Bill of Rights:

A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.

. . .This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Appendix to Vol. 1, Part D, p. 300.

Tucker’s appendix also mentioned the right to arms in the context of Congressional power over the militia. Noting that the Constitution gives Congress the power of organizing, arming, and disciplining the militia, while reserving to the states the power to train the militia and appoint its officers, Tucker asked whether the states could act to arm and organize the militia if Congress did not. He argued that the language of the Second Amendment supported the states’ claim to concurrent authority over the militia:

The objects of [the Militia Clauses in Article I] of the constitution, . . . were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining it’s own militia, whenever congress should neglect to provide for the same.” . . . [A]ll room for doubt, or uneasiness upon the subject, seems to be completely removed, by the [second] article of amendments to the constitution, since ratified, viz. ‘That a militia [sic] being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed.’ To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.

Id., pp. 272-73.

Tucker’s treatise was studded with other references to the right to arms. For example, Tucker contended that Congress’s power to enact statutes that are “necessary and proper” for carrying into effect its other enumerated powers, U.S. Const. art. I, sec. 10, cl. 8, did not include the power to make laws that violated important individual liberties. Such laws could not be deemed “necessary and proper” in the constitutional sense, argued Tucker; therefore, they were invalid and could be struck down by a federal court. Tucker chose as an illustration a hypothetical law prohibiting the bearing of arms:

If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of those means.

Id., p. 289.

Similarly, Tucker observed that the English law of treason applied a rebuttable presumption that a gathering of men was motivated by treason and insurrection, if weapons were present at the gathering. Tucker, however, was skeptical that the simple fact of being armed “ought … of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself.” Vol. 5 Appendix, at 9, note B. He added: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Id. For more on Tucker and the Second Amendment, see David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” 103 Northwestern University Law Review Colloquy 1527 (2009); Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing the True Palladium of Liberty,” 3 Tennessee Journal of Law & Policy 114 (2007).

From Madison, Coxe, and Tucker to the present, the large majority of Americans have always understood the Second Amendment as guaranteeing a right to own and carry guns for all legitimate purposes.

This view was re-affirmed after the Civil War. Specifically invoking the “the constitutional right to bear arms,” Congress enacted the Second Freedmen’s Bureau Bill to stop the South from interfering with gun ownership and carrying by the former slaves. Similarly, the Fourteenth Amendment was passed by Congress, and ratified by the states, for, among other things, preventing the Southern states from interfering with the Second Amendment rights of the Freedmen to keep and bear arms to defend themselves against the Ku Klux Klan and similar racial terrorists. , Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Oakland: Independent Institute, 2010).

The U.S. Supreme Court relied on this original meaning in the 2010 case McDonald v. Chicago, holding that the Fourteenth Amendment prohibits state and local governments from infringing Second Amendment rights.

During part of the 20^th century, a theory was created that the Second Amendment was not an individual right, but was instead a “state’s right” or a “collective right.” Although lacking in historical support, these anti-individual theories were for a time popular among some elites. However, in District of Columbia v. Heller (2008), all nine Justices of the Supreme Court agreed that non-individual interpretations of the Second Amendment were supported neither by history nor by the Court’s precedents.

The Heller Court split 5-4 on whether the individual right was only for militia purposes (the four dissenters led by Justice Stevens) or was for all legitimate purposes (the five-Justice majority led by Justice Scalia). The majority result had strong support not only in the original meaning of the Second Amendment, but also in more than two centuries of history and evolving tradition of the Second Amendment, in which the American people had repeatedly affirmed the right to own and carry firearms for personal defense, hunting, and all other legitimate purposes. David B. Kopel, “The Right to Arms in the Living Constitution,” 2010 Cardozo Law Review de Novo 99.

David B. Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado. He is also adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law; and an Associate Policy Analyst at the Cato Institute, in Washington, D.C. He is the author of 12 books and over 80 scholarly articles, many of them on firearms law and policy. He is co-author of the first law school textbook on the subject, Firearms Regulation and the Second Amendment, forthcoming from Aspen Publishers.

May 20, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Amendment I of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment I, Justin Butterfield, Kelly Shackelford 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XXVII, Kelly Shackelford

Guest Essayists: Mr. Kelly Shackelford, President and CEO for Liberty Institute, and Justin Butterfield, Constitutional Attorney, Liberty Institute

Amendment I

First Amendment to the U.S. Constitution

Perhaps the most important and the most contentious portion of the United States Constitution, the First Amendment to the U.S. Constitution—the first of the Bill of Rights—was instrumental in ensuring that the new Constitution would be accepted by citizens of the fledgling United States at the end of the eighteenth century. The Constitution set up a government of limited, enumerated powers. “Enumerated powers” meant that the federal government, as originally envisioned, could take no action unless the Constitution explicitly granted the government the power to take that action. In theory, then, the federal government could not restrict freedom of speech because the Constitution did not give Congress permission to restrict freedom of speech. Many American citizens, however, having just fought a war resulting from Britain’s disregard for their rights, were leery of entrusting their newly-won freedom to a government with no explicit protections for individual rights. They did not believe that the “lack of permission” for Congress to act was strong enough protection. To address these concerns, twelve articles, known as the Bill of Rights, were submitted to the states for ratification as amendments to the Constitution. Of these twelve articles, the last ten were ratified in the eighteenth century (the second article of the Bill of Rights was ratified in 1992 as the 27th Amendment to the U.S. Constitution). Unlike the main text of the Constitution, the articles of the Bill of Rights are explicit prohibitions on the government, designed to prevent the federal government from being able to trample on the rights of states and citizens.

The First Amendment famously begins, “Congress shall make no law….” The First Amendment originally limited only Congress and, thus, the federal government. State and local governments were not limited by this (or any other) amendment to the Constitution. The First Amendment was considered to only apply to the federal government until 1925 when the Supreme Court, in Gitlow v. New York, held that the Fourteenth Amendment, which applies to the states, “incorporated” the First Amendment.

Following the statement that the First Amendment applies to Congress are five clauses, each protecting one aspect of the flow of ideas. These five clauses are the Establishment Clause (“…respecting an establishment of religion”), the Free Exercise Clause (“or prohibiting the free exercise thereof”), the Free Speech Clause (“or abridging the freedom of speech”), the Free Press Clause (“or of the press”), and the Assembly and Petition Clause (“or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

The first two clauses of the First Amendment protect religious liberty. The Establishment Clause, a reaction against the abuses of the Church of England, was originally intended to prohibit the government from establishing an official national religion or supporting one religious denomination over another. This clause has since been re-interpreted to say that government may not favor religion in general, thus leading to increased attempts to secularize society, including banning any possibly perceived “endorsement” of religion by the government. The Free Exercise Clause is the counterpoint to the Establishment Clause. While the Establishment Clause prevents the government from establishing a religion, the Free Exercise Clause prohibits the government from interfering with individuals’ religious expression.

The Free Speech Clause of the First Amendment protects the expression of ideas. Not all speech is equally protected, however. Political speech is afforded the greatest protection under the First Amendment. Commercial speech—speech done to make a profit—is given less protection. The guaranty of freedom of speech does not extend to certain types of speech, such as obscenity or speech that incites immediate violence. The government is also allowed to place some reasonable limits on when, where, and how speech can take place, but these limits cannot be used to favor one viewpoint over another. For example, a government can prohibit the use of megaphones at night near residential areas, or a government can prohibit a demonstration from walking through a secured military base. If, however, the government allows one group to use a megaphone at night near a residential area, then the government cannot prohibit another group from doing so based on the viewpoint that the second group espouses.

The Free Press Clause is closely related to the Free Speech Clause, but applies to printed communications. This clause has also been used to strike down taxes that specifically target newspapers and laws that require “fairness” in reporting.

Finally, the Assembly and Petition Clause protects the right of people to assemble together and to petition the government. This clause is important in a republic because petitioning the government is one of the main ways the citizenry exercises its sovereignty. While this clause protects the right of the people to petition the government, it does not require that government officials actually listen to or respond to any petition attempt.

Ultimately, a true republican form of government cannot exist apart from the free flow of ideas. Additionally, this amendment ensures that the government cannot impose a state orthodoxy, violating the conscience of those who hold unpopular views or forcing them into intellectual submission. This amendment also ensures that open debate is not thwarted, for as John Milton said, “Though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.”

Kelly Shackelford, Esq., is President/CEO for Liberty Institute, a post he has held since 1997. A constitutional scholar, Mr. Shackelford has argued before the United States Supreme Court, testified before the U.S. House and Senate on Constitutional issues, and is on the Board of Trustees of the United States Supreme Court Historical Society.

Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Mr. Butterfield graduated from Harvard Law School in 2007. He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.

May 19, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article VII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article VII, Dan Morenoff 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article VII, Dan Morenoff, Federalist No. 27, Federalist No. 44, The Articles of Confederation

Guest Essayist: Dan Morenoff, Attorney

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

We often conflate the history of our country and our constitution, as if the United States of America burst forth, full-grown, from the head of Zeus at ratification in 1789. To understand what’s important about Article VII of the Constitution, though, you need to think about the government that existed before and authorized the convening of the Constitutional Convention. Article VII is how the Founders changed the rules in the middle of the game to overstep their authority and remake the nation in ways the Articles of Confederation were designed to prevent.

The United States of America had existed as an independent nation for 13 years before ratification; even before that, the Continental Congress had convened for an additional 3 years – had it not, there would have been no organ of the United States capable of declaring our independence. We had 14 Presidents before George Washington, 7 of whom were President under the nation’s first written Constitution, the Articles of Confederation. And, throughout those years, the body that met, with the power to act for America, was the united States in Congress assembled.

It was this Congress that called what became the Constitutional Convention in Philadelphia. It did so through a resolution calling for states to send delegates “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” This was consistent with the Articles themselves, which provided a mechanism for their own amendment. Article XIII provided that “the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.”

But not all the states complied with Congress’s request that they send delegates to the Grand Convention to negotiate proposed amendments to the Articles of Confederation. Rhode Island, happy with a system in which it often exercised effective veto-authority despite its miniscule size, flatly refused. New York sent three (3) delegates, the incomparable Alexander Hamilton (a long-time supporter of amending the Articles to create a viable national government) and two staunch defenders of state autonomy included by George Clinton, New York’s soon-to-be-Anti-federalist Governor, for the all-but-stated purpose of voting against anything Hamilton supported.

So when the Founders met in Philadelphia, they faced a seemingly insoluble puzzle. They met as delegates of states bound by a “perpetual” confederation amendable only by unanimous action. They met with the task of proposing amendments sufficient to “render the federal Constitution adequate” to preserve that “perpetual” union. And one of the states whose unanimous support they needed to amend the Articles sufficiently to preserve the Union had already announced through its refusal to participate that it would support absolutely nothing they suggested.

Article VII was how the Founders cut this Gordian Knot.

They would not abide by the Articles’ rules in proposing a replacement for the Articles. Knowing that they could not meet the Articles’ requirements, they made up their own. Rather than allow little Rhode Island’s intransigence to doom the convention (and the Union), they replaced the Articles’ unanimous-consent requirement with Article VII’s rule that the new Constitution would take effect for the ratifying states whenever nine (9) states agreed.

And their rule change was decisive. As implicitly threatened, Rhode Island voted down the Constitution’s ratification in March 1788.* Without Article VII, that would have been the end of the Constitution. Because of Article VII, the ratification process continued, though, and the Constitution won its ninth (9^th) and decisive state ratification from New Hampshire on June 21, 1788. Virginia and New York followed by the end of July. An election then followed, allowing Washington’s inauguration (along with a new Congress under the Constitution) on April 30, 1789, despite the fact that neither North Carolina nor Rhode Island had yet consented to the new regime.

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* Rhode Island’s version of this history asserts that the state rejected the Constitution because it lacked a Bill of Rights. http://www.visitrhodeisland.com/make-plans/facts-and-history/. This is self-justification masquerading as history and ignores the state’s refusal to send delegates to the Convention at a time when no national government was contemplated and no need for a Bill of Rights even imaginable. Even the U.S. Archives admits that Rhode Island only narrowly ratified after the ratification of the Bill of Rights when “[f]aced with threatened treatment as a foreign government.” http://www.archives.gov/education/lessons/constitution-day/ratification.html.

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Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm. Dan is currently a lawyer in Dallas.

May 18, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article VI of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article VI, Nathaniel Stewart 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article VI, Federalist No. 33, Nathaniel Stewart, The Articles of Confederation

Guest Essayist: Nathaniel Stewart, Attorney

Article VI

1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article VI concerns the debts of the United States, the supremacy of the Constitution and federal law, and the sworn obligation of office holders to uphold the Constitution.

America’s War for Independence was an expensive war – and most of it had been financed. Tens of millions of dollars had been borrowed from foreign governments and wealthy financiers – some of them even English – who were understandably concerned that their debtors might try to use the country’s new-found independence to avoid repaying their loans. Indeed, the 1783 Treaty of Paris, which brokered the peace between Britain and the United States, expressly provided that lawfully-contracted debts were to be paid to creditors on either side.

This concern resurfaced as the fledgling country traded in the relatively weak Articles of Confederation for a more authoritative Constitution. Article VI, clause one, of the new document reassured unpaid creditors that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The ratification of the new Constitution then could not be used to shirk paying those who were rightfully owed under the old system. It was well understood at the time that good credit must be established and maintained if the country would have any hope of survival or longevity.

The second clause, commonly known as the “Supremacy Clause,” makes clear that the Constitution is the binding legal authority on which the country was founded: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This may seem axiomatic to us today, but the issue was far from settled and “the source of much virulent invective and petulant declamation against the proposed Constitution,” (Federalist No. 33) for it was widely feared that the formation of the federal government would intrude upon the rights and liberties enjoyed by the states and the people.

Richard Henry Lee, a prominent anti-federalist, expressed this fear in the alliterative “Federal Farmer IV” when he warned, “It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”

Both Alexander Hamilton and James Madison took up the debate and defended the clause. Hamilton first explained, “If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for Political Power And Supremacy” (Federalist No. 33). But Hamilton, perhaps attempting to assuage the fears of men like Richard Henry Lee, insisted that the “acts of the larger society which are not pursuant to its constitutional powers” must then be held “invasions of the residuary authorities of the smaller societies” and will not become the supreme law of the land. “These,” Hamilton argued, “will be merely acts of usurpation, and will deserve to be treated as such.” Thus, although a supreme law was required for any proper government to function, the federal government would be limited in its scope to those laws pursuant to the Constitution.

James Madison’s Federalist No. 44 echoed Hamilton’s argument and contended that any Constitution without a Supremacy Clause “would have been evidently and radically defective.” Madison warned in Federalist No. 44 that, were the state constitutions to exert supremacy over the federal Constitution, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”

It didn’t take long for the question of legal supremacy to find its way to the Supreme Court. Coincidentally, both the Supremacy Clause and the issue of pre-Treaty debt were taken up in the same case in 1796. In 1779, during the War for Independence, Virginia had passed a law whereby all property within the state belonging to any British subject or which did belong to any British subject at the time of forfeiture was deemed to be the property of Virginia. Not only did the statute confiscate British-owned property, it arguably nullified private debts owed by Virginians to British subjects. In Ware v. Hylton, a British creditor sued an American debtor to recoup the money owed under a pre-war bond. Virginia’s statute seemed to prevent the creditor from collecting his debt, and the Court was asked to decide: did Virginia’s law or the Treaty of Paris control the collection of the debt?

Making his only appearance as a lawyer before the Supreme Court, John Marshall argued brilliantly on behalf of the American debtor. Justice Iredell, in the controlling opinion of the Court, ruled against the future Chief Justice: “Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.” The Treaty of Paris thus superseded Virginia’s contrary law, and the Court declined to give effect to the state statute.

Later, Chief Justice Marshall would pen the landmark decision in McCulloch v. Maryland (1819), ruling that Maryland’s tax on the Second Bank of the United States ran afoul of the Constitution. Nullifying the state’s tax on the federal government, Marshall observed: “If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action.”

A barrage of new federal laws from Capitol Hill and a long line of Supremacy Clause cases marched across the legal landscape in the twentieth century, leaving a blotted trail of nullified state statutes. Today, “A state statute is void to the extent that it actually conflicts with a valid Federal statute,” (Edgar v. Mite Corporation (1982)), and such a conflict exists wherever compliance with both federal and state law is impossible; or where the state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.

Thus, for example, the Supreme Court held in Raich v. Gonzales (2005) that California’s law permitting doctor-prescribed medical marijuana would frustrate Congress’s efforts to regulate the interstate marijuana market under the federal Controlled Substances Act. And, as Justice Stevens’ majority opinion casually reminds us, “The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail,” because, as the Court had previously opined, “‘no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” (quoting Wickard v. Filburn (1942)). We might now wonder whether – in the Court’s view – there remain any regulatory “acts of the larger society which are not “pursuant to its constitutional powers” or which might still invade “the residuary authorities of the smaller societies.”

The third clause of Article VI establishes two important and related principles. First, its “Oath Clause” requires that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Once again, the Constitution is supreme, and a conscious effort was made for it to be supported and upheld not only by federal officers and judges, but by state officials as well. As Hamilton explained in Federalist No. 27, the “Oath Clause” would help ensure that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.”

Second, the “No Religious Test” clause guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the founding era, much of Europe and many of the new American states used religious tests to protect their preferred churches and religions. In England, the Test Act of 1672 required all public officers to swear a conspicuously anti-Catholic oath declaring disbelief in “any transubstantiation in the sacrament of the Lord’s Supper.” In 1789, Delaware, Maryland, Massachusetts, North Carolina, and Pennsylvania all had constitutions requiring that their public officials to swear belief in tenets of Christianity. The “No Religious Test” clause prevented such requirements for holding federal office, but left any such qualifications for state officers untouched.

Perhaps surprising to us today, this clause received a fair amount of debate and resistance from anti-federalists during ratification. In Massachusetts, for example, one “principal objection” to the Constitution was its lack of a religious test – “rulers ought to believe in God or Christ,” it was argued. Federalist Oliver Ellsworth defended the constitutional ban on religious tests, believing them to be “utterly ineffectual,” and arguing that “If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.” Ellsworth’s view won out, of course – although it remains a rather open question whether we, the people who appoint our public officers, have taken much care to choose those predicted “sincere friends to religion.”

Nathaniel Stewart is an attorney in Washington, D.C.

May 17, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article V of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article V, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 01, Joerg W. Knipprath, The Articles of Confederation

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

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government. That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17^th and 18^th century republican theory called for decisions by majority vote, albeit under a restricted franchise. This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature. For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law. Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners. Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures. Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action. Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract. In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract. As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles. When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled. The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote. Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17^th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention. That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.” Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day. In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

May 16, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Article IV, Section 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article IV, Section 4, William Morrisey, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article IV Section 4, Constitutional Amendment IV, Declaration of Independence, Federalist No. 39, Federalist No. 43, William Morrisey PhD

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Article IV, Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Here the Framers speak the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God. One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Queen Anne, a Henry IV) might have appeased them. Indeed she, or he, might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists. Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown—replaced with a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address? The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview. “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.” Why so? Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original). What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican. Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues. What power within the United States can safely prevent an anti-republican faction from seizing control of a state? “What better umpires could be desired by two violent factions, flying to arms and tearing a State to pieces, than the representatives of confederate States not heated by the local flame? To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.” This would require that republican regimes achieve a sort of `critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States. If republicanism failed here, when and where would it revive? When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations to the west—but also by other states of the Union. Although (as Montesquieu had remarked) commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic. Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state government before intervening in such disputes. On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or domestic. An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.” The presence of slaves in the United States raised the harshest questions about both the American regime and the American federal union. By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property. Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791. “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared. Would a slave revolt be an attack on republicanism or a vindication of it? Madison and the other founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for evils of slaveholding republicanism.

Put in a somewhat different way, the dilemma was as simple as it was stark. As Madison wrote in Federalist 43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.” That is, the basis of the federal union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state. Each state entered the union acknowledged as a republic by all of the others. But how `republican’ were those states in which slaves “abounded”? Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies. The majority were slaves…. The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding whites and black slaves amounted to three-quarters of the population (Papers of James Madison, vol. xiii, p. 163).

Such regimes were republics in Montesquieu’s sense—“aristocratic” rather than “democratic” republics. For Montesquieu, “republic” meant simply that the regime did not amount to the `private’ possession of one person—a despotism. This definition derived from the Latin root of the word: res publica or “public thing.” But to Madison and rest of the founders “republic” meant the “democratic” republic, only; in the words of Federalist 39, “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people—i. e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence: “Where slavery exists the republican theory [namely, that right and power are co-extensive because the majority rules] becomes still more fallacious” than it does under conditions whereby there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal union—the unity of the United States—began its life on a knife edge. The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of popular self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist—and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” within the states themselves. They inserted the republican guarantee clause as one way of strengthening that framework. In a way, it did—but its enforcement came at horrible cost, decades later.

May 13, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article IV, Section 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article IV, Section 3, Dan Morenoff 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article IV Section 3, Dan Morenoff

Guest Essayist: Dan Morenoff, Attorney

Article IV, Section 3, Clause 1-2

1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Marge Simpson: “There are only 49 stars on that flag.”
Abe Simpson: “I’ll be deep in the cold, cold ground before I recognize Missouri.”

Abe Simpson got it partly right. Article IV, Section 3 leaves one state Constitutionally suspect; it’s just not Missouri. It also highlights that, under irrevocable actions taken by Congress, there could be 54 states at any time one state chooses.

Congress first admitted states to the Union while Washington was still President. In 1791, it admitted Vermont (a territory previously claimed by both New York and New Hampshire, which had governed itself for 14 years). Within months, it admitted Kentucky (formerly, the disgruntled, Western counties of Virginia).

The pairing indicated the great dividing line in American political life for the next 70 years. Congress admitted the states together to preserve the balance in the Senate between states allowing human slavery and those abhorring it. Also noteworthy, Virginia consented to the independence of Kentucky only after negotiating an interstate compact that Congress contemporaneously approved.*

By 1820, the tradition of admitting states in free and slave pairs (Indiana and Mississippi, Illinois and Alabama) was so engrained that it required the Missouri Compromise. Congress contemporaneously admitted Missouri (formerly a territory) as a slave state and the northern district of Massachusetts as a newly separate, free State of Maine, while drawing a line through the West beyond which slavery would not be allowed in the remaining Federal territories. Unlike the Virginia of 1790, Massachusetts, happy to preserve the balance of power for free states, demanded no concessions from Maine on consenting to the separation.

The events that followed, including the eventual repeal of the Missouri Compromise’s Western-land provisions in 1854, directly precipitated the Civil War.

Notice that, already, Congress had twice exercised the power to carve a state out of another state, with the consent of the severed state’s legislature. During the Civil War, it did again, this time in a Constitutionally suspect manner. After Virginia seceded from the Union, its loyalist, mountain counties seized the chance to free themselves from the richer, more heavily populated lowlands. Deeming the rebellious state legislature in Richmond illegitimate, these counties’ representatives gathered in Wheeling, Virginia (in their midst) and declared themselves the legitimate government of all of Virginia. It was this “loyal” government of Virginia which consented to the carving of the same counties represented within it into the new state of West Virginia.

When the Civil War concluded and Virginia returned to the Union, Virginia’s government predictably challenged the legitimacy of the Wheeling convention’s actions during the war. In 1865, the Virginia General Assembly repealed the Wheeling convention’s act, nominally in Virginia’s name, of consenting to the split. Litigation followed, in which the United States Supreme Court implicitly recognized the Wheeling convention as having spoken both for the seceding counties and for the State of Virginia as a whole, despite the fact that this put the same people on both sides of the table in a negotiation.** Nonetheless, since 1871, West Virginia’s questionable legitimacy has been set aside, apparently in the interest of finality.

Finally, it is worth noting that while no new state has been admitted to the Union since 1959, Congress has bindingly consented to further admissions.

Alone among America’s states, Texas was an independent republic before statehood, which joined the Union not through the usual process of Congressional admission, but through the contemporaneous action of two, equal sovereigns. On February 26, 1845, the U.S. Congress passed a joint resolution offering Texas statehood. Texas then convened an Annexation Convention that approved annexation and submitted an Annexation Ordinance to popular referendum in October 1845. After the people of Texas authorized ascension, both the U.S. House and Senate approved the Annexation Ordinance and President Polk signed it into law on December 29, 1845.

Both the initial U.S. Congressional joint resolution and the Annexation Ordinance included the following provision:

New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.

An affirmative part of the deal between sovereigns, enshrined in the law of the United States, was that Texas, at its discretion, may self-divide into up to five (5) states at any time. While Texas has, to date, never exercised this option, it has the legal right, should it so choose, to sub-divide and claim an additional 8 seats in the United States Senate at its pleasure.
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* The Compact bore on the preservation of land-titles held on paper by Virginians before Kentucky’s independence. The conflicts that Compact’s terms set in motion between Virginians that had never seen the lands in question but held papers properly filed in Richmond and the frontier woodsmen who settled Kentucky and developed its lands would only be resolved 140 years later through the Kentucky Supreme Court’s resort to legal fiction. Green v. Biddle, 21 U.S. 1 (1823).

** Virginia v. West Virginia, 78 U.S. 39 (1871).

May 12, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article IV, Section 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article IV, Section 2, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article IV Section 2, Constitutional Amendment XIV, Constitutional Amendment XIV, Joerg W. Knipprath, The Articles of Confederation

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

Article IV, Section 2, Clause 1-3

1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Of these clauses in Article IV, Section 2, the last, the Fugitive Slave Clause, similar to one adopted by the Confederation Congress in the Northwest Ordinance contemporaneous with the drafting of the Constitution, is now a dead letter. Another, the Extradition Clause, imposes a theoretical duty (“shall…be delivered”) on the state governors. But the Supreme Court ruled in 1861 that judicial compulsion, by writ of mandamus, was unavailable. As a result, governors have considered themselves at liberty to refuse requests for extradition when, in their opinions, justice so demands. Rather, the clause is enforced (more or less) politically through interstate compacts, uniform state laws, and (indirectly) federal fugitive-from-justice legislation.

The first clause, the (“Interstate”) Privileges and Immunities Clause, has a long pedigree, yet remains murky in meaning and ambiguous in scope. It is derived from Article IV of the Articles of Confederation (as are the Constitution’s Extradition and Full Faith and Credit Clauses). The existence of these clauses in both charters is evidence of the continuity reflected in the Constitution’s Preamble “to form a more perfect [not a new] Union.” These clauses also are one more manifestation of the bedrock federalism principle of union among states (rather than simply creation of a national government over the states) that runs through both charters.

The Constitution’s version of the P&I Clause is a redaction of the more compendious version in the Articles. Unfortunately, concision did not bestow clarity. Four different meanings have been advanced. The first is that the clause is actually a restriction on Congress not to pass laws that discriminate among different states and the citizens thereof. This interpretation received support from Justice Catron in his concurring opinion in the Dred Scott Case. It is constitutionally obsolete today.

Another interpretation is that the clause guarantees the citizens of each state various rights that are enjoyed by citizens in any other state. That view was specifically rejected by the Supreme Court a century ago. It would have given the Supreme Court the kind of power of review over state laws that it came to acquire more gradually through judicial expansion of the 14th Amendment by the “incorporation” of various Bill of Rights guarantees into the due process clause and the creation of new categories of unconstitutional discrimination under the equal protection clause.

A third interpretation is that the clause guarantees the right of a citizen of a state to exercise the rights that he has in his own state even when visiting another state, that is, to carry his rights of state citizenship throughout the Union. That view, as well, has been rejected by the Supreme Court, albeit implicitly, well over a hundred years.

The fourth, and constitutionally accepted, understanding is that the clause prohibits certain forms of discrimination by a state against citizens from other states who are sojourning within its borders. This creates a kind of equal protection principle. The Constitution had no clause that prohibited discrimination against (some) individuals overtly as the 14th Amendment’s Equal Protection Clause does today. But there were some clauses that operated through a limited and implied non-discrimination principle. The P&I Clause is one.

The P&I clause does not apply to corporations or other merely “legal” persons. Nor does it apply to aliens. Neither of those limits is significant today, in light of the Court’s expansive reading of the 14th Amendment. The P&I Clause also provides no minimum protections of rights. To the extent the state limits the exercise of rights of its own citizens, it may do so for outsiders coming into the state, at least under this provision. Outsiders have the right not to be treated unfavorably due to their status as visitors, but have no right to be treated more favorably.

Not all rights are protected. The exact definition has always been elusive. The seminal opinion in this area is a circuit court opinion by Justice Bushrod Washington from 1823, Corfield v. Coryell. He wrote: “We have no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”

Such flourishes, while rhetorically satisfying, do not provide concrete guidance. Justice Washington carries on, but does little to penetrate the verbal fog; “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

He finally delivers himself of some examples of protected rights, privileges, and immunities. “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”

Such rights, deemed fundamental to the concept of a single nation, do not include the right to hunt game, to fish, or to engage in certain “quasi-public” businesses, such as insurance. Nor does it include a right to vote or to attend college at in-state rates, though, oddly, it includes the right not only to receive welfare payments without residency requirements, but to receive the same level of payment as those who have lived in the state for many years. To curtail even marginally the opportunities of welfare recipients to spend their “down time” in a state with higher benefits than their current domicile by having to meet the new state’s residency requirement is an intolerable burden on the right to travel. To be sure, the Supreme Court’s decisions on the matter rest on uncertain constitutional foundations, that eminent tribunal having referred to Article IV, to the Commerce Clause, to the 14th Amendment’s Equal Protection and (most recently) Privileges or Immunities Clauses as havens for a right to travel. Since states would like these welfare recipients to keep traveling, the Court has also re-characterized the right as “moving to another state.”

The P&I Clause of Article IV apparently was intended as a significant part of the constitutional edifice. With the Supreme Court’s inflation of the 14th Amendment, and Congress’ frequent resort to legislation under the commerce clause, it has become virtually redundant. Still, every decade or so, a case comes along to remind us that there is “still some life left in the carcass.”

May 11, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article IV, Section 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article IV, Section 1, Cynthia Dunbar 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article IV Section 1, Cynthia Dunbar, The Articles of Confederation

Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

Article IV, Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The desires to both strengthen and unify their new country beyond what the Articles of the Confederation had accomplished and at the same time preserve the sovereignty of the individual states motivated the Framers in their drafting the Constitution. This principle of federalism, or the governmental structure of coexistent sovereigns, necessitated the creation of the Full Faith and Credit Clause. Since each state would be an independent sovereign with its own laws and polices there would obviously need to be a method of guaranteeing that judgments rendered in one state would be recognized by the courts of all other states within the union. The Supreme Court of the United States (SCOTUS) in Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935) reaffirmed this intent of the Framers that the individual states be “integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.”

Consequently, we see that the real essence of the Full Faith and Credit Clause is to ensure that valid judgments rendered in one jurisdiction can be uniformly enforced within alternate jurisdictions. This prevents parties from having to litigate the same claim numerous times prior to execution of the judgment being recognized. For example, if a court of competent jurisdiction in Alabama enters a judgment against John Doe for $25,000.00 to Jane Doe, and John Doe later moves to Arizona, Jane Doe would be able to execute the judgment against John Doe in Arizona without having to relitigate the entire case in Arizona.

The SCOTUS in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S. Ct. 208, 213, 88 L. Ed. 149 (1943) said “we assume . . . that the command of the Constitution and the statute is not all-embracing, and that there may be exceptional cases in which the judgment of one state may not override the laws and policy of another.” The court has referred repeatedly to “well-established” exceptions; however, they have never delineated a list of what constitutes a well-established exception. For a judgment to be enforceable in a sister jurisdiction, it would have to have been a valid judgment in the original jurisdiction, one which would have withstood all valid legal defenses. In other words, one could not enforce a judgment in an alternate jurisdiction on the basis of “Full Faith and Credit” where the judgment would have been unenforceable in the original jurisdiction.

During the constitutional convention the basic structure of the Full Faith and Credit Clause was borrowed from the Articles of Confederation and then expanded. However, the ultimate source for this principle came from the uncodified common law, as did most constitutional and statutory provisions at the inception of our nation. The reality of the importance and impact of the common law was reaffirmed by Justice Cardozo‘s statement that most constitutional provisions were “built upon a substratum of common law, modifying, in details only, the common law foundation.” CARDOZO, THE GROWTH OF THE LAW (1924) 136

According to Justice Story, the specific details of the underlying principles in the common law had, unfortunately, not been definitively ascertained. He lamented this overall ignorance of this area of the law in his Conflict of Laws treatise of 1834. “There exists no treatise upon it in the English language; and not the slightest effort has been made, except by Mr. Chancellor Kent, to arrange in any general order even the more familiar maxims of the common law in regard to it.”

What is pivotally important from a historical aspect is that the Full Faith and Credit Clause in no way created a uniform framework of laws. It was merely a vehicle for enforcement of judgments, not a means of usurping state legislative authority and policy making decisions. An obvious example of this is seen by our acceptance of differing laws within differing jurisdictions. Nobody would ever contend that the Full Faith and Credit Clause allows a citizen of Texas to avoid criminal prosecution in Missouri for driving 75 mph on an interstate that has a speed limit of 60 mph simply because the same interstate has a 75 mph speed limit in Texas. The distinctions between state laws are numerous and many as is their right and prerogative.

Consequently, the more recent push to utilize the Full Faith and Credit Clause to force policy issues on dissenting states is constitutionally and historically unfounded. In 1993 The Supreme Court of Hawaii alluded to the fact of an equal protection challenge to a state not recognizing a same-sex marriage. The fact that states historically recognized marriages that were contracted within another state should not have been legally relevant or determinative for two simple reasons. First, this issue deals purely with a clear conflict of laws, not recognition of a court’s ruling or judgment through analysis of its laws. Second, the states uniformly recognized the marriages of other states because they did not present blatant opposing public policy issues pertaining to how marriage was defined that would serve to override their own laws.

In response to the dicta in the 1993 case, the United States Congress passed the Defense of Marriage Act, better known as DOMA, which not only defined marriage, it also granted to the states the express right to not recognize a same-sex union performed outside of its jurisdiction. This Act has continuously been under attack and the current administration’s Department of Justice is even refusing to fulfill its obligation to enforce it. In response, Congress has been forced to acquire special counsel at additional expense to taxpayers in an attempt to see the DOJ’s obligations fulfilled. Had there been a clearer and more historically accurate understanding of the scope and extent of the Full Faith and Credit Clause, this entire issue could have been avoided. Unquestionably, Full Faith and Credit was never intended to impose legislative policy onto a competing jurisdiction beyond that expressed within an actual court ruling or judgment for execution and enforcement.

May 10, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article III, Section 3, Clause 1-2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 3, Horace Cooper 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III Section 3 Clause 1-2, Horace Cooper

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article III, Section 3, Clause 1-2

1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The issue of role of loyalty to one’s own country isn’t nearly as simple a matter as it might appear. Of course, most people have a natural affinity for the country where they were born or at least spent most of their life in. Moreover, should the government actually have the authority to compel you to love your country? Finally, what does it mean to be disloyal? There are crucial distinctions between the right to exercise dissent, criticism and disagreement and the actual disloyalty to one’s own country.

Merriam-Webster defines treason as “the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family”

Throughout history, many rulers have used the issue of loyalty to the country or sovereign as a tool to oppress their critics or even as a pretext for mistreating unpopular individuals in the country. At the same time, treason is considered perhaps the worst possible crime both because the victims aren’t individuals but all of the society that live in a given country.

Depending on the nature of the treasonous activity engaged in, the citizens of the entire nation may suffer financial harm or in extreme circumstances face loss of life or limb. Unlike the laws of many nations which can be changed at will, the U.S. Constitution specifically defines treason and does so in a way that seems obvious in impact.

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

In fact, this is the only crime that is specially outlined in the Constitution. Recognizing the severity of the threat that treason posed to the new nation, one of the first acts of the United States Congress made treason a capital offense:

“If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and SHALL SUFFER DEATH;

The language tracked the Constitution and gave clear guidance to every American that dissent and political debate were not to be considered in any way an example of disloyalty to the nation. At the same time, the new statute made it clear that the new nation would deal severely with those convicted.

Most readers quickly understand that joining others to levy war against our country would constitute treason, but what of “adhering to their Enemies, giving them Aid and Comfort.” The founders recognized that there were some actions that were so uniquely inimical to loyalty that they could be punished even if they didn’t involve actual war-making against America. Examples of “adhering to their enemies” might include selling the designs for a subterranean entry into the White House or making and providing false identification cards to foreign agents to allow them to enter the Pentagon. “Aid and comfort” refers to counseling, abetting, plotting, assenting, consenting, and encouraging any act against the United States being carried out by an enemy of America.

While treason charges have most often been used in the context of war between nations there is no specific provision limiting treason charges to actions by a person on behalf of an enemy country. In other words, the Constitution does not limit a treason charge to an individual supporting an enemy nation such as Cuba or the former Soviet Union. Support for terrorists such as Al Qaeda, which have no specific nationality, can just as easily result in a charge of treason.

In addition, it’s no coincidence that the standard of proof for a conviction for treason in the Constitution was rigorous. This provision tracked the “English Treason Act of 1695” which precisely required a treason trial to require evidence of at least two witnesses to whatever act of treason was charged as a way to minimize the ability of the sovereign to accuse his political enemies of treason and have him or her executed.

The second provision is straightforward:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Like most countries, the United States Congress has for nearly 200 years consistently insisted that the maximum punishment that could be levied against those convicted of treason would be execution. While our Congress has that authority, they are not unlimited in this area. Congress is not allowed to pass a statute that works a “corruption of blood” – a law that would interfere with the transfer of property from father to son – unless the property is confiscated prior to the death of the treasonous person.

Treason is insidious and truly dangerous because it involves crimes in which people who should owe a degree of loyalty abuse that trust in a way that endangers all of society. Cicero explains, “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within.”

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

May 9, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article III, Section 2, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 2, Clause 3, Kyle Scott, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III Section 1, Article III Section 2 Clause 3, Kyle Scott PhD

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

May 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article III, Section 2, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 2, Clause 2, Charles Rice, J.S.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III Section 2 Clause 2, Charles Rice J.S.D., Federalist No. 80

Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Article III, Section 2, Clause 2

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Exceptions Clause of Article III, Section 2, provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This was intended, according to Alexander Hamilton, to give “the national legislature… ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove [the] inconveniences” which might arise from the powers given in the Constitution to the federal judiciary.” The Federalist, no. 80.

Prior to 1868, the Supreme Court had no occasion to rule on an act of Congress making an exception to its appellate jurisdiction. But when William McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under an 1867 statute permitting such appeals. After the Supreme Court heard arguments on the case, Congress repealed that part of the statute which had given the Court jurisdiction to hear such appeals.

The Court dismissed the appeal: “We are not at liberty to inquire into the motives of the legislature,” said the Court. “We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case. And this is not less clear upon authority than upon principle.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 513-14 (1868).

The 1868 statute upheld in McCardle barred review only under the 1867 statute. In Ex parte Yerger 75 U.S. (8 Wall.) 85 (1868), the Court held that the 1868 statute left untouched the Supreme Court’s power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication that the Court would not have upheld an act withdrawing from the Court appellate jurisdiction in all habeas corpus cases.

In U.S. v. Klein, 80 U.S. (13 Wall.) 128, 145-46 (1872), the only Supreme Court decision striking down a statute enacted under the Exceptions Clause, the Court spelled out one limitation of that clause. Klein, a former Confederate, sued in the Court of Claims to recover for the seizure and sale of his property by Union forces. He had received a presidential pardon for his Confederate activities. If he had not received a pardon, the law would have prevented his recovery. While the appeal of his case was pending before the Supreme Court, a statute was enacted which provided that, whenever a judgment was founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he had been guilty of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court stated that Congress has power to deny appellate jurisdiction “in a particular class of cases:”

If this act … simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make “such exceptions from the appellate jurisdiction” as should seem to it expedient.

The statute in Klein attempted to dictate to the Court how it should decide a class of cases under the guise of limiting its jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, a pardon. The statute further prescribed that the recitals in the pardon of acts of rebellion would be conclusive proof of those acts. “What is this,” said the Court, “but to prescribe a rule for the decision of a cause in a particular way?” The Klein statute intruded also upon the President’s pardoning power by attempting “to deny to pardons … the effect which this court had adjudged them to have.” In these respects the statute in Klein was different from a statute withdrawing appellate jurisdiction over a class of cases.

Since Klein, the Supreme Court has not defined any further limits to the Exceptions Clause. But there are limits. Congress, for example, could not withdraw from the Supreme Court appellate jurisdiction, “in any case where a Baptist shall be” appellant. This would be unconstitutional, not because of a limitation in the Exceptions Clause, but because of a prohibition in the First Amendment. The religion of the appellant has nothing to do with the authentic nature of the case. The fact that Congress is forbidden by the First Amendment to prohibit appeals by Baptists, Jews, etc., does not mean that there is a restriction on Congress’ power to exclude classes of cases, as determined by the nature of the case, from the appellate jurisdiction of the Supreme Court as well as from the jurisdiction of the lower federal courts.

If a statute removed appellate jurisdiction from the Supreme Court, in, for example, “all cases but patent cases,” such would not be an exception but rather a wholesale obliteration of appellate jurisdiction. On the other hand a surgical removal of appellate jurisdiction in a class of cases, such as prayer in public schools, would be permitted under the Exceptions Clause. Such a withdrawal of jurisdiction would not change the Constitution, as would a constitutional amendment. Unlike a constitutional amendment, a withdrawal of appellate jurisdiction in school prayer cases would not reverse the Supreme Court’s rulings on school prayer. Some state courts might follow those decisions as the last authoritative Supreme Court expression on the subject. Other state courts might disregard the Supreme Court precedents and decide in favor of school prayer once the prospect of reversal by the Supreme Court had been removed.

An argument that fundamental rights should not vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The Exceptions Clause, an important element of the system of checks and balances, grants a wide discretion to Congress. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, other rights, such as speech, privacy, and free exercise of religion, could be reduced to nullities. This right to a preservation of the system of checks and balances is itself one of the most important constitutional rights.

May 5, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article III, Section 2, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 2, Clause 1, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article III Section 2 Clause 1, Declaration of Independence, Federalist No. 78, Joerg W. Knipprath, Marbury v. Madison by John Marshall

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

Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

May 4, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article III, Section 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 1, Kyle Scott, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III Section 1, Kyle Scott PhD

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.

May 3, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 4, Julia Shaw 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II Section 4, Federalist No. 64, Julia Shaw

Guest Essayist: Julia Shaw, Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article II, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is the only constitutional way to remove a President (or another official or a judge) for misconduct. Publius notes in Federalist 64 that the “fear of punishment and disgrace” will encourage good behavior in the executive. Impeachment is an integral part of maintaining the separation of powers and the republican form of government.

To understand the impeachment process, we must look to the related clauses in Article I. Unlike the Rules and Expulsion Clause, by which the house to which a Member of Congress belongs may expel that member, the legislature and the judiciary participate in the impeachment of a president. A vote for impeachment is not equivalent to a vote for immediate removal. Impeachment refers to the House’s vote to bring charges against an officer, and that vote begins a particular process. After the House impeaches a president, the Senate tries him with the Chief Justice presiding over the proceedings. In Federalist 65, Publius notes that the Senate would have the requisite independence needed to try impeachments: “What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?” The supermajority requirement guards against impeachments brought by the House for purely political reasons. The president may not pardon a person who has been impeached.

Impeachment disciplines a President who abused his constitutional responsibilities. As Stephen Presser suggests in his essay on Article I, Section 2, Clause 5 in the Heritage Guide to the Constitution, when the President commits an impeachable offense, the Members of the House are obligated by their oath to preserve the Constitution to deal with the offense. But, what constitutes an impeachable offense? At the Constitutional Convention, the delegates initially proposed “mal-practice and neglect of duty” as grounds for impeachment, but the Committee of Detail narrowed the basis to treason, bribery, and corruption. George Mason suggested “high Crimes and Misdemeanors” as another grounds for impeachment when his previous suggestion of “maladministration” was rejected for rendering the President’s too dependent upon Congress. Impeachment was meant to encompass serious offenses, but not to be a political tool to block a president from exercising his authority.

Impeachment is a remedy to be used in extreme situations, and Congress has used this device sparingly over the past two hundred twenty years. Only two Presidents have been impeached (Richard Nixon resigned before the House voted to impeach), and only a handful of judges have been impeached and subsequently removed from office. No president has been successfully removed from office.

In Federalist 77, Publius explains that “being at all times liable to impeachment” would prevent the president from abusing his power. Impeachment is not equivalent to a simple majority vote of no confidence, as is sufficient to remove a prime minister in parliamentary system. Rather, it is a process that engages the legislature and the judiciary in a grave constitutional act to remove the head of state. Perhaps it is so rarely used, and so rarely needed, because the stakes are so high.

Julia Shaw is the Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies at the Heritage Foundation.

May 2, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 3, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 3, Charles K. Rowley, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II Section 3, Charles K. Rowley PhD

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Article II, Section 3, Clause 1

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he think proper; he shall receive Ambassadors and other public Ministers; he shall take care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Lord Acton, 1887

Mitch Ohnstad (reporter): “Why do you rob banks, Willie?”
Willie Sutton (bank robber): “Because that’s where the money is.”

In Worcester v. Georgia (1832) The United States Supreme Court vacated the conviction of Samuel Worcester, holding that the Georgia statute prohibiting non-Indians from being present on Indian lands without a license from the state was unconstitutional:
Response of President Andrew Jackson: “John Marshall has made his decision; now let him enforce it!”

The above quotations constitute the texts for today’s essay. Readers will understand their relevance for a new century in which the United States President exercises unprecedented personal power, controls unprecedented national wealth and bestrides the separation of powers like a mighty colossus. Such a situation, unconceivable to the Founding Fathers in 1787, places the seemingly innocuous words that I here address into a significantly more worrying perspective.

So let me begin with state of the union addresses. The Founders naturally were concerned to protect the United States from the abuses associated with European monarchs, most especially, of course, King George III. One perceived abuse was the British monarch’s ritual of addressing the opening of each new Parliament with a list of policy ‘mandates’ rather than ‘recommendations. So the word ‘recommendations’ is truly significant as written into the Constitution, as are the words ‘from time to time’. Both insertions are designed to downplay the importance of the occasion.

The first president, George Washington, defined the meaning of ‘from time to time’. Since 1790, the state of the union message has been delivered regularly at an approximately one year interval. Whether such messages would be delivered orally or in writing, however, would depend, until FDR, on each president’s perceived role. The Federalists, Washington and Adams, personally addressed the Congress. The Republican, Jefferson strongly objected to this ritual and initiated the written address. This was continued until 1913 when America’s first Imperial President, Woodrow Wilson, reverted to the oral address, an approach followed by Harding and by Coolidge in his first address. Thereafter Coolidge and Hoover, as strict constructionists, reverted to the written model.

From FDR onwards, U.S. presidents have strutted across the stage making expansive oral addresses designed to project an image of presidential authority across an increasingly credulous national audience. Fortunately, the United States Congress has not (yet) abandoned its legislative authority. Many a presidential state of the union aspiration turns out to be dead-on-arrival once it enters the doors of the Capitol.

Section 3, Clause 1 – which imposes a duty rather than confers a power – is the formal basis of the President’s legislative leadership, which has attained enormous proportions since 1900. This development owes a lot to the rise of political parties, and to an accompanying recognition of the President as party leader, and to the introduction of the spoils system as a means of exerting presidential influence over Congress. Presidents frequently summon both Houses of Congress into special sessions for legislative purposes, and the Senate alone, for consideration of nominations and treatises. The power to adjourn the Houses has never been exercised.

The ‘right of reception’ has been interpreted to reinforce presidential authority most especially in the area of foreign affairs. The term ‘Ambassadors and other public ministers’ embraces not only any possible diplomatic agent that any foreign power may accredit to the United States, but also all foreign consular agents, who, therefore, may not exercise their functions in the United States without an exequatur from the President. The power to receive includes the right not to receive, to request their recall, to dismiss them and to determine their eligibility. These powers have the unfortunate consequence of making the President the predominant mouthpiece of the nation in its dealings with other nations, surely not something that the Founders (Hamilton was an exception) ever anticipated.

The President must ‘take care that the laws be faithfully executed.’ This duty has been used as an ‘open sesame’ opportunity for unscrupulous presidents to transgress the separation of powers. Some presidents have claimed an authority under this provision to impound monies appropriated by Congress. President Jefferson, for example, delayed for over a year the expenditure of monies appropriated for the purchase of U.S. gunboats. FDR and several of his successors from time to time refused outright to expend appropriated monies. In response to such an attempt by President Nixon, the United States Supreme Court finally ruled that such attempts are unconstitutional.

Presidents have also asserted, from time to time, that ‘faithful execution of the laws’ empowers them to suspend the writ of habeas corpus – that most precious legal protection of individual liberty against the state. Article I provides that this privilege may not be suspended except during times of rebellion or invasion. The Supreme Court has determined that such suspensions fall within the jurisdiction of Congress. Yet President Lincoln regularly suspended the privilege during the civil war, albeit eventually and reluctantly succumbing to union-opposition pressures to seek congressional approval.

The Supreme Court subsequently would specifically weaken its own supervisory role in this regard. In Mississippi v Johnson 1867, the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In so doing, the Court denied an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. Executive acts, when performed, remain subject to judicial scrutiny.

The President’s right to commission ‘all the Officers of the United States’ is also open to serious abuse by unscrupulous incumbents. One of the most famous legal cases in early United States history was induced by such abusive behavior. John Adams, the outgoing Federalist President signed many commissions to the judiciary on his final day in office, hoping as incoming Republican President Thomas Jefferson put it ‘to retire into the judiciary as a stronghold.’ Fortunately, in his haste to complete the coup d’etat, Adams neglected to have all the commissions delivered. President Jefferson and his Secretary of State, James Madison – who knew more than a little about the nature of the Constitution – refused to deliver the remaining commissions.

William Marbury had been appointed by Adams as Justice of the Peace in the District of Columbia; but his commission had not been delivered. So, Marbury petitioned the Supreme Court to force Secretary of State Madison to deliver the documents. However, in its famous 1803 Marbury v Madison judgment, the Supreme Court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim – the Judiciary Act of 1789 – was unconstitutional.

It is good to end this essay with an early example where a serious abuse of presidential discretion was reined in. Unfortunately, this would be a rare victory in the battle to constrain America’s increasingly imperial presidency, as the executive branch fairly systematically elbowed its way through the separation of powers in order to impose its own brand of absolutism on the American Republic.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

April 29, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 2, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 2, Clause 3, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2 Clause 3, Joerg W. Knipprath

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

Article II, Section 2, Clause 3

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The National Labor Relations Board is a federal agency established under Franklin Roosevelt whose assigned duty it is to protect employees, while balancing the rights of unions and management. In an unprecedented move, it has recently moved to bar Boeing from opening a second aircraft assembly line in South Carolina rather than Washington state. In a second unprecedented move, the agency is about to reverse decades-old policy and allow unions to organize small groups of employees to gain a toehold in the company, rather than the entire company workforce at once (a more difficult project).

The agency currently is dominated by union lawyers, and one of the main advocates for these changes is Craig Becker, a controversial former lawyer for the SEIU, who has written that management should have no say whatever in unionizing activities. After his nomination was rejected by the Senate (on the failure of a cloture vote), President Obama nevertheless appointed Mr. Becker to the board a month later, while the Senate was in recess.

Recess appointments have been practiced since the Constitution went into effect. Initially, Congress was very much a part-time legislature, so there was an obvious need to allow the President to appoint officers to posts that might become vacant while the Senate was not in session. Indeed, that was precisely the early understanding. Vacancies might “happen” (in the terminology of Article II, Section 2, cl. 3) if they arise during the recess.

It may be asked why there is any need for recess appointments now that the Senate meets regularly during the course of the year. Surely, there is no need to have recess appointments just because the Senate is on a brief Easter recess or President’s Day long weekend. Even if the recess is longer, say during the month of August, it is unlikely that the President would even be able to gear up for an appointment until the recess is almost over. In the unlikely event of a government crisis, the Congress almost certainly would reconvene quickly. That said, recess appointments are useful for lower-level appointments on which the Senate has failed to act for some time. Moreover, they can protect the President’s constitutional prerogatives, if the Senate purposely seeks to weaken the President by failing to act on his nominations made while the Senate is in session.

Presidents have long interpreted the clause to give them a writ to make recess appointments for vacancies as long as those vacancies exist during the recess, even if they arose earlier. This interpretation has been upheld judicially. But even though it may be constitutionally justifiable, it raises serious political issues. Presidential appointments for vacancies that arise while the Senate is in session, but are not filled until the President can do so unilaterally when the Senate is in recess are delicate matters. Such appointments can easily be seen as end-runs around the constitutional blending and overlapping of functions.

Now add to that if the recess appointment is of an individual who was previously rejected by the Senate. The politics of such a move clearly invite Senatorial rebuke, and President Obama’s appointment of Craig Becker was lambasted by a number of Republican Senators.

As early as 1863, Congress tried to rein in recess appointments, by prohibiting payment of salary to anyone appointed during the Senate’s recess, until the Senate confirms. Today, the Pay Act, 5 U.S.C. 5503, prohibits such payments only if the vacancy already existed while the Senate was in session. The act also provides certain exceptions. For example, it does not restrict salaries of recess appointees if the nomination was pending when the Senate recessed. Neither does the salary restriction apply if the Senate, within 30 days before the end of a session, rejected a nominee of the President to the office. However, that exception, in turn, does not apply if the President during the recess appoints the rejected nominee. It should be noted that the end of a “session” is the end of the annual term. Thus, when Congress adjourns this December, it will be the end of the first session of the 112th Congress. Merely rejecting a nominee before a holiday recess is not the end of a session.

One wonders, therefore, whether President Obama’s NLRB man, Craig Becker, is entitled to payment of salary. One argument he might make is that the nomination technically was not formally rejected because it was filibustered and never came up for a vote on the merits. Since it was not withdrawn, the nomination technically was still pending when the recess occurred.

By statute, if a recess appointment is made, the appointee’s name must be submitted to the Senate soon after its next session begins. President Obama has done so with Mr. Becker. If the appointment is not confirmed, the officer may continue to serve, but must step down at the end of that next session. Thus, Mr. Becker’s term will end in December of this year, as he was appointed by the President in March, 2010. If Mr. Becker is rejected, he will not be permitted to draw a salary, if a routine provision to that effect in funding bills continues to be used.

Finally, the political virtuosity of the recess appointment device is shown by the fact that, even if the Senate rejects Mr. Becker, there will be new vacancies on the NLRB, and the President can wait for the next recess to appoint his ideological fellow to the agency once more. Mr. Becker could then serve until the end of 2012, again without Senate confirmation.

Unlike appointments to administrative or executive positions, recess appointments of judges are uncommon. Bill Clinton made one; George W. Bush made two; Barack Obama has made none so far. No President has made a recess appointment to the Supreme Court since Dwight Eisenhower, who appointed Chief Justice Warren, Justice Brennan, and Justice Stewart in that manner.

April 28, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article II, Section 2, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 2, Clause 2, William Morrisey, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article II Section 2 Clause 2, Declaration of Independence, Federalist No. 47, William Morrisey PhD

Article 2, Section 2, Clause 2

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is a law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the president alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate case arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: as James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption” as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination thus addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive `say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

April 27, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article II, Section 2, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Baskin, Article II, Section 2, Clause 1 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Andrew Baskin, Article II Section 2 Clause 1, Federalist No. 04

Guest Essayist: Andrew Baskin, ConSource Researcher

Article II, Section 2, Clause 1

1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The President of the United States may choose to be addressed merely as “Mr. President,” but another title more accurately conveys the tremendous power and prestige associated with the modern position; that of “Commander in Chief.” This fact might have surprised the nation’s founders. They did not intend for the position of military leader to be the most important function of the chief executive. The title itself is grouped in a clause which also instructs the President to form a cabinet and issue pardons. Congress, not the President, received the more substantial powers of declaring war and raising an army. Yet in modern times, it is the President who firmly controls the strongest standing military in the world, with the ability to act on a global scale without consulting the legislative branch of government. Congress has not declared war since the 1940s, but U.S. Presidents have deployed millions of soldiers into dozens of military engagements. The meaning of Article II, Section 2, Clause 1 has not changed, but its broad mandate and the increased military might of the United States has resulted in the development of a powerful executive that the framers of the Constitution could scarcely have envisioned.

During the drafting of the Constitution, few objected to giving the President supreme command over the military, especially once the principle of creating a unitary executive had been agreed upon. The bloody struggle for independence from Britain and the problems involved in coordinating the efforts of independent-minded States had taught America’s founders the importance of having at times a single decision-maker, able to marshal the resources of the entire country in its common defense. Many of the existing State constitutions already placed their governor or chief executive in charge of the militia. John Jay, writing in Federalist No. 4, argued that the separate armies of the States, “in a proper line of subordination to the Chief Magistrate,” would perform far more effectively than a divided military. However, in keeping with the principle of checks and balances, the unquestioned military authority of the executive branch was mitigated by legislature. Crucially, the Commander in Chief only performed his duties “when called into the actual Service of the United States.” Alexander Hamilton believed that this provision, coupled with the lack of any significant standing army or navy, meant the President would serve merely as “first General and Admiral of the confederacy.” Except in cases of national defense, Congress would have to declare war and provide funds in order for the President to effectively exercise his authority as Commander in Chief. Civilian control of the military was thus firmly established and divided between the executive and the legislature, while also establishing a clear chain of command. The President would have very strong powers as Commander in Chief during wartime, but otherwise would depend on the approval and cooperation of Congress.

In upholding the Constitution, the President of the United States, in his capacity as Commander in Chief, swears to provide for the “common defense.” While it would appear at first glance that the framers intended for the President to act in this capacity only when the United States was attacked or when authorized by Congress, the intricacies of international conflict and diplomacy often complicated which branch of government held the edge in war powers. When pirates attacked American merchant ships in the early 1800s, President Jefferson responded by arming merchant ships and invading Tripoli. Congress authorized the measure, but did not declare war. Hamilton insisted that “when a foreign nation declares…war upon the United States…any declaration on the part of Congress is nugatory; it is at least unnecessary.” Such an interpretation suggested that the Commander in Chief could deploy the military in any way he saw fit, if America had been attacked first. Nearly fifty years later, the creation of a standing army allowed President Polk to initiate the Mexican-American War. American forces ordered close to the disputed boundary with Mexico fought a border skirmish, and Congress was forced to support the actions of United States troops already committed to battle. The position of Commander in Chief proved to be the decisive foreign policy tool for a President willing to wield it.

The balance of power would continue to shift back and forth between Congress and the President, until decidedly moving in favor of the executive branch during the Cold War. In order to compete with the Soviet Union, Congress approved huge increases in military spending while simultaneously differing to a series of strong Presidents on foreign and military policy. The United States, now with military commitments around the world, needed a Commander in Chief willing to exercise American power swiftly, without constant consultation with Congress. During the Korean War, President Truman created a precedent by specifically citing his position as Commander in Chief as sufficient authority for deploying troops to the Korean peninsula. By further classifying the deployment as a “police action,” Truman avoided seeking the permission of Congress. Like the Congress of Polk’s day, the legislature was thus faced with the uncomfortable decision of either supporting the President or cutting funding for troops already in combat. In most subsequent military actions, including Vietnam and the wars in Iraq and Afghanistan, Congress has passed bills authorizing the use of military force. Other times, such as President Reagan’s invasion of Lebanon or President Obama’s bombing of Libya, the executive branch has relied solely on the Commander and Chief clause. Under this interpretation, which continues to hold sway, the President can unilaterally use the military as he or she sees fit when American interests are at stake.

The framers rightly predicted that the country would need an executive strong enough to respond to the volatile emergencies of war, but they could not have foreseen the future success and growth of their fragile republic. The powers of the President thus expanded exponentially along with America’s military and international commitments. At the same time, Congress diminished its own war making powers, first by creating a standing military force and then by passing resolutions authorizing indefinite and nearly unlimited military action. The American people should be grateful that the framers designed a flexible system which allowed for a strong Commander in Chief in times of crisis, but they should also be mindful of the restrictions originally placed on the President, and the vital war-time responsibilities given to Congress.

Andrew Baskin is a researcher at the Constitutional Sources Project (www.ConSource.org). His past projects have focused on the evolving nature of war powers in the United States. He graduated with a B.A. in history from Washington University in St. Louis.

April 26, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 8 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 8, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 8, Joerg W. Knipprath

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

Article II, Section 1, Clause 8

8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

April 25, 2011/8 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 7 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 7, William C. Duncan 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 7, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article II, Section 1, Clause 7

7: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

The recent news of a precipitous drop in the president’s income (from $5.5 million in 2009 to $1.73 million last year) might give occasion to look at how the president is compensated. The Constitution provides for compensation that can’t be increased or decreased during a president’s term. So, a pay raise is out of the question to make up for the shortfall the president has experienced in book sales.

The Massachusetts Constitution of 1780 provided for a compensated executive and gave reasons for doing so. The provision specifies that a paid executive would not be unduly dependent on benefactors, would not be distracted from his duties by the need to earn money and would be able to maintain the dignity fitting such an officer of government. See Massachusetts Constitution, part 2, chapter 2, section 1, article 13.

When the attention of the Philadelphia Convention turned to the question of paying the executive created by the Constitution on June 2, 1787, Benjamin Franklin objected with a written statement. His objection was that the combination of the desire for the prestige of the office and the desire for money would attract the wrong kinds of candidates. He also feared that the president’s salary might become so great that he would be tempted to use the power of the government to collect increasing tax revenue and that resistance to the high taxes would require more oppression in a spiraling cycle. Franklin thought the president ought not to be paid at all, and invoked the example of George Washington’s unpaid service as a general during the War for Independence as precedent.

Franklin had been an architect of the ill-fated Pennsylvania Constitution of 1776 with its unicameral legislature, thirteen-person executive and no upper house in the legislature. This Constitution was copied by the French, ironically the same year Pennsylvania finally decided to replace it. Perhaps this ill-fated endeavor led the other delegates to mistrust Franklin’s advice on compensating the executive of the new national government. On July 20, the vote in favor of compensation was unanimous.

Franklin still had an important role to play in drafting the clause as one of the delegates (with John Rutledge) who proposed adding the portion prohibiting the president from receiving additional emoluments from either one of the states or from the national government.

Noah Webster’s 1828 Dictionary defines “emolument” as: “The profit arising from office or employment that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites.” Thus, this clause helps to preserve the system of federalism by preventing one state from seeking undue favor through payments to the president (which would, of course, look like, if indeed they were not, bribes). Prohibiting emoluments from the national government also precludes an end run around the requirement of a fixed salary that does not change during the presidential term.

As an aside, it seems arguable that any fringe benefits in addition to salary might be constitutionally suspect depending on how strictly we understand the term “emoluments.” This simple and clear clause has not been the subject either of much commentary or controversy. The first Congress did discuss the clause but only to ask whether it was appropriate to pay the Vice President since pay for that office was not specified in Article II. See Annals 1:646-651 (July 16, 1789). Congress eventually decided to pay the vice president $5,000 a year. The first compensation for the president set by Congress was $25,000. The president’s current salary was set by Congress in 2001 at $400,000.

April 22, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 6 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 6, Joseph Postell, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 6, Constitutional Amendment XXV, Constitutional Amendment XXV, Joseph Postell PhD

Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

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.

April 21, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 5 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 5, James D. Best 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 3, Article II Section 1 Clause 5, James D. Best

Guest Essayist: James D. Best, author of Tempest at Dawn

Article II, Section 1, Clause 5

5: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The president of the United States must meet three eligibility requirements. He or she must be a natural born citizen, be at least thirty-five years old, and have resided within the United States for fourteen years.

The first eligibility requirement is that the president be a natural born citizen.

There is an obsolete way to meet the citizenship requirement. The office seeker could have achieved citizenship before nine states ratified the Constitution. With this proviso, the eight foreign-born delegates to the Federal Convention would be eligible. Before ratification could become a possibility, the Constitution had to make it out of the statehouse, so it was tactful to make every delegate eligible for the executive position.

If a modern candidate is less than two-hundred and twenty years old, he must be a natural born citizen. Someone born inside the United States is a natural born citizen. Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land, but it certainly can be used to determine intent of the framers.

What was the intent of the framers? It actually varied by individual, as it did on many issues. When they debated this clause, Benjamin Franklin said, “When foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence and affection.”¹

Gouverneur Morris disagreed. “As for those philosophical ‘citizens of the world,’ I don’t want them in public councils. I do not trust them. A man who shakes off attachment to his country can never love any other.”¹

(The debates can enlighten on original intent, but in the end, it was the votes that determined what the Constitution meant.)

The president must also be at least thirty-five years old upon taking the oath of office. Today, thirty-five seems young. Theodore Roosevelt was the youngest president at forty-two, and John F. Kennedy was the youngest elected president at forty-three. In 1787, thirty-five was not young. Alexander Hamilton was still five years away from eligibility. His fellow delegates Jonathon Dayton, John Mercer, Richard Dobbs Spaight, and Charles Pinckney were all younger. Even the Father of the Constitution, James Madison, was only thirty-six.

The last eligibility requirement is that the president must have resided within the United States for fourteen years. Justice Story opined that “residence in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.” Due to draft wording of this clause and the precedent-setting election of Herbert Hoover, it is generally accepted that the fourteen years can be cumulative.

It is also interesting what is not included in this clause. There are no religious, property, hereditary, or military service requirements. Also, Fifty-five men framed a constitution that requires no amendment for a woman president.

¹The Franklin and Morris quotes have been changed to first person from the third person used by James Madison in his notes.

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

April 20, 2011/12 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 4, Gary McCaleb 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 3, Article II Section 1 Clause 4, Constitutional Amendment XII, Constitutional Amendment XII, Gary McCaleb

Guest Essayist: Gary S. McCaleb, Senior Counsel, Alliance Defense Fund

Article II, Section 1, Clause 4

4: The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

“Chusing the Electors,” or “Interstices and the Constitution”

“Interstice” is a word that has long bemused me for some long-forgotten reason. Interstice refers to the space between things; usually small gaps within a larger framework. You can’t escape interstices—you will find interstices even between the most precisely machined and measured surfaces.

The language of our Constitution might be thought of as being precisely machined—each part fits “just so” with the next part, and the whole has worked so well that it has been amended just 17 times since the it and the Bill of Rights became effective over 200 years ago. Having so few gaps that have had to be plugged by amendments over the years suggests that the Constitution’s interstices are pretty darn small.

The clause of which I speak today reinforces that notion, as it exemplifies the Founders’ attention to detail in their drafting. It reads, “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

This was originally numbered as Clause 4 of Article II, Section I, but, well, an excessively large interstitial gap showed up in the original Clause 3, which dealt with how votes were counted in the Electoral College. The election of 1796 revealed that under the original Clause 3 vote-counting scheme, the nation could wind up with a president from one party and a vice-president from the opposition party. And the election of 1800 further exposed the flaw, as it became evident then that a straight party-line vote by the electors would result in just that scenario: a president and vice-president from different parties. That was scarcely a recipe for smooth government.

So the 12^th amendment was enacted to solve that problem; the original Clause 3 was thus superseded, and voilá, the original Clause 4 was renumbered to Clause 3 with its original text unchanged.

Of course, this short Clause does not stand alone in the great legal scheme of things; Congress had to act to set the date, and it did; 3 U.S.C. § 7 reads, “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” So despite the great hullabaloo about the popular elections in November, the “real” election takes place in December, when the Electoral College votes.

By deferring to Congress to set the exact date for the electors to vote, the Framers built flexibility into the Constitutional system so that minor procedural adjustments could be made without invoking the cumbersome amendment process. That approach reflects great wisdom, when you consider that these men who drafted with quill pens created a document that functions effectively in an age of near-instantaneous communication. So even a humble, small procedural clause in the end demonstrates just how finely crafted this document is…!

Gary McCaleb serves as senior counsel for the Alliance Defense Fund at its Team Resource Center in Scottsdale, Arizona, where he leads a litigation team comprised of attorneys and support staff at offices in District of Colombia, Arizona, Kansas, California, Louisiana, Georgia, and Tennessee. He has litigated religious liberty and free speech cases in federal and state trial and appellate courts throughout the United States. McCaleb graduated with honors from Regent University School of Law in 1997 and is admitted to the Arizona state bar.

April 19, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 3, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 3, Constitutional Amendment XII, Constitutional Amendment XII, Federalist No. 57, Federalist No. 64, Federalist No. 68, Joerg W. Knipprath

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

Article II, Section 1, Clause 3

3: The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

When determining the mode for selecting the President, the Framers were faced with a conundrum. The President was to be a leader who could act with energy and dispatch. Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment. It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.” But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68. To Americans of the time, “popular” suggested a certain cravenness and lack of principle. Such a person would do what advanced his political standing, rather than what was best for the country. As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy. Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters. Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice. A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric. But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist. Hamilton’s proposal would increase the number of participants and disperse their decisions. This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal. But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51. The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended. After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system. That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions. The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12^th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

April 18, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 2, Tara Ross 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 2, Constitutional Amendment XXIII, Constitutional Amendment XXIII, Federalist No. 68, Tara Ross

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Article II, Section 1, Clause 2

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Each State shall appoint . . . a Number of Electors . . . .

On November 4, 2008, Americans went to the polls and expressed their preferences among Barack Obama, John McCain, or other candidates. Many Americans probably thought that they were actually casting ballots for one of these men: We have gotten used to thinking of presidential elections as ones in which we vote directly for the candidates. Yet that is not really how American elections work. In reality, the only people elected on Election Day are representatives, called electors, whose sole duty is to represent their states in a subsequent election among states. This latter election—the real presidential election—determines the identity of the President of the United States.

Article II, Section 1, Clause 2 provides the boundaries for the appointment of these electors.

The Constitution provides that each state is to decide, for itself, how its electors will be chosen. During the first presidential election, states relied upon a wide range of methods. Several state legislatures appointed electors directly, on behalf of their citizens. No presidential election, as we think of it, was ever held in those states. Other states relied upon popular votes, but in different ways. For instance, Maryland directed that certain numbers of electors were to be elected from designated parts of the state. Virginia created 12 districts specifically for the election of electors; these districts were separate from the ten districts created for the election of Congressmen.

Today, every state relies upon a popular election among its own citizens. Most states then allocate their electors in a winner-take-all fashion based upon the outcome of these elections. So, for instance, when a majority of Californians expressed their preference for Obama in 2008, these votes were translated into votes for a slate of 55 Democratic electors. If McCain had won the election, an alternate slate of 55 Republican electors, committed to McCain, would have been appointed to represent California instead.

The state’s authority to choose its own method for appointing electors is not in doubt. However, a few other issues remain unresolved:

First, may Congress step in if there is controversy regarding which of two slates of electors rightfully represents a state? Congress has taken such action in the past, and it claimed authority to act in the Electoral Count Act of 1887 and subsequent measures. However, some scholars argue that such federal laws impinge on the states’ authority, as outlined in Article II, Section 1, Clause 2.

Second, is a state’s discretion truly unlimited? An anti-Electoral College movement (National Popular Vote) hopes so. This group asks states to change their manner of elector allocation: Instead of allocating electors to the winner of state popular votes, participating states would allocate their electors to the winner of the national popular vote. These states would sign an interstate compact (a contract) to this effect. If enough states sign, the Electoral College would be effectively eliminated. NPV supporters reject the claim that their compact is an end run around the Constitution, but the question will ultimately be tested in court: NPV could be enacted with as few as 11 states, whereas 38 states are required for a constitutional amendment. Such a process seems questionable, to say the least. Justice Thomas once observed, “States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions.” NPV may not satisfy this test.

In such Manner as the Legislature thereof may direct. . . .

Another open legal question exists regarding the meaning of the word “Legislature” in Article II, Section 1, Clause 2. Does this use of “Legislature” refer specifically to the lawmaking body or does it refer to a state’s entire lawmaking process? In the latter case, the legislature and governor must act together to determine the manner for appointing electors. Also, voter referendums would be able to trump the legislature in some circumstances. The Supreme Court has not directly addressed the question, but it has come down on both sides of the issue in other contexts.

The question may seem purely academic, but it has particular importance today because of NPV. In three states, NPV’s legislation has been approved by the legislature, only to be vetoed by the state’s governor. Will these vetoes stand or will they be deemed irrelevant?

Equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .

States are allocated one elector for each of their representatives in Congress—both Senators and Congressmen. Each state therefore automatically receives a minimum of three votes, as it is entitled to at least two Senators and one Congressman in the Congress, regardless of population. Puerto Rico and the Island Areas are not given electors, as they are not states. The District of Columbia did not initially receive votes because it is not a state; however, adoption of the 23rd Amendment in 1961 provided it with at least three electoral votes.

This method of allocation is consistent with the rest of the Constitution and echoes the states’ representation in Congress. A portion of a state’s congressional representation is based on population (the House of Representatives; one person, one vote), and a portion is based on a one state, one vote philosophy (the Senate).

But no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Some scholars believe that electors were meant to independently deliberate: The Founders wanted a body of wise men, entrusted with the power to select the President at a time when communication was slow and unreliable. Other scholars maintain that the role of elector was created only because the delegates to the Constitutional Convention left it to states to determine how their electors were to be chosen. Either way, creation of an independent electoral body was thought to provide special benefits in the presidential selection process.

In Federalist No. 68, Alexander Hamilton wrote that the election process should minimize the opportunity for “cabal, intrigue, and corruption” in the selection of the President. Article II, he believed, accomplished this. Electors could not be bribed or corrupted because their identities would not be known in advance. Presidents would not be indebted to (potentially biased) legislators for their elections, thus reinforcing the separation among the branches of government. Separating the meetings of the electors (one in each state) would make these individuals less susceptible to a mob mentality. Finally, the selection of electors was tied to the people of a state, reminding the President that he owed his office and his duty to the people themselves.

Some of Hamilton’s logic has perhaps become less applicable, given the advent of mass communication and decreasing expectations that electors are to independently deliberate. But the state-by-state presidential election system created by Article II continues to provide many benefits for a country as large and diverse as America. The White House can only be won by a candidate who wins simultaneous victories across many states; thus, candidates must appeal to a broad range of voters in order to succeed. Successful candidates bring a diverse citizenry together, building national coalitions that span regional and state lines. Such a system is as healthy now as it was in 1787.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College

April 15, 2011/10 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 1, Lawrence J. Spiwak 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 1, Federalist No. 69, Lawrence J. Spiwak

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Article II, Section 1, Clause 1

1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Under Article II Section 1, Clause 1 of the Constitution, the “executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected….” By establishing the then-radical concept of an elected Chief Executive with a fixed term, the Founding Fathers made a bold statement to the world that the newly-formed United States of America was rejecting outright any notion that it would tolerate a new American monarchy (and, with it, presumably an accompanying peerage of Lords made up of selected landed gentry).

Without question, time has proved that the concept of an elected chief executive with a fixed term has served the American people well. Yet, when this idea was first proposed, the citizens of a post-Revolutionary War America were skeptical. As a result, Alexander Hamilton was forced in Federalist No. 69 to sell the Founder’s vision to a wary public.

Hamilton began his essay by reiterating the point that one simply could not compare the position of President to the King of England, for if one did, “there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” Indeed, explained Hamilton, while the President is “re-eligible [only] as often as the people of the United States shall think him worthy of their confidence,” the King of England was a “hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” (Emphasis in original.) As Hamilton so elegantly summarized the issue: “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”

But Hamilton did not stop there.

For example, Hamilton explained that while a President could be impeached, “there is no constitutional tribunal to which [the King] he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”

Similarly, Hamilton pointed out that while a President can veto a piece of legislation, the Congress can nonetheless override this veto by two-thirds votes in both houses. In contrast, the King of England had “an absolute negative upon the acts of the two houses of Parliament.”

Moreover, while a President may “nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution”, Hamilton argued that there were no such constraints on the King. (Emphasis in original.) To the contrary, Hamilton forcefully argued that the King of England was

“emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king….”

And what about issues of foreign policy? Again, in Hamilton’s view, the powers of President and King stood in stark contrast.

Under the Constitution, while the President is the “commander in chief”, only Congress may formally declare war. On the other hand, Hamilton pointed out that the power of the British King went beyond commander-in chief and extended to “the declaring of war and to the raising and regulating of fleets and armies….” (Emphasis in original.)

Moreover, while the President has the power to make treaties only with the advice and consent of the Senate, Hamilton demonstrated that the King was “the sole and absolute representative of the nation in all foreign transactions” and could “of his own accord make treaties of peace, commerce, alliance, and of every other description.”

So, viewing Hamilton’s arguments with the benefit of over two hundred years of history, what can we learn about Article II Section 1, Clause 1 of the Constitution? In my view, the lesson is simple and obvious: no matter how much we may disagree with the policies of a particular President, there are (fortunately) significant Constitutional checks and balances to curtail potential abuses of his authority. Indeed, to paraphrase Hamilton, so long as the power of the government remains “in the hands of the elective and periodical servants of the people”, the United States is no danger of being characterized as “an aristocracy, a monarchy, and a despotism.”

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

April 14, 2011/8 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 10, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 10, Clause 3, Julia Shaw 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09, Article I Section 10 Clause 3, Julia Shaw, The Articles of Confederation

Guest Essayist: Julia Shaw, Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article 1, Section 10, Clause 3

3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Founders understood that the federal government can threaten individual liberty, but so can the state governments. The Constitution recognizes threats from both actors and, therefore, contains specific limitations on both. Article 1, Section 9 limits the federal government; Article 1, Section 10 limits state governments.

Section 10 consists of absolute prohibitions on the states (e.g., prohibitions relating to military and monetary powers) and qualified prohibitions on the states (i.e., prohibitions that Congress may suspend).

Section 10, Clause 3 contains qualified prohibitions on a variety of activities. The prohibition on states charging duties of tonnage prevents state-specific protectionism and protects Congress’s commerce power. Because standing armies were a grave threat to the new republic, the constitution prohibits them at the state level. States may maintain militias, but not standing armies. But, the most significant portion of the clause concerns the ability of states to enter into agreements with foreign nations or other states. As Michael S. Greve notes in Compacts, Cartels and Congressional Consent, “For a federal republic, and especially for a nascent federal republic, the prospect of separate, unsupervised agreements among its member-states and between a member-state and a foreign nation must constitute a cause for alarm.”[1]

The Articles of Confederation forbade the states from entering into an agreement with foreign powers. Additionally, any “treaty, confederation, or alliance whatever” among the states required congressional consent, and Congress would settle any disputes arising between the states. But the Articles of Confederation proved ineffective. The Constitution supplied a remedy. The Constitution created a new apparatus for the federal government to engage foreign nations: the president would be the chief actor in foreign affairs. He would negotiate treaties and, in turn, the Senate had to ratify treaties before they went into effect. Individual states could not enter into agreements or treaties with foreign nations. But, in the event of foreign invasion, an individual state could respond.

Agreements between the states pose threats to federal powers, to states not party to the agreement, and even to individual rights. By requiring such agreements to have the consent of Congress, other states would be informed of the agreement and able to protect their interests and the rights of their citizens. In many ways, congressional approval on state compacts was a compromise. James Madison wanted to give the federal government a much broader power over the state governments: specifically, he advocated a congressional negative on state laws. Delegates at the Convention compacts clause rejected Madison’s proposal—three times—as overly nationalist and unnecessarily broad. The Convention instead opted for federal supremacy over certain categories of activity, blanket prohibition of some activity, and congressional approval for any agreement between the states. Together these prohibitions mollified Madison’s concerns and protected against state governments’ encroachments on liberty.

Though the Compacts Clause makes clear that forming compacts is prohibited without the consent of Congress, it is not clear what form that consent must take. Does it require a law be passed and signed by the president? Or can Congress accomplish it without presentment? Nor does the clause specify whether Congress must consent prior to the formation of the compact. There is also debate about the scope of these compacts. Compacts prior to 1921 primarily concerned boundary disputes. Compacts in the later 20th century include complex regulatory schemes that may present separate constitutional problems. These ambiguities will likely be tested as states become more creative with the scope and substance of their agreements.

Julia Shaw is the Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation.

[1] Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 M.L.Rev. 285, 296 (2003).

April 13, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 10, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 10, Clause 1, Joerg W. Knipprath 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09, Article I Section 10 Clause 1, Article I Section 10 Clause 3, Joerg W. Knipprath, The Articles of Confederation

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

Article 1, Section 10, Clause 1

1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

What if a state, laboring under a significant budget deficit, decided to repudiate its general obligation bonds? What if that state, further, enacted an increase in the income tax, retroactive to the beginning of the year? Would Article I, Section 10, clause 1 permit such actions?

The first part of that clause, along with clause 3 of the section, restricts the states to only a very limited capacity at international law, and states may exercise even that residue only with permission of Congress. The Articles of Confederation restricted these powers already, as the exercise of them by the states would undermine national sovereignty. The new Constitution simply tightened them and made them more concise, in recognition of the fact that these restrictions were an integral part of the establishment of a stronger Union.

The second part of that clause, dealing with money, bills of credit, and gold and silver as legal tender, addressed the pestilence of paper money issued by the states. Many of the Framers saw this as a particular problem that contributed to the insecurity of property in various states and the economic turbulence that, in turn, produced political turbulence and threatened the republican experiment. It had been the practice even of colonial assemblies to fund the costs of military campaigns by quasi-confiscatory practices of issuing bills of credit (paper money on the credit of the colony) to merchants and suppliers of war materiel. After the war, those bills of credit rapidly depreciated, as the colonists declined to vote the taxes necessary to pay them. Once the bills reached a sufficiently low level, they could be taxed out of existence relatively painlessly.

It was hardly surprising, then, that the states (and the Continental Congress) would resort to that same hoary practice on declaring independence. By war’s end, Congress had issued $226 million in bills of credit, for which it had received $45 million in goods and services, as Americans increasingly took into account this species of public finance fraud. However, the paper currency itself had depreciated essentially to nothing, a massive (and conscious) expropriation of private property by inflation, engineered by a body that lacked the formal constitutional powers to do so. “Not worth a Continental” was not a metaphor. Benjamin Franklin defended this confiscatory practice as an equitable form of taxation as these bills were held more by the upper-middle and upper segments of society than by the poor. John Adams dismissed critics of the devaluation with a curt, “The public has its rights as well as individuals.” In the end, Congress never redeemed the paper currency.

If the Congress was bad, in some ways the states were worse. Not only were there problems with the emission of bills of credit (though that was less significant than for Congress), but with other, broader confiscatory and debt cancellation laws. To the extent that such laws injured the interests of Loyalists and British creditors, they violated the peace treaty with Great Britain and threatened to reignite the war. To the extent they hit their own citizens, the states were flirting with class warfare. At best, even in the absence of a specter of violence, state politics circled around the vortex of the depreciated bills, as holders, speculators, and debtors (who were not always different persons) jockeyed for political and economic advantage. This contributed to the instability of state politics and prevented establishing a basis for long-term social peace and material prosperity.

Historians, including conservatives such as Forrest McDonald, indict this period after independence for making Americans less secure in their property rights than they had been under King George. To an increasing number of Americans, especially younger figures such as Hamilton and Madison who were not as tied to the “revolutionary spirit,” the reason was that “governments were now committing unprecedented excesses, even though–or precisely because–governments now derived their powers from compacts amongst the people.” The period was a vivid illustration that democratic self-rule does not, without more, set a society on the path to the security of property and long-term well-being. Even more alarming was the fact that those same state governments were acting under constitutions that nominally protected individuals’ liberty and property from just such majoritarian muggings.

It is no wonder then, that many of those who gathered at the convention in Philadelphia, viewed the levelling tendencies of such fiscal and redistributionist laws with consternation and as evidence of the irresponsibility of popular majorities. There was no opposition to the portions of Article I, Section 10, that negated the states’ abilities to coin money, issue paper currency, or make anything but gold and silver legal tender. Some delegates wanted that prohibition extended to Congress, but the majority demurred. The need for paper money during emergencies, combined with the Madisonian faith that a more effective balance between debtor and creditor interests would produce better political checks against excesses at the national level than within the states, gave the majority pause about tying the hands of Congress.

In hindsight, both sides can claim vindication. Certainly, the issuance of fiat money during the Civil War helped the Union’s war effort. On the other hand, the flood of trillions of dollars sloshing around today during peacetime can easily become a tsunami that destroys the economic well-being of large numbers of Americans. And, contrary to Franklin, devaluation and inflation typically hit the lower and middle classes more than it does the wealthy. Inflation is a brutally regressive tax.

One tool of the Framers was to ban retrospective laws. The first was the prohibition on ex post facto laws, one that also applied to the national government under Article I, Section 9. Apparently many of the Convention (including Madison) thought that ex post facto laws covered all retrospective laws. This produced a moment that demonstrates that the Framers were ordinary humans, finding their way through the constitutional fog, not infallible divine creators. The day after the vote, John Dickinson sheepishly announced that he had looked up “ex post facto” in Blackstone and found (correctly) that this only prohibited retroactive criminal laws.

Similarly, bills of attainder (legislative decrees of punishment of individuals used expansively during the English Civil War, but not unknown even in the newly-independent states) were prohibited for the states and the national government, primarily because of their retroactive application to acts already committed. Bills of attainder and ex post facto laws were viewed as such outrageous infringements of liberty that they were denounced as contrary to the protections of the social contract and the very nature of a republican government of free men.

But that still left the issue of retrospective civil laws. The contract clause of Article I apparently was the vehicle to deal with the vexatious laws that, in tandem with the paper currency policies, cancelled debts or otherwise interfered with existing contracts. Although the origin of the clause is obscure, it is similar to one found in the Northwest Ordinance of 1787, passed by the Confederation Congress. The author at the Convention probably was Hamilton, who, after his personal experience with Pennsylvania’s capricious revocation of the charter of the Bank of North America, also saw the potential of the clause to protect banks and other corporations from state harassment.

The contracts clause was an early vehicle for the Supreme Court to promote the rule of law and the stability of rights in property. Chief Justice Marshall, in particular, read the clause broadly to protect individual rights in contracts. Indeed, his interpretation went so far as to prevent the states from interfering with the obligations of contracts even prospectively, a view that was probably beyond that envisioned by the Framers and which led to Marshall’s only dissent in a constitutional case in 34 years on the Court.

Much has changed since then. Today, the Supreme Court has reinterpreted the categorical language of the clause to prohibit only laws “unreasonably” impairing the obligation of contracts. This has effectively eviscerated the clause’s protections against most state laws that interfere with purely private contractual relations, even those that are retrospective. States, and the federal government (to which the contracts clause does not apply directly), are relatively free to force creditors to revise terms of existing debt instruments, such as mortgages) when debtor interests gain enough political traction.

Neither of our hypothetical state laws would be unconstitutional under the ex post facto clause, as they do not deal with crimes. There being no “contract,” the only limitation on the retroactive tax increase would be vague notions of “notice” to the taxpayers under the due process clause of the 14^th Amendment. The repudiation of state bonds would be a closer case, and states well may run into difficulties under the contracts clause if they were to try to repudiate their bonds (or to curtail vested public employee pensions).

April 10, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 8 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 8, Kyle Scott, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 09 Clause 8, Kyle Scott PhD

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.

April 8, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 7 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 7, Dan Morenoff 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09 Clause 7, Dan Morenoff, Federalist No. 58

Guest Essayist: Dan Morenoff, Attorney

Article 1, Section 9, Clause 7

7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This clause of the Constitution seems utterly unremarkable today. It reads like an accounting textbook, never hinting at the long history of struggle summed up in the first sixteen (16) words. Nor do the remaining twenty-two (22) words indicate, on their face, the antiquity of the ethical judgment they imply. Yet, if you scratch the surface, the Appropriations Clause holds wonders.

For centuries before the Constitution’s ratification, English-speaking legislatures had contended with the executive for control over the power to spend. Beginning with Runnymeade and the Magna Carta, what would become Parliament had striven to limit the King’s control over money raised and spent. While religious and commercial differences played a role in the conflict, the English Civil War began as a battle over Parliament’s exercise of independent judgment in refusing to support a King’s call for greater taxes. By 1689 at the end of the Glorious Revolution, Parliament had written into law through the English Bill of Rights legislative control over the raising of money, asserting “[t]hat levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament … in other manner than the same is or shall be granted, is illegal.” Parliamentary control over how Kings spent the funds Parliament helped raise began with the insertion of instructional language into a grant of funding in the 14^th Century. While Parliament’s control over spending remained incomplete in the 1780s, English-speaking legislatures had been trying to control how funds they raised were spent for 400 years before the founding.

On the West side of the Atlantic, these efforts were accelerated by the distaste the Colonials often had for the Crown’s appointed Colonial Governors. So firmly had Colonial legislatures established control over what funds were taxed, borrowed, and spent by Governors that Madison could define the “power of the purse” in the Federalist Papers as the power “to propose the supplies requisite for the support of government” and safely assume that his readers would know exactly what he meant. Indeed, in Federalist 58, Madison went further, explaining the power, not entirely accurately in terms of British practice, but consistent with the Colonial experience of annual, line-item appropriations, as:

that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activities and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining redress of every grievance, and for carrying into effect every just and salutary measure.

The Appropriations Clause wrote this Colonial practice into stone. In America, no money would leave the treasury without the passage of an appropriations bill passed by Congress. The intervening centuries under the Constitution have seen further conflict over the contours of the Appropriations Clause – for example, battles over Presidential discretion to “impound” appropriated funds (meaning, to refuse to spend them). But the bedrock principle of the Appropriations Clause has almost never been called into question.

Ancient as the story hidden within the first half of the Appropriations Clause is, the second half of the clause, that requiring “a regular Statement and Account of the Receipts and Expenditures[,]” has it beat by thousands of years.

The core, ethical requirement of the clause is that any one entrusted by law to spend the people’s money has a duty to show that he has done so as a faithful steward. That requirement has its roots in the book of Exodus. Moses himself came back after the construction of the Ark of the Covenant with a report on how the funds raised were actually spent.

The Founders expected their Presidents to be no more ethical people then Moses had been. Accordingly, they wrote into the Constitution a requirement of the same kind of reporting Moses had provided.

As a result, the clause is one of the clearest examples of biblical influence on the Constitution.

April 6, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 4-6 of the United States Constitution

Allison Hayward, Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 4-6 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Article I Section 09 Clause 4-6, Constitutional Amendment XVI

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 9, Clause 4-6

4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.7

5: No Tax or Duty shall be laid on Articles exported from any State.

6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Benjamin Franklin is credited with observing that nothing is certain except death and taxes. In clauses 4-6 of Article I, the Founders were attempting to assuage concerns Americans had over the ability of the national government to levy taxes. The power to raise revenue was essential – the national government would be moribund without finances. But the national government could come under the sway of parochial interests, and the taxing authority could unfairly burden certain regions.

With clause 4 “Congress might not have the power of imposing unequal burdens; that it might not be in their power to gratify one part of the Union by oppressing another” noted Hugh Williamson, a North Carolina delegate to the constitutional convention. Delegates from Southern colonies were especially sensitive to this issue.

Thus in Clause 4, the Constitution requires that direct taxes only be assessed in proportion to population, as determined by the census that apportions members of Congress. (Recall that the census apportioned representation according to the number of free persons and three/fifths of the slaves). A capitation tax, or “poll” tax, was nothing more than a tax on individuals. Poll taxes were most commonly assessed at the local level, for goods like roads and schools. Here, the Founders believed that commerce would ordinarily provide tax revenue, and that a direct tax would seldom be used at the national level. But the Founders also knew that urgent situations, like war, might exceed the nation’s capacity to raise revenue through tariffs and excise taxes.

As an aside, the poll tax roll was also a means to evaluate who lived in a jurisdiction, and so were also used to identify eligible voters. This is the context most people today think of when they hear the phrase “poll taxes” so the mistake is often made of thinking that “poll” means the place where votes are cast. The Founders would have ben using “poll” on the older sense, that is, a tax on individuals.

Southern delegates were also sensitive to the potential harm arising from Congress’s taxation of exports. in the debate over Clause 5, advocates argued that, were Congress given this power, it could unfairly burden the exports of some states and not others. Different states had vastly different export profiles – think of how an export tax on cotton would have applied in practice. Yet the solution incorporated in the Constitution remained controversial, given the economic advantages Northerners believed that the South derived from slavery. Thus, even as anodyne as this clause may appear today, it passed by only a vote of 7-4, with New Hampshire, Pennsylvania and Delaware voting no, and Massachusetts abstaining.

In Clause 6 the constitution yet again limits congressional power to favor one region over another. Under clause 6, Congress would lack the power to regulate a disfavored state’s maritime commerce out of existence. This issue was of special concern in Maryland, because Maryland-bound shipping would pass ports in Virginia. A few delegates believed this clause would impose inconveniences in some situations, but relented in favor of those states with strong interests in these limits.

The revenue profile of our nation today is quite different from what the Constitutional Convention anticipated. Indirect taxes, like excise taxes and tariffs, account today for only about 3% of the federal government’s revenue, while about half comes from individual income taxes – a direct tax that could only come into existence by amendment to the Constitution, in Amendment XVI, ratified in 1913. That change came quickly – by 1930, 60% of the federal government’s receipts were from the income tax.

April 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 2-3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 2-3, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 09 Clause 2-3, Constitutional Amendment XIV, Constitutional Amendment XIV, Federalist No. 84, Joerg W. Knipprath

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

Article 1, Section 9, Clause 2 and 3

2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. 3: No Bill of Attainder or ex post facto Law shall be passed.

The Great Writ. The writ of habeas corpus, protected in Article I, Section 9, clause 2, is often regarded as the cornerstone of the rule of law in Anglo-American jurisprudence. Alexander Hamilton, writing in Federalist 84, approvingly quotes Blackstone that habeas corpus is the “ bulwark of the British constitution,” in that it prevents the “dangerous engine of arbitrary government” that comes from “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten.”

Some historians trace the writ back to Magna Charta, although more definitive evidence shows a gradual emergence under the common law, culminating in the Habeas Corpus Act of 1679, during the reign of Charles II. As Hamilton’s comment shows, the Framers were well aware of the writ. Note that the Constitution does not “create” the writ; rather, Article I, Section 9, assumes the existence of the writ, but provides for its limited suspension.

Congress early confirmed the federal courts’ jurisdiction to issue the writ in the Judiciary Act of 1789, though the scope of the jurisdiction has changed over time. It is even plausible, though not without doubt in light of 19^th century precedent, that the power to issue writs of habeas corpus is so tied to the essential role of the federal courts that they could issue writs of habeas corpus even if Congress had not affirmatively recognized that power.

The writ is commonly said to be an instrument only to test the constitutionality of the detention, not to adjudicate the guilt or innocence of a detainee. In other words, it is not the same as a right to appeal a conviction, but a “collateral attack” on the right of the government to detain the prisoner at all. In some fashion, though, habeas corpus is broader than an appeal. Rights of appeal are usually limited in time. Petitions for habeas corpus traditionally were not so limited and could be brought repeatedly, years after trial.

There are two areas where the use of habeas corpus has become controversial in the last few decades. One is the use of federal courts to challenge state criminal proceedings, especially in death penalty cases. The other is the applicability of the writ to detainees in military custody.

As to state criminal proceedings, the problem began with the Supreme Court’s “incorporation” into the 14^th Amendment of criminal procedure protections in the Bill of Rights. This process, principally during the Warren Court, extended the federal courts’ supervisory powers over state court proceedings. Justice Frankfurter as early as 1953 warned of the writ’s “possibilities for evil as well as good,” in light of the roughly 400 to 500 habeas petitions brought in federal court by persons in state custody. By the end of the Warren Court, that number increased to 12,000 per year. It continued to climb until the Rehnquist Court in the 1990s began to stem the deluge.

Today, habeas petitions are still a favorite pastime of “jailhouse lawyers,” as well as of attorneys who represent inmates with various complaints, from prison overcrowding or medical care to more individualized concerns about ineffective assistance of counsel in capital cases. But federal laws and Supreme Court decisions now require petitioners to meet stiffer tests for such collateral review. In part these restrictions have been justified by the perceived greater due process protections in state criminal proceedings compared to 50 years ago. In part it is the conscious institutional desire of the Rehnquist and Roberts Court majorities to shift more business out of the federal courts into the state courts. It is the latter, after all, who are the courts of “general jurisdiction” in our federal system. In part it is simply the federal judges’ impatience with the sheer volume of repeated and frivolous petitions. Even before the floodgates opened, only a very small percentage (6%) of petitions were found to have merit. As so frequently happens, the increase in quantity over the years led to a further decrease in quality.

Regarding jurisdiction over people detained by the military, the writ has a checkered past. Early in the Civil War, President Lincoln suspended the writ in a portion of Maryland (a de facto imposition of martial law). In 1861, Chief Justice Taney issued the writ to the military jailer of a Maryland secessionist arrested for destroying railroad bridges. When the military commander ignored the writ, the Chief Justice, in Ex parte Merryman, denounced Lincoln’s action, arguing that Article I, Section 9, dealt with limitations on Congress’s powers. Therefore, only Congress could suspend the writ.

In classic implied executive powers fashion, Lincoln responded that the Constitution did not specify which branch could suspend the writ, only the conditions under which it could be suspended. Moreover, the President could act due to the emergency involved. Both Lincoln and his attorney general, Edward Bates, declared that the judiciary was incapable of dealing adequately with organized rebellion. Bates, in his more detailed opinion, pointedly reminded the Court that the executive was not subordinate to the judiciary, but one of three coordinate branches of government. The President took an oath to “preserve, protect, and defend the Constitution,” Bates asserted, and the courts were too weak to accomplish that task.

In 2008, the Supreme Court decided Boumediene v. Bush. There, Justice Kennedy, in a 5-4 opinion, declared portions of the Military Commissions Act of 2006 unconstitutional, most significantly the portion that denied habeas corpus review to Guantanamo detainees. Aside from a host of constitutional and practical problems with the Court’s opinion, particularly troubling was the Court’s extension of the writ to people outside the sovereignty of the U.S. To do so, the Court had to distort the traditional Anglo-American understanding that the writ applied only within the nation’s territory.

While the writ has long applied to procedures of military courts, the Court previously made clear that it did not apply to acts of such courts outside the U.S. Thus, in Johnson v. Eisentrager in 1950, the Court, speaking through Justice Jackson, rejected a habeas petition from German prisoners who had been convicted of war crimes by an American military commission and were held at an American military prison in the American occupation zone in postwar Germany. The Eisentrager Court found “no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy, who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”

Where Justice Jackson and others feared to tread, Justice Kennedy rushed in. As Justice Scalia wrote in dissent in Boumediene, what drove the Court’s opinion was “neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated sense of judicial supremacy.” Precisely the attitude that President Lincoln and Attorney General Bates had emphatically rejected in their response to Chief Justice Taney.

Whether the Boumediene opinion has precedential virility, or whether it is merely judicial posturing, remains to be seen. Justice Scalia feared that it is likely to be the former. Early indications from the circuit courts suggest the latter. Those courts have read Boumediene narrowly as applying only to Guantanamo, not, for example, to detainees at Bagram Air Base in Afghanistan. If that interpretation prevails before the Supreme Court, Boumediene is mere institutional chest-beating. More troubling, in the long run, is the possibility that Justice Scalia’s concerns are well-founded, and that the Court’s use of habeas corpus in Boumediene is part of the expanding notion of “lawfare” that threatens to tie down the President’s commander-in-chief powers through a web of legal regulations and procedures, an American military Gulliver tied down by legal Lilliputians.

As Justice Frankfurter warned, the writ has “possibilities for evil as well as good.”

Note: Professor Knipprath will address Article I, Section 9, Clause 3 of the United States Constitution in his upcoming essay on: Article 1, Section 10, Clause 1, Scheduled for publication on April 11: 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

April 5, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 9, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 1, W.B. Allen, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 09 Clause 1, Declaration of Independence, W. B. Allen PhD

Guest Essayist: W. B. Allen, Havre de Grace, MD

Article 1, Section 9, Clause 1

1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

At the Constitutional Convention of 1787 the debate that produced this provision came to a head on August 21 and sustained tense development until its resolution on August 25 in a unanimous vote (nem contradicente) that succeeded several divided votes that preceded the eventual compromise. This short narration, however, conceals a tortured and tense struggle that emerged from the debates over democratic representation, permissible forms and apportionment of taxation, and the wisdom and morality of slavery itself. What occurred, in short, is that the Convention elected to affirm national authority to prohibit the importation of slaves but to limit any tax on this particular import to a modest sum, in recognition of strenuous and unyielding objections especially from South Carolina and Georgia to the exercise of any limit upon their discretion in the matter of slavery, even after having been granted a bonus effect by the counting of three-fifths of the total number of slaves in the calculation of representation in the House of Representatives.

This essay is too limited in space to permit unfolding the full dimensions of the debate in the Constitutional Convention. We urge readers to recur to the Notes of Debates in the Federal Convention of 1787 Reported by James Madison for a thorough review of the debate in order to place in context the sometimes surprising positions of delegates as varied as Oliver Ellsworth, Luther Martin, and Roger Sherman as well as those of James Wilson, Gouverneur Morris, James Madison, and Alexander Hamilton. A more general view of the question of slavery is at the following link: http://www.williambarclayallen.com/chapters/new_birth_of_freedom.pdf.

As for the meaning of the constitution’s limitation on the power to import slaves, the most efficient way to comprehend it is to review the story of its implementation under the new government.

The first major debate over constitutional interpretation within the Congress took place in the House of Representatives on May 13, 1789. The subject was slavery, and it carried with it all of the ambiguous assumptions which freighted the several compromise provisions on the subject in the Constitution. It is to be remembered that the slave trade clause (Art. I, sec. 9), by which slavery could not be prohibited by Congress until the year 1808, but by which the Congress could impose an import tax on slaves, produced contrary interpretations even at the time, ranging from the more familiar southern claims that “we got all that we could” on behalf of slavery, to the less well known but extraordinary claim by James Wilson, that

I will tell you what was done, and it gives me high pleasure, that so much was done. . . [B]y this article after the year 1808, the congress will have the power to prohibit such importation, notwithstanding the disposition of any state to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind of gradual change which was pursued in Pennsylvania.i

The debate that occurred within the House of Representatives shows how far the hopeful interpretation prevailed over the shameful interpretation. On the surface it seems that the shameful interpretation prevailed, for the House voted by a large majority not to impose the constitutionally permitted impost on slaves. Further investigation reveals, however, that the vote was carried primarily by the northern and eastern antislavery votes, cast by those acting on the principle enunciated by men such as Fisher Ames and Roger Sherman that “no one appeared to be prepared for the discussion.”

Josiah Parker of Virginia introduced and pushed the measure, even to the point of eliciting a momentary attempt at a positive good argument for slavery from Jackson of Georgia. It was James Madison, however, who was most prepared to discuss the matter and most reluctant to yield to counsels of caution on a matter which others feared could abort the Union. His comments in this debate underscore his prior resort to slavery in order to move the Convention toward a Constitution almost two years earlier, for in 1789 the very existence of the Union weighs heavily in his reflections and promises the opportunity to act upon the question.

I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion . . . There may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed; it is from the importation to which it relates. Our object in enumerating persons on paper with merchandise, is to prevent the practice of treating them as such . . .

The dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy, require it of us . . . I conceive the Constitution, in this particular, was formed in order that the Government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. . .

It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves . . . [I]f there is any one point in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the state governments, it is this.

To Madison, it appears, the slavery option was such that it could, and should, be subject to calculated disincentives. An analysis of the vote on this measure, in a House of 59 representatives, ten of whom were present in the Constitutional Convention, reveals a preponderant disposition to treat slavery as an option to be discouraged but nevertheless a matter sufficiently sensitive as to make that difficult.

The next implementation event of the Founding era is the manner in which, when the constitutional prohibition had expired, the international slave trade was prohibited. The President and his Secretary of State initiated the process in 1807 with some apparent pleasure. They encountered a difficulty, however, which no one had anticipated. It centered on the question of what to do with any contraband (that is, ships and slave cargo) that may be apprehended. Jefferson’s original proposal envisioned a traditional disposal in the interest of the government. But other parties, especially Quakers, pointed to the grand paradox that would involve the United States in selling Africans as a means of denying that privilege to American citizens in the name of the rights of humanity. Madison’s speech of 1789—we treat persons as property in law in order to be able to prevent their being treated as property in practice—resonated loudly. It quickly became clear that Jefferson’s proposal involved a mere oversight. Yet, it was immensely difficult to discern what else might be done.

The counterproposal, that the Africans be freed rather than sold, was the immediate cause which touched off heated debate in 1807, but that debate, above all in the House of Representatives, produced the first compromise on slavery admitting the existence of irreconcilable differences between north and south. Here, for the first time, there was an explicit threat of civil war over the institution of slavery, and an accommodation which recognized that “Easterners” must not be asked to turn their backs on the Founding and principles of humanity, while “Southerners” must not be asked to condemn their own way of life. Therefore, the northern proposal to free the cargo within the United States and even within the slave states, was amended, first, to freeing them only in the north (i.e., indenturing them for a term of years at a stipulated wage), and ultimately, to remanding them on such provisions as the states might make, with only a tacit understanding that they were not to be dealt with as property.

It is interesting to speculate about what might have eventuated had Jefferson and Madison reflected initially on the impropriety of proposing legislation to handle the Africans as contraband. They may well have discovered the key whereby to unlock the door to the interstate commerce power as a device for regulating slavery. Not only did they not envision such a debate in 1807, however, but more importantly no one else did. Not even the Quakers, whose sharp-sightedness prevented a moral catastrophe, applied their principles in this way. It seemed in 1807 that no one at all, whether defender of slavery or abolitionist, looked at the “migration” language of Article I, section 9 as a probable means to resolve this difficulty.

This lends powerful credence to Madison’s 1819 claim that the language of the migration portion of the slave trade clause did not apply to slaves, though it may have regarded free blacks.ii His further remark, to the effect that any attempt so to construe it would have caused a brouhaha, helps explain the absence of recourse to it in 1807. As noted, the mild debate which did eventuate in 1807 produced threats of secession and war. Accordingly, Madison simply maintained that public opinion would not have abided such a turn, pointing to the one theme he consistently enunciated throughout his career, namely, the necessity of consent, not only to institute the government but to institute the fundamental change envisioned. This Madison explained repeatedly, as he did to Robert Evans in 1819.iii For Madison, the key to this progressive regime was consent, the index of which was public opinion. Whatever was to be accomplished had to be accomplished by that medium. So fervently did he believe this that he not only subordinated abolition to it, but, as he expressly recounted, all his labors to form the Democratic-Republican Party were predicated on that premise.

While public opinion in 1807 countenanced the prohibition of the slave trade, it did not countenance federal abolition of slavery. In the end, for Madison, the theory of republicanism is not a theory about institutional relations; it is a theory about the dependence of power on opinion. “Changes” in his views all took place at the surface, because, like planets, ideas about constitutionality wander about a fixed sun.iv

Efforts to implement Article I, Section 9, Clause 1, therefore, reveal a mosaic that captures all of the dimensions of the role of slavery and race in American politics. That role must be considered against the backdrop of the principles of the regime, because actions touching upon slavery and race bear heavy implications for those principles, and vice versa. This does not result from any cultural or traditional pattern so much as from the conscious choices with which Americans wrestled at every turn in our nation’s history, up to and including the decisions of the present generation.

It is especially obvious in the 1807 struggle over the prohibition of the slave trade: From the moment that slavery was in any degree limited, there arose to replace it the problem of how to handle the question of race. The answer to that question rests, in turn, not only on the fact that the consciously chosen principles of the regime entail equality and liberty for all humans but, far more importantly, on the question whether they require an open, heterogeneous society. The decisions that were made on this question in the aftermath of the War of American Union, in the form of the post-war amendments and civil rights legislation, indicate a positive response to the latter. But how far was that also true at the time of the Founding itself?

While it is inaccurate to assert that no one prior to the last half of the nineteenth century imagined an interracial society founded on the principles of the Declaration of Independence, that question is of minimal concern here. First, it is of minimal concern because it is subordinate to the question of whether the Declaration was understood to include all human beings without regard to the practical social implications of that principle. Second, it is of minimal concern because the status of slavery and race under the Constitution or regime—and how to legislate in regard to it—is and has been a single question. Madison’s concern to avoid the “imbecility” of a country filled with slaves does not require the corollary of turning slaves into free citizens in the republic. As the 1807 slave trade debate reveals, however, that is the very question which arises the moment the freedom of the African is conceded. Hence, the debate was in fact a debate about whether and how to integrate Africans within the United States. The fact that Americans posed the same kind of question then and now points the way to an understanding of the dilemma we now face.

_________________________

i Pennsylvania State Ratifying Convention, December 3, 1787.

ii Letter to Robert Walsh,, November 27, 1819, printed in Max Farrand, Records. op. cit., vol. III, p. 436.

iii Letter to Robert Evans,, June 15, 1819,, in The Writings of James Madison, ed. by Gaillard Hunt (New York: G. P. Putnam I s Sons, 1908), vol. VIII, pp. 439-441.

iv See especially Madison’s account of his “different” opinions on the constitutionality of a national bank, in the letter to President Monroe, December 27, 1817. Works, vol. III, pp. 55-56

W. B. Allen

Havre de Grace, MD

April 4, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 18 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 18, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 01, Article I Section 08 Clause 18, Federalist No. 44, Joerg W. Knipprath

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

Article 1, Section 8, Clause 18

18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In a letter to Edward Livingston in 1800, Thomas Jefferson addressed the potential of infinite expansion of national power through the “necessary and proper clause” (Article I, Section 8, clause 18) after Congress chartered a mining company. Jefferson derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme:

“Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work..”

Who can doubt this, indeed? Especially when, just last year, in U.S. v. Comstock, Justice Breyer led the Supreme Court in finding that the necessary and proper clause permits the national government to remit into federal civil commitment persons deemed to be sexually dangerous, even though the federal government could no longer hold them on a federal criminal charge. After applying one of the malleable multi-factor balancing tests he so favors, Justice Breyer determined that the necessary and proper clause permits Congress to enact laws that criminalize conduct that threatens the beneficial exercise of its enumerated powers; and that, therefore, Congress can imprison those who engage in that conduct; and that, therefore, Congress can pass laws to govern those prisons; and that, therefore, Congress can act as custodian of its prisoners; and that, therefore, Congress can pass a law that allows the federal government to keep those former prisoners “to protect the public from dangers created by the federal criminal justice and prison systems.” Besides, Breyer averred, the new law was only a “modest expansion” of Congress’s power. Indeed. Were he alive, Jefferson would recognize the game.

The necessary and proper clause is the Constitution’s version of the “implied powers” theory. Congress is the American people’s legislative agent. As such, the people gave Congress certain objectives to achieve. It is a basic principle of agency law that the agent has not only the powers expressly assigned by the principal but, by implication, also those powers necessary to carry them out. But there is no need for application of “implied powers” because the people, as Congress’s principal, themselves provided the means to carry out Congress’s assigned objectives. The necessary and proper clause specifies that Congress has the power to make laws “necessary and proper for carrying into execution” the powers conferred by the Constitution on the federal government.

The clause has long been hotly debated. Opponents of the Constitution, especially New York’s Robert Yates (“Brutus”), repeatedly warned of the dangers from an expansive interpretation of “necessary and proper.” They predicted that an unrestrained power to accomplish formally limited powers itself effectively created an unlimited power to legislate through pretext. Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced. Moreover, he attempted to narrow the meaning of the clause to those means that were “indispensably necessary” and “required.” Ultimately, however, Madison threw up his hands, effectively conceded the argument about the dangers, but urged the people to remain alert to usurpations by Congress.

The Supreme Court weighed in with McCulloch v. Maryland in 1819. Chief Justice Marshall rejected the restrictive interpretation of “necessary” urged by the old anti-Federalist warhorse, Maryland’s wily attorney general Luther Martin. Martin’s interpretation had support both in the dictionary meaning of the word at the time and Madison’s slips-of-the-pen in Federalist 44. Although this decision is correctly read as providing the constitutional material for the 20^th century’s “Big Bang” expansion of federal power, Marshall apparently believed he was much more restrained and cautious. He even took the unprecedented step of defending that view in a pseudonymous battle of editorials in the Richmond papers with Virginia’s chief justice, his cousin Spencer Roane. Marshall insisted that, while the reading of “necessary” was to accommodate the needs of the times, the clause had to be tied to the other enumerated powers. Any such law had to comply with both the letter and the spirit of the Constitution. It was not enough that Congress could somehow connect a law to the form of one of its other powers. Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.

In his almost flawless dissent in Comstock, Justice Thomas takes Justice Breyer to task for abandoning the Constitution’s text and Chief Justice Marshall’s boundaries. Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress. At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston. The only objective that the Comstock Court mentions that the law directly advances is “to protect the public from dangers created by the federal criminal justice and prison systems.” And that is not an enumerated power.

The necessary and proper clause is not an isolated provision. It is part of the delicate balance of national and state powers the Framers established in the American version of federalism. That balance is made concrete in several other provisions, beginning with Article I, Section 1, which declares that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative.” That premise, along with the very fact of a limited enumeration of Congressional powers, is evidence that the letter, and certainly, the spirit of the Constitution argue against so expansive an interpretation of the necessary and proper clause that Congress is given an unrestricted power to legislate through a constitutional back door.

The Court’s expansive and unfounded reading of necessary and proper reflects the dominant Washington credo. One has heard over and over from certain partisans in the debate over the current administration’s programs that Congress has the power to do whatever it wants and that the Constitution has no part to play in the debate. Indeed, judging by the distaste, indeed hostility, shown by some Congressmen to the reading of the Constitution in that chamber at the opening of the current session, raising constitutional questions about Congress’ actions may represent some novel mutation of hate speech. Of course, indicting the Constitution (especially its formal restraints on legislative power) as an obstacle to “social advancement” is not new. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.

At the same time, it is undeniable that, over the years, the doctrine of enumerated powers has suffered severe erosion, an erosion that could not have occurred over so long without the tacit complicity of the American people. They have not been alert to Congressional usurpations, as Madison urged. It is inevitable, as people intuit, and as writers from Plato to Machiavelli to Yates and Madison have explained, rulers seek first to maintain and then to expand their power. Over time, there occurs an institutional accretion of power at the expense of personal liberty, as each precedent gives rise to an incremental expansion. Again, the contest over ObamaCare now playing out in the federal courts is the latest (and perhaps final) step in the enfeeblement of the doctrine.

April 1, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 17 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 17, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 17, Federalist No. 43, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 8, Clause 17

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

At the time of the Constitutional Convention, conventional wisdom identified the two prime candidates for the seat of the new national government as Philadelphia and New York City. In fact, during the Convention, when one delegate proposed forbidding the placement of the national capitol in the capitol of any state, Gouverneur Morris “did not dislike the idea but was apprehensive that such a clause might make enemies of Philda. & N. York which had expectations of becoming the Seat of the Genl. Govt.” Records of the Federal Convention 2:127 (July 26, 1787).

The Framer’s primary concern was to ensure that the new national government was not dependent on the state in the management of the capitol or of other federal property. During the Revolution, mutinous soldiers had forced Congress to leave Philadelphia for Princeton because the former city could not protect them from the insult. (Of course this lack of dependence did not prevent the sacking of the new national capitol during the war of 1812 but no state could be blamed.)

Debate over this provision was fierce in the Virginia ratifying convention. George Mason thought it one of the most dangerous clauses because a district without any State supervision would be subject to the tyranny of the new national government. Others thought the new district could become a haven for bad actors fleeing from other states. James Madison dismissed this concern, noting that the objections “are extremely improbable; nay, almost impossible.” Henry Lee asked: “Were the place crowded with rogues, he asked if it would be an agreeable place of residence for, the members of the general government, who were freely chosen by the people and the state governments. Would the people be so lost to honor and virtue, as to select men who would willingly associate with the most abandoned characters?” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 220-222 (1987). The solution to the problem of creating a haven (or havens in the other possessions of the national government) was eventually settled by express reservations of the states when ceding land to the national government.

In 1790, Congress provided for a new capitol on the Potomac and delegated to George Washington the authority to select the site. Land was ceded by Virginia and Maryland for the purpose of creating a capitol but Virginia’s land has since been returned. Congress began meeting in the District of Columbia in 1800.

The Framers understood that people would live in the new capitol and James Madison noted that “a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Federalist 43. Currently, under the Home Rule Act of 1973, D.C. is governed by an elected mayor and District Council. Consistent with the Constitution, however, the national Congress still exercises oversight over District affairs. Congress may overturn acts of the District Council and has refused to fund certain Council decisions (like a domestic partnership registry) and has even ordered a referendum to be held on a Council decision to prohibit the death penalty. From 1995 to 2001, District finances were overseen by the Congressionally-created District of Columbia Financial Review Board to prevent the District from financial collapse due to mismanagement.

Another concern raised by this clause, however, was that the national government not become unduly acquisitive in taking lands for national purposes from the States. The solution was to require that the national government purchase land “by the Consent of the Legislature of the State in which the same shall be.” Western states often wonder how the federal government can control such large portions of the States as public lands. Typically, as a condition of admission to the Union, these States allowed the national government to retain ownership of public lands gained during the Territorial existence of the new State. The U.S. Supreme Court seems to have approved this practice in 1885. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885). It still seems inconsistent with the Framer’s concern to prevent national takeover of state land without express consent of the Legislature, however.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 31, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 14-16 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 14-16, George Schrader 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 14-16, Article II, George Schrader, The Articles of Confederation

Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 8, Clause 14-16

14: To make Rules for the Government and Regulation of the land and naval Forces;

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In discussions of the constitutional interaction between the federal government and the military, much of the conversation centers on the office of the president. This is logical, as the president is declared the, “commander in chief of the army and navy of the United States” in Article Two of the Constitution. What should not be overlooked, however, is the important role the legislature plays in how America’s armed forces operate. While the president may have greater direct control over the military, especially in times of war, Congress’s powers under Article One, Section Eight provide both an important check on presidential power, as well as a means for maintaining security within the nation.

Perhaps the most prominent theme throughout this section of Article One is the intent of removing some control of the military from the president and placing it in the hands of Congress. Examples of this are seen in Clause Fourteen’s allowance for Congress to, “make rules for the government and regulation,” of the army and Clause Fifteen’s reliance on the legislature to summon, “the militia to execute the laws of the Union.” One may reasonably ask why the Founders, who spoke often in the Federalist Papers of having an independent and energetic executive, would make such enormous cessions of executive power to the legislature. The answer appears to be rooted primarily in a fear of tyranny.

When one considers the concerns of average citizens during the time of the Founding, one of the most common fears was that America would slide into a tyrannical monarchy. The most likely origin for such a monarch was the president, a suspicion supported by history. Most popular forms of government, from the democracy of Athens to the republic of Rome, had collapsed into a tyranny once a sufficiently devious dictator found a weakness in the government’s structure. Furthermore, these tyrants often obtained and secured their power through the use of the executive’s military control. Examples of this abound, from Caesar in ancient Rome to Napoleon in France. If America’s army were to overthrow the popular government it would most likely be at the behest of the president.

This fear of a powerful military president led to some problems for the Founders. Legislatures, by their nature, make laws and do not independently enforce them. Furthermore, it was generally understood that foreign diplomacy was best carried out by an entity separate from the legislature for reasons too nuanced to explore here. Congress was therefore unfit to control the military by itself. The military could also not be entirely entrusted to the states in the form of completely independent militias, as the nation’s experience under the Articles of Confederation proved that this system was too unorganized to react quickly to an emergency. A president was literally the only solution.

Regardless of the necessity of independent executive control over the military, the Founders were still not comfortable simply allowing the president to wield unchecked control over the nation’s armed forces. The limitations described in these clauses, along with Congress’s power over the budget, provide precisely these checks by creating situations in which the president’s normally supreme role in the military is eclipsed by the legislature. It is interesting here to note that the limitations, particularly Clause Fourteen’s call for the legislature to create rules for the military, were carefully selected so as to only grant Congress powers that fit within its typical duties of creating law. In this manner, the Founders reduced the threat of a military dictatorship led by an over-ambitious president without gravely distorting the purpose of the American legislature.

While not an issue which is frequently considered today, at the time of the Founding the threat of a military coup weighed heavily upon the minds of many Americans. Though weakening the authority of the president over the military has its disadvantages, the Founders’ decision to do so in ways consistent with the purpose of Congress created perhaps the best possible compromise between presidential power and civic security.

George Schrader is a student of political science and German at Hillsdale College.

March 30, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 10-13 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 10-13, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 10-13, Federalist No. 69, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article 1, Section 8, Clause 10-13

10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;

It is especially timely to discuss the so-called “war” powers of Congress in light of recent events internationally. Although much focus at present is directed at the issue of the President’s authority, this essay will focus exclusively on the United States Congress.

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;

Pointedly Congress does not have specific authority to carry out the prosecution of a military engagement, but it does have significant authority to participate in the decision and continuation of that military engagement. In that sense, the “War Power” is divided between the President and Congress.

Many Americans forget that the “War Powers” under the Articles of Confederation ostensibly rested with the national government but was far more attenuated in reality because it relied upon an enthusiastic acquiescence of the several states: Article III of the Articles of Confederation. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The Founders sought to address this matter. Not unlike the present debates over the President’s authority to carry out military actions, the Founders feared the ability of the monarch to enter into war without the consent of the people as they had witnessed the royal wars for centuries in Europe. At the same time, they had learned that they should not take the principle of diffusion of war power too far. In their mind, the Articles of Confederation had in fact gone too far and it represented a major national security threat for the newly independent United States of America.

As James Madison would explain to Thomas Jefferson in a letter in 1798, “The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].”

Thus, specific war powers are granted to the Congress – not the least of which is the actual power to declare war.

During the existence of the Articles of Confederation, the national government had the sole authority to create courts for the trials of piracy and related felonies committed on the high seas. However, the national government did not have any authority to address the issue of compliance with the existing international rules against piracies and other crimes on the high seas. Prior to the Revolution, all of the European nations had entered into agreements but the U.S. did not have authority to enforce these rules or to reject them. The Constitution specifically addresses that limitation and gave the Federal government the ability to choose to comply, reject or modify international agreements regarding piracy.

First, Congress has the specific power to “declare war.” A declaration of war is a formal declaration issued by at least one national government indicating that a state of war exists between that nation and another. Congress has officially declared war five times. In Federalist 69 Hamilton reminds readers that the power to declare war was an important one since the President of the U.S. did not have it. Under the Constitution, Hamilton explains, the president’s authority was:

“. . . in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”

Next, let us look at the power of Congress to grant letters of Marque and Reprisal. This power grant a far more unusual and yet clearly lawful means for Congress to carry out its international and/or national security interests. Here’s the essence of the power: Congress can authorize a private person or private army – not a part of the United States armed forces – to conduct reprisal military-like operations outside the borders of the U.S.

Not unlike the powers exercised by the French Foreign legion, our Constitution authorizes Congress to grant such a right presumably with payment or a bounty in any instance in which the citizens of the U.S. are injured by individuals or armies of another country whenever the other country denies justice to the American(s) who have been harmed.

Additionally there is the rarely examined “capture clause” – the power of Congress to establish the rules for the distribution of spoils of captured enemy ships or captured territories. In the modern war era, military victims publicly eschew the capturing or claiming of the goods and property of the conquered parties. However, this was not always so. In fact, the so-called “capture clause” was considered extremely important to the fledgling nation of America.

Often times the federal government could not afford to pay soldiers or obtain credit to buy armaments. By being able to set up a means for disposing of the goods and other spoils that were captured in battle, the U.S. had an alternative way to address this issue. General George Washington declared during the Revolutionary War that a centralized and standardized system for the handling of prizes was vital to the war effort. In fact, one of the first federal courts created by the United States government under the Articles of Confederation was the Federal Appellate Court of Prize – which existed to adjudicate disputes over spoils captured in war.

The final war power of Congress involves the authority to raise and support armies and to provide and maintain a navy. While most of the early residents of America recognized that the federal government should have authority to “raise and support” armies, ultimately there was some disagreement over how that power should be dispersed. Under the crowns of Europe, kings could not only declare war, they also had individual power to “raise and support” armies without needing the input of their subjects. Even when Kings co-existed with Parliaments, their ability to exercise their war powers nearly carte-blanche stymied the ability of their subjects to exercise any significant influence – not just in war – in nearly all matters of national interest since wars sapped resources, finances, and labor in a way that Parliament couldn’t readily counteract.

Additionally the standing army operated as a direct threat not just on the purse strings of the nation but a clear threat was aimed at the citizenry as well especially when these forces concentrated themselves within the home territories in large numbers. Instead of giving this power to the President, our system specifically requires that Congress approve the creation and timing of all rules involving the establishment of an army and navy. In fact, this grant of authority is the basis for Congress’ power to establish the Uniform Code of Military Justice as well as selective service requirements. With regard to the army in particular, the Constitution included the appropriations limitation as a means to quell fears that a standing army might be used to threaten American citizens.

Indeed Congress has broad power when it comes to war making. But it is noteworthy that this power is divided in many ways with the President – not as a point of confusion or a result of a lack of trust in either the executive or the legislature, but instead as part of a precise calculation that if both the President and Congress must collaborate in order to carry out war, war would not be entered into easily or for long.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

March 28, 2011/14 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 09 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 09, Charles K. Rowley, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08 Clause 09, Article II, Charles K. Rowley PhD, Connecticut Compromise, Federalist No. 81

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Article I, Section 8, Clause 9

9: To constitute Tribunals inferior to the supreme Court;

There is much more to these seemingly simple words than meets the eye. Indeed, one cannot write meaningfully about them without first advancing to Article III, Section 1 of the Constitution: 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.

It is not my intent to deal with Article III, Section 1 more than is minimally necessary for making sense of Article I, Section 8, Clause 9. I ask the reader’s indulgence to this end.

It is noteworthy that Article III, Section 1 of the Constitution establishes one federal Supreme Court only for the entire United States, and that it separates the powers of this court from those of Congress and the executive. By establishing just one Supreme Court, the Founders provided for a uniformity of interpretation of the federal laws that otherwise might not have been forthcoming. By establishing the Supreme Court as separate from the Congress the Founders benefited from the genius of James Madison who built in checks and balances as a response to the Connecticut Compromise that provided equal representation to all the States in the Senate of the United States. Prior to that Compromise, Madison’s Virginia Plan had advocated subservience of the Supreme Court to the Congress.

Note, however, that the Constitution does not itself create judicial bodies other than the Supreme Court. The Congress alone – not the Supreme Court not the Executive – is empowered, should it so choose, to take responsibility for such matters. Exactly how it should do so and in what form would be subjected to close scrutiny of the precise meaning of the wording of the Constitution.

In one – and in my judgment convincing – interpretation, the power given to Congress in Article I, Section 8, Clause 9 ‘To constitute Tribunals inferior to the supreme court’ plainly relates to the power given to Congress in Article III, Section 1 to ordain and establish inferior Courts. If such is the case, then Article I empowers Congress to establish inferior judicial bodies (tribunals and courts being viewed as synonyms). And Article III reaches out to the tenure conditions attached to all such judges.

Since, in practice, Article I tribunals have not been viewed as identical to Article III courts, however, a careful parsing of the relevant words becomes essential, even if only to explain unjustifiable error.

As always, in parsing the words of the Constitution, it is important to rely upon the meaning of words in 1787, not those of the early twenty-first century. To this end, I shall rely on the written records of the Founding Fathers and of the major dictionaries of that era, such as those of Samuel Johnson and Noah Webster.

The term ‘tribunal’, to be sure, carries a distinctive historical connotation, derived from the Roman tribunate, a raised platform on which the seats of magistrates were placed. The term ‘court’, by contrast, derives from the judiciary’s close association in England and France with the king. However, by Blackstone’s day, the terms were viewed as synonyms in all the major dictionaries. Throughout the early deliberations of the Philadelphia Convention, the Founding Fathers also used the two terms interchangeably, as does Hamilton in Federalist No. 81. Of course, such evidence does not guarantee that the Constitution itself deploys the term ‘tribunal’ under Article I as a synonym for the term ‘court’ under Article III.

There is some support from the drafting history for the view that the Constitution distinguishes between the two concepts. The distinction may have grown out of the mid-convention debates over the possibility of employing some non-life-tenured judges to adjudicate federal claims. Specifically, Congress might appoint state tribunals to act as courts of first instance in deciding questions of federal law. Madison’s notes from the debates offer support for such a change in emphasis once the New Jersey Plan and the Virginia Plan were jettisoned following the Connecticut Compromise. For the Compromise eliminated an early provision that mandated the creation of lower federal courts and substituted a regime of congressional discretion (as confirmed by Articles I and III). At this point, the Committee of Detail dropped the usage of the term ‘tribunals’ to describe the federal courts in Article III, and it required life-tenured judges in Article III courts, while refusing to impose any such requirement for Article 1 tribunals.

Further support for distinguishing between Article I tribunals and Article III courts may be discerned in the empowerment provisions themselves. Article I empowers Congress to ‘constitute tribunals interior to the supreme court’, whereas Article III empowers Congress to ordain and establish courts. This difference in description of congressional powers is suggestive that the two adjudicative bodies might arise in different ways and with different degrees of permanence. Specifically, Congress might ‘constitute’ tribunals either by creating new bodies from scratch, or by designating existing bodies as inferior tribunals. To ‘ordain and establish’ inferior courts, by contrast, seems to contemplate the creation of new courts established in accordance with Article III. Such a fine distinction is in accordance with the major dictionaries of the late eighteenth century.

In any event, Congress has exploited such parsing opportunities in order to distinguish clearly between Article I tribunals and Article III courts (A fairly good guide to congressional behavior in general is that if you give it an inch it will take a kilometer). From the outset, Congress has established some (but not all) Article I tribunals without the Article III safeguards of life-tenure and remuneration. These tribunals consist of certain federal courts and other forms of adjudicative bodies, endowed with differing levels of independence from the legislative and executive branches. Some take the form of legislative courts set up by Congress to review agency decisions; others take the form of military courts-martial appeal courts, ancillary courts with judges appointed by Article III and administrative judges.

As one would predict, Congress (and the Executive) does not always relish the idea that Article I tribunals should be inferior to the Supreme Court. Yet that is an inescapable reading of the Constitution. The specification that tribunals and lower courts must remain inferior cements the requirement of the Supreme Court’s ultimate supremacy. The requirement of inferiority precludes Congress (and by clear implication, the executive branch) from creating free-standing courts, investing them with some portion of judicial power, and giving them freedom from oversight and control of the Supreme Court. In this regard, the Founders were only too mindful of such abuses of executive power by the Stuart kings in England’s not-so-far-distant past.

This portrait of Article I tribunals as acting outside of the judicial power, while remaining subject to oversight and control by Article III courts is reflected in modern jurisprudence. However much it would like to do so, Congress (and the Executive) cannot create tribunals and place them entirely beyond the supervisory authority of the federal courts.

The most pressing recent variant of this logic effectively deals with the decision by President George W. Bush to create military tribunals for the adjudication of criminal claims against individuals designated as enemy combatants. Although the government has argued for an exceedingly restricted judicial role in overseeing such tribunals, the Constitution clearly requires that they must remain inferior to the Supreme Court and subject to judicial review, at least when such tribunals operate within the jurisdiction of the United States.

Americans should be eternally thankful to the Founders for providing us with such protections, both under Article I and under Article III of the Constitution. Unless the parchment unravels completely, there will be no Court of the Star Chamber, no Court of High Commission, and no Bloody Assize in the Unites States of America.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009), and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). For further details see www.thelockeinstitute.org and www.charlesrowley.wordpress.com

March 28, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 07-08 of the United States Constitution

Allison Hayward, Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 07-08 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Article I Section 08 Clause 07-08, The Articles of Confederation

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 8, Clause 7-8

7: To establish Post Offices and post Roads;

8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clauses 7 and 8 of Article 1, section 8 demonstrate both the interest the Founders had in facilitating economic growth and prosperity, and the belief they shared that such power had to be made explicit in the Constitution. The would not have been satisfied to hold, as we now do, that Congress’s regulatory power is presumed unless constrained by a specific provision. Such a open-ended power would become tyrannical, they thought.

At the same time, they weren’t opposed to governmental intervention if appropriate to serve the general welfare. The federal legislative power in particular could counterbalance provincialism in the states. Having just been through the disaster that was the state of things under the Articles of Confederation, many Framers understood that greater federal power was necessary.

The debate was over how much would be too much power.

The “Post offices and post roads”in clause 7 sound quaint, but in fact were an enormously important piece of infrastructure. Post roads were some of the first roadways built, and many former post roads remain today in our communities, whether we recognize them as such or not. But whenever the government provides such infrastructure, there is also the danger of waste, fraud, and corruption between the members with control over the funding, and their constituencies. Thomas Jefferson, for one, thought the power would prove “a source of boundless patronage in the Executive.” and “a bottomless abyss of public money.”

Jefferson wasn’t entirely incorrect. Postmasters have been patronage appointments. The location and accessibility of post offices is a critical constituent issue, and employment in the Post Office is valued as a safe, reliable and well-compensated career. For shrinking communities, the potential they might lose “their” post office is a cruel final blow to civic pride. The Post Office monopoly on “mail” delivery has eroded as the private package delivery industry – and email – have taken over tasks once done by the post office. But these private communications are heavily dependent on a physical infrastructure that was build by government. Had it been left to local communities and individuals, no doubt road would have been built, but with “local” priorities in mind, not national ones, with consequences for the nation’s westward expansion and domestic cohesion.

Clause 8 provides Congress with the power to legislate in the areas of patents and copyrights. The founders believed the protection of intellectual property was important to the growth and prosperity of the nation. Also, the author’s “copy right” was a right in English common law and was respected by the colonial America; and Parliament protected an investor’s right to his invention for 14 years. Alexander Hamilton even advocated funding the emigration of “Artists and Manufacturers in particular branches of extraordinary importance.” The Founders appreciated the good incentives these rights would create, by giving people with successful and popular ideas the ability to profit from them for a time.

The world of patents today is struggling with some extreme applications of these principles. Because a person can “patent” an invention without actually bringing the invention into existence, subsequent inventors who do make commercially beneficial use of an idea can be compelled to “lease” the unused patent, or pay damages for infringement. Rather than encourage industry and the useful arts, such patent litigation adds costs to the commercially active innovator, which are ultimately passed along to consumers.

March 25, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 05-06 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 05-06, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 05-06, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Federalist No. 42, The Articles of Confederation, Troy Kickler PhD

Guest Essayist: Troy Kickler, Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

Article 1, Section 8, Clauses 5-6

5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

When the U.S. Constitution was drafted at the Constitutional Convention of 1787 and then submitted to the states to ratify, convention delegates attempted to correct what they considered to be weaknesses in the Articles of Confederation. They worked to strengthen the national government’s role in monetary policy and eliminate factors that might prevent a unified American economy, with the states working in concert. Three steps to achieve those goals included the clauses pertaining to the coinage of money, a standard of weights and measurements, and the punishment of counterfeiting

Under the Articles of Confederation, the national government and the states had the authority to coin money. But in Article 1, Section 8, the enumerative article that gives certain powers to the United States government, the Constitution specifies that Congress have the exclusive right to coin money.

During the Revolutionary War (1776-1783), states had accumulated much debt and some had difficulty paying for their war costs. As a result, state governments issued bills of credit to provide a form of debt repayment. Meanwhile during the 1780s, inflation started soaring. The issuance of paper money, North Carolina Founder Hugh Williamson writes in his 1788 essay, “Remarks on the New Plan of Government,” contributed to a ruinous economy and a loss of honor on the global stage. Convention delegates, therefore, included the coinage clause as a means to stop inflationary measures and bills of credit that abounded across the states. (Another clause–Article 1, Section 10–prevents states from issuing bills of credit and paper money.)

Although paper money is commonplace in today’s world, it is absent from Article 1, Section 8. The Founders were familiar with the practice of printing money and more than a few had definite opinions regarding the practice. Some scholars have suggested and even argued that its omission indicates that Congress does not have the authority to print paper money or issue bills of credit. A series of Supreme Court cases in the late 1800s, including Knox v. Lee (1871) and Julliard v. Greenman (1884), however, expanded the government’s role in monetary policy; the Court ruled that the power was inherent in a sovereign government.

In 1787, convention delegates also included the weights and measurements clause to promote uniformity in trade. Allowing states to separately value foreign currency and create individual exchange rates, writes Joseph Story in Commentaries on the Constitution (1833), invited “infinite embarrassment and vexations in the course of trade.” A uniform system ensured national honor and also lessened the chances that the innocent would be subjected to “the grossest frauds.” Indeed, a fixed standard removes confusion in the market place and limits the efforts of the deceitful.

The Framers also believed that a Congressional authority to value foreign coin helped ensure uniformity in trade. In Federalist 42, James Madison feared that the “proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.” To Madison, the clause was a needed corrective. It reduced, if not eliminated, monetary confusion and bolstered the American economy.

In the essay, Madison also links the constitutional provision for giving the national government the authority to punish counterfeiting with the weights and measurements clause. Both were necessary to secure the value of American coin and eliminate confusion in trade.

Some scholars have contended that the counterfeiting clause is superfluous; the authority to punish counterfeiting is inherent in the power to regulate coinage, the argument goes. Legal scholar David F. Forte, however, points out that the Framers included it for three reasons: to distinguish counterfeiting from treason, as it had been considered in England; to ensure that Congress had authority over international incidents on American soil that involved counterfeiting of foreign currency; and to ensure national supremacy in monetary policy.

The coinage, weights and measurement, and counterfeiting clauses solved various commercial and monetary problems, and they eliminated confusion in market places by enumerating certain powers to the national government. They also were symbolic, buttressing federal supremacy in monetary policy.

Troy Kickler, Ph.D., is the Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

March 24, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 04 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 04, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08 Clause 04, Declaration of Independence, Federalist No. 32, Federalist No. 42, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article 1, Section 8, Clause 4

4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Here are two special grants of authority to Congress that the framers of the Constitution agreed were necessary. The first power is Congress’ authority “to establish an UNIFORM RULE of naturalization throughout the United States.”

Naturalization is defined as the process of becoming a citizen or the establishment of citizenship rights. At the time of creation of our Constitution, naturalization was commonly recognized as “The act of investing aliens with the privileges of native subjects.” It was also common among most of the European nations that the law draw a distinction between being a citizen and being an alien (a visitor or temporary resident). Arguably, this distinction, which we still observe today, existed at least as early as the foundation of the Roman Empire.

The power to establish “uniform” rules of naturalization is among only three that Alexander Hamilton identified in Federalist #32 as being exclusive powers of the federal government. The other two being setting rules and exercising jurisdiction over the District of Columbia and the right of Congress to exclusively “lay duties on imports and exports.”

Prior to the adoption of the U.S. Constitution, the states had created their own individual rules for determining citizenship. As sovereigns, they could do so. However, with the ratification of the Constitution, Congress was given the authority to establish a uniform naturalization policy – one for the entire nation.

Here’s an interesting side note: Modern readers may not be aware that throughout much of the early part of our nation’s history policymakers were aggressively trying to encourage migration to the U.S. and it was felt that by granting central authority to the Federal Government barriers to immigration could be lowered.

The lack of a uniform immigration rule was — generally speaking — considered one of many defects in the Articles of Confederation. James Madison notes in Federalist #42 that “The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions.” Madison and the other founders were concerned about the fact that now that the states were a nation, should Virginia be allowed to set the naturalization rules for South Carolina or vice versa? As long as states had this citizenship power, they would in essence interfere in the ability of people who happened to arrive in a given state to be able to migrate to another state. This would frustrate the notion that we were actually citizens of a nation.

Also in Federalist #42 Madison posits the potential that without a uniform rule for citizenship a person could become a resident of two different states – one with strict rules for admission and another with less strict. In the event this individual committed a crime that might lead to forfeiture of his citizenship rights in one state, he could potentially argue that his rights in the other state allow him to supersede the penalty. “The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States.”

Now turning to the topic of bankruptcy. Notwithstanding Madison’s view that “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question….” there is quite a bit of discussion that could be had on this topic.

Today the discussion of bankruptcy is fraught with disputes over the moral legitimacy of needing to give bankrupt individuals a second chance versus a system that allows scofflaws to walk away from their financial obligations. The American federal system of bankruptcy from its inception has erred on the side of the “second chance” perhaps because so many of the earliest U.S. residents were men and women who migrated for to America for a “second chance.”

Bankruptcy or insolvency is a legal status of a person who cannot repay the debts he owes to his creditors. Note that unlike naturalization law, even though bankruptcy cases are filed in United States Bankruptcy Court (units of the United States District Courts), and there are federal laws which govern bankruptcy procedure, state laws have a significant impact on the outcome of disputes.

While the framers might have dismissed the need for a comprehensive discussion on the topic – the topic of bankruptcy is not only interesting, it is example where the U.S. was quite advanced in its attitudes – well ahead of other countries of its day.

The American system is in many ways a response to the history of Bankruptcy while being much more modernist. In England, the first official bankruptcy laws were passed in 1542, while Henry VIII ruled. Under its terms, a bankrupt individual was considered a criminal and was subject to criminal punishment, which could range from imprisonment in debtors’ prison to hanging. By the early Eighteenth century, a significantly more enlightened attitude dawned. The British adopted statutes that allowed the discharge of some debts as long as debtors agreed to pay what they could afford.

Under the Articles of confederation, most states were still throwing into jail individuals who could not pay their debts. Robert Morris, a signer of the Declaration of Independence was one of many prominent Americans subject to this indignity. However, because of Congress’ grant of this power, the U.S. was able to take the lead in the uniquely American practice of debtor’s “relief.” Under its terms, not only was prison ended for debtors, but also individuals could choose to initiate bankruptcy for themselves rather than wait for creditors to force them and the Court’s involvement ensured a far more equitable accounting of the debts and the ability to discharge those that simply could not be paid.

As the process of examination unfolds throughout this 90 day cycle it becomes increasingly clear that the United Constitution is a remarkable document which addresses policy issues of the past and the present in very careful and well thought out ways.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

March 23, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 03 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 03, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 03, Federalist No. 23, John S. Baker Jr. PhD

Guest Essayist: Dr. John S. Baker, Jr., Professor Emeritus, Louisiana State University Law Scho

Article 1, Section 8, Clause 3

3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

During the Ratification Debates, the power of Congress under Clause 3 of Article I, Section 8 “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes” was not controversial. It was generally recognized that the lack of such a power in the Articles of Confederation had damaged trade and finance among the states. Moreover, without a power to superintend commerce moving from state-to-state, the United States as a confederation was hampered in negotiating trade treaties. Other nations, notably Great Britain, had experienced the inability of the Confederation to prevent States from violating treaty obligations of the United States.

Since the adoption of the Constitution, the Commerce Clause has been much more controversial. Two early foundational cases in the Supreme Court, McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824, address the Commerce Clause in the context of the broad issues of constitutional structure. Later cases in the Nineteenth century, particularly following the Civil War, deal primarily with what is known as the “dormant commerce clause.” This doctrine involves the limits implied by the Constitution on the ability of the states to affect commerce, e.g. Cooley v. Board of Wardens (1852). Since the beginning of the 20^th Century, the Supreme Court’s jurisprudence concerning both Congress’s power under the Commerce Clause and the limits on the states’ powers to affect interstate commerce has undergone occasional, significant shifts.

The political divide over the regulation of commerce came to the fore soon after the creation of the government under the Constitution. During the Presidency of George Washington, Treasury Secretary Alexander Hamilton promoted federal legislation designed to develop an active commerce built around manufacturing. His most controversial success was creation of the Bank of the United States, a corporation chartered by the federal government. Hamilton and Secretary of State Thomas Jefferson squared off over the authority of Congress to create a corporation.

The Hamilton-Jefferson debate was not simply one over a policy. The two men had radically different ideas about the role of commerce in the United States. Jefferson’s vision of an agrarian America opposed Hamilton’s promotion of a commercial republic, driven by finance as epitomized in the Bank of the United States. Jefferson favored a more passive commerce which served mainly as a means for selling agricultural production, especially abroad. This debate involved a fundamental disagreement about the nature and the extent of the federal government’s powers under the Constitution.

Long before the Supreme Court had the opportunity of addressing the issue, these two great statesmen publicly debated the constitutionality of the Bank. Their positions rested on opposing views regarding interpretation of the Constitution. Jefferson focused on the fact that the Constitution contained no power to create a corporation. He employed “strict construction” of the Constitution to argue that neither the Commerce Clause nor the “Necessary and Proper” Clause authorized creation of the Bank. Jefferson’s position was that Congress could rely on the “Necessary and Proper” Clause only to do that which was “absolutely necessary” to carry out one of the listed powers. Hamilton, on the other hand, justified creation of the Bank as a legitimate exercise of the federal government’s enumerated powers. His position coincided with his own explanation of federal powers laid out in Federalist #23. That is to say, the position of Hamilton and The Federalist, later embodied in McCulloch v. Maryland (to be analyzed later in the section addressing the “Necessary and Proper” Clause), was that the Constitution gives Congress a limited number of powers, but places no limit on the powers actually given.

The term “strict construction,” as used by Jefferson, differs from what the public apparently understands to be the meaning of that term. By “strict construction,” Jefferson means a narrow construction of the words in the Constitution. According to Jefferson, for example, the “Necessary and Proper” Clause only authorizes that which is “absolutely” necessary. The Constitution, however, does not include the word “absolutely” to modify “necessary.”

Today, those who refer to “strict construction” do not necessarily adopt Jefferson’s narrow construction. Generally, those who use the term mean simply this: following the text of the Constitution. For them, the term “strict construction” is the opposite of a “liberal” interpretation,” which involves going beyond the words of the Constitution. Those, on the other hand, who support liberal construction justify doing so under the banner of “a living Constitution” which they contend must be “updated” by the Supreme Court. Justice Scalia, who opposes the notion of “the living Constitution,” surprises many when he says he is not a “strict constructionist.” Rather, the Justice describes himself both as an “Originalist” and a “textualist,” a methodology he explains as one which gives to the words of the Constitution the original meaning of the particular text.

Chief Justice Marshall’s opinion in Gibbons v. Ogden (often referred to as “the Steamboat case”) definitely rejected the Jeffersonian version of “strict construction.” Rather, Marshall’s reading of the Commerce Clause involved what today could best be described as “originalist” and “textualist.” The case addressed two issues: 1) whether, under the Commerce Clause, Congress had the power to enact legislation regulating river transportation; and 2) whether a New York statute granting a monopoly on steamboat traffic was constitutional.

On the first issue, the Court analyzed the text as follows: a) the federal law “regulates”; b) river transportation falls within the meaning of “commerce”; and c) the commerce, being between the states of New York and New Jersey is “among the states.” The federal statute, thus, fell within Congress’s power to “regulate Commerce … among the Several States.” The Court accordingly held that the federal law to be constitutional. On the second issue of the state monopoly which conflicted with the federal statute, the state statute had to give way under the Constitution’s Supremacy Clause.

The challenger to the New York monopoly argued the power over commerce given to Congress was an exclusive one which could not be exercised by the states. Gibbons found it unnecessary to decide that issue. A later Supreme Court opinion, Cooley v. Board of Wardens (1852), addressing primarily the power of a state to regulate matters related to a harbor, decided that the Commerce power was not exclusive to the federal government. Unfortunately, Cooley did not pay particular attention to the text of the Commerce Clause, which does not give Congress power to regulate all commerce, but “commerce among the States.” Instead, the Court took it upon itself to divide commerce between what is “national” and what is “local,” a distinction not grounded in the text. As a result of Cooley and later cases, the Court followed several theories to decide when a state could regulate commerce and when the federal government could do so.

In the course of things, the Court conflated the tests for what states could do and what the federal government could do. From cases involving state regulation, the Court looked to whether the law was “affecting” or “substantially affecting” interstate commerce. If what the state did was deemed to impede “interstate commerce,” then the statute was held to be unconstitutional as a violation of the “dormant commerce clause.” While the Court’s authority to imply a “dormant commerce clause” is itself debatable in terms of an originalist or textualist interpretation, transferring that text to the Congress’s power under the Commerce Clause clearly conflicts with an originalist or textualist interpretation of the clause, which nowhere mentions “interstate commerce.”

The Court’s departure from the text of the Commerce Clause has involved two wild swings. Prior to 1937, the Court declared certain pieces of federal legislation unconstitutional which it said did not actually regulate interstate commerce. In the view of the Court’s majority, the unconstitutional law had the purpose of regulating something else, e.g., manufacturing, and therefore fell within the powers of the states to regulate. The extreme case on this side was Hammer v. Dagenhart (1918), a case which held Congress could not enact a child-labor law. During the early years of the presidency of Franklin Roosevelt, the Court declared unconstitutional several key pieces of New Deal legislation which created a serious constitutional conflict between the Court and the two political branches.

In 1937, however, a majority of the Court began to uphold New Deal legislation on the theory that Congress’s purpose in enacting the law was to regulate some activity which “substantially affected,” and eventually simply “affected,” interstate commerce. The extreme example was Wickard v. Fillburn (1942), a case in which the Court upheld the power of the federal government to regulate how much wheat a farmer could grow. Even though some of the wheat was for self-consumption and specifically not for commerce, it was said to “affect interstate commerce” by with-holding wheat from the wheat market. Under this approach, Congress came to expect that the Court would uphold almost any legislation that simply claimed to regulate some activity which “affected interstate commerce.”

Since the mid-1990s, and for the first time since the mid-1930s, the Supreme Court has declared unconstitutional two acts of Congress which were purportedly passed pursuant to the Commerce Clause. U.S. v. Lopez (1995) held that Congress could not enact a law prohibiting possession of a weapon within a school-zone because the activity regulated was not commerce. In U.S. v. Morrison (2000), the Court declared unconstitutional the “Violence Against Women Act.” More recently, however, in Gonzales v. Raich (2005), the Court upheld the ability of the federal government to punish the growing at home of marijuana for personal medical purposes. In doing so, the Court re-affirmed Wickard and the notion that, under the “Necessary and Proper” Clause, Congress can regulate activities otherwise beyond its power in order effectively to regulate a nationwide market.

As of this writing, the Supreme Court has not addressed the Healthcare Reform legislation enacted in 2010. When it does so, the federal government will rely on Wickard and Raich and the states and individuals challenging the law will rely on Lopez and Morrison.

Dr. John S. Baker, Jr. is Professor Emeritus at Louisiana State University Law School.

March 22, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 02 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 02, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 02, Federalist No. 10, Federalist No. 30, Joerg W. Knipprath, The Articles of Confederation

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

Article 1, Section 8, Clause 2

2: To borrow Money on the credit of the United States;

Article I, Section 8, clause 2, confers on Congress the power to borrow money on the credit of the United States. Borrowing is simply a means of raising revenue. One can glimpse the importance and ubiquity of this tool of public finance by the fact that the framers placed it as the second power granted to the new Congress. Right after the powers to tax and spend. Those powers, along with the coining of money and punishing counterfeiting, constitute the federal revenue powers.

Borrowing on the credit of the United States was of vital concern during the Founding Era. The difficulty that the U.S. had to finance the Revolutionary War impressed men such as Alexander Hamilton and his mentor in financial matters, Robert Morris. It was the eventual success of John Adams and others in convincing the Dutch bankers to loosen their purse strings that opened access for Americans to international financial markets and contributed much to independence. Hamilton’s experience is reflected in Federalist 30, where he explains the importance of public credit to finance emergencies such as wars, and the connection between taxes (and, more broadly, responsible fiscal policies) and creditworthiness.

After the war, the economic plight of the United States worsened. The war debts of the states and the United States posed a long-term threat to the country’s economic health. That condition, many feared, would inevitably turn into a political threat to the republican systems in the states and to the Confederation. The fiscal and monetary policies of the states exacerbated the situation, as, in the words of James Madison’s in Federalist 10, a “rage for paper money, for an abolition of debts, for an equal division of property [and] for other improper [and] wicked projects” set in. During the debates on the Constitution, Rhode Island was often (and not always entirely fairly) set up as a paradigm of bad economic policies run amok. That is what happens when a state declines to show up for the debate, as Rhode Island opted to do.

But the problem was national and systemic, with the country locked in an apparent long-term cycle, or perhaps a spiral, of economic woe. One problem, in the eyes of many, was the absence of banks. The British had strongly disabled the formation of banks in the colonies, correctly seeing them as potential threats to British dominance. During the war, the Confederation’s Superintendent of Finance, Robert Morris, at the instigation of Alexander Hamilton, obtained a charter for the Bank of North America, an American prototype private national bank loosely patterned after the Bank of England. The charter was immediately suspect, since the Articles of Confederation did not allow Congress to charter banks or other corporations. As a precaution, the Bank eventually also obtained a state charter from Pennsylvania, a step that soon confirmed to Hamilton and other nationalists the folly of state control over public finance. The legislature of Pennsylvania, taking the position that it could, with impunity, take away vested property rights confirmed by a predecessor legislature, revoked the charter in 1785.

Though these constitutional weaknesses and political currents eventually caused the Bank of North America to fail as a national bank, the pattern was set. Indeed, Morris and Hamilton in their arguments to the Confederation Congress developed the constitutional arguments in favor of implied national powers that Hamilton would repeat in his push for the Bank of the United States in 1791, arguments the Supreme Court adopted in its landmark decision in McCulloch v. Maryland in 1819.

In the same vein, the economic and political arguments in favor of (and against) the Bank of North America would resonate in the political debates over the Bank of the United States and its successor until Andrew Jackson’s veto of the re-charter of the Second Bank of the United States in 1832. Those same arguments would be repeated in the debate over the establishment of the Federal Reserve system and continue today.

While the Federal Reserve remains controversial in many quarters, the original Hamiltonian program probably saved the Republic. Through the complex system Hamilton advanced as Secretary of the Treasury, the infirmities of the public debts of the United States and the states were eliminated by guaranteeing creditors payment on their previously depreciated securities. A crucial step to restore confidence was to have the United States assume the war debts of the states. The debt repayment was financed in part through an excise tax on whiskey that, while unpopular in certain quarters, was generally supported by the public. The Bank of the United States was the final piece in Hamilton’s mosaic and would serve as a depository for government funds. The use of those funds as well as the profit from private loans to other (state-chartered) banks and to large commercial borrowers would provide a return on their investment to private investors and to the government. The latter could use those profits to help repay the war debts and to furnish internal public infrastructure improvements (later reflected in Henry Clay’s “American system”). More significantly for the stability of public credit and the money supply was that the Bank could control the terms of credit it extended to borrowers. By selecting the interest rates for loans and having the option to demand repayment of loans in specie, it could temper the enthusiasm that state banks otherwise might have to overextend themselves through the issuance of bills of credit (paper bank notes).

As a result, the U.S. almost overnight gained access to the Amsterdam financial markets and, hence, to the world. Foreign capital flowed into the United States to help develop manufactures and commerce and put the United States on the road to a modern economy and prosperity. Hamilton was not naive. Despite what some of the agrarian anti-Bank theorists, such as Virginia’s Senator John Taylor of Caroline (a man who considered Jefferson and Madison sell-outs of the republican cause), claimed, neither the Bank nor Hamilton was bent on destroying American liberty. Hamilton feared a government-controlled bank, but thought that the private control of the bank would keep corrupt political forces at bay. Similarly, public and private tendencies towards credit bubbles would be constrained by two things. First, the interests of investors and directors in safety as well as profits would make them sufficiently conservative. Second, he proposed that repayment of long-term public debt be immediately secured through a commitment of designated revenue to pay interest and principal (“sinking fund”). Hamilton insisted that the Latin root of credit, credere (“to believe”), reflected the true source of credit. “States, like individuals, who observe their engagements, are respected and trusted: while the reverse is the fate of those, who pursue an opposite conduct.” While the states and the Confederation had abdicated their responsibilities and the country had suffered accordingly, Hamilton believed that his program lessened those dangers.

In practice, regrettably, Hamilton’s cautious and balanced approach has been cast aside. The only measure today appears to be how much can be borrowed on the increasingly suspect credit of the United States, rated as it is on the perceived ability of Americans to pay and the country’s status as the still safer haven for international funds than are the bonds of other countries. Debt is rolled over, not retired, as more debt is added.

I happened to come across a book written fewer than forty years ago. The author recounted in horror that the gross national debt (not the annual deficit) topped the stratospheric level of $450 billion. Even more scandalous to him was the explosion of the national debt from roughly $40 billion in 1940. Those are the kinds of numbers that today sound like unattainable frugality as a measure even of annual deficit, never mind as a measure of gross national debt. Even adjusted for inflation and population growth, the cumulative effect of the borrowing binge reflected in today’s debt is staggering compared to that time not so long ago.

Today’s questionable fiscal and monetary policies are not novel, of course. The Lincoln administration’s massive borrowing and its manipulation of the currency is one stark early example. FDR’s unilateral cancellation of gold clauses in public bonds (upheld by the Supreme Court in a stunning exercise of sophistry in Perry v. U.S. in 1935) and his comparatively massive, for that time, expansion of the debt, is another. But even those actions arguably were more defensible than today’s deficit borrowing. There is no massive war; the economic recession is not of the same degree; the borrowing is used to fund entitlements, not infrastructure. Worse, the deficit is not a matter of a few years, but, by now, of generations. It is structural. Worst of all, there is a lack of seriousness and urgency on the part of the political branches. As Hamilton feared, that foundation of sound credit, the “belief” and confidence of creditors, is unlikely to be maintained in the teeth of such profligacy.

March 21, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 01 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 01, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 01, Article I Section 08 Clause 03, Article I Section 09 Clause 4-6, Federalist No. 23, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Article 1, Section 8, Clause 1
1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article 1, Section 8 enumerates the powers of Congress. Listing those powers indicates that the federal government is one of limited powers. Unlike a unitary sovereign which has all the general powers of government, the federal government has only limited sovereignty. At the same time, the federal government possesses the fullness of any power actually given to it. As Federalist #23 makes plain, on those matters for which the Constitution has delegated responsibility to the federal government, i.e., national defense, foreign relations, regulation of national and foreign commerce, and preserving the public peace against insurrection, the federal government’s “powers ought to exist without limitation.” All of which is to say that the powers of the federal government are limited in number, not that a listed power itself is limited beyond what is stated in the text of the Constitution.

As a result, it becomes essential to determine the meaning of the text for each enumerated power. Improper interpretation through either expansion or contraction does damage to the legitimate role of the federal government. Giving the federal government a power not enumerated moves it closer to possessing full sovereignty. Limiting a given power enfeebles, at least partially, the ability of the federal government to carry out its legitimate responsibilities. Experience has also taught that the federal government can be enfeebled in the exercise of its legitimate powers because it expends resources illegitimately exercising powers not enumerated in the Constitution. The built-in efficiency of the Constitution’s federal design is that it gave to the federal government, and left to the states, those responsibilities which each level of government was best able to perform.

The federal government has in large measure been able to exercise non-enumerated power through misconstruction of the first clause in Article 1, Section 8. This clause illustrates the interpretive challenge. To understand the challenge, it is necessary closely to inspect the text of this clause which reads as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

Notice that after the word “Power” the word “To” is capitalized. Then notice that “to” before “pay” is not capitalized. Every enumerated power thereafter begins with “To,” without repeating “The Congress shall have the Power.” In other words, each clause beginning with a capitalized “To” states a separate, enumerated power. Nevertheless, books on Constitutional Law routinely treat this first clause as having two distinct powers: to tax and to spend. Textually, however, the clause states only one power which is the power to tax (in order) to pay debts and provide for the common defense and general welfare of the United States.

The Supreme Court has, at times, had to struggle with whether congressional legislation which purports to impose a tax is in fact a tax when its purpose appears to be regulatory, e.g., a tax on gambling which was illegal at the time. If the clause in fact grants a single power which ties taxes to paying debts and providing for the common defense and general welfare, then the issue changes. Rather than an issue of whether the tax is really a tax, the question becomes whether – even if it is a tax — it meets the purpose language of the text. If so read, regulatory taxes that do not raise revenue to pay government expenses would become constitutionally questionable. In other words, a reading of only the taxing language of the text – I suggest – has resulted in giving Congress regulatory powers it does not possess under a reading of the language as a single power.

Incidentally, this kind of careful attention to the text is not “strict” or “narrow” construction. It is textualism of the kind that Justice Scalia writes and practices. As he says, he is not a “strict constructionist.” He attempts to give words in the Constitution their full meaning without either narrowing or broadening their legitimate sense.

Another mischaracterization of this clause refers to it as “the General Welfare Clause.” If Congress had a power simply to legislate for the “general welfare,” there would be no need to list any other powers. Under such a construction of the Constitution, the federal government would in no way be a limited one. Few, if any, students of the Constitution, however, would openly claim Congress has such unlimited power. Nevertheless, the spending language in the clause – viewed as distinct from the taxing language –can be distorted to achieve the same unlimited power.

As discussed in United States v. Butler (1936), one of the few Supreme Court cases to address the spending language of the clause, the clause has been a matter of dispute nearly since the beginning when Madison and Hamilton disagreed over its interpretation. (The legislation addressed in Butler also involved a tax collected to fund the spending.) Madison contended that the power to tax and spend for the general welfare had to be tied to one of the other enumerated powers. Hamilton, and later Justice Joseph Story, disagreed. They said the power was a separate power, limited only by the requirement that its exercise be for “the general welfare.” Although Butler adopted the Hamilton-Story position, it declared the particular legislation unconstitutional.

If the discussion above regarding the use of “To” and “to” means that the clause does not contain two powers, it should also establish that the clause contains a power separate from those which follow, as Hamilton and Story contended. If then Madison was incorrect, does this clause create a power so broad that it makes the enumeration of other powers superfluous? Both Justice Story and the Butler opinion recognize that there must be some limits on spending for the general welfare, but Butler did not elaborate.

The Supreme Court has since ignored Butler’s notion that the clause contains any justiciable limits. A year after Butler, the Court upheld the parts of the Social Security Act dealing with unemployment compensation, Steward Machine Co. v. Davis (1937), and old-age benefits, Helvering v. Davis (1937). In Buckley v. Valeo (1976), the Court rejected a challenge to federal spending that financed presidential campaigns, saying “[i]t is for Congress to decide which expenditures will promote the general welfare.”

It may be that the term “general welfare” has acquired a meaning that, at least in Congress, extends well beyond the interpretation of Hamilton and Story. For Hamilton who promoted infrastructure spending on canals and bridges, the spending was not for local “pet projects” or so-called “earmarks.” Rather, such spending was to promote economic development generally; it benefitted more than a single state. Underlying the term “general welfare” seemed to be the idea that the federal government could spend on matters that generally benefitted the whole country. It was assumed not only that state governments would tax and spend on projects that benefitted their own state, but that they would not and should not tax and spend on projects to benefit other states. As with the original understanding of the Commerce Clause and other provisions in the Constitution, Congress was given the taxing and spending power for the general welfare in order to do for the states as a whole what none of them individually could do.

Congress’s idea of spending for the general welfare has often been used to “persuade” states to accept policy regulations which Congress lacks any power directly to impose. Congress achieves the regulatory end through conditioning receipt of the funds. Certain conditions attached to spending are not only reasonable, but required. Accordingly, the federal government ensures the proper use of funds by imposing accounting and reporting requirements and establishing other standards for spending the money. Congress, however, also manipulates conditions in what amounts to a form of “bait and switch;” it adds new conditions after states have become dependent on federal funding for such programs as highways and Medicaid. These new conditions are ones that a number of the states likely would not have accepted when the program began because they impose burdensome obligations or infringe on a state’s legislative powers. States, nevertheless, almost always accept the new conditions because they claim to have “no choice” — that is, except to drop the program or pay for it with state funds.

Rather than raise their own state taxes, with no diminution in federal taxes, states take the money because other states do and/or they get some return on the federal taxes paid by their citizens. Thus, the states at least acquiesce in – if not lobby for – high levels of federal spending with the accompanying federal taxes and/or deficits to support that spending. With almost all states participating in those spending programs directed to the states, the Congress can claim that those programs address the “general welfare.”

States have not been successful before the Supreme Court in claiming Congress’s imposition of new conditions is unconstitutional because they “coerce” states which have “no choice” other than to agree to the new conditions. In South Carolina v. Dole (1987), the Court rejected a constitutional challenge to Congress’s direction that the Transportation Department withhold 5% of the highway funds due to a state if the state did not prohibit persons under the age of 21 from purchasing or possessing alcoholic beverages. Congress certainly had no power under which it could directly establish a national drinking age. The Constitution left such police power issues with the states. Nevertheless, the Court determined, inter alia, that drunk driving was a “national concern.” Of course, it was not a concern that each state was incapable of addressing individually. Justice O’Connor argued in dissent that the condition was an unconstitutional infringement on state powers and noted that the Court’s discussion of federal spending in United States v. Butler (as distinct from other reasoning in the case) remains valid.

The last part of the clause (“all Duties, Imposts and Excises shall be uniform throughout the United States;”) guarantees that one region of the country having more voting power in Congress cannot use that power to disadvantage other states economically. This provision ties in with the prohibition on taxing exports (Art. 1, Sect. 9, cl. 5) and the power over commerce among the states and with foreign nations (Art. 1, Sect. 8, cl. 3). It represents one example of how the Constitution, as finally drafted, coordinates its different parts into a comprehensive and consistent plan of government.

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

March 17, 2011/19 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 3, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 07 Clause 3, Connecticut Compromise, Constitutional Amendment XVII, Constitutional Amendment XVII, Kyle Scott PhD

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 17^th 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 17^th. 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

March 16, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 2, George Schrader 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 07 Clause 2, Federalist No. 47, George Schrader

Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 7, Clause 2

2:Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

The veto power contained in Article One, Section Seven, Paragraph Two of the Constitution is often trivialized as being a mere procedural formality. While the Preamble provides sweeping statements of the values of the document, and the Bill of Rights proclaims rights every citizen holds dear, the veto power is for many no more than a step in the lawmaking process, devoid of any deeper constitutional significance. Looking below the surface, however, reveals an important part of the philosophy and structure of the Constitution in this one procedural step.

Understanding the veto power means understanding the Founders’ idea of the separation of powers. Born out of the Western European Enlightenment, this concept theorizes that government has very distinct powers, namely, the executive, legislative, and judicial. In the American Constitution, an independent governmental institution was created for each of these powers. Congress is granted the sole ability to legislate, the President the sole authority to execute the laws, and the courts the sole power to judge according to those laws. This represents a revolution in government structure, as most previous governments attempted to wed two or more of these powers into a single entity, often resulting in tyranny. By separating powers, the Founders hoped to dilute the powers of government and prevent any individual or branch from seizing control.

This is not to say, however, that the Founders believed that simply assigning each branch of government one political power would solve the problem of tyranny. James Madison cringed at the idea of granting all of any power, be it legislative, executive, or judicial, to any one body. He explains in Federalist Forty-Seven that the concentration of political power in any branch, “may justly be pronounced the very definition of tyranny.” The Founders were therefore left with a dilemma. Failure to separate the powers of government between several hands would quickly lead to the collapse of the government into tyranny. However, allowing each branch to be miniature tyrants within their own power did not provide an acceptable alternative. The resulting compromise is quite ingenious, and is demonstrated perfectly by the veto power.

In an effort to mitigate the problem of concentrating power of any sort in one set of hands, the Founders chose to take small pieces of each general power of government, and entrust it to a branch whose primary purpose was not the execution of that power. This is perhaps best explained through the example of the veto power. Making law is a legislative function, and as such is held by Congress. The veto power puts the president, the chief officer of the executive power, in the law-making process, effectively rendering him a form of legislator. While he cannot constitutionally perform other legislative functions, such as propose laws or control revenue flow, his vote is still an integral part of any law’s creation. While just one example, the veto power illustrates how the Founder’s separation and redistribution of power work in practice.

Having considered the rationale of mixing government’s power, the question remains as to why this should prevent tyranny as the Founders intended. The answer comes in revisiting the idea of concentrated power. If tyranny grows out of too much power being in one place, two solutions seem likely. First, one could take away an essential power of government, such as the ability to make law, therefore rendering the government all but useless. Such a solution is akin to anarchy. The other option, and the one chosen by the Founders, is to spread powers out so that any one entity would find it impossible to gain sole control over any aspect of government. No matter how tyrannical the legislature’s intent, it cannot constitutionally remove the president’s role in the law-making process with his veto. While certainly not foolproof, this system of dividing power provides an important constitutional check on the growth of governmental power.

While certainly not the most glamorous aspect of constitutional philosophy, the presidential veto power provides in miniature a view into the Founders’ hopes for governmental balance. By separating power generally between three branches, and separating that power again through these exceptions, the Founders provided an institutional protection for the freedoms they hoped to preserve.

George Schrader is a student of political science and German at Hillsdale College.

March 16, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 1, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 07 Clause 1, Joerg W. Knipprath

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

Article I, Section 7, Clause 1

1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 7, addresses the process by which legislation is enacted. Before the general process itself is laid out, clause 1 of that section directs that all bills for raising revenue shall originate in the House of Representatives. The Senate is given the power to respond with amendments. Therein, as it turns out, lies a fatal flaw. The House has also frequently asserted that this provision applies as well to appropriations measures. Though not entirely persuasive based on the text, as a practical matter, most appropriations bills originate in the House.

There was virtually no discussion about this clause at the Philadelphia Convention. How could this be? The reason is that the belief that the power of taxation lies with the people was a key component of American republicanism. That article of faith, no, self-evident truth, was the culmination of centuries of evolution of English constitutional doctrine that meshed well with American colonial practice and found expression in such Revolutionary War-era slogans as “no taxation without representation.” The House of Representatives is the only institution of the general government for which the original Constitution made explicit provision of popular election. That fact, and the limited term of office and the frequent recourse to elections for members, made the House the natural repository of republican sentiment in the Framers’ view. There was no need for extensive debate over the (to them) obvious.

The triumph of Parliament over King on the issue of taxation was a process centuries in evolution. The King had revenues from royal properties and various prerogatives, such as assessing import duties. Beyond that, general taxes of persons or wealth were seen as “gifts” from the commons to the crown. Otherwise, taxes would be nothing but exactions against will, backed only by superior force. There would be little difference, then, between such an exaction and one procured by a highwayman. To the English, taxes were dangerous devices by which a person’s freedom was readily destroyed as he was reduced to penury.

But government still needed money, especially during war. The fiction used to get around the obstacles of the “taxes-as-gifts” theory was that the commons, represented in Parliament, could vote to assess themselves and offer such “gifts” to the crown. While this obviously did not please those who did not agree to the tax, it did provide a political tool to limit royal fiscal voraciousness that other monarchies of the time lacked. Once Parliament separated into Commons and Lords, this power fell to the former. By 1407, the Commons had sole power to originate money bills. Attempts by the Lords to have at least an amending or revisory power were rejected. By the end of the Glorious Revolution nearly three centuries later, not only did the House of Commons have plenary power over revenue bills, but it had also won the power to direct the appropriation thereof.

The colonies and, later, the states followed this model. The colonial assemblies saw the enactment of local revenue bills as their prerogative because of their connection to the people through a comparatively broad electoral franchise in many colonies. Pre-Revolutionary War rhetoric, from John Dickinson’s “Letters from a Farmer in Pennsylvania” to the Stamp Act Congress Resolutions echoed this unquestioned dogma of the, frankly rather lightly-taxed, Americans. A similar sentiment prevailed, once the states declared independence. For example, the language of Article I, Section 7, cl. 1, appears almost verbatim in the Massachusetts constitution of 1780 (except for the cosmetic distinction that the state used “money bills” instead of “bills for raising revenue”).

Why, then, are taxes today as high as they are? Historical experience (rather than dogma) provides an insight. In England, as well as in America, the application of constitutional principle resulted in legislatively dominant groups engaging in the entirely understandable practice of having someone other than themselves make these “gifts.” In England, when the House of Commons was controlled by the landed gentry, taxes tended to fall on activities of commerce. When upper and upper-middle class commercial interests came to predominate, they sought to impose consumption taxes (excises) on a broad variety of items used by the (unrepresented) middle and lower economic strata. In the colonies and states, legislatures controlled by middle-class farmers and artisans saw great sense in wealth taxes that targeted the upper-middle and upper classes who were repeatedly being exhorted to pay their fair share based on their greater ability to do so. Thus operates human nature.

Taxation as a form of giving (by the people), not taking (by the government), is an idea that seems to have little currency in certain quarters. It often seems today that those in government, including our representatives, believe that the money is theirs, while the citizenry is at best a collection of tenants at sufferance of their own earnings and wealth. Thus, it comes as little surprise that the technicalities of Article I, Section 7, cl. 1, have not proven to be bulwarks against excessive taxes. The dynamic of the political system for decades has been to extract more and more money from some to fund more and more desires of others. The House still, on occasion, guards its formal pre-eminence in money matters against the Senate and the President, though the current House will soon reveal the extent of its substantive effectiveness in curtailing a budget dominated by gargantuan programs of non-discretionary spending.

As well, there is little in the text to prevent a determined Senate from taking a House bill and “amending” it by deleting all language after “Be It Hereby Enacted” from a House bill. That has happened repeatedly, with Supreme Court approval of the practice over at least the last century. More recent examples of this include a Reagan-era tax law and the 2008 TARP bill. Most infamously, the “reconciliation” process involving ObamaCare began as a Senate gutting of a House revenue bill. The lesson to be remembered yet again is that the carefully drawn balance in the Constitution ultimately depends on the willingness of the citizenry to hold the government to its obligations.

March 14, 2011/9 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 06, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 06, Clause 2, Steven H. Aden 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 06 Clause 2, Steven H. Aden

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Article I, Section 6, Clause 2

2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Philander Knox, Dick Nixon and the Saxbe Fix. For some quizzical reason, “X” marks the spot in the constitutional text where a tempest of teapot proportions persistently brews when Section 6 nixes Executive picks.

The pedestrian second clause of Section 6 provides two obscure but important checks on the power of both the Executive and the Legislative Branch, colloquially known as the “Emoluments Clause” and the “Incompatibility Clause,” respectively. The second clause is as crystalline in meaning as a constitutional text can be, and has engendered virtually no historical dispute, except occasional quibbles over whether a trusteeship or a military commission constituted an “Office” for purposes of the clause. President George Washington and other Founders regarded the Incompatability Clause as an unbreachable bar to cabinet service. Washington withdrew his nomination of William Patterson to the Supreme Court because Patterson had been a senator when the office of Associate Justice was created and the Senate term Patterson had been elected for had not expired. (Washington got his man nonetheless by subsequently re-nominating Patterson to the Court after his term expired.) Since then, the Incompatibility Clause has been largely respected, with an occasional deviation.

The Emoluments Clause, on the other hand, has been much abused and misused. The Clause, which applies when Congress has voted to raise the salary or benefits (“emoluments”) attending the cabinet position during the nominated member’s tenure in Congress, was regarded by James Madison and others as an important check on potential collusion over cabinet appointments between the two “most dangerous” branches. The clause would prevent the President from creating new cabinet positions for sitting members of Congress, thereby inhibiting vote-buying, and prevent Congress from raising the salary of a newly appointed cabinet minister as he or she is on the way out the door, inhibiting graft. The Emoluments Clause is a “pox on both their houses,” in contrast to most of the other constitutional checks and balances that operate on a single branch of the federal government.

Philander C. Knox enters the story about a century ago, when President William Howard Taft in 1909 nominated Senator Knox to the post of Secretary of State. But Knox had been elected to a Senate term that would not expire until 1911, and during his term Congress had voted to increase the salary of cabinet officers to $12,000 annually. After much deliberation, Congress voted to revert the salary of the Secretary of State to $8,000, and Knox took office.

What could have been known as the “Knox Fix” (if that era had been as inclined to Seussian alliteratives as ours is) was employed by the administration of President Richard Nixon in 1973 in support of the nomination of Senator William Saxbe as Attorney General. Nixon’s Acting Solicitor General, Robert Bork, defended the proposed “Saxbe fix” before Congress by arguing that the spirit of the Emoluments Clause would be met, if not the letter:

The purpose of the constitutional provision is clearly met if the salary of an office is lowered after having been raised during the Senator’s or Representative’s term of office…. So, with the bill lowering the salary of the office of Attorney General [from $60,000] to that level, $35,000, which it stood when Senator Saxbe became a Senator, you would have a situation where the rationale of the constitutional provision was met.[1]

This rather cynical interpretation of the Emoluments Clause has become au courant among Beltway sophisticates, and it is routinely invoked when the clause pops up like an uninvited uncle at Thanksgiving. President William Clinton, for example, invoked The Fix to appoint Senator Lloyd Bentsen as Treasury Secretary. Constitutional law professor Michael Stokes Paulsen explains how the “purpose” of the clause has vaulted over the actual rule it imposes:

By repealing the pay increase, the statute ensures that Lloyd Bentsen is not the personal financial beneficiary of any increase in emoluments. But the statute cannot repeal history; it cannot undo the fact that the emoluments of the office had been “encreased” during the period for which Bentsen had been elected to the Senate. And that is the constitutional rule provided by the Emoluments Clause. Congress can no more legislate away a violation of that rule than it can by statute raise the chronological age of a thirty-two-year-old in order to make him eligible to serve as President. Bentsen’s appointment is unconstitutional regardless of the subsequent legislative “fix.”[2]

Thus, as with many of those pesky “minor” constitutional provisions, the Emoluments Clause has been “more honour’d in the breach than the observance.”[3] Musing about the apparent flexibility of this provision and similar castaways of “our Living Constitution,” Professor Michael Stokes Paulsen muses, “What gives? The answer is that the Constitution gives, at least most of the time, when the provision involved is one that people today regard as a nuisance and where the likelihood appears small that a lawsuit will be brought against the violators.”[4] Still, one has to say that the clause has had a salutary effect on the separation of presidential and legislative powers by hitting those who breach it where it hurts career politicians the most – right in their wallets, in the form of a pay cut. Its letter may be dead, but its spirit is still kicking.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .

[1] Letter from President Richard M. Nixon to Senator Gale McGee (Nov. 8, 1973), in To Insure that the Compensation and Other Emoluments Attached to the Office of Att’y Gen. Are Those Which Were in Effect on January 1st, 1969, Hearings on S. 26733 Before the Senate Comm. on Post Office and Civil Service, 93rd Cong., 1st Sess. 6 (1973) id. at 9 (testimony of Acting Attorney General Robert H. Bork).

[2] Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, at 909 (April 1994). Professor Paulsen observes that the “other” Emoluments Clause, in Article I, Section 9, provides that “no Person holding any Office of Profit or Trust under [the United States] 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,” thus demonstrating that “where the framers intended that a disability be removable by subsequent legislation, they so specified….” Id., at 909 n.6.

[3] William Shakespeare, Hamlet Act I Scene 4.

[4] Paulsen, supra, n.2, at 907-08. In fact lawsuits have been brought to enforce the Emoluments Clause, notably challenging President Jimmy Carter’s nomination of Abner Mikva to the D.C. Circuit Court of Appeals and President Obama’s nomination of Senator Hillary Clinton as Secretary of State, but the courts have dismissed those bringing the challenges as lacking standing – the legal authority to bring a court suit.

March 14, 2011/8 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 06, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 06, Clause 1, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 06 Clause 1, Constitutional Amendment XXVII, The Articles of Confederation, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 6, Clause 1
1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.6 They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Under the Articles of Confederation, members of Congress were paid by the State they represented. In the Philadelphia Convention, there was some support for continuing this practice but the delegates opted instead to have national legislators receive uniform pay from the federal government.

In the ratification debate, the example of Rhode Island was invoked because it had failed to pay its representative in the Confederation Congress, thus effectively recalling them from service and leaving the state unrepresented. Under the Confederation, this was perhaps not too risky since the national government had so little power that it was unlikely to do much damage to the state’s interests. Under the new, more robust, national government created by the Constitution, lack of representation would be more impactful. The very real possibility that states would be added from the Ohio territory; states which would likely be poor and unable to pay legislators much; was also a relevant consideration in determining to pay members of Congress from the public fisc.

In both cases, the plan of representation on the national government might be frustrated if states and citizens were left unrepresented for lack of state money to pay salaries or unwillingness to appropriate it. (Although, on the other hand, there might be some value in having less representation from states that have bankrupted themselves through financial mismanagement.)

The other salient question for the Constitutional Convention was what the pay would be. An early draft suggested “liberal” compensation and Benjamin Franklin proposed “moderate.” The final decision was to proceed without a modifier. Congress could decide its own salary, though with the understanding that constituents would be watching. The check provided by voters was later strengthened by the adoption of the 27th Amendment which prevented any Congressional pay raise from going into effect before an intervening election allowed voters to weigh in on the vote for the raise.

The second part of the clause is referred to as the “Speech or Debate Clause.” It has an honorable pedigree stretching back at least to the English Bill of Rights of 1689. The Articles of Confederation (article 5) contained a similar provision. The clause “provides legislators with absolute immunity for their legislative activities relieving them from defending those actions in court.” United States v. Jefferson, 546 F.3d 300 (4th Cir. 2008).

The concern here is that the legislative branch of the new national government be protected from attempts to either intimidate or punish members for their expression in Congress. Thus, for instance, members cannot be sued for libel based on comments they make in debates in the House and Senate and are not subject to prosecution for those statements. This ensures not only a robust debate but the independence of the legislative branch.

The controversies related to this Clause have typically involved its scope. When a Senator placed classified government documents (the Pentagon Papers) into the public record and was reportedly trying to arrange private publication of the papers, a grand jury issued a subpoena to a member of the Senator’s staff. In the resulting case, the U.S. Supreme Court said the actions of Congressional aides in pursuance of duties that would be protected by the Clause if done by members of Congress were also protected. The court did not prevent the grand jury from investigating the private publication question since such was outside the scope of legislative duties. See Gravel v. United States, 408 U.S. 66 (1972).

Criminal conduct, such as corruption or accepting bribes is not legislative work (one can only hope) and is also not protected by the Clause. See United States v. Brewster, 408 U.S. 501 (1972). In another case, the Supreme Court said a defamation lawsuit based on statements in a Senator’s press release was not protected by the Clause. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

On the other hand, legislators are protected while “speaking on the House or Senate floor, introducing and voting on bills and resolutions, preparing and submitting committee reports, acting at committee meetings and hearings, and conducting investigations and issuing subpoenas.” Tod B. Tatelman, “The Speech of Debate Clause: Recent Developments,” CRS Report for Congress (2007) pp.2-3 at http://www.fas.org/sgp/crs/misc/RL33668.pdf.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 10, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 3-4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 05, Clause 3-4, Scot Faulkner 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 05 Clause 3-4, Article II Section 3, Constitutional Amendment XX, Constitutional Amendment XX, Scot Faulkner, The Articles of Confederation

Guest Essayist: Scot Faulkner, Executive Director, The Dreyfuss Initiative on Civics

Article 1, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Documenting public processes have been part of governing since the rise of early civilizations. From the Sumerians in 2500 BC, to ancient Egypt and Babylon, governments have kept journals of their actions and public meetings.

The Founding Fathers knew the importance of maintaining a Journal of Proceedings from the English House of Commons. James Wilson, a member of the Committee on Detail which compiled the provisions of the draft Constitution, was a follower of the great British parliamentary scholar Sir William Blackstone. He quoted Blackstone’s Oxford 1756 lectures, which underscored the importance of a public record for holding officials accountable, “In the House of Commons, the conduct of every member is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.”

The Constitution’s “Journal of Proceedings” wording flows from the Articles of Confederation. In March 1781 the Continental Congress approved the following provision: “…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.”

But what is the Journal? Every day the Congress approves the “Journal” of the previous session. This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes. It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations. Members of Congress do not approve the Congressional Record. That transcript of House and Senate proceedings has a colorful history.

The transcribing of Congressional debate was begun by private publishers. House and Senate proceedings, roll calls, debates, and other records were recorded and published in The Debates and Proceedings in the Congress of the United States (1789–1824), the Register of Debates in Congress (1824–1837), and the Congressional Globe (1833–1873).

During the 36^th Congress [December 5, 1859 to March 3, 1861] it was decided that federal funds should be used for transcribing Congressional proceedings and that the Government Printing Office should publish the verbatim record. The Congressional Globe was contracted to provide stenographers in the House and Senate Chambers. In 1873, the Globe’s contract was not renewed, and the Congressional Record was born. The Clerk of the House and the Secretary of the Senate now oversee documenting and transcribing the verbatim proceedings of their respective chambers.

The Congressional Record is still not an accurate verbatim transcript of the proceedings and debate for each Chamber. Members routinely insert remarks and documents after the fact. While these “revised and extended remarks” help Members explain their actions, they are considered “secondary authorities” when it comes to determining legislative intent. Secondary authorities are generally afforded less weight than the actual texts of primary authority during Judicial review.

The chronicling of Congress has come almost full circle. While the Congressional Record remains the official transcript of proceedings, CSPAN, a nonprofit private entity, provides live coverage of each Chamber. The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate. CSPAN receives the signal and airs it on its various cable television channels. Live House broadcasting began on March 19, 1979 while Senate coverage commenced on June 2, 1986.

Article 1, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The Constitutional Convention of 1787 made sure the two Congressional chambers had equity when it came of the operations of the Legislative Branch. Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber. The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”. The Constitution [Article 2, Section 3] also grants the President the authority to summon the Congress for a special session if circumstances require. The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.

These various provisions have led to numerous unintended consequences.

One of the first instances was when the Southern states seceded from the Union. They deprived the sitting Congress of a quorum. In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day (this is more relevant to Senate proceedings).

Certain things happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc., but there are also consequential things. In the Senate, during the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

Any formal break in Legislative Branch activity also opens the door for a President to take certain actions. This includes making appointments which require Senate confirmation, and “pocket vetoing” legislation. A pocket veto means that the Congress cannot override the veto because it is not in session. An adjournment of the Legislative Branch also allows the President to reconvene Congress for a specific action [Article 2, Section 3]. Congressional leaders have devised ways to avoid inadvertently unleashing Presidential activism.

The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”. In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.

As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment. Members sometimes compete to see how fast they can conduct a pro forma session. The record is currently held by Senate Jack Reed of Rhode Island who completed the task in 12 seconds.

Scot Faulkner served as the Chief Administrative Officer of the U.S. House of Representatives. He earned a Masters in Public Administration from American University, and B.A. in Government from Lawrence University. He is the Executive Director of The Dreyfuss Initiative on civics www.TheDreyfussInitiative.org

March 10, 2011/11 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 2 of the United States Constitution

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Guest Essayist: Paul S. Teller, Ph.D., Executive Director of the Republican Study Committee in the U.S. House of Representatives

Article 1, Section 5, Clause 2
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Article 1, Section 5, Clause 2 of the U.S. Constitution states that, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This seems like a fairly straightforward clause, but it has ramifications that many folks often overlook.

The heart of this clause is with its first phrase, regarding each house of Congress determining its own rules. The most obvious implication (and purpose) of this clause is the prevention of one house from changing the culture of the other house. For example, it is common knowledge in Washington that the House is the faster, more reactive legislative body, and the Senate is the slower, more deliberative body. This difference was deliberately designed by the Founders and pervades even the pace of people’s strides in the halls of Congress today. Walk from a House office building through the Capitol and into a Senate office building, and you’ll feel as if you’ve just stepped from air into water into jelly.

Article 1, Section 5, Clause 2 prevents one house from making cultural changes to the other—from turning air into jelly or vice versa. For example, the Senate cannot force the House to spend four legislative days on one bill. Similarly, the House cannot force the Senate to abandon the filibuster. Thus, this clause of the Constitution has contributed to the relative stability of the culture of the two chambers over the centuries.

But perhaps more notably still, Article I, Section 5, Clause 2 also prevents a current Congress (and a current President, for that matter) from binding the procedural actions of a future Congress. This point is critical to understanding legislating in the American political system. That is, no matter what any Congress and President enact into law, the fact that each house of Congress sets its own rules will ALWAYS trump any law (because a provision in the Constitution always trumps a statute).

For example, say Congress passes and the President signs a law that says that all appropriations bills must be considered in Congress under an “open rule” that allows any germane amendment to be offered at any time without any pre-filing requirement. But then the following year, the House brings an appropriations bill to the floor under a “closed rule” allowing absolutely no amendments at all. Which rule wins? The closed rule wins, under Article I, Section 5, Clause 2, since the House is constitutionally guaranteed the right to set the rules of its own proceedings, irrespective of what any law, regulation, or common practice would supposedly require or suggest.

One big downside to this clause, however, is that it also guarantees the right of each house of Congress to ignore its own rules. For example, at the start of every Congress, the House enacts a revised rules package—a set of rules that will guide the consideration of legislation for the subsequent two years. However, it is common practice for the House, when considering “major” legislation, to enact “special rules” that provide for the consideration of just that major bill. Very often, a special rule states that some of the underlying House rules either do not apply or that a Member may not cite them on the floor to claim that a violation has occurred (“make a point of order”). Furthermore, the House frequently considers non-controversial legislation under a procedure called “suspension of the rules”—literally a setting aside of the underlying House rules in exchange for limited debate, a prohibition on amendments, and a two-thirds vote threshold required for passage.

Can anyone do anything about such avoidance of the rules? Not at all. There is neither check nor balance against either house of Congress ignoring its own rules and setting up new ones any time it wants to—either temporarily or permanently. Says who? Says Article I, Section 5, Clause 2.

Paul Teller is the Executive Director of the Republican Study Committee (RSC) , where he sets and implements strategy for the RSC’s policy, communications, and coalitions efforts. The Washington Post recently described Paul as “one of the most influential conservative aides in Congress.”

March 9, 2011/12 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 05, Clause 1, William C. Duncan 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 05 Clause 1, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 5, Clause 1
1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Article I, section 5, clause 1 of the Constitution gives to the branches of the Legislature power to “judge” or determine whether an election of one of its members is valid and whether the person elected meets the Constitutional requirements for service. Without such a check, Joseph Story explained, “any intruder, or a usurper, might claim a seat, and thus trample upon the rights and privileges, and liberties of the people.” Joseph Story, 2 Commentaries on the Constitution §831 (1833).

The U.S. Supreme Court discussed this provision in a case challenging the House of Representatives’ decision to exclude Adam Clayton Powell, Jr. over allegations of corruption. In that case, the Court ruled the House could not exclude Representative Powell unless he did not meet one of the qualifications in the Constitution (age, citizenship, etc.). In other words, his exclusion was unconstitutional because the House had added a qualification not in the Constitution. See Powell v. McCormack, 395 U.S. 486 (1969). As stated in a later case: “The decision as to whether a Member satisfied these qualifications [those in Article I, section 2] was placed with the House, but the decision as to what these qualifications consisted of was not.” Nixon v. United States, 506 U.S. 224, 237 (1993).

The next part of the clause deals with the quorum required to do business. The challenge here was to ensure that the requirement was not too much or too little but just right.

In the Constitutional Convention, Oliver Ellsworth, succinctly made the case that a majority should be required for a quorum: “It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men.” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 289 (1987); see also John Bryan Williams, “How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress”48 William & Mary Law Review 102 (2006).

On the other hand, a larger requirement might have had advantages but would have become unworkable. In Federalist 58, James Madison notes this and adds that if there were a more stringent requirement “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” This would happen because the minority could keep anything from being done.

As Congress now operates, the question of a quorum is not usually considered unless a member requests a quorum call, usually as a way of delaying the business of the body.

One very real threat to the quorum requirement would come if a number of members decided to flee or otherwise avoid attending the deliberations of Congress so as to prevent a quorum and keep business from being done. Of course this is occurring right now as members of the Wisconsin Senate have fled the state in order to prevent a quorum and thus the passage of legislation with which they disagree.

This behavior was anathema to the Framers. James Madison called it “the baneful practice of secessions . . . a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.”. Federalist 58; see also William C. Marra, “What Would America’s Founders Think About Fleeing Legislators?” Weekly Standard (February 28, 2011) at http://www.weeklystandard.com/blogs/what-would-americas-founders-think-about-fleeing-legislators_552632.html?page=2.

The Framers effectively countered such a threat by allowing a smaller number of legislators to compel their erstwhile colleagues to return. In the Philadelphia Convention, John Randolph and James Madison proposed adding this requirement on August 10, 1787, the day that the quorum requirement was debated. Kurland & Lerner at 290. If effectively applied, it can prevent a minority takeover of the power of the national government through inaction.

Yet another example of how current developments help us to see the wisdom and foresight of the Constitution’s drafters.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 8, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 04, Clause 1-2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 04, Clause 1-2, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Article I Section 04 Clause 1-2, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 59, Joerg W. Knipprath

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

Article I, Section 4, Clauses 1-2

1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5 unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17^th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10^th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

March 7, 2011/9 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 6-7 of the United States Constitution

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Guest Essayist: The Honorable James E. Rogan, Judge of the Superior Court of California

Article 1, Section 3, Clause 6-7
6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
7. Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

During President Bill Clinton’s administration, he became a defendant in a sexual harassment civil rights lawsuit filed against him by a subordinate state employee from his days as Arkansas governor. At the case proceeded toward trial, Clinton tried to conceal from the court a recent affair with another young subordinate employee. When the federal judge in the lawsuit ordered Clinton to answer questions about such relationships, Clinton denied the affair under oath. Thus, the president committed felony perjury, and later obstructed justice, to avoid paying damages to the plaintiff in the lawsuit, as well as to duck the embarrassment and political damage of disclosure. After a special prosecutor investigated and delivered an evidentiary report to Congress on Clinton’s deceit, the House impeached Clinton, thereby triggering the constitutional obligation of an impeachment trial under Article 1, Section 3, Clauses 6 and 7. In 1998-1999, I became intimately familiar with this obligation: I was one of the prosecutors in Clinton’s Senate impeachment trial. Here are three brief thoughts about the experience:

First, the Constitution solemnly required Clinton, as a condition of becoming president, to swear an oath to “preserve, protect, and defend the Constitution,” and to take care that he executed our laws faithfully. That obligation included defending laws that protect women in the workplace, just as it also required protecting our legal system from perjury, obstruction of justice, and abuse of power. Fidelity to the presidential oath is not dependent on any president’s personal threshold of comfort or embarrassment.

Second, during Clinton’s impeachment, we came under attack from many who accused us of using impeachment to unconstitutionally seek to “undo an election.” Hillsdale College President Larry Arnn debunked this notion eloquently:

[E]lections have no higher standing under our Constitution than the impeachment process. Both stem from provisions of the Constitution. The people elect a president to do a constitutional job. They act under the Constitution when they do it. At the same time, they elect a Congress to do a different constitutional job…. If the President is guilty of acts justifying impeachment, then he, not the Congress, will have overturned the election. He will have acted in ways that betray the purpose of his election. He will have acted not as a constitutional representative, but as a monarch, subversive of, or above, the law. If the great powers given the president are abused, then to impeach him defends not only the results of elections, but that higher thing which elections are in service, namely, the preeminence of the Constitution[.]

Finally, I didn’t vote to impeach Clinton or prosecute him in an effort to police his personal life. Whether he had one affair or a thousand of them was of no moment to me. (Besides, as an ex-bartender from Hollywood’s Sunset Strip, I’m hardly a stranger to temptation myself). However, I did care deeply about the precedent his conduct set for future chief executives who might later commit the same felonies for reasons weightier than testosterone.

Why is this notion of precedent so important?

When the Founders wrote impeachment into the Constitution as the remedy against those who commit “high crimes and misdemeanors,” they never defined that phrase. The definition comes from precedent, i.e., the previous House of Representatives impeachments. Whenever the House decides certain conduct is (or is not) impeachable, that becomes the precedent, or the standard, for future impeachments. Had the House failed to impeach Clinton just because of the tawdry subject matter underlying his crimes, any future president committing perjury or obstructing justice with far more destructive motives could point to the Clinton Precedent and claim his conduct was not impeachable.

The polls showed that most Americans at the time hated Clinton’s impeachment, and also hated those of us involved in it. As a result of impeachment, my opponent in the next congressional election defeated me handily. Despite the loss, I take comfort in knowing that because we impeached Clinton, Americans today live in a country where every future president is on notice that perjury and obstruction of justice is a one-way White House eviction notice—as long as a future members of Congress have the spine to stand up to him.

James E. Rogan is a Judge of the Superior Court of California. He is a former Member of Congress who served as a House Manager in the impeachment trial of President Clinton. This essay is adapted from his new book, “Catching Our Flag: Behind the Scenes of a Presidential Impeachment,” published by World Net Daily Books and scheduled for release on May 3, 2011.

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March 7, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 4-5 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 4-5, David Addington 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03 Clause 4-5, David Addington

Guest Essayist: David Addington, Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

Article 1, Section 3, Clause 4-5
4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Article I of the Constitution creates the office of Vice President and assigns to it two legislative functions: to preside over the Senate and to vote in the Senate in case of ties. The legislative functions of the vice presidency are separate from the two executive functions the Constitution as amended assigns to the Vice President (succession to the Presidency and a role in determining presidential inability). The legislative functions of the vice presidency take little of a modern Vice President’s time, but they may on occasion have a significant impact on public events.

The Constitution specifies that the Vice President “shall be President of the Senate,” but does not specify what activities that senatorial presidency will entail, other than counting the electoral votes for President and Vice President every fourth year in the presence of both Houses of Congress. Today, under the rules and precedents of the Senate, presiding over the Senate involves little beyond recognizing Senators to speak in debate, maintaining order in the Senate, occasionally ruling on a question of parliamentary procedure, administering the oath of office to Senators, and from time to time making an appointment to a legislative entity based on the advice of party leaders. A Vice President rarely presides over the Senate. Indeed, the Senate’s elected President pro tempore rarely presides. Senate rules allow the President pro tempore to designate any Senator to preside over the Senate in his place and allows that designated Senator in turn to designate another Senator to preside; in practice the Senators of the majority party take turns presiding over the Senate for brief periods.

The Vice President’s other legislative function — voting in case of ties among the Senators — can be of historical moment, depending upon the underlying legislative proposition on which Senators are evenly split. In his eight years as America’s first Vice President, John Adams cast tie-breaking votes in the Senate 29 times, according to the Senate Historical Office (some authors claim 31 times). His tie-breaking votes defeated, among other things, legislation to give the Senate a role in the dismissal of executive officers and to delay the move of the Nation’s capital from New York City to Philadelphia. At the other end of our Nation’s constitutional history, in his eight years as Vice President, Richard B. Cheney cast tie-breaking votes 8 times. His tie-breaking votes organized a Republican majority in a Senate that had an equal number of Democratic Senators and Republican Senators and gave final passage to major tax cut legislation in 2003. Thus, it is clear that the constitutional authority of a Vice President to cast a tie-breaking vote in the Senate can have significant consequences.

In comparison to the authority the Constitution vests in the President, the Congress, and the Supreme Court, the Constitution vests very little authority in the Vice President. Indeed, Vice President John Adams, in a letter dated December 19, 1793, to his wife Abigail, gave his experienced verdict on the vice presidency: “the most insignificant Office that ever the Invention of Man contrived or his Imagination conceived.” Yet, in modern times, Vice Presidents have had significant influence. Although, as the U.S. Department of Justice said in a legal opinion on March 9, 1961, “the Vice President is an elective officer in no way answerable or subordinate to the President,” modern Presidents have sought the advice and assistance of Vice Presidents, who have given it. Ultimately, a Vice President is influential within the executive branch as long as the President finds the Vice President’s advice persuasive and assistance useful. For modern Vice Presidents, their influence within the executive branch resulting from their relationship with the President has far exceeded their influence flowing from their very limited constitutional authority.

– David S. Addington is the Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Langer, Article I, Section 03, Clause 3 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Andrew Langer, Article I Section 03 Clause 3, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Declaration of Independence, Federalist No. 62

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Article 1, Section 3, Clause 3

3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

In setting out the framework for the fledgling government, the founders grappled with the most basic issue of creating a government that would not be so powerful as to overwhelm the citizenry, but still strong enough to withstand the test of time. The Senate, created as an analog to the upper house of Britain’s parliament, was meant to be a more deliberative body than the House of Representatives.

As such, the qualifications are rather different than those set out for House members. House members need only be 25 years of age, American citizens for only seven years, and need not be actual residents of their congressional district at the time of the election.

In fact, the qualifications set out in this section are rather more proscriptive than those set out in other sections, and it begs the question, “why.” Keeping in mind that this project will discuss the 17th Amendment at a later time, suffice it to say that initially United States Senators were to be selected by the legislatures of individual states. Because those doing the selection would be a narrower group in size and scope, the founders wanted to make certain that appropriate choices would be made by these state legislators. While there is tremendous accountability in having legislators do that selecting, nevertheless the authors of the Constitution thought it best to place strict rules on those qualifications.

Digging deeply into those qualifications themselves, what first jumps out is that the age requirements are greater than those for the House. If we are to understand that the Senate was to be the more deliberative of the houses of the US Congress, then this makes perfect sense. The founders recognized that the Senate ought to have a greater level of gravitas (given the limitations on size)—and such gravitas generally comes with age and experience. Even in the 18th Century, there was a tremendous leap in maturity between the ages of 25 and 30 (which, given life expectancies at the time was approaching middle age). Madison, in Federalist #62, referred to this as “stability of character.”

This requirement also opens the possibility of potential Senators gaining federal legislative experience by first being members of the US House of Representatives.

Most people are surprised to learn that there are no actual “residency” requirements for US House members—they must merely inhabit the states whose districts they are supposed to represent. The Constitution’s authors had tremendous faith in the people in terms of being able to decide the propriety of those they would directly elect. In both the requirements for House members and for Senators, they use the word “inhabit” to make it abundantly clear that they wanted these elected officials to live in their states—and again, the founders came down somewhat more strictly on potential Senators. According to various historical accounts, Convention Delegate (and member of the committee to author the Declaration of Independence) Roger Sherman moved specifically to substitute “inhabit” for “resident” for these reasons.

While there may have been adequate reasons for not requiring habitation in House districts in the 18th and early 19th centuries, given the finite number of Senators from each state the founders wanted to ensure that someone from that state would be representing that state’s interests in the Senate. This was especially important when one considers that given the realities of travel and transportation at this time, as well as prevailing political perceptions (as evidenced later by the 9th and 10th Amendments), the states themselves were viewed as sovereign entities in their own right.

According to the Senate’s official history, the 9-year citizenship requirement was a compromise—between those who believed that anything less would allow for people with a remaining “dangerous attachment” to their mother countries to gain undue influence in American affairs (especially given the Senate’s role in ratifying treaties with foreign nations), and those who believed that anything more would hinder “positive immigration” and offend those nations in Europe who had lent support for our revolution.

It is interesting to note in this regard that this qualification differs greatly from that of the President’s. The founders recognized that because the Senate’s power was diffused among many members, the President, as Commander-in-chief and the Chief Executive of the United States, acts with a solitary and unilateral power (within limits). So while the President must be a natural-born citizen, the same does not hold true for Senators.

All in all, while relatively straightforward, once again the founders demonstrated their brilliance in laying out a strong yet simple framework for our nation’s government.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 2, Joseph Postell, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03 Clause 2, Federalist No. 62, Federalist No. 63, Joseph Postell PhD

Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

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.

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 5 and Section 3, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 5 and Section 03, Clause 1, William Morrisey, Ph.D. 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 02 Clause 5 and Section 03 Clause 1, Connecticut Compromise, The Articles of Confederation, William Morrisey PhD

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Article 1, Section 2, Clause 5

“The House of Representatives shall chuse the Speaker and other Officers; and shall have the sole Power of Impeachment.”

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress. This proved unwieldy and ineffectual. In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny. The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize. The primary guard against Congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derived not from the incapacity of its members but from the structure of the institution itself. At Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use. Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House. This seems obvious to us now, but consider the other possibilities. The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives. This quite obviously would have compromised the independence of the House from the Executive branch. In the most recent Congressional election (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies. Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i. e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House. But this would elevate them to same status as the president and vice-president; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it. Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues. Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself. In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states. On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial. However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office. To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House. That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence. The House alone can impeach an officer of the federal government. Impeachment means accusation or indictment, parallel to the power of a grand or petit jury. Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch, the one most frequently elected, the United States `house of commons’ indicts officers in the name of the sovereign—namely, the American people, unencumbered by any dynasty or aristocracy. This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States. This illustrates and provides for the interdependence of the three branches. Without interdependence, the American government would feature branches not merely separated but isolated from one another. Each branch would go its own way, leading to governmental incoherence—to what Publius calls, in another connection, a hydra or many-headed monster. The incompetence of the Articles of Confederation Congress would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance. Removal from office has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Article 1, Section 3, Clause 1

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Publius famously asserted that “the science of politics” had “received great improvement” in modern times. (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “a new politics for a world altogether new”). The newness of American politics and of American political scientists consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized government of Europe. The “New World” that Europeans had `discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes. It was new to the Europeans. The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule. For example, although most states required property ownership of voters and of office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow. The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the Declaration of Independence, vindicating in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes. They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures. The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because it had to. In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings, and defend imperial borders.

The modern state changed this. Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the Tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with the centralization of the polis or `city-state.’ With their standing, professional armies funded by revenues collected by state employees or `bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful polities ever seen.

The American founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state. But could a centralized, modern state have a republican regime (and keep it, as Franklin pointedly remarked)? Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few? European statesmen thought so; for the next century, they expected the new republic to implode. On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

In the Philadelphia Convention, the framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States. Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a `mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor. The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen. The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers. “The two forces will controul each other,” providing “a mutual check and a mutual security,” Morris asserted. The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy. John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly. The Senators would represent no particular class or caste; they would represent the constituent states of the United States. Without titles of nobility (banned in the Constitution) or any set level of wealth, the Senators as such would have no interests separate from those of the people. The Senate therefore would fit easily into a pure or unmixed republic. At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that that likely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism. Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangerous of excessive decentralization. At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states. The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population. Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population. Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state. All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item. How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other. If the Senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen. The Compromise established that state legislators choose the senators. The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it. For his part, Sherman and George Mason of Virginia argued that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes. As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics. This comported with the `aristocratic’ character of the Senate. At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness; two senators voting individually and not as a bloc precluded the possibility of a deadlocked (1-1) vote, which also would effectively disenfranchise a state on those occasions when senators from the same state disagreed. Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the `regime’ question and the `polity’ question. The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack. The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

Posted in Analyzing the Constitution Essay Archives | 7 Comments »

7 Responses to “February 28, 2011 – Article 1, Section 2, Clause 5 and Section 3, Clause 1 – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Ron Meier says:

February 27, 2011 at 10:31 pm

Thanks Professor Morrisey; I found the discussion on the Senate to be especially enlightening.

I wonder how different things might be today if the original intent of the method of choosing Senators were adhered to instead of changing that method to election by the same method as Representatives are elected? For example, would the extensive use of Federal mandates (education, highway construction, etc.) have passed the Senate if the states, rather than the people, were represented in the Senate?

Ralph T. Howarth, Jr. says:

February 28, 2011 at 12:26 am

@Ron Meier, not to mention the all-around carrot and stick methods of regulation over areas Congress is not granted power to do by the states. Our statesmen go to Washington D.C. to have to endure a system of inducements, bribes, and compromise in order to get money that left their state to come back and fund what are local affairs within their state. If money leaves the state to only come back for municipal affairs then something is out of whack. All taxes used to be collected by the states themselves and then paid out of the state’s office to the US Treasury. We ought to go back to that to where people just file one income tax form with their state that pays the federal income tax in some percentage out of the state tax. That way the states pay the taxes to the federal like they used to and it will be the states the hold the purse strings. With such an arrangement then much of the current carrot and stick methods of the federal government would subside; that, and restoring the election of Senators by state legislatures.

Prof. Morrisey’s expository essay reminds me of how the terms “confederal” and “federal” were used so interchangeably. I sought to find a difference and picked up on two characterstics that differentiate the two:

1) A confederacy tended to not have delegated legislative powers in a central government,
2) and likewise tended to have a legislature convened on an as needed basis.

Otherwise the two terms were rather interchangeable in political science.

Janine Turner says:

February 28, 2011 at 1:40 pm

I thank you Professor Morrisey, for your wonderful essay today! I personally feel so lucky to have the opportunity, as the co-chair of Constituting America, to not only be hosting this forum but to be learning from it, as well!! I never knew that in the Articles of the Confederation the legislative, executive and judicial branch all operated under one body – the congress. It is equally fascinating to concretely understand the amazing forethought of our founding fathers regarding the impeachment process – the independence of the people’s house yet the interdependence of the subsequent actions once an impeachment was initiated. The house initiates it, the senate holds the proceedings and the Chief Justice of the Supreme Court presides over it. Amazing! Once again, this process regarding impeachment reiterates the importance of three independent branches that must yet integrate to govern. Re: Article 1, Section 3, Clause 1 – I find the process of how they came to a compromise compelling. I’ve always known of the “great
compromise,” I now know it was the “Connecticut Compromise” due to Roger Sherman of Connecticut. It is interesting to understand the interpretations of Gouverneur Morris’ insights, then Madison’s and finally Sherman’s, not to mention John Adam’s inspiration of the bicameral
legislature! Divine providence, mixed with the talents of brilliant, learned men, both saved and lead the struggling country through it’s infancy. A republic was nurtured through it’s adolescence – now in adulthood – can we the people keep it? At this point, we can only keep it, through knowledge and sacrifice that parallels the passions of our founding fathers. Thank you Professor Morrisey and to all of you who are joining us! Spread the word about this forum!

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”

ThreeDogs says:

February 28, 2011 at 2:35 pm

I have to echo the sentiments of both Ralph and Ron in wondering what things would be like today without the 17th amendment. Looking forward to that discussion down the line.

Thanks Mr. Morrisey!

Cutler says:

February 28, 2011 at 6:49 pm

The essay was interesting and enlightening, but I love the comments by Mr. Meier and Mr. Howarth. But no, that would be too close to the intentions of the Founding Fathers for the present Regime to tolerate. So for now we must use the present method to slowly take back the Senate with strong conservative leaders who, along with the public will take back America from those who would tear away its foundations.

zac allen says:

February 28, 2011 at 7:58 pm

Well… The senators to this day should be sent there by our legistlature. Its what kept Federalism intact. That way they would be sent there representing the states an its best interest… if they didn’t they could be recalled. i.e… The bank bailout TARP resolution. Anyway…the 1930′s took a grat leap away from what our founders intended. As a side note…. Every time the media or politicians call us a democracy, they should be corrected, and remind them we are federal republic, with representive democracy….. Not mob rule

Anglo says:

March 1, 2011 at 9:22 am

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” in comparison to-Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

Such is the folly of the two party system when at any time it can hold dominance over any two of the three branches of government. Such as has and is being experienced today as there are sufficient grounds for impeachment to be exercised as concerning the executive branch.

March 7, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 4, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 4, Constitutional Amendment XVII, Constitutional Amendment XVII, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 2, Clause 4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government. Thus, in the seemingly small matter of filling vacancies in the House of Representatives, we see manifestations of protection of state prerogatives, safeguarding the representative principle and flexibility for specific circumstances. See Joseph Story, 2 Commentaries on the Constitution §683 (1833).

The fourth clause of the section of Article I dealing with the House of Representatives provides: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such vacancies.” Though the Framers might have provided for a national solution to the problem of a vacancy, they deferred to the state. They did not, however, leave to the state executive (it should be remembered that some states did not yet have governors at the time of the drafting, thus the use of “Executive Authority” which could include the presidents of Delaware or Pennsylvania) the ability to appoint a successor to a Representative who had left a vacancy. Rather, in keeping with the principle of representation so central to the plan for a House of Representatives, the Framers specified that an election should be held to determine a replacement. Thus, no section of the country should be left without a popular representative for long. By contrast, a vacancy in the Senate was to be filled by the Legislature or temporarily by the executive (until the 17^th Amendment), reflecting the design of that branch as representative of the interests of states as states.

The only major controversy involving this provision seems to have occurred early on when William Pinkney, from Maryland, resigned as a member of the House of Representatives. Some members of Congress questioned the propriety of seating the man elected to fill the vacancy. Their concern was that perhaps a resignation ought not be allowed, following precedent from Britain’s House of Commons. That argument was not accepted by the body and the successor was accepted as a member of the House. See Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 146-147 (1987).

This clause is still operative. As of this writing, a vacancy has occurred in New York’s 26^th District due to the resignation of Representative Chris Lee. New York law gives the governor power to determine that a vacancy exists and then to provide for an election for the replacement. N.Y. Public Officers Law §42. Importantly, there seems to be no controversy over the constitutional provision at issue only at the expense of an election. See Evan Dawson, “How Much Will a Special Election Cost?” 13WHAM (Rochester), February 9, 2011 at http://www.13wham.com/content/blogs/story/Chris-Lee-Fallout-How-Much-Will-a-Special/qn57U3H1VkyesU0gu3cmoA.cspx.

This entry was posted on Friday, February 25th, 2011 at 12:06 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

13 Responses to “February 25, 2011 – Article 1, Section 2, Clause 4 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation”

BobG says:

February 25, 2011 at 10:38 am

I don’t see much discussion happening on this. It seems pretty straightforward. I would just like to say that it’s an excellent observation pointed out in the first sentence of the explanation “The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government.”. I couldn’t agree more. It’s such a simple yet complete document. Breaking it down in this manor over the 90 days is a wonderful idea. It’s a shame this is not taught in our schools this way. Thank You.

Janine Turner says:

February 25, 2011 at 10:47 am

Mr. Duncan,
I thank you for your interesting, insightful essay. It is always refreshing to see yet another aspect of the Constitution being applied today, once again emphasizing its relevancy. This clause demonstrates how intricate and vital all sections of the Constitution are. It is our reference, it is our roadmap. Citizens who think the Constitution is not relevant have not read it, and/or have not joined our educational forum!
God Bless,
Janine Turner

Susan says:

February 25, 2011 at 12:27 pm

Hmmm, wonder what the attitude towards preserving states rights would be if our Governors were call State presidents instead? Governor has a subservient connotation to the superior authority whereas a State President seems to me would elevate the governor to a similar position.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 3:59 pm

Good observation Susan. The original draft constitution submitted to the 1787 ConCon actually had the US President elected by the Senate and not the Electoral College.

Donna Hardeman says:

February 25, 2011 at 4:22 pm

@BobG – not only should it be taught this way in undergraduate school but, more importantly, in law school. During law school, I was taught about precedent, i.e. what the Supreme Court had decided and the line of cases following a certain decision. It never occurred to me then – of course, what does anyone know at that age – that a more basic understanding of what it actually means would be the best foundation for our interpretation of laws and the practice of law. What we have now seems to be a game of “telephone” played by the jurors “du jour.” I would even go a step further and make a requirement that everyone arguing in front of SCOTUS be required to address the intention of the Founders – then they can talk about their beloved precedent!!

Susan says:

February 25, 2011 at 5:36 pm

I stand and cheer Donna I could not have said it better, and coming from one who attended law school it carries just a bit more cache!

Ralph T. Howarth, Jr. says:

February 25, 2011 at 6:37 pm

Thanks Donna on voicing what is the issue of Judicial Review. And the following is English Common Law procedure on interpreting law that American Lawyers used to do up to the late 1800s:

Blackstone provided an explicitly numbered serial order of steps toward carrying out those “intentions at the time when the law was made.”

First, the words were “to be understood in their usual and most known signification.”
In short, the judge was not to interpret the words de novo in whatever way grammar and the dictionary would permit, much less according to later beliefs or usage.
Only when “words happen to be still dubious” was it permissible, according to Blackstone, to go on to the …

Second step: try to “establish their meaning from the context.”
It was the original cognitive meaning, not intent in the sense of psychological motivation or philosophical values, which was being sought.

Third step: determining what was “in the eye of the legislator,” only as a guide to the cognitive meaning of words still undetermined by the first two steps.
Only where words still had no significance or “a very absurd signification” the…

Fourth step: “we must a little deviate from the received sense,” so that a law, for example, against shedding blood in the street should not apply to a surgeon treating an injured man where the fourth step is not admissible if violating the first three steps. It did not involve conceiving new meanings, whether based on later insights, judicial conscience, or the philosophical values presumed to motivate the original law.

These themes elaborated by Blackstone and Holmes continue to be echoed by contemporary advocates of judicial restraint. For example, the self-disciplined judge, according to Richard Posner “is the honest agent of others until the will of the principals can no longer be discerned.”

from an article by Thomas Sowell, Judicial Activism Reconsidered

Jon says:

February 25, 2011 at 9:28 pm

I wonder does anybody know roughly when SCOTUS started using precident to decide cases? I would like to read cases that reflect the difference in methods.

Thanks

Donna Hardeman says:

February 25, 2011 at 10:01 pm

I’m gonna miss you guys for a week. Going to a legal convention. I will print up everything and read it and join again in a week’s time.

Debbie Bridges says:

February 25, 2011 at 11:06 pm

I would have thought that Studying the Constitution would be the very FIRST course taught in law school!

Thank you for starting this 90 day study. I enjoyed the Federalist Papers immensely as I learned so much. I have enjoyed reading and commenting some so far and look forward to learning more about the Constitution. What a great site this is. I have recommended this site to my friends on facebook. Hopefully they will check it out.

Ralph T. Howarth, Jr. says:

February 26, 2011 at 12:42 am

Jon, precedents are actually part of the English Common Law under the principal of Stare Decisis: Latin for “let the decisions stand”. It has been customary of judges to want to avoid over turning peer decisions if it can be helped. Which is rather sound if you think about it. How can you have justice when judges make all sorts of opinions about the law to where litigation becomes more of a “slot machine” of chance?

The real question you want is when did the SCOTUS depart from the English Common Law of interpretation and took up rather the Case Law method to where the actual upholding the originalism of the law is kicked to the curb? I do not think that is a cut-and-dry answer as it happed by hook and by crook but a strong authority on this I would say is James R. Stoner, Jr., author of Common-Law Liberty: Rethinking American Constitutionalism and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism.

What I do know is that cerca 1870′s was a turning point where the practice of observing the English Common Law was dropped but only borrowing some of the procedural rudiments of the English Common Law. This is a problem. Why? Because doing so has the end run affect of amending the US Constitution by changing the legal underpinnings of terms and language used in constitutional law without having been put forth as a measure of ratification by 3/4ths the states. The states never consented to any such legal manuevering. I will post here if I find something more specifc in due course.

Scott Miller says:

February 26, 2011 at 4:49 am

Mr. Howarth, why do you use “ConCon” over the phrase “Constitutional Convention”? I mean no disrespect, sir, but I find the use of “ConCon” rather than “Constitutional Convention” offensive and rather disrespectful of our Founding Fathers…

Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:14 pm

ConCon is a short phrase used in political commentary, debates, academia and journalism. And it has been used by those who revere the intents of the Founding Fathers so I had no idea that anyone who would be offended by such usage. In this day and age, I had just learned last night that BRB means “be right back” and TTFN means “ta ta for now” from doing an IM exchange in regards to arranging renovation on a home.

But I see what you mean as I have had people who do not often read newspapers and other forms of media coverage where the mode is to introduce a person or place first, and then resort to an abbreviated form like a person’s last name later in the text. Immediately upon hearing/reading the abbreviated form, the hearers take it as disrespect. They partly do this to keep the text short as no wonder they have to squeeze everything in columns and avoid over running onto another page. The same applies here. Several times I had to cut my writings down to avoid over running the window size of the posting here, in case you did not know, there is a 3000 character limit.

So my usage is out of habit by reason of the mode of exchange here. But no intents of disrespect on my part. Sorry for my being terse. But you will find me holding the founder’s in admiration and wonder; and I have been alleged to be a founder father worshiper by those who take them lightly. I also suffer some from interpersonal relations for health reasons: I will expend myself at a task at hand to complete it at the expense of amenable relations on the hows and whys what I am doing matters in part because I may be in shock at the time. For this cause, I may take extra time out in writting something to make it seque well with a thread, and if I am not quick enough, then the moment changes and now what I wrote does not fit as well and has to be rehashed again.

March 7, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 3, W.B. Allen, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 02 Clause 3, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Declaration of Independence, The Articles of Confederation, W. B. Allen PhD

Guest Essayist: W. B. Allen, Havre de Grace, MD

Article 1, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Amendment 14, Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Amendment 26, Section1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

The so-called “three-fifths” clause of the U. S. Constitution is actually a provision for determining the number of representatives allotted to the several states in the Union. However, it provides the most frequently circulated charge against the Constitution. Simply put, for a long time almost everyone in America has misunderstood the three-fifths language in the Constitution. Here we speak directly and only to the origin of that language, in order to correct the record. We begin, however, by listing the Fourteenth Amendment and the Twenty-Sixth Amendment, because of their implications for the original text. Note that the Fourteenth Amendment supersedes the three-fifths clause, in particular directly tying the rule of representation to eligibility to participate in elections. That was not the case originally. Moreover, it ties eligibility to participate in elections (in relation to penalties for the denial of that privilege) to an age of majority listed as “twenty-one years of age.” However, the Twenty-Sixth Amendment establishes the age of eligibility for voting at “eighteen years of age” without having altered the language of the Fourteenth Amendment. Thus, once again the eligibility to vote has become disconnected from the rule of representation, as it was in the original constitution.

Now, regarding the three-fifths clause, the general account is that the Framers regarded black people as only three-fifths human (whatever that might mean). That, in turn, is supposed to prove that the Framers were bigots and that their opinion of black people was low indeed. The palpable surface of the framing documents reveals the truth. Consider what they did in fact mean, then judge how well the Framers confronted their moral dilemmas.

In April, 1783 (not 1787) in the Confederation Congress the three-fifths compromise emerged after six weeks of debate. An eighth article was proposed for the Articles of Confedration, apportioning expenses for the Confederation on the basis of land values as surveyed. There the discussion opened, only to reveal how difficult it was to assess land values 2

and, in the rude conditions of those times, to produce accurate surveys. Thus, they resorted to numbers instead, speaking of population as a rough approximation of wealth. Taking the numbers of people in the respective states, they hit upon the following language:

expenses shall be supplied by the several states in proportion to the whole number of white and other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each state.

What, then, does three-fifths apply to? Slaves, carefully and legally defined. But re-read the opening clause, delimiting “the whole number of white and other free inhabitants.” To whom does that apply? Surely not whites only, nor only males, since “every age, sex, and condition” is further appended. Clearly, they aimed at every free human being, white and non-white. As is generally known, the only significant number of free non-whites in the United States in 1783 were American blacks (another 10,000 of whom were emancipated between 1776 and 1787). There were not in the United States of 1783, for example, any Asians. Thus, these legislators included American blacks among the free inhabitants; the following three-fifths clause applied not to blacks generically but rather to persons in the peculiar legal relation of slavery. Three-fifths of the number of slaves were counted, not in terms of their humanity but with respect to their legal status in the respective states.

The Confederation Congress fully affirmed the humanity of American blacks through the language of “white and other free inhabitants.” Was that recognition of humanity withdrawn when this same language was taken up again in 1787 in the Constitutional Convention? Here is the provision:

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The lapse of four years has brought changes. But what are the changes? On the surface the changes are primarily editorial, introducing economy and exactness of language. As any composition teacher would point out, the first thing to notice is the elimination of redundancy. Why should it be necessary to say the “whole number of white and other free inhabitants, of every age, sex, and condition,” when the “whole number of free persons” says the same thing? Further, “adding three fifths of all other persons” at the end is less awkward than the inclusion clause of 1783. Finally, the substitution of “Service” for “servitude” continues the liberal impulse of 1776. Moreover, this rule of representation says nothing about who gets the right to vote. Thus, 1787’s freedom language includes women and blacks; it does not exclude them.

W. B. Allen

Havre de Grace, MD

Posted in Analyzing the Constitution Essay Archives | 18 Comments »

18 Responses to “February 24, 2011 – Article 1, Section 2, Clause 3 of the United States Constitution – Guest Essayist: W. B. Allen, Havre de Grace, MD”

Scott Miller says:

February 24, 2011 at 1:20 am

Wasn’t the three fifths clause also intended to prevent slave owning states from gaining an unfair advantage over free states by preventing them from including slaves in a count of a state’s population and giving the slave states permanent control of the House of Representatives?

This would go along with the “life, liberty, and pursuit of happiness clause of the Declaration of Independence which was originally written as “life, liberty, and property”, but changed to “life, liberty, and happiness” to prevent slave states from making the case that the word “property” must include slaves.

Between the two wouldn’t slavery have become constitutionally protected and recognized legal institution? It would have given the slave states permanent control of Congress because the slave state would have used control of Congress to insure that all future states admitted to the Union would have been slaves states, would it not?

Joe Short says:

February 24, 2011 at 9:11 am

Why is the “indians not taxed” language included?

Brad says:

February 24, 2011 at 12:22 pm

“including those bound to Service for a Term of Years”

Of whom does the Constitution refer? These individuals do not appear to be identified as slaves, but rather a specific legal class of free persons.

?prisoners…? debtors?…

Toni says:

February 24, 2011 at 12:46 pm

I think the majority of those who misunderstand or misinterpret this whole three fifths thing either do it on purpose to use to their advantage, or simply have not done the research to find out for themselves.

The first category knowingly and willingly try to change what was in the hearts of our founding father’s. This frustrates me to no end. I believe for America to continue to be free we must keep in mind the hearts and minds of our founding fathers. We must take the time to know their morals and deeply held beliefs.

We must also keep in mind that they were not from our time. We cannot judge them based on who we are today. We must see them and understand them in their own time for who they were then and what our country was like then. I love this stuff.

We’re having our First Patriot’s club on March 4th and I’m so excited to teach these young Patriots the constitution and their founding father’s. I believe we must know them as well as the document to gain true understanding.

Susan says:

February 24, 2011 at 1:08 pm

Brad, at the time of the writing I think there was still indentured servitude. This was a contracted period of servitude for the payment of transport and relocation to America.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 2:42 pm

@Joe Short: Indians not taxed are the Indians who ware not particularly US Citizens. The Indians were and are a protectorate of the federal government where the Indians were treated as a foreign country. It is interesting to note that during the Treaty of Paris meetings led by Benjamin Franklin that Franklin secured the welfare of the American Indians from the European powers citing that they were a people “not able to defend themselves.” The Treaty of Paris then kept Europe out of the affairs of the American Indian. Had this not been done; the perpetual European wars may have persisted to intermeddle with the American Indian affairs. As was then, and in the years afterward, there were intents among the British Crown to keep arming the American Indians and incite war with the American “rebels”.

@Brad: bound to Service for a Term of Years are those of indentured servants primarily from Europe. These are people who either contracted their fare of transport to the states or were in debt already and arrangements were made with the shipping companies conveying goods of trade to the Americas. Many were debtors who were subject to the ill-gotten practice of being jailed for their debt where they could not work off their debt and so in a somewhat not-by-choice fashion were made indentured servants to the shipping companies. The shipping companies then would sell the contract of labor in the Americas to bidders. The indentured servants typically served a term of no more than seven years under the Judeo-Christian ideal of a seven year’s release.

Brad says:

February 24, 2011 at 4:23 pm

@Susan and Ralph: Thank you for the clarification. This dialogue is wonderful.

Donna Hardeman says:

February 24, 2011 at 6:25 pm

You guys should look at David Barton’s explanation on utube. Fabulous.He explains how Frederick Douglas realized the 3/5 clause was an anti-slavery clause.Talks about Georgia, NC & SC wanting to count all their slaves so they could have more votes.Northern states came back saying – you want to count your “property” we’ll count our horses and goats!(All from the Constitutional Convention notes). The neat thing he points out is that the 3/5 clause actually applied to the population of slaves – not each individually meaning that a state would have to have 50,000 slaves to enable them to get one representative. That clause is so cool because it’s true – everyone misunderstands it – and it’s fun to set them straight!!

Barb Zakszewski says:

February 24, 2011 at 11:36 pm

Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly? that is amazing, if it’s true!! I had to re-read the explanation regarding the 3/5 clause several times, but it does make sense now.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 12:25 am

@Barb: That is correct; but the right to vote for women in particular was not uniform among the states. If you think about it; in order for their to be a women’s suffrage amendment to the U.S. Constitution there had to be 3/4ths states that ratified the amendement. Do you think that all of a sudden 3/4ths the states went from seeing the error of their ways to suddenly advocating a woman’s right to vote?

In colonial times, for example, Pennsylvania voting rights were orchestrated around property ownership to land holders. Men were the primary land-owners of estates; but if a woman’s husband passed away, then the property fell to her and she then had the right to vote in his stead. Later, states like Idaho made law that give women the right to vote without any such land-holding impediments and gave an cablanche right to vote for women. They did this to encourage women to risk pioneering the unclaimed lands mostly populated by men and populate the territory.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 5:27 am

The 3/5ths clause is a penchant play on political correctness.

Michele Backmann was right. The founders did wrestle with the slavery issue.

During the constitutional convention [or ConCon] debates August 21, 22, 1787 the premise was that each state was an independent nation and the auspices of the convention was not much more than a trade union. When it came to the issue on slavery there certainly were a variety of views and it was recommended to ban the importation of slavery and/or abolish slavery; but it was passed over to the states as a state matter as the purpose and scope of the convention was not that of religion, morality, or humanity. The original submitted draft of the Constitution brought to the ConCon 1787 actually forbade outright the blocking of the slave trade and forbade imposing a tax provision on the importation of slaves, so it appears. The draft evidently was revised to instead postpone the blocking of the slave trade and allowed a tax on the trade instead of none. So the end result of the draft constitution going into the ConCon was a marginally tougher instrument on slavery that what was proposed.

As James Madison made record in his ConCon notes, Mr. Rutledge noted: “Interest alone is the governing principal with nations. The true question at hand is whether the Southern States shall or shall not be parties to the Union.” Mr. Ellsworth noted: “The morality or wisdom of slavery are considerations belonging to the states themselves.” And, “[t]he old confederation had not meddled on this point, and he did not see…bringing it within the policy of the new one…” Mr. Sherman also noted that the slavery issue, being the purview of the several States, was already addressed by the abolition movement “and that the good sense of the several States would probably by degrees compleat [the abolition].”

So what we have on the table was the making of a stronger union versus a very loose, virtual one. The confederate congress really had no power to speak of and figuratively had to have permission of ten states to sneeze, and then had to have permission of ten states again to get a handkerchief. Yet, if the abolition of slavery was promulgated in the Constitution, then the southern states would not have ratified it. Hence, the 3/5ths compromise was retained in order to deter the southern states from not ratifying; and by implication, leaving the union. And abolition was allowed passively by the Constitution, by leaving with the states their own accord to abolish slavery as some statesmen like Mr. Sherman thought the abolitionist movement was already showing much success in that direction. Mr. Pickney also concurred thinking the Southern States will eventually block the importation of slaves of their own volition.

A comparitive could be if the USA, Canada, and Mexico took NAFTA and upgraded to a federal union while cartels still exist.

Susan says:

February 25, 2011 at 9:51 am

I know that the women of New Jersey voted in elections up until about 1800 when sufferage was rescinded.

Shelby Seymore says:

February 25, 2011 at 11:56 am

Personally, I am so annoyed with the excuse or the complaint, “The founding fathers only saw blacks as three fifths of a person.” No. Stop. Grow up. Fredrick Douglas figured this out. The founders put the three fifths clause into the Constitution so that the South wouldn’t have so much power. If slaves were counted as a whole person the founders knew they’d never get rid of slavery. It was a way to undermine slavery, not keep it going. Do your homework.

yguy says:

February 25, 2011 at 12:16 pm

I think not. I see nothing in A1S2C3 that addresses suffrage, which was, like citizenship, left to the states to deal with originally.

Ron Meier says:

February 25, 2011 at 2:03 pm

My take from what I read above, ignoring the “did they or didn’t they” this or that, is that the founders knew they couldn’t get rid of slavery in the new Constitution because the southern states would then not likely approve the Constitution. They figured that the growing abolition movement would eventually take care of the problem in the individual states, without federal involvement, so let’s not upset the cart and let’s get the Constitution we need into law now so the greater benefits would accrue to the weak, but growing nation. Let it be a state problem that will resolve itself. Unfortunately, they were not correct in this assessment, and the Civil War erupted 80 years later. It’s like life; you give it your best shot with your most pragmatic decision based on the greater good, and pray that you are making the optimal choice with respect to the things over which you have little or no control.

Shannon_Atlanta says:

February 25, 2011 at 6:49 pm

Great dialogue!! Learning alot here.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 9:23 pm

Another tid-bit people don’t know is not only were the several states under the AoC considered separate countries, and that the Crown of England issued a treaty for each and every colony than that of the gamut moniker of “these United States of America”, is that Quebec was invited into the union twice. Quebec was simply viewed as another colony of British pesuasion…though it was also under control of the French for a time. Quebec was invited first under the AoC and invited a second time during the ratification of the US Constitution. Quebec choose not to but may very well have been another state in the US. To date, the border between the US and Canada has been arguably the most peaceful border between two countries in the history of the world. In WW1&2, and much of the NATO alliances thereafter, Canada has continued to be an ally. How Americans and Canadians managed border disputes is remarkable.

Janine Turner says:

February 28, 2011 at 12:39 pm

Thank you, Mr. Allen for your enlightening essay! It is truly informative and powerful in it’s honest representation of what is to be interpreted from both the Articles of Confederation and the Constitution on this subject. Your essay is a fabulous reference for those who choose to study our founding documents. Firstly, I am grateful that our founding fathers did not use land values to account for representation and instead used populace. Secondly, I am grateful for your interpretation and clarification of the 3/5 clause. Thirdly, I am eternally grateful that our founding fathers had the insight to leave to their posterity the right to amend the Constitution. They knew changes were going to be needed.

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 1-2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 1-2, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Federalist No. 52, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Article I, Section 2, Clause 1-2

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

The House of Representatives or the people’s house was created by design to be the most democratic body and the legislative chamber closest to the public. It is the larger of the two chambers and its elections the most frequent at the federal level.

In his essay on the “Original Contract” philosopher David Hume in 1752 said “The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion.” The design and make up of the House reflects this view.

James Madison mentions in Federalist #52, the design and make up of the House of Representatives is predicated on the notion of a republican form of government. As Madison points out: “It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

“…Members chosen every second year” ensures that House members will be appropriately responsive to the public. If the elections were more frequent there is the risk that House Members would stay in a perpetual election mode – constantly campaigning and less able to exercise their judgment and wisdom. On the other hand if the elections were held less frequently there was the risk that the House Members might exercise their personal judgments too and simultaneously the public might find it harder to hold them accountable due to the length of time between elections as passions and memories subside.

The two year cycle provides a happy medium that ensures accountability while also giving House members some limited ability to juxtapose their own judgment on policy matters.

The next provision establishes the Constitutional requirements for being a voter in a federal House election. The founders could have established an independent requirement or it could have authorized Congress to do so. Instead they took a third way – establishing that whatever voting requirements the states created for their own state assemblies would be used for the Federal House of Representatives election. The provision specifically requires that federal voters meet the same requirement needed to vote for the larger branch of the state legislature – typically the state House.

Thus, if a state required you to be a resident for 5 years and a property holder in order to vote in state legislative elections, that standard would apply in order to vote in federal House elections. Conversely if another state required voters merely to pay a fee in order to vote in state legislative races then there could be no additional restrictions for voting in the federal elections.

Instead of states being able to interfere with federal elections or vice-versa, the citizens in each state find that the requirements for voting for state and federal elections are identical.

The Constitution sets the age for House members at 25 years for a few reasons. The age of 25 recognizes that younger individuals have a natural right to influence the political process and participate in the decision making while ensuring that all of those serving in government possess the necessary maturity, experience, and competence to perform effectively.

The citizenship requirement is equally interesting. The Constitution does not require the individual to be a “natural born citizen” – only a citizen of the U.S. for 7 years. While Congress has the authority to define the requirements for U.S. Citizenship, the Constitution only requires that a House member meet that standard for at least 7 years.

At the same time that the individual must be a citizen of the U.S. for 7 years, the requirement to represent a district within a state is not 7 years as a state resident. Note that the standard for the candidate is that he or she must be “an inhabitant” of the state – i.e. a person who has established his domicile. Often disputes arise over whether a candidate actually lives in the district that he or she is running in. But there is no legal recourse at the federal level – the Constitution only requires that he or she live in the state not in the county or district where the federal election is being held.

This section endorses a notion that is replete within all parts of the Constitution – a republican form of government ensures the people’s liberty is maintained. In this case the liberty of the people is safeguarded through clearly defined rules for holding elections and candidate requirements.

Horace Cooper is a senior fellow with the Heartland Institute http://www.heartland.org/

Posted in Analyzing the Constitution Essay Archives | 19 Comments »

19 Responses to “February 23, 2011 – Article I, Section 2, Clause 1-2 of the United States Constitution – Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute”

Susan says:

February 23, 2011 at 9:06 am

“The greater the power the shorter the term should be”, wow! how true! Best argument I’ve heard for term limits if I ever heard one!

Brad says:

February 23, 2011 at 9:29 am

Janine and Cathy,

Are you going to be writing your daily essays again? I miss your wisdom that you shared with the Fed Papers.

Shannon_Atlanta says:

February 23, 2011 at 10:16 am

I was wondering , since each state can make its own rules on voting, would it be upheld as Constitutional if my state of Georgia decided one must have earned income to vote?

Janine Turner says:

February 23, 2011 at 10:57 am

Mr.Cooper, I thank you for being our guest scholar and dedicating your time
to write this most informative essay. Isn’t this fun?!
I learned so much. I realize that when I read the Constitution there is so much to
absorb and thus I skip over certain parts such as the requirements for the “voter”
are maintained at the state level. I always thought this section dealt with requirements for the representative only, yet, I now know it also deals with the requirements of the voter!
Also interesting that the representative merely has to live in the state
but not the district. Fascinating!
The quotes from Madison and David Hume resonate as do your words in the closing paragraph, “a republican form of government ensures the people’s liberty is maintained. In this case the liberty of the people is safeguarded through clearly defined rules for holding elections and candidate requirements.” Is the constitution relevant?
Yes!!! Thanks Mr.Cooper

Mary Oprea says:

February 23, 2011 at 11:15 am

It’s interesting that our US Reps can be as young as 25. I wondered how many were actually this young, so I did some research.

According to Wikipedia (“List of current members of the United States House of Representatives by age and generation”), we have 0 reps from the Millennial Generation who would be in that age bracket. The majority of our Reps are Boomers, born from 1943-1960. Only 28% of the Reps are younger than the Boomers (“Generation X”).

It looks like our younger generation are busy getting their education (which usually requires more than 4 years these days) and establishing their homes. However, the cost of running in an election could be an impediment also.
—————

GI Generation:1901 – 1924 (1 rep)
Silent Generation: 1925 – 1942 (58 reps)
Boomer Generation: 1943 – 1960 (254 reps)
Generation X: 1961 – 1981 (120 reps)
Millennial Generation: 1982 – 2003 (0 reps)
Vacant – 2

Ron Meier says:

February 23, 2011 at 12:16 pm

Question for Mr. Cooper. The idea of a two year term for the “people’s house” is that voters can throw them out if they are not representing the voters. Some of our representatives have spent their entire work life in the House. Many of us believe that service as a member of the House should not be a career choice. In my case, I think one should not spent more than half an estimated 40 year work life as a career politician. Are we barking up the wrong tree with respect to the original intent of the writers of the Constitution when we press for term limits, since the representatives must be representing the voters as the voters wish if they are reelected for more than 20 terms?

Cutler says:

February 23, 2011 at 1:00 pm

Thank you very much, Mr. Cooper for your insightful essay. I must now turn my thanks to Mr. James Madison in his quote: “the greater the power is, the shorter ought to be its duration.” It is completely this attitude that the founding Fathers had when forming this country, not “Just how much government intrusion will the American public tolerate?” Washington (D.C.) has rotated a complete 180 degrees from limiting power originally to seeing how far it can stretch it while still giving lip service to the Constitution.

Shelby Seymore says:

February 23, 2011 at 4:11 pm

I agree with you Cutler. Obama (and his wife!) have overstepped their boundries one to many times for my taste, yet nobody sees this. It seems with this president four years is too long in power. The main problem is that the people are so unaware of these happenings they can’t see straight into the trap they are walking into. I believe the entire system needs to collapse so we start over, it’s not the ideal choice, but it will open people’s eyes.

H Cooper says:

February 23, 2011 at 4:47 pm

Shannon asks an interesting question as to whether the State of Georgia could require a person to have “earned income” in order to vote in the state assembly and thereby require a similar rule for federal elections. While no longer applicable today due to the adoption of the 15th Amendment and the Voting Rights Act of 1965, when the Constitution was first created states had broad power to determine what constituted an eligible voter. Today the 15th Amendment and the Voting Rights Act effectively mean that states have limited ability to restrict voting because the VRA prohibits states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

Scott Miller says:

February 23, 2011 at 7:23 pm

It would be nice if there was a printable version of each essay available as well as a version that could be emailed to freinds and family not aware of Constituting America’s study of the U.S. Constitution!

a guy says:

February 23, 2011 at 8:15 pm

Are you actually suggesting that we take voting rights away from legal, law abiding citizens if they are without income? What if they’re disabled or going to school or college on social security survivor benefits?

And personally, though I am anything but a supporter of Obama, the last thing I want to see is for our entire system to “collapse”. Things are bad enough as they are now.

Barb Zakszewski says:

February 23, 2011 at 8:21 pm

thanks to Mr. Cooper for his insightful analysis of this Article and Section and putting it into an historical context. 2 year terms for House of Representative members, 2 years being seen as a happy medium between perpetual campaigning and becoming less responsive to the people they represent. Unfortunately, most House members today are more concerned with keeping their jobs and are in perpetual campaign mode, then in doing anything of substance. I’m wondering if maybe a Constitutional amendment to increase the term of a House of Representative to 3 or 4 years might be in order. Get them to focus on the tasks at hand instead of worrying about re-election, at least for a little while.

ThreeDogs says:

February 24, 2011 at 1:41 am

“the greater the power is, the shorter ought to be its duration.”

Was there general agreement on this among the founders?

If so they must have thought that the most powerful body would be the the House, followed by the Executive branch, followed by the Senate and then the Judicial branch (lifetime appointments)!

Seems to me that the Judicial has over time become the most powerful.

What do you think?

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:36 am

…and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

I have always taken that clause to be speaking of the Electoral College Electors. There had to be qualifications for the Electors of the Electoral College too such that the qualifications of the Electors must be the same as that of the most numerous branch of the state’s legislature as Electors are those who cast their ballots for the President at the state capitol. From there, the ballots of the Electors collectively from each state are sealed and sent to the Congress to be opened up and read aloud how many votes from that state for a Presidential candidate.

yguy says:

February 24, 2011 at 4:40 pm

It needs to be understood that while we are indeed endowed by our Creator with certain unalienable rights, suffrage is not among them; and there is certainly nothing wrong with denying parasites the right to vote themselves even more largesse from the public treasury.

Which is not to say people in such circumstances as you mention are all parasites. I’m just making a more general point.

Shelby Seymore says:

February 25, 2011 at 11:58 am

Agreed ThreeDogs. The Judicial branch used to be the least powerful. In fact, people would leave to state positions to gain more political power.

Robert Saunders says:

February 26, 2011 at 6:20 pm

Please explain the wording, “and who shall not”, when elected, be an inhabitant of that state in which he shall be chosen.

Susan says:

February 26, 2011 at 10:33 pm

It is formal 18th century usage for if you haven’t lived you shall not be elected to represent the place.

Janine Turner says:

February 28, 2011 at 12:15 pm

Brad,
Thanks for asking .. I would love to write daily essays.. I am working toward that goal. For now, I am having fun blogging thanks for joining us!! Isn’t this fun?

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 01 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 01, Charles K. Rowley, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 01, Article II, Article III, Charles K. Rowley PhD, Connecticut Compromise

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

Article I, Section 1 : All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives

The Constitution of the United States established three separate branches of the federal government, namely the legislative branch, the executive branch and the judicial branch. Superficially, therefore, one might think that it was a matter of chance as to the order in which each branch would be outlined and defined in this founding document. Such thinking, however, would be incorrect. The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of Great Men, and without reference to the history of all prior republican forms of government. James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the republics that had failed, and would not be written out (as would later be the case with the disastrous French constitution) as an act of constructivist rationalism.

John Locke’s seminal book, Two Treatises of Government – the book that provided the intellectual justification for England’s Glorious Revolution of 1689 – provides the rationale for placing the legislative branch of government at the very beginning of the Constitution: ‘The great end of Men’s entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish’d in that Society; the first and fundamental positive Law, which is to govern the Legislative it self, is the establishing of the Legislative Power;…This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed have the force and obligation of a Law, which has not its Sanction from that Legislative, which the publick has chosen and appointed.’ (Locke, II, para. 134)

The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central pivot of any social contract through which individuals would consent to place their lives, liberties and properties under the protection of a civil or political society. It is no accident that Article I of the United States Constitution deals first with the legislature. Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue. Although the Founders designed the three branches to be inter-connected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing the legislative branch as the fulcrum of the social contract.

The decision to separate the three branches, as defined in Articles I-III, by no means was set in stone when the Convention first assembled in Philadelphia. James Madison, in particular, was deeply impressed by the 1765 Commentaries of William Blackstone, who favored a single unified branch system: ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ (Blackstone, Commentaries, 1, 149)

Following up on this argument, James Madison while awaiting the arrival of other delegates, etched out a Virginia Plan that envisaged one branch only – the legislative branch. This branch would be responsible for appointing the executive and the judiciary, although these legislative agents jointly would be empowered to veto legislative decisions under certain circumstances. However, even such vetoes would be subject to legislative override by some unspecified super-majority.

According to the Virginia Plan, there were to be two chambers of the legislature (a bicameral legislature). Each state would be represented in each chamber in proportion either to its financial contributions or to its number of free inhabitants. The small states perceived such an arrangement to constitute an inordinate potential threat to their liberties by some effective coalition of the more populous states. In the Connecticut Compromise of June 29, 1787, the delegates abandoned the Virginia Plan in favor of a bicameral legislature in which the lower chamber (The House) would be based on state populations and the upper chamber (the Senate) would have equal representation. In reaction to this Compromise, James Madison etched out an ultimately successful case for separating the three branches of government as added checks and balances against the greatly-feared forces of faction.

The question whether the legislature should be composed of a single chamber (unicameral) or two chambers (bicameral) was far from fully resolved at the outset of the Convention. When George Mason proclaimed to the gathered delegates that ‘the mind of the people of America’ was ‘well settled’ in its attachment to the principle of having a legislature with more than one branch, he was not truly asserting that the matter was beyond contention. True, eleven of the thirteen states enjoyed bicameral legislatures. However, the Continental Congress consisted of but a single chamber and Pennsylvania, host to the Convention (and the home of the First American, Benjamin Franklin), operated with a unicameral legislature.

Ironically, the major forces in favor of bicameralism at the Convention were the example provided by Britain on the one side and the colonial experiences of the People on the other. On the one side – and despite the War of Revolution – there lingered a long-standing admiration for the British constitution, at least in its mythic, uncorrupted, form. From this perspective, the vision of a truly balanced legislature, government, and society gave special authority to the British model. On the other side, most of the colonies had already developed an upper legislative chamber out of their governors’ councils, which typically represented the concentrated power of great landlords and wealthy merchants.

For persons of property, as all the delegates to the Convention assuredly were, an upper chamber that might check the predations both of a covetous popular assembly and of an aggrandizing executive was especially attractive. For the populist-minded, the check provided by the upper chamber on executive powers was also not without its attractions. Thus, the case for bicameralism could be argued both from a quasi-aristocratic and from a profoundly-republican point of view. Thus it came to pass that discussion of a second upper chamber presumed that its’ membership would be smaller, that members would hold longer terms of office, and that members would be more select, than in the case of the lower chamber.

The lower chamber (the House of Representatives) thus came to be viewed as an embodiment of the popular will, an assembly of representatives who would come close to being reflexes of the people. Such a body was widely viewed as a necessary foundation of popular government based upon consent. Standing alone, however, the reflexes of such a body might become as passionate, tyrannical and arbitrary as those of the people that it represented. An upper chamber (the Senate), capable of checking the foolish or irrational impulses of the population at large, could be viewed as an essential safeguard to the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will. The later descent of the French Revolution – with its over-simplified constitutional settlement – into tyranny, bloodshed, and ultimately into the dictatorship of Napoleon Bonaparte, would amply justify these reservations advanced so serendipitously in 1787 by delegates to the Philadelphia Convention.

Eventually, the grand design fell into place in Philadelphia and, following a great national debate, was ratified into a magnificent social contract. Article I, Section 1 of the United States Constitution merely sets the stage. The full play unfolds in the remainder of this most precious of all constitutional documents.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993) co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). For further details see www.thelockeinstitute.org

22 Responses to “February 22, 2011 – Article 1, Section 1 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”

Ron Meier says:

February 22, 2011 at 12:39 am

There are some excellent points in this essay to keep in mind as we watch events develop in the Middle East. We can see the passion of the people at work, but are there checks in place that will “safeguard the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.” Also interesting to watch is how the checks in the state systems work to constrain the passions of the populace in Wisconsin and other states that will follow in Wisconsin’s footsteps as state budget problems are addressed. Very timely that we should be starting this study at this historical moment.

Shannon_Atlanta says:

February 22, 2011 at 10:16 am

Thank you Dr. Rowley. It amazes me that these men created our government in a timely and relatively quick manner. Compare that to today where it takes months and months for our “leaders” to pass a budget; I am always amazed at what all they accomplished-filled with God’s will in my humble opinion!

Susan says:

February 22, 2011 at 10:18 am

I found it interesting the evolution of the Senate. Out of the House of Lords via the wealthy to a voice of the States as a corporate entity as a counter balance to the tendency of democracies to devolve into mob tyranny.

Shannon_Atlanta says:

February 22, 2011 at 11:22 am

Sue, good points. I think many of us feel that our Founders hated the British system. From what I have read, they actually admired many aspects of the government-thus they borrowed from it. They also were well read on the Anglo-Saxon political system, which England had slowly gotten away from; thus men like Jefferson wanted to get some of their ways back-free will, republican government, etc.

Cutler says:

February 22, 2011 at 11:38 am

The relatively novel idea of having the legislative power invested in two distinct houses shows the genius (God’s?!) at work when the Founding Fathers created the House and the Senate.

steve b says:

February 22, 2011 at 4:30 pm

I did not know Pennsylvania originaly had a unicameral legislature. Our Founding Fathers were indeed true statesman. I fear we will never again have the leadership and vision our Founding Forefathers had.

Charles K Rowley says:

February 22, 2011 at 7:02 pm

It is indeed quite remarkable how well educated and knowledgable many of the Founding Fathers truly were. At a time when books were scarce, distances hard to travel, and in a country that had experienced a major internal war, James Madison, Benjamin Franklin and others somehow made the effort to read and understand why past republics had always failed. On that basis they were able to craft a Constitution that would survive at least for two centuries, though now, of course, it is tattered and torn. In 2011, when books are easily available and the internet immediately accessible, how many American politicians, from the President down, are well read in such literature. Until January 2011, how many elected politicians had actually read the Constitution? Sadly, knowledge appears to regress as the opportunities to access it expand. I am sure that Benjamin Franklin would have had an amusing way of making that point!

Ralph T. Howarth, Jr. says:

February 22, 2011 at 7:52 pm

Part of the end run of the bicameral system came out of the right of sufferage. It became a grand principal that it is unjust to demand citizens to obey laws that they have no say in the writting and amending of such laws. So it was that the rights of land owning free-holders that were 90% in the majority at the time balanced against the future influx of non-land holding immigrants that was expected to come. The Founders thought it best that the bicameral system would be predominant land-holders in one house and populist commoners in the other house. This also did away with the “mixed government” feature of Parliament where the caste system of seats designated to caste members of society to represent the various interests of society. Congressmen now are elected upon full popular vote of the electorate in their district regardelss of class.

As for the presupposition that that the THREE branches of government are separate and EQUAL, the legislature is actually the most powerful branch of government. In Federalist #51 James Madison said: “But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”

The legislature indeed is the most powerful branch for it has more checks on the other branches of government than any other branch. First, it passes statuatory law. The executive cannot act nor the judiciary pass judgement without laws to act on. And if the judiciary makes an opinion that is in a quandary with the law, Congress simply can pass more statuatory law. Congress consents to appointments of officers in the other branches; and has the power to impeach and remove the same. Congress has the power to tax and appropriate funds and so can effectively defund any operation of government and is another form of congressional oversight on the other branches of government. At the last, Congress has the power regulate the appellate jurisdiction of the Supreme Court such that Congress may deny the SCOTUS of hearing particular cases among the states. And contrary to popular opinion: judges do not make or repeal laws. Judges simply decide whether or not one party in a case suffers harm from another party and then gives an opinion why they decide as such. Court decisions are not law therefor they are called OPINIONS.

Debbie Bridges says:

February 22, 2011 at 9:01 pm

It is interesting to watch the three branches of Government in today’s political arena. Health Care for instance. This was originally passed in the Legislative but with the change of political power in the House and the will of the people the House has voted to defund it. Hopefully the Supreme court will hear the case and rule it unconstitutional. At the same time though, I worry because the President seems to circumvent the Legislative Branch through Executive Orders and appointing Czars not subject to the normal Advise and Consent process of the Senate.

zac allen says:

February 23, 2011 at 12:11 am

This is an interesting discussion at this very moment in time in this country. We have educators, media pundints, and all sorts of people talking about democracy in action. Our Founders knew through the lens of history, that true democracy , mob rule, was no way to run a government. It eventually destroys the individual, as does collective bargaining.
Representative democracy with a republican form of Government is what they created…. and now we have Progressives trying to undermine that principle. Bi-Cameral houses with each a distinct role. Incredible… isn’t it….. sorry for the skipping around

Charles K. Rowley says:

February 23, 2011 at 8:00 am

Ralph, Debbie and Zac all make great points on the issue of checks and balances and the role of the legislature. Before FDR, the constitution worked well. Then the legislature began to divest regulatory powers to the President and the Supreme Court buckled under the threat to increase its numbers with progressive appointees. In consequence, the balance shifted. Now the President is far more powerful than was ever envisaged, and the Supreme Court offers excessive deference to the legislature when reviewing laws for their constitutionality. Yet, save for a few bad amendments, the Constitution’s wording has not changed. That is the problem. How can America move back to the true Constitution under such circumstances?

Janine Turner says:

February 23, 2011 at 11:45 am

Dr. Rowley, I thank you for your most informative essay!
It is worth noting how our founding father’s based their decisions, regarding the drafting of the Constitution, on two basic principles: knowledge and history.
They were well read and acquainted with what had worked and what had not, in regard to government, in the past. They also were well acquainted with superb political and philosophical works of great minds throughout history. Their prudence was based on practical precedents.
The checks and balances and bicameral legislature are of brilliant design and most relevant to today as we: 1) still practice it today 2) need to vigilantly maintain these principles.
Only with a keen knowledge of our Constitution’s contents can we preserve our liberties. I thank you for your generosity of time, as it helps me to understand more clearly my call to action!

Ron Meier says:

February 23, 2011 at 11:54 am

re Dr. Rowley,
And, add to that the significant increase in the number of Czars in the current White House. This seems to be adding even more power within the office of the President. Should the Congress do something to disallow power to these czars?

Jon says:

February 23, 2011 at 2:24 pm

May I offer a few items in response to “How can America move back to the true Constitution under such circumstances?”
Thomas Jefferson, 1825 in response to William B. Giles who expressed his concern over encroaching federal power.

“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our Government is advancing toward the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them…”
“And what is our resource for the preservation of the Constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to outnumber the sound parts…”

“We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents… meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding… This is the course which I think safest and best as yet.”

William B. Giles took Jefferson’s advice; he ran for and won the Governorship of Virginia in 1827.

Jefferson alluding to our success, the law of nature IE; Locke.
“A great revolution has taken place at Paris. The people of that country having never been in the habit of self-government, are not yet in the habit of acknowledging that fundamental law of nature by which alone self government can be exercised by a society. Of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.”. 1800 Thomas Jefferson

Adam’s regarding education, including the law of nature IE; Locke
“Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature…” John Adam 1765

Ray Simoneaux says:

February 23, 2011 at 2:45 pm

Janine, I found out about Constituting America by watching Freedom Watch. Thank you and your organization taking on the project. I am truly amazed of just how many people I talk with daily, who have never read the Constitution ( I personally have three pocket size editions; home, office and vehicle). I look forward to learn more of the analysis of OUR Constitution!

Dr Rowley, your reply to Ralph, Debbie and Zac is exactly how I feel about the Constitution! I really get frustrated when talking with friends or co-workers who “believe everything the see or hear on the news.” I often get strange looks/comments when those people close to me, hear me make the statement, “Where in the Constitution does it give them (the politicians) the authority to do that?” I have come to the conclusion that they have never read/understood the Constitution, therefore they don’t know what our politicians can/can’t do. Thank you for your assistance to the Constituting America Organization in their project.

Shelby Seymore says:

February 23, 2011 at 4:41 pm

Again, I agree with Cutler. They actually set up this government out of the Bible in Leviticus. This wasn’t a just a remarkable appearance of a government that worked. It’s not the big bang theory! There was Divine Providence and they knew it.

Charles K Rowley says:

February 23, 2011 at 4:47 pm

The insights offered by Janine and Jon are very important at this time. The checks and balances written into the Constitution serve a great purpose in slowing down the popular impulse. But this works both ways. When the political situation becomes bleak, as it surely was prior to November 2010, the checks and balances slow down constitutional recovery. The good constitutionalist acknowledges this and bides his time. Any true reversal of fortune must await November 2012, a change in President and a change in Senate majority. This can only occur if key actors understand the Constitution and work cautiously to reinforce constitutionalism rather than to skirt around it. This will irritate the impatient, but the long-run objective must always be kept in mind. In the meantime, some Republican Governors are performing well in their attempts to re-assert states’ rights.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:08 am

Chares K Rowley said: How can America move back to the true Constitution under such circumstances?

Tom Woods has an answer to the question: State Nullification
http://www.tomwoods.com/learn-about-state-nullification/

The premise of the State of Virginia ratifying the U.S. Constitution was on the very question of what if the general government department assumes powers not given in Art 1. Sec 8? The answer was that the State of Virginia is a sovereign state free to disregard such federal acts.

Charles K. Rowley says:

February 24, 2011 at 10:54 am

Ralph’s point is exactly correct. But the principle was overriden by the War of Northern Aggression and the victory of the North over the South. Since then nullification has not proved to be an attractive option for States even when the rights of their citizens have been seriously eroded by the federal government.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:20 pm

@Ray Simoneaux,
My new favorite phrase for townhall meetings is:
“3/4ths the states never ratified such a measure!” More astonished looks.

@Charles K. Rowley,
Another remedy is another Constitutional Convention. Three times we came rather near to having one. Just the imminence of a ConCon can make Congress react. There is a lot of anxiety about having one as there really is no agenda that can be enforced on a ConCon. On the other hand, much of the “horse and buggy” provisions in that 1787 instrument is exploited by political graft no matter whose administration is in office. I have a draft instrument coined “Congress 2.0″ of nearly two dozen amendments which includes a confederate vote measure where a 1/5 dissent on germaneness of a bill, or a bill riding measure, in both federal houses then remands the measure to the states for a confederate vote of 2/3rds majority. A compact soveriegnty of states measure. I also have a lame duck provisional legislation and adjournment/recess appointment and pocket veto bypass amendments, and measures to assure members of Congress spend more time with their constituents; and for Senators, the constituency is the state capitol, affording remote visual conferencing be allowed for members to vote. It sure could use more scrutiny and maturation with tweaks and polished.

Seth Richardson says:

February 25, 2011 at 9:52 pm

This section, in conjunction with Article II, Section 1 and Article II, Section 3, delineating the powers and duties of the President are of particular interest at this moment, what with the President deciding all on his own that the Defense of Marriage Act (DOMA) is “unconstitutional” and his directing Attorney General Eric Holder not to further defend it in court.

The question of a President’s authority to refuse or fail to enforce duly-enacted laws of Congress is a serious one which I address in some detail at my blog, The Broadside.

The essence of the problem is that if the President has authority to decide for himself what laws are constitutional and what laws are not, he is usurping both the legislative authority of Congress and the judicial authority of the Supreme Court.

It is my view that this comprises an impeachable offense. This very matter was the subject of an impeachment of Andrew Johnson in 1868. Johnson only survived removal by the Senate by one vote.

As for Holder, he is employed by the United States, which is the People, to represent our interests in court, and to zealously defend ALL laws duly enacted by the Congress, not just the ones he wants to defend or that the President tells him to defend.

He should therefore be disbarred and fired.

Charles K. Rowley says:

February 26, 2011 at 11:35 am

Ralph’s suggestion about a constitutional convention has been discussed recently with respect to the balanced budget amendment proposal. As yet, it falls short of the number of states (two-thirds) required to call the convention. Ralph is correct that even the threat of such a convention tends to bring Congress to heel. The risk is whether a convention – once called – can be constrained to the issue it is supposed to address. After all the 1787 convention ignored its mandate, which was to reform the Articles of Confederation.

Seth’s concern about Presidential overreach is really important. If the United States enjoyed an independent judiciary that is precisely where the federal courts should intervene. But they are filled with inadequates who will not challenge a President. Impeachment is now an entirely political issue and the Congress does not have the votes to impeach and convict a Democratic President. So, such an attempt would be a huge waste of time. Holder holds his position pretty much at Obama’s discretion. And there is not a snowflake’s chance in Hell that Obama will remove a carefully selected ‘brother’ at this time.

Posted in Analyzing the Constitution Essay Archives | 22 Comments »

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Analyzing the Constitution for 90 Days – The Preamble to the United States Constitution

An Essay on The Preamble to the United States Constitution, Analyzing the Constitution in 90 Days 2011 Project, David J. Bobb, Ph.D. 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08, David J. Bobb PhD, Declaration of Independence, The Articles of Confederation, The Preamble, The Preamble

Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

The Preamble to the United States Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing. So what does it mean, and why does it matter?

“We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence.

Whereas the previous compact of the United States, the Articles of Confederation, had been a “firm league of friendship” joined by states, the new Constitution was formed by the people as a whole. The national government was sovereign, not the states. To Anti-Federalists, the Constitution went awry from the outset, for in its first phrase, they held, it announced a form of government that would eliminate the power of the states and thereby destroy the liberties of the people. Nothing could be further from the truth, Federalists responded correctly, for unless the nation wished to continue in abject weakness, it needed to empower the national government to do what the states could not, thus ensuring that the liberties of the people would be secure.

Owing to the fluid style and incisive intellect of Pennsylvanian Gouverneur Morris, who despite being the most loquacious of the delegates to the Constitutional Convention was also among the most profound, the Preamble was his parting gift to the nation, drafted as he did the final edits to the document as a whole. Remedying the weaknesses of the Articles, the new Constitution would accomplish all of ends stated in its Preamble. Morris gave those ends concise expression, and despite his clarity, they were misunderstood in his day, and often, for very different reasons, continue to be misunderstood in ours. Take, for example, two of the six ends, or goals, adduced in the Preamble: the first, which is “to form a more perfect Union,” and the fifth, to “promote the general Welfare.”

To some Anti-Federalists, the phrase “to form a more perfect Union” was taken to entail a process of perfection whereby the states would be gradually crowded out, and more and more power would be given to the central government, so that when the evolution was complete all three main functions—legislative, executive, and judicial—would be held by one consolidated power. Such would not only be a violation of the Constitution’s set-up, it would also trammel everything the Declaration had stated against the King’s own arrogation of authority. Publius and many other Federalists had a ready response for this erroneous reading.

There are many who today take the phrase, “to form a more perfect Union,” to mean that the steady march of Progress must carry us closer and closer to perfection. Intent on leaving behind old, outdated ideas, and replacing them with a “new foundation” for our government, contemporary Progressives take the Preamble out of context in supposing it an endorsement of their agenda.

“To form a more perfect Union” meant nothing about the future, and everything about the past. It meant, simply, that the Constitution would be an improvement upon the Articles of Confederation, which left much to be desired in its anemic, nearly non-existent central government. The Constitution is the architecture of our equality and liberty not because of some supposed Progressivism in the Preamble, but rather because of its foundation in principles that are enduring.

While some Anti-Federalists wondered whether the fifth end, or purpose, of the Preamble, to “promote the general Welfare,” would, along with its recapitulation later in the first article of the Constitution, create too broad a grant of power, the overwhelming consensus at the time of the Founding was that the word “general” precluded the kind of projects that today we know as “pork.” Today the Preamble’s “general Welfare” reference is occasionally cited in error as a constitutional grant of authority. The Preamble can confer no such legal boon, and even if it could, the phrase “general Welfare” would allow very little, if any, of the legislative activity that the frequent misreading of the first clause of the Constitution’s Article I, Section 8, has permitted. In other words, to “promote the general Welfare” must be understood within the limited government context in which it was written.

Limited government for the Founders did not mean weak government. On the contrary, government had to be strong to secure the rights of the people. This is obvious when three other ends not examined in detail here are considered. To “establish Justice,” “insure domestic Tranquility,” and “provide for the common defence”: How do each of these ends require strong government—stronger than provided under the Articles of Confederation?

The Constitution’s Preamble states six ends of government, the sixth of which is, to “secure the Blessings of Liberty to ourselves and our Posterity.” It is this phrase, especially, that might remind us of the president of the Constitutional Convention, and the “Father of our Country,” George Washington, whose birthday should remind us how much we owe to him for the “blessings of liberty” that we so richly enjoy today.

David J. Bobb, Ph.D. is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. Click on http://www.hillsdale.edu/KirbyCenter/about/staff/bobb.asp to read Dr. Bobb’s biography.

This entry was posted on Sunday, February 20th, 2011 at 11:18 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

46 Responses to “February 21, 2011 – Analyzing the Constitution for 90 Days – The Preamble to the United States Constitution – Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.”

Trevor says:

February 21, 2011 at 3:50 am

The Preamble was considered in the debate in the States prior to ratification. It is an integral part of The Constitution and thus must have legal standing. “We the People” is an important bridge from America’s founding document The Declaration of Independence, particularly the second paragraph, which lays out the hierarchy of authority and the rationale that “…Governments are instituted among Men, deriving their just powers from the consent of the governed”.

You state, “The national government was sovereign, not the states.” I disagree entirely. The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas. This was further affirmed in the Bill of Rights Preamble and the Ninth and Tenth Amendments.

I agree with your analysis of the “General Welfare” clause in the Preamble. This meaning is reconfirmed in Article I, Section 8 as I believe Madison further explained in the Federalist Papers.

Lucy says:

February 21, 2011 at 8:13 am

I am so ever thankful that the Preamble was included , even if it was at the last minute. For me, personally, it sets a clear tone as to WHO the Constitution was a voice for.

As Dr. Bobb states: ““We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence. ” It continued the theme that it was “WE THE PEOPLE”… not the King, Queen, or anyother ruling person.. but the PEOPLE. It is the People that want this gov’t and our responsibility.

Our founding fathers were brilliant.

Roberta Castillo says:

February 21, 2011 at 8:48 am

First of all, I think your word “defence” in the preamble is spelled incorrectly. DEFENSE is better

Susan says:

February 21, 2011 at 9:21 am

If by sovereignty it was meant that the Federal could contract in the name of the States as an entity rather than requiring separate ratifications I have no problems with the statement but if it means a superceding of sovereignth of the States I object.

Shannon_Atlanta says:

February 21, 2011 at 9:34 am

I am interested in hearing other’s views on whether or not the Ant-Federalists were correct (in their interpretation of the future problem with the preamble) now that we have had 200 plus years to look back.

I have heard many times the argument that “promote the general Welfare” means to provide everything for everyone. I know that the Founder’s definition of Welfare was that which helped to keep the states together; however, that has been lost in the 20th and 21st centuries.

Another thing I find interesting is this: If one reads closely, he or she will have the answer spelled out clearly as to what the Founders meant.

They want to PROVIDE for the defence (that action takes a proactive, monetary avenue) yet only PROMOTE the general Welfare (ie, kinda like creating an atmosphere whereby the states can do their business without the federal government ‘providing’ anything of monetary value.) In today’s society to promote is kinda like doing PSA’s and having the president speaking out about the dangers of drunk driving, while ‘providing’ is actually funding.

CAPT JACK says:

February 21, 2011 at 9:39 am

Liberty and the framers and founding fathers never knew how the people that live under these protections would defame and protest and denounce it.That the men and women that fought, bled, and died for the right of free speech and liberty would be so defamed and spat upon when they came home from 12,000 miles away from family and friend’s in Viet Nam.This government,and congress has become a joke.we need another George Washington NOW before we destroy ourselves and this country.In the words of Thomas Jefferson,(If the govt. is big enough to give you everything you need, it is big enough to take them away.)

Brad says:

February 21, 2011 at 9:59 am

Janine and Cathy,
I am so grateful to you both for resuming the dialogue and blogs of last year. I enjoyed the Federalist Papers and now truly look forward to the Constitution. What you do for us as citizens of this great Republic is nothing short of true patriotism.
Let the reading begin !!!

Vicki says:

February 21, 2011 at 10:13 am

Imagine encountering the Constitution without its preamble, never having heard of it, and knowing nothing about the United States of America.

It is still the same document, but the statement up front that provides the reader with context is missing.

Donna Hardeman says:

February 21, 2011 at 10:50 am

Is Dr. Bobb going to come back at the end of the day and respond to some of the questions raised? I would like his answer to Trevor’s comment about vertical checks and balances. There is so much awareness recently of the abrogation of states’ rights and the federal government announcing its sovereignty in any area it so chooses. I actually think Dr. Bobb would agree with Trevor’s statement that federal government has sovereignty in the “biggies” listed in Article I, Section 8 but, Dr. Bobb, wouldn’t you agree that the states have sovereignty over everything else not specifically delegated to the federal government?

Ralph T. Howarth, Jr. says:

February 21, 2011 at 11:09 am

For perspective, the 1st draft of August 6, 1787 was a preamble written as follows:

“We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

Similar; but different. The preamble apparently was amended to reflect the more national intents; but that nationalization is limited to Art 1, Sec 8. It is that design that specifically makes a federal system, to which we do not constitutionally have a national government; but open license of federal government has formed a defacto national government that ignores the enumerated powers of Art 1, Sec 8. Case in point:

Records of the Federal Convention
Published Under Direction Of The United States Government
From The Original Manuscripts.
Reprinted 1895 Albert, Scott, Chicago, Page 725
Article 1, Section 8, Clause 7

[2:615; Madison, 14 Sept. 1787]

Doctor Franklin moved to add after the words “post roads” Article I Sect. 8. “a power to provide for cutting canals where deemed necessary”.

Mr Wilson seconded the motion.

Mr Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.
…
Mr King thought the power unneccessary.
…
Mr King — The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

The motion being so modified as to admit a distinct question specifying & limited to the case of canals.

New Hampshire — Massachusetts — Connecticut — New Jersey– Delaware –Maryland — North Carolina — South Carolina — no

Georgia — Pennsylvania — Virgina — aye [ Ayes–3; noes–8. ] The motion was not agreed to.

arthur says:

February 21, 2011 at 11:31 am

We the people, the people of what? The citizens of the sovereign States, who sent representatives to the convention. To form a more perfect union, a union of what? The States, who sent representatives to the convention. To provide for the common defense and general welfare of what and who? The States and the citizens that lived within them. Dr Bobb states that the Articles of confederation was a compact, a“firm league of friendship” but forgets that the confederation also states “in perpetuity”. What was the weaknesses of the Articles? He doesn’t answer that question, I will, the one reason for the constitution convention was to agree on a way to force the States to pay it’s share of the debt accrued during the war of independence by the union. Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything. The weight that they are given because they were printed in a volume titled the federalist papers is an illusion. If you want a better understanding of the constitution, read Madison’s notes on the convention taken down at the time. You can find them at the Avalon Project website. If the federal entity is sovereign then why doesn’t the representative from the District of Colombia have a vote? People certainly live there. I’m just getting started and I will post more to help in the understanding of our union of “nations” with constitutions written before the federal and which our federal constitution reflects.

Susan says:

February 21, 2011 at 12:03 pm

arthur, the weakness was in the structure that demanded unanimity before any measure could go forward. This resulted in one state blocking almost all regulations on commerce. This state was Rhode Island. This caused paralysis of all.

Ron Meier says:

February 21, 2011 at 12:07 pm

Janine & Cathy,

Thanks so much for continuing your program. I was concerned after finishing last year’s program on the Federalist Papers that Constituting America would die. I learned much about our founder’s intentions by the studies on the Federalist Papers, and have found it useful when crossing swords with people I know who pontificate on the Constitution’s meaning but who have not read the Constitution and FP or tried to understand their meaning. You’re doing a great service to our society. Blessings to both of you.

Ralph T. Howarth, Jr. says:

February 21, 2011 at 12:36 pm

At the time of the writing of the Constitution, the word “welfare” had the meaning of “happiness” or “prosperity”. So it can be said, “to promote the general happiness/prosperity”. Many today come to associate that clause with the societal safety net of unemployment and disability welfare, which still would not be a “general welfare” but that of a particular welfare and not that of charity: charity is the conscientious and voluntary giving to a particular cause where welfare is operative from the mandated taxation to a general treasury.

In addition, the Preamble was revised in part because when the original draft’s Preamble named New York, it was New York, if I recall right, objected and abstained in participating in the 1787 ConCon. Since New York was not present, it precipitated either striking New York from the Preamble or another option such as a more collective term of United States.

I say the Anti-Federalist were right in their concerns of a runaway federal government. George Mason’s objections in September 7-15, 1787 included a statement:

“Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitue new crimes, inflict unusual and severe punishements [realize Mason is the father of the Bill of Rights that came up after], and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.
…
The government will set out a moderate aristocracy: it is at present impossible to forsee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the onr or the other.”

Mr. Gerry had likewise this to say also among other things: “…By the general power of the Legislature to make what laws they may please to call necessary and proper…”

And more can be illuminated of sentiments of dissent on the Constitution just within the 1787 ConCon, let alone the Anti-Federalist debates that followed during the ratification process into the 1790s. In terms of Mason’s forsight, we are presently in the moderate aristocracy stage vibrating between a defacto monarchy in the President that assumes legislative powers in extended Executive Orders and a tyrannical aristocracy in the Congress that presumes executive powers in regulatory oversight. One will upstage the other eventually if the course is not changed. At present we have the SCOTUS that passes judgement on state laws for powers not granted to the Congress to legislate upon; but with consensual validation of aggregation of jurisdication, has now put the rights of the people subject to the opinions of a few.

Oh, and DEFENCE is the spelling used in the original, not DEFENSE of our present English.

Shannon_Atlanta says:

February 21, 2011 at 12:47 pm

Arthur, you said:”Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything.”

True, the papers weren’t legally binding. However, they were a DEFENSE of the COTUS. In those papers we find WHY the framers thought the way they did. It is a good way to see why the COTUS came out the way it did.

True, Madison’s notes are a great insight; but the Constituting America site deals with the Federalist Papers, not Madison’s notes. Therefore, it may be better to discuss the narrow points made within them and the COTUS-or else we will get off on a tangent that will take away from why we are all here. Maybe you can start a blog that deals with Madison’s notes on the Convention?

zac allen says:

February 21, 2011 at 2:24 pm

I may have been confuse on how it was written, but the States are the Sovereign, not the Federal Government, even with the Constitution. The Federal Government is merely an agent of the States. I one said earlier, the Preamble set the tone , and was not supposed to be used to supercede or define any of the articles that follow. Great stuff!!!! I like it!!!

Rudolph Moreno Pena says:

February 21, 2011 at 2:25 pm

With respect to the question, “What does the Preamble to the United States Constitution mean to you?”.

Though in my late 50′s and a college drop out early on, my desire and capacity to seek knowledge and understanding has never been greater than in these times of witnessing the aggressive march of Liberal-Progressivism in America. I greatly appreciate the efforts and perseverance of Janine, Cathy & the Constituting Crew for bringing this important online study of America’s foundation to the general public. This is a good reliable source for understanding and motivation for advancing to other levels.

In my (humble) estimation, the Preamble was an obvious and much needed statement of intent aimed directly at the King of England with no room for doubt as to our resolve to be free of British rule. The boldness and timing of it seems that it could have been a last minute dare with defiance and determination. It is that kind of American resolve that makes me such a proud American of Hispanic ancestry. A mere and common blue collar citizen, though I have never been in the military, being yet in my late 50′s, well worn and still somewhat physically able, I would not hesitate to do and give whatever sacrifice is required to protect this country from enemies both foreign and domestic. To preserve America, I would give my all. To that end, if the intention of the Preamble could be painted in the expression of an American face, it would present nothing less than a countenance of stalwart love with a determined look of duty and honor, and service to country. This, while in stride with a faithful reliance on God.

For a solid parallel to the Preamble, I would encourage all to read General MacArthur’s May 12, 1962 West Point speech, “Duty, Honor, Country”. To me, it states the ironic beauty of American character and the selfless will of sacrifice. To me it absolutely defines the Preamble and the incredible courage that it took to express it.

God Bless “Constituting America”

zac allen says:

February 21, 2011 at 2:30 pm

Also…. As I consider myself a Jeffersonian Anti-Ferderalist, I must make note, that what the Anti-Federalist feared has come to fruition today… It is the dumbing down of our society that has allowed it to happen. Things like this can only help, if it will reach the right people.

Trevor says:

February 21, 2011 at 3:26 pm

The Federalist Papers were important because they were intended to sell the States on the Constitution and show why the Anti-Federalist fears were unfounded. In other words, for the most part they confirm that even the Federalists (Madison, Hamilton, Jay, Washington et al) intended the national government to be limited to those powers enumerated in Article I, Section 8 and why the term “General Welfare” was not an open ended power.

Gary says:

February 21, 2011 at 6:50 pm

To me, the preamble to the Constitution is a stirring introduction that sums up the intention of the founding fathers in what was to follow after in the articles. It sets the tone for what is spelled out in greater detail later. As such, I have always found the preamble to the Constitution to be inspiring and a wonderful reminder of what our federal government is supposed to be about. When comptemplated as a whole, and compared to what we find now in practice, it’s pretty obvious that over the last 230 years, the three branches of our federal government have grossly over-extended their powers. The preamble to the Constitution, in this matter then, is a rallying cry for those of us who believe that a limited form of government is not only what was intended by our founding fathers, but it is what we so sorely need again today.

Luci says:

February 21, 2011 at 8:12 pm

Everyone seems in agreement that our three branches of government have gotten way out of hand from what they were supposed to be but most are forgetting that it is “we the people” who allowed it. We were so busy believing the “media” that formed our minds to accept “patient gradualism” that we little by little didn’t even notice the subtle changes they shoved at us – TV, movies, stories, articles, music, art, immorality,you name it – and so here we are – unable to even recognize the great Country and people we once were.
‘They” wanted to get us from A to Z but we’d rebel and so they took us from A to B to C and pretty soon we are at Z and we wonder how we got here. Well, now we know. We were asleep. God gave us Obama for a reason. He’s thrown us from A to Z in such a whirlwind that we finally said WHOA! And now, with God’s help, wide awake, WE WILL TAKE OUR COUNTRY BACK!

Ralph T. Howarth, Jr. says:

February 21, 2011 at 8:51 pm

@Shannon_Atlanta
The Federalist Papers experience was last year’s project. This year is on the Constittuion itself. Constituting America is about all matters that concern the formation, proclamation, and ratification of the US Constitution as it was put into affect. As James Madison’s 1787 ConCon notes is our only window of a detailed account of what transpired in that secret meeting to change the operation of government, Madison’s information is very relevant to this year’ project on analysis of the U.S. Constitution rather than the Federalist Papers to promote ratification of the U.S. Constitution as the ConCon dialog tells us just what were precisely going on in the minds of the framers of the same as the document instrument was drafted.

Alyssa says:

February 21, 2011 at 9:12 pm

To me, the premable of the consitution means that the people decided what kind of government they wanted to live under.

Thomas S Mackie says:

February 21, 2011 at 10:15 pm

At the time the Constitution was written, ALL thriteen colonies were established under the common law of England. King George signed over his sovereign authority to each one of these colonies in the Treaty of Paris. It is very confusing that these men would have chosen these words since it would have been impossible for such a group to exist as “We the People” of anything…each was citizen of his own Colony (State if you wish). While I share your enthusiasm, it is somewhat “telling” that these individuals chose to so word this organic document, a document that is nothing more than the organizational document outlining the duties and responsibilities of that corporation….”telling” in that they apparently intended for the Federal Animal to flourish…it did. The Federalist Papers were nothing more than the sales and marketing effort of those men. The Antifederalist Papers tell the true story and foretold as much way back then.

Cutler says:

February 21, 2011 at 10:25 pm

The Preamble, in my opinion, in one, concise paragraph, adequately describes our founding father’s intentions for this country’s government and the Constitution, limiting it to six, “missions” if you will, to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

Ron Meier says:

February 22, 2011 at 12:15 am

To those anti-Federalists out there, I have a question. How would it have worked out better to have retained the Confederation? If you would not have retained the Confederation, what would you have put in its place? Why would that have worked better than the Constitution?

Judy says:

February 22, 2011 at 1:26 am

What a utopia our country would be if our federal and state governments would have followed just the preamble let alone the entire constitution.

I could be off on a couple of these but I am really tired at the moment.

_________________________________________________________________

“We the People of the United States”

No longer the people of another country, king or territory but one people. No longer the people whose allegiance if for their sovereign state but allegiance to state and federal union

“in Order to form a more perfect Union”

States would acknowledge and encourage the union to be accountable to the constitution.

“establish Justice”

The federal union would no longer tolerate the injustice of oppression, tyranny, slavery or unlawful imprisonment

“insure domestic Tranquility”

The federal union would keep states accountable for keeping liberty and freedom for all people

“provide for the common defence”

The federal union would keep the sovereignty of the nation safe

“promote the general Welfare”

Key word: Promote NOT Provide: The people’s constitutional rights would be a priority

“secure the Blessings of Liberty to ourselves and our Posterity”

The freedom and liberty of the people would not be infringed upon by state or federal governments

“do ordain and establish this Constitution for the United States of America.”

This constitution is a bond between states and the federal; people and federal; people and states

Richard says:

February 22, 2011 at 4:10 am

Trevor made an excellent point about the dual sovereignty with both the National government being sovereign as well as the States being Sovereign. David J. Bobb stated the the National government was sovereign but the States were not. It is my understanding that Trevors view is correct. If we want to have a correct understanding of these daily teachings, it seems we need to have the authors of these contributions address these stated contradictions or some means to set the record straight.

James Burtner says:

February 22, 2011 at 9:42 am

Let me start by stating what the preamble means to me, then I will go on to comment on his blog. In my mind, the preamble is similar to a business mission statement or a personal mission statement, which lays out the goals and purpose of uniting the states into a whole, while at the same time allowing the people and individual states to govern themselves in most every other area of life.

It continued the idea established in the Declaration of Independence that men are born free, but establishes the reality that some men will use their freedom, and governments will use their power, to infringe upon the rights and freedom of others. For this reason, the people must relinquish a limited amount of their own freedom in order to establish a government to conduct the business of the nation, and to protect each man’s individual freedom. It requires citizens to follow good conduct in their dealings with others, and laws are established to this end.

The preamble lists the general duties of the federal government, and limits the federal government to those duties alone. The entire purpose of the Constitution was to lay out the federal government’s specific responsibilities as granted to them by the people of the nation, and was designed to specifically rectify problems they had faced due to the weakness of the Articles of Confederation.

In his blog, Dr. Bobb points out that it was a last minute addition to the Constitution. This is a little surprising because it so beautifully lays out the general role of the federal government. He also points out that there are those today who see the phrase, “to form a more perfect union”, as a means of continuing to evolve to a point where the states would lose their power and the federal government would be the sole governing power. This is a serious misreading of the constitution, as he points out, and the reason the country is where it is today. As he states, “to create a more perfect union” is based not on the future, but on the past, and the weakness they had found the Articles of Confederation to contain. The Constitution was designed to remedy those problems, not take the power of the states away, but to unite them as one nation that could operate and function as a whole without betraying the local interests of individual states.

Ralph T. Howarth, Jr. says:

February 22, 2011 at 3:33 pm

The “insure domestic Tranquility” clause rode upon the coat tails of the Shay’s Rebellion that had just occurred up to the 1787 ConCon. Having a strong federal government insured that the states could call upon the federal for help with insurrection and rebellion going on in the state, and by having free trade and a standard of weights and measures among the states would help assure lower and fairer prices of products and prevent shortages that might precipitate a rebellion. This measure was not intended to be a federal grant to impose jurisdiction on the plenary police powers of states.

The U.S. Constitution was written to define and limit the federal government and only left a provision that the federal will guarantee to ever state a republican form of government. Not until the 14th amendment was there federal supervision on the plenary police powers of states in the form of questions on Due Process (rights to defend oneself in court) and Equal Protection of the Laws (rights to sue someone in court). Those matters, of course, is a latter reading in this 90 days Constitution reading.

Mark Carr says:

February 22, 2011 at 8:21 pm

It is interesting how the Constitution has taken on so many meanings to so many people. I am very concerned about our current leaders who want to quote from the Preamble as if it is the whole document. They cherry-pick the things they want to reach their own progressive ends, most of which are directly against the word and spirit of the whole document. We need people to realize the Preamble is the introduction to the main body of the Constitution and that we all need to learn the whole thing in context before jumping off in the wrong direction.

Thank you for this opportunity to write to you all.

Debbie Bridges says:

February 22, 2011 at 8:38 pm

The Constitution was created for several reasons. The Constitution created a Federal government that would have the power to collect taxes, pay debts, regulate trade amongst the States, negotiate peace treaties with Indians and negotiate with foreign countries. Other countries would not recognize the Untied States in foreign trade agreements and treaties because we didn’t have a unifying Federal government. They were not willing (rightly so) to deal with 13 individual States when negotiating with the United States. Hence, the Articles of Confederation wasn’t working for this reason as well as the other problems already discussed in this thread. The Preamble beautifully announced to the world that we had come together as One Nation with One Federal government to be our voice and protector while at the same time retaining and protecting the individual sovereignty of the separate States and their citizens.

Janine Turner says:

February 23, 2011 at 11:55 am

Dr. Bobb, I thank you for your fabulous essay and for your generosity of time!
I never knew that Governeur Morris wrote the Preamble and that it was written last.
Knowkedge is power and only by truly understanding the words of the Constitution can one debate the wide array of misinterpretations that bombard citizens today. Your words enlighten the path one journeys on his/her destiny to defend our Republic.

Jerry Turner says:

February 23, 2011 at 4:08 pm

WOW. It is so refreshing to read the words all of you have written. I thought I must be the only person left in common America who understood the general ideas and principles of the Constitution. People say all kinds of “stuff.” But they can never back it up with real source material. This was more informative and educational than any class I’ve ever taken. Maybe there is hope. I still doubt it, but with the middle east transforming their governments and all you intelligent individuals out there teaching fellow Americans; it gives me just a little hope.

Shelby Seymore says:

February 23, 2011 at 4:38 pm

We provide for the common Welfare. Not provide Welfare. Which is one of the biggest reasons we are in a 14+ trillion dollar debt. I know welfare is a “good thing,” but only when churches or private businesses try to help the needy. Period. John Locke said the government provides protection from foreign attacks, protection from criminals, and actual needed infrastructure (which turtle crossings don’t count!). Welfare started when the poverty was 13%. Now in 2011, it’s still 13%! It didn’t help, in fact it’s making the rest of the nation less wealthy.

Gene Hinders says:

February 24, 2011 at 12:52 am

The Preamble, to me was a way to sum up what the Founding Fathers had laid out for us…an 18th century “sound bite” if you will…and one of the most powerful statements to ever had been made.

yguy says:

February 24, 2011 at 4:08 pm

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing.

How can it have any less “legal standing” than the rest of the Constitution which was ratified along with it?

So what does it mean, and why does it matter?

In maximal contravention of those who make it out to be a throwaway line, I submit that the Preamble is properly viewed relative to the rest of the Constitution as Christ said the two Great Commandments ought to be viewed relative to Mosaic law; i.e., the Preamble tells us where we’re going, and the rest of the Constitution tells us how we mean to get there. In the same vein, I would call attention to Christ’s act of healing on the day of rest; and just as the Sabbath was made for man rather than man for the Sabbath, the Constitution was made for America rather than America for the Constitution. One consequence of this view is that regardless of whether a President can constitutionally suspend the Great Writ (which he can, IMO), Lincoln acted constitutionally by doing so during the Civil War.

yguy says:

February 24, 2011 at 4:16 pm

The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas.

I say baloney. I say there is only one sovereign entity according to the Constitution, and that is We the People, our will being expressed by a supermajority of states per A5. No government entity has ANY sovereignty under the Constitution, as they are all vassals of those who consent to be governed by them.

Todd says:

February 24, 2011 at 7:32 pm

yguy,
I think you are picking nits regarding soverignty. Government, in the context of the document is “the people”. I think this goes without saying. But you are correct.

yguy says:

February 24, 2011 at 9:45 pm

Government, in the context of the document is “the people”.

If that’s true, then the master is his servant, and his command to the servant is a command to himself. Obviously that makes no sense, since We the People delegate certain tasks to our servants in government because we can’t or won’t do them ourselves.

Ruth Harper says:

February 25, 2011 at 11:17 pm

As the name “Preamble” says, it “walks before,” or introduces, the Constitution. As such, it identifies the parties: in this case “We the People” and “the United States,” and it establishes the nexus or connection that binds them together. According to my Black’s Fifth, the preamble is also “explanatory of the reasons for its enactment” the pronoun referring to the Constitution)and states “the objects … to be accomplished.” In that sense, it is indeed analogous to a mission statement as someone has already said.

It is true that it does not grant any powers; Black’s again, this time quoting a particular case: it “neither enlarges nor confers powers.”

Ruth Harper says:

February 26, 2011 at 6:58 am

A Caveat Against Injustice
– or –
An Inquiry into the Evils of a Fluctuating Medium of Exchange

Oddly, the specific issue under the Articles… that caused great problems and inequities, as stated in a book called Miracle on Main Street, and explicated in another, called E Pluribus Unum, was the lack of a lawful “money of account” among the states. Some places used specie coin, others paper “money” that was essentially worthless, with resulting chaos, rioting, and bloodshed.

The most familiar example was Shay’s Rebellion which arose at least in part because those western farmers had no specie money (gold or silver coin) with which to pay taxes demanded by their brethren in Boston on the East Coast who only dealt in specie because they could demand it for the products they traded with foreigners.

Thus, with Shay’s as a trigger, the Constitutional Convention was called in large measure to solve the problem of a lack of uniform currency or money of account (as opposed to the paper “continentals” that were “of no account” or just plain worthless).

Hence the specific concerns listed in the Preamble

“…to form a more perfect union,” (one money; uniform currency),

“establish justice,” (paper, like corn or apples, does not last or hold value as do gold and silver),

“ensure domestic tranquillity” (There was contemporary fighting over money issues),

“provide for the common defense,” (pay soldiers in money that has real value),” and especially,

“promote the general welfare,” (general well-being does not happen with a fluctuating medium of exchange! It happens with business and enterprise done with a stable medium of exchange; something that holds intrinsic value),”

“and secure the blessings of liberty to ourselves and our posterity…,” (what greater blessing than being able to buy and sell and save for a rainy day in something that has enduring value, and then even pass it on to our offspring?)

Ruth Harper says:

February 26, 2011 at 8:18 am

Oops! The author of the “Caveat …,” was Roger Sherman, the only Founder to sign and/or help write all four of our really important founding documents: the Continental Association of 1774, the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States.

But his “Caveat Against Injustice – or – An Inquiry into the Evils of a Fluctuating Medium of Exchange,” predated all those by more than 20 years! He wrote the Caveat in 1752, based on real-life experience. Like the authors of the Federalist Papers, Sherman modestly hid behind a pseudonym: He called himself a “Lover of Good Law” which, borrowing Greek, was “Philo eu nomos” (though not spaced as I did it here). When only two copies were known to exist, F. Tupper Saussy, author of The Miracle on Main Street saw the copy inscribed by Mr. Sherman to a friend wherein he had crossed off the Greek nom de plume and wrote in his own name.

One can go to the Connecticut State Library in Hartford and search out the file of a lawsuit in which Roger and his brother William sued James Battle for “paying” a debt of 129 pounds with nearly worthless paper from the “Rogue State” of Rhode Island. The Sherman brothers lost the case, but won the war, so to speak, because Roger lived to write into the new 1787 Constitution, Article I, section 10, that “No State shall … make any Thing but Gold and Silver coin a tender in payment of debts….” I believe his imprint is on other clauses as well, but just that one would be sufficient glory could we but interest state authorities in living up to it by demanding that the Federal Reserve be audited, and then sent packing, and that our mints resume making real money so we could all give up the “paper is money”charade!

Susan says:

February 26, 2011 at 12:42 pm

yguy, I believe the thinking for the representative republic was to hire a ‘representative’ to take care of that portion of the business of governance so that the majority of the people could continue in a more efficient day-to-day operation of life and the provision for his family and community.

Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:24 pm

Ruth, I had no idea that Philoeunomos was Roger Sherman. I thought the name/title had something to do with the Bible’s Philemon. Now I know different and pleasantly something more. Thank you very much!

craig eyrich says:

February 28, 2011 at 6:22 pm

dear janine and cathy, i am so happy that ‘classes’ have resumed!–i will follow this assiduously and try to support your website as best i can!– as i’ve said in the past–i never learned anything from opening my mouth and i am truly grateful for the learned commentaries from the other devotees of this website!–your friend in liberty, c.eyrich

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 1, General Introduction, For the Independent Journal (Hamilton)

Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 01, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

The Federalist Papers were written from 1787 to 1788 by Alexander Hamilton, James Madison and John Jay. They were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787. Numbering 85, the essays outlined the ways the new federal government would operate and why this type of government was the best choice for the United States of America. Each of the essays were signed “PUBLIUS” and they remain today as an excellent reference for anyone who wants to understand the United States Constitution.

Hamilton opens Federalist #1 with an introduction of the present state of affairs in the then existing United States of America and his plan to explain over a series of Papers why the new federal government created by the U.S. Constitution was necessary. Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.

At the time of the writing of Federalist #1 the United States of America is governed by the Articles of Confederation. Drafted by the Second Continental Congress in 1776, the Articles of Confederation had been submitted to the states for ratification in November of 1777.

As outlined by the Continental Congress, the federal government by 1787 had the authority to make war, negotiate diplomatic agreements and treaties, and acquire and oversee new territories that had not yet become full-fledged states.

However, by the time of the Philadelphia Convention that year many of the inadequacies of the Articles of Confederation were obvious. The government created by the Articles was incapable of providing the authority and power needed to be a fully functioning authority. Instead of a division of authority among three separate branches, the federal government exercised all of its authority through a unicameral legislature called the Congress of Confederation. Ironically, such a concentration of power masked the overall weakness of the federal government.

In order to change or amend the Articles, it required unanimous approval of the states. This standard made making any changes or reforms nearly impossible. The federal government had no power to tax and as such could not meet even its most basic financial responsibilities. A threshold requirement that nine of 13 states approve major laws passed by the Congress limited the ability of Congress to act on any but the most uncontroversial matters. In addition, it is significant that the Articles provided no authority for Congress to resolve conflicts between the states or to set up countrywide rules to encourage merchants and commerce.

Hamilton along with many other of our Founders recognized that if the United States was ever to become an economic powerhouse capable of defending itself from enemies without and within it was essential that the changes proposed in the Constitution were adopted. You see it was not simply dumb luck that we have this national charter. Now more than 200 years later we Americans share in the legacy created by these men and women who had such foresight and wisdom.

The Philadelphia Convention convened in May of 1787 and did not finish until September. When the convention finished Delegate Benjamin Franklin was approached by a woman. She asked Mr. Franklin, “What have you given us? A monarchy or a republic?” He famously replied, “A republic…if you can keep it.” Therein lies our task as citizens today.

Wednesday, April 28th, 2010

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

47 Responses to “April 28, 2010 – Federalist No. 1, General Introduction, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”

Peter says:

April 28, 2010 at 1:50 am

It is particularly interesting to me that Hamilton and Madison, who worked so well together to produce the Constitution and see it through to ratification, later became the driving force behind the first two political parties (The Federalists & The Jeffersonian-Republicans, which today are known as the Democrats). United in the cause of bringing the nation into being, they later split over the direction it should take.

It would be interesting to see how–and if–the differences that later developed between are foreshawdowed in The Federalist Papers. Perhaps some of the experts could build that analysis into their commentaries as the series moves forward.
Lillian Harvey says:

April 28, 2010 at 4:32 am

“…it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”

I wonder how Mr. Hamilton would feel about the “power grab” enacted on the backs of the American people in the form of “Healthcare *access through mandated insurance purchase*” as an Individual Right? He certainly didn’t think much of the “rights” of people over the “firmness and efficiency” of government.

It is clear that the anti-Federalists had a reason to be nervous for the future of our country and establishing a federal system without a clear delineation between the rights of individuals and the powers granted to government by those individuals. Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew? To even think that modern day Progressivism is in anyway aligned with the thinking of either of these schools of thought is absurd, imho. How far away they are from what the Founders were talking about and doing.

Do our selected leaders of today really understand how far this process has strayed? I feel there are tricks and tyrants afoot.

Are you all as blown away by what you are reading as I am? I studied these documents in school, of course. But I feel like I am finally understanding them because there are such contrasting ideas being practiced in our government today. Process is everything. I understand why these 1st Principles were adopted and why they fought so hard to enact them. Time to restore the Republic to 1st principles. No pain, no gain.
Will says:

April 28, 2010 at 7:21 am

@Lillian Harvey
Yes, I’m pretty much blown away by understanding the deeper meanings in these documents. Until this project I never really understood how things like Social Security, Medicare and parts of the health reform bill really *are* unconstitutional, and should be abolished.
Lillian Harvey says:

April 28, 2010 at 8:10 am

@Will
Finding the reset button is one thing, but pushing it is another. Each day, I’m finding more courage to accept the consequences of doing just that. There are more of us to convince that we are on the wrong track and there will be sacrifices to get us straight. Projects like this one are our best hope to help us make the necessary case through educated and considered argument against the legislative waste passed for the “good of the people”.
Donna had a great description of how the study of case law and rulings on precedents rather than original intent has assisted in getting us off track. Being able to see legislative proposals through the principles laid out in the Constitution demonstrates that most have no place being enacted at the Federal level. There is so much bloat in the Executive as a result. Of course “Washington is broken”. This structure was not designed to carry that extraordinary and unnecessary weight.
Susan Craig says:

April 28, 2010 at 8:41 am

From Ecclesiastes “There is nothing new under the sun”. It continues to amaze me at the well rounded understanding of the human condition that our Founding Fathers had. How our ‘education’ has failed us.
Carolyn Attaway says:

April 28, 2010 at 8:53 am

I made the comment to my husband last night, that since I started reading the Constitution again through this series, watching the news took on a complete new dimension. Listening to Congressmen discuss the Immigration Laws and the Goldman Sachs debacle, I am realizing that many have no idea what they are talking about. Congressman and newscasters alike are saying things like ‘This Law Makes it a Crime to be an Illegal Immigrant’. I had to clean out my ears when I heard that one. Surely I was mistaken. Sadly, I wasn’t.

And I could have cried when I heard the congressmen grilling Goldman Sachs CEO’s. They had no idea what they were asking, and could not understand the answers. Don’t get me wrong. I do not believe Goldman Sachs is an innocent victim in this mess, but the dog and pony shows our Congress puts on is embarrassing. And it’s all for political gain. I find it hard to believe they will prosecute Goldman Sachs; just like passing an immigration law, it is to dangle the carrot in front of unsuspecting voters for the November election.

Our country burns, while our Congress fiddles. I wonder if Benjamin Franklin knew how prophectic his words would be.

On another note, I find it interesting that all the letters are signed PUBLIUS. Publius was the “Chief man of the Island of Malta” mentioned in Acts 28:7 (Another proof that our founders read the Bible). How appropriate that they used the name of the man who entertained Paul and his companions while they were shipwrecked on Malta, and were seeking a permenant place of residence. Paul and his companions stayed on the island until the stormy season had passed. Could our founders have felt that same way in trying to ratify the proposed Constitution? I find this very interesting and it sheds a new light on this process for me.
Carolyn Attaway says:

April 28, 2010 at 9:08 am

I forgot to add on my previous post, that I believe with Knowledge comes Responsibility. As we read and discuss the Constitution and Federalist Papers, we are being charged with passing what we learn to others. No more couch activists! If we are to help restore our country, we must step into it. Finding the perfect balance between teaching and not preaching, will be a challenge for me, I know. But I heard a great piece of advice that other day on the radio. The talk show host was talking to a priest who works out west. The priest said the difference between liberals and conservatives, is that liberals use their emotions for their arguments, while conservatives use facts. When dealing with feelings, one must tread carefully.
Shannon Castleman says:

April 28, 2010 at 9:14 am

Carolyn, right on. agree with you that Goldman Sach’s is not a Saint. However, if my Economics degree taught me anything, it is this: They have the right to short an invenstment just as we have the right to wait for that new pair of jeans to go on sale. (That is basically ‘shorting’ the position.)

If people are wise stewards of their money, and diversify their investments like the BIBLE commands, they really wouldn’t be hurt by one bad apple.
Susan Craig says:

April 28, 2010 at 9:26 am

My ‘couch’ efforts have included posting the days revelation on my local news station’s blog site and calling the HS principle and ensuring that the HS was aware of the educational tools and contest available for his students.
Maggie says:

April 28, 2010 at 10:04 am

I, too, am embarrassed at the debacle going on with the grilling of Goldman Sachs…especially since the one doing most of the grilling (and using profanity) is from my district. I agree that those doing the grilling have no idea what they are talking about. Yes, something needs to be done about reigning in Wallstreet but how and at what cost? The government itself is up to its eyeballs in the cause of the financial mess we are in. Our founders KNEW that humans crave and seek power and that power corrupts (“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”….John Emerich Edward Dalberg Acton). That is exactly why they were so careful in their drafting of our Constitution and the follow up Federalist papers. The government was not MEANT to be Big Brother. Their “powers” were meant to be very limited. Government is neccessary to prevent anarchy, but “we the people” are the ones in power (alteast we are supposed to be).
Robert Shanbaum says:

April 28, 2010 at 10:09 am

What a curious commentary on Federalist #1! Mr. Cooper, could you have written less about the actual content of Hamilton’s essay?

The bulk of the essay is not about government at all. It opens and closes with a bit about the importance of the decision. But in the middle five paragraphs, Hamilton gets to his main purpose, which is to “poison the well” – to try to bias the reader against the other side, which Hamilton expects to rise in opposition to the new Consititution, before he has a chance to speak. Look at the litany of characteristics that the opponents will have: “ambition, avarice, personal animosity…” They will have some personal interest in the preservation of more powerful state governments (“…power, emoluments, and consequences of the offices…”). Essentially, it’s an exercise in mudslinging – but it’s the most elegant and dignified mudslinging since Marc Antony’s eulogy in Julius Caesar.

Federalist #1 doesn’t shed much light on the Constitution at all, except to the extent that it sheds light on the way politics worked in the Eighteenth Century. And when I read the following, in which Hamilton predicts how his adversaries will behave, I can’t help but think, this could have been written yesterday:

“A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”
Robert Shanbaum says:

April 28, 2010 at 11:57 am

Lillian, you do realize, do you not, that when Hamilton wrote that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people”, he was referring to people whom he expected would oppose the Constitution by arguing that it would give the government too much power to infringe on people’s rights? You realize, don’t you, that those people – the ones who argue that they’re interested in “the rights of the people” – those are the bad guys in Hamilton’s narrative?

The good guys here, according to Hamilton, are the ones who promote the virtues of a government having “firmness and efficiency”.

I ask because in your comment immediately following the citation, it sure looks like you could be positioning yourself as one of Hamilton’s bad guys when you argue that the government’s actions are a “power grab enacted on the backs of the American people.” That sounds to me like it could be characterized as a “zeal for the rights of the people.” Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.

You might want to read a little more about Hamilton. He’s something of a problem for those who are seeking support in the Constitution for de minimis government. In the Philadelphia Convention, for example, he proposed a centralized government in which the former states were stripped of their sovereignty altogether. (Importantly, to give you comfort, he did not prevail, obviously).

Elsewhere in these blogs, Hamilton was referred to as “evil” because he favored centralized, powerful government (which he did indeed, to a greater degree than any modern progressive of whom I’m aware). But whether you like his politics or not, he was in fact one of the framers of the Constitution, and he apparently saw sufficient comportment (dare I say, “potential comportment”) between it and his politics to allow him to go to the trouble of working for its ratification by writing these articles.

To answer your question about how Mr. Hamilton would feel about your alleged “power grab”, I’d say, he would be perfectly alright with it.

On that same topic, it may interest you to know that in 1798, the fifth Congress created the Marine Hospital Fund, which established a network of federally-run hospitals along the eastern seaboard to care for sailors and seamen, financed by a federal tax on their wages of twenty cents per month. That system persisted into the 1980’s. I think that in addition to what the Founders and Framers wrote, it’s instructive to look at what they did.
David Hathaway says:

April 28, 2010 at 12:45 pm

My interest in the Federalist Papers was begun when I read the recent biography of Alexander Hamilton, written by Ron Chernow. It was an interesting read, especially since Hamilton went on to found and The First Bank of The United States, the first Fed. I highly recommend this book.

I’m sorry that I have delayed reading the Federalist Papers for so long. Thanks for the guided opportunity to make up for lost time.
Karen Sherer says:

April 28, 2010 at 12:47 pm

I LOVE this opportunity to really refresh my understanding of the roots of our wonderful country by reading and blogging with all of you about the Constitution and the Federalist Papers! I’ve never blogged before so I was excited to finally find a topic I could respond to that offers something new and, perhaps, worthwhile. @ Carolyn Attaway: you provide so much food for thought, and maybe Madison did name Publius from the Publius of the Acts of the Apostles as the author of the Federalist Papers but the edition I am using had an insightful introduction by a man named Charles A. Kessler. He wrote that Publius Valerius Publicola was instrumental in establishing the republic of Rome. He called Publius the founder and savior of Rome and that Plutarch compares and contrasts this man with Solon the democratic lawgiver of Athens in “Parallel Lives”. Kessler wrote that Hamilton named the author of the papers “Publius” to trump the anti-federalists who were using “Cato” and Brutus” (also heroes of the Roman republic) as pseudonyms for their anti-federalist papers.
Also @Carolyn: I hope to end my career as a “couch activist” as I become more able to defend my political belief with facts. And I also heard that interview on talk radio about the difference between liberals and conservatives and I find that really true.
Carolyn Attaway says:

April 28, 2010 at 1:14 pm

@Susan – Great “couch” activities! I didn’t even think about the local news station blog. Good idea.

@Shannon and Maggie – I for one am glad that the GOP has stopped the Financial Reform from getting to the floor for debate. I do not trust this Congress with Financial Reform, especially since they will not even address Fannie and Freddie, or want to put more bailouts for Big Banks in this bill. That just scratches the surface. I would love for this Senate to stop anything from going through until after the election AND they address spending!

And the Founders had it right about Congress should not be a full time job. I cannot even begin to describe my emotions when I heard Tim Geithner comment “I never had a real job”. Doesn’t that spike confidence in his abilities to help the ‘real’ world?
Carolyn Attaway says:

April 28, 2010 at 1:40 pm

@Karen – Awesome piece about Publius Valerius Publicola. I find it intriguing that the name Publius is close to the word Public, which can be defined as people constituting a community, state, or nation, or a particular group of people with a common interest, aim. I am really enjoying learning so much from everyone’s input about our founding documents.

The hardest thing I have found about getting off the couch so far is pulling my friends with me.
Thomas Soyars says:

April 28, 2010 at 2:14 pm

While true when written this part may be even more true today:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”
Ron Meier says:

April 28, 2010 at 2:14 pm

At my church, we are having a sermon series titled “Get off your donkey.” It is based on the story of the Good Samaritan, Luke 10:34, who got off his donkey to serve his fellow man, even though the injured man was one others, including priests, avoided and refused to help. In like manner, by following this program, we should have the courage to get off our donkeys, armed with the knowledge of what our founders wanted this great country to be, and be ready to “fight the good fight, keep the faith, and finish the race,” 2 Timothy 4:7. We have a lot of work to do, and it’s time to get off our own donkeys and force our leaders to get back on the track our founders placed us on more than 200 years ago. The tea parties are a good start, but only a start. Remember what Edmund Burke said, “All that is necessary for the triumph of evil is for good men (and women) to do nothing.”
Ron Meier says:

April 28, 2010 at 2:21 pm

And, thanks to Janine and Cathy for getting this going! Two women who listened to Burke and got off their donkeys.
Ron Meier says:

April 28, 2010 at 2:43 pm

Interesting comment when Hamilton says: “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.” It’s interesting to me that much of the rhetoric in DC today is supposedly based on making everything better for everyone other than the wealthy; it seems that this is a ruse to convince the people that having more government will make this happen, when the ultimate end game is to maximize control over the majority of the people. 50% don’t pay income taxes now; if the Administration and Congress can move that up to 70% or so, then they’ll have the people right where they want them.
Jesse says:

April 28, 2010 at 3:01 pm

As I finished Federalist 1, I concluded that it set out the plan for the series of essays, what was to be discussed, and tried to debunk one of the first objections – that the individual states are better off without being under the umbrella of a nation.

My personal belief is in line with Federalist 1 – America is a great country because of its ability to bring the talents, resources, opinions and people of the individual states together while allowing the states to experiment and maintain their individuality.
Andy Sparks says:

April 28, 2010 at 3:05 pm

Carolyn,

The Publius pseudonym used by Hamilton, Madison, and Jay was named for the Roman Consul Publius Valerius Publicola who supposedly helped form the Roman Republic. He lived around 500BC, well before the birth of Christ.
Melanie says:

April 28, 2010 at 3:37 pm

How impressive you all are in your commentaries! I suspect the only thing our Founding Fathers would be proud of and respect today (were they to awaken to our current state) would be the new rebirth of patriotic activism, the passionate rediscovering of our heritage, and the determination of Americans to restore our great republic to it’s true form of constitutionally limited government of, by, and for The People.

Lillian rightly appreciates how wise our Founders were in their understanding of human nature, and how delicate and difficult to maintain a limited government would be. I can never get over the profound wisdom of our Founders in that they not only understood the nature of their righteous endeavor, but they understood how unique in the annals of all human history their undertaking was! They were IN the moment, and they KNEW they were in the moment. How grand! Lillian, it does just blow one away.
Chuck Plano, Tx says:

April 28, 2010 at 3:41 pm

Carolyn here is a question, if to become a naturalized citizen you must be able “to speak, write and read words in the English Language in their common usage” and it is violation of the law to vote if you are not a citizen, why do we need to print voting ballots in any language but English and provide interperters at voting places as is required by the Voting Rights Act of 1964? Is it because we knowing allow People who are not Citizens to vote?? I have ask this question of Congressmen in the past and have never received an answer.
Shannon Castleman says:

April 28, 2010 at 5:45 pm

Chuck, great point. As a matter of fact, that is the main reason Obama and his ilk are against the AZ law-because many of their voting base will leave. The Democrats have to rely on illegal votes/ACORN tactics/the Black Panthers with their bats at a voting place in Philly, etc. to win an election.

They cannot win on the merits of the debate.
Carolyn Attaway says:

April 28, 2010 at 6:28 pm

@Chuck – That is a good question. I do believe all official tests, such as citizenship, driver’s licenses, voting, etc, all should be in English. But keep in mind, there are many in Congress who do not want to make English the official language of the United States. As a matter of fact, do we even have an offical language yet?

According to Congress.Org – ’2/26/2009–Introduced.National Language Act of 2009 – Makes English the official language of the U.S. government. Requires the government to: (1) conduct its official business in English, including publications, income tax forms, and informational materials; and (2) preserve and enhance the role of English as the official language of the United States of America. Provides that no person has a right, entitlement, or claim to have the government act, communicate, perform, or provide services or’
Bill # H.R.1229

Original Sponsor:
Peter King (R-NY 3rd)

Cosponsor Total: 31
(last sponsor added 04/21/2010)
1 Democrats
30 Republicans

Only 31 sponsors, pretty amazing huh?
Horace Cooper says:

April 28, 2010 at 6:30 pm

Several commenters have mentioned that Hamilton’s repeated preference for an efficient central government meant that he would embrace the sizeable federal government that exists today. However no fair reading of Hamilton and his writings would yield this assessment. Hamilton’s arguments about a strong central government should be juxtaposed against the organizational handicaps of the government that existed under the Articles of Confederation. His view was that the government needed to more capable and agile in order to accomplish the limited set of objectives outlined in the Constitution — not the all encompassing objectives presently undertaken by the modern Federal Government. Additionally as a member of the burgeoning merchant class Hamilton believed that there was a fundamental responsibility of the federal government to encourage commerce. For him the lionshare of the regulatory state would be anathema.

H Cooper
Rob D says:

April 28, 2010 at 6:40 pm

@Robert S:

Liberty basically means limiting other people’s power, and to do this effectively, you support a lesser power against a greater: the pope against the emperor, the king against the pope, the parliament against the king, and so forth.

When the States dominated, it makes sense to strengthen the central government. Now the balance is tipped the other way, so we oppose Washington’s excesses.

“Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have he same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” —Hamilton, Federalist #28

Also, please let’s appreciate our guest commentators. If there’s more to add, then you can happily add it.
Andy Sparks says:

April 28, 2010 at 7:35 pm

Robert,

You are right on. The Federalist essays are propoganda! They were written specifically to convince New Yorkers to ratify the constitution because many parts of that state had anti-federalist sentiments. It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government. Both had witnessed first hand the anemic government under the AOC as representatives from their respective states. They were not proponents of limited government (Madison would become so, but not at this time). In fact, Madison had proposed that the Constitution allow the federal government to negative any state law and was deeply concerned when it was not adopted. Hamilton all but proposed the government be an electable monarchy with the executive and Senate being elected for life. Hamilton, of all the founders, would probably be the most proud of how the USA became a world superpower.
Debbie says:

April 28, 2010 at 7:39 pm

The signing of the the name Publius interested me enough that I looked up the definition in Wikpedia. The name Publius is a Roman masculine given name meaning “public” in Latin, one of the small group of common forenames found in the culture of ancient Rome.

There are also references to other Publius names, such as: Publius Valerius Publicola (Roman Consul), Publius Clodius Pulcher (Republican politician), Publius Cornelius Scipio (Roman Consul), Publius Quinctilius, (Roman General and Politician), Publius Clodius Thrasea Paetus (Senator during Nero’s Reign), and Publius Aelius Fortunatus (Roman Painter).

In actual fact we may never really know who was the real Publius, or was the name used because it meant public.
Lynne Newcomer says:

April 28, 2010 at 8:30 pm

I so love this, hello everyone. There is so much going on these days that you could almost lose your place if you didn’t press to maintain your focus . I am not complaining but I find the rapid fire of the political scene makes me ponder some of the tactics outlined in the book- Rules for Radicals -. This site is so helpfull,giving an intellectual boost via articulating my own as well as marinating my thoughts in all that is offered on this site.I watch and listen to cable news and radio programing to gather opinions,and while I value the points of view,this site has helped.
Someone said that we should get rid of Social Security, Medicare and some of the Health care bill,I have to respecfully say if that were to happen, I would be mad as a hatter…. I have been paying into these (not health care )for well over 40 years, holy mackeral that would probably cause many of us older folks to get out our pitch forks.As I would be in the front line. I understand (I think) the point that was trying to be made but fair is fair.
AZ,I am following this situation very closely and have heard things that range from the sublime to the ridiculous.Bottom line the Goverment has failed and in their failure have denied the citizens in boarder states and all states actually their Constitutional Rights. This group of people are not fullly included in the discussion of civil rights and I don’t think for one minute that it is a mistake.To stand the two groups side by side might provide too much lite on the subject for any real question to even be proposd.The Feds need to get off thier butts and do their jobs,.
Debate debate debate is the name of the game ,what I find distressing is the demonizing of opposing opinions, . This keeps us honest, or should ,using tricks or slight of speech is a shame.
Enough from me I guess I should get down off my soapbox. Good Night all.
Shannon Castleman says:

April 28, 2010 at 9:25 pm

Andy, good comments. However, I take a different approach than you based on your comment: “It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government.”

It is my belief the reason they wanted a more energetic Federal Government is because under th AOC, the feds couldn’t even raise taxes in order to fund what the constitution stipulated.

I would rather ask a different question: Pick the most ‘big government’ “Founding Father”, bring him bck to life, bring him to America in the year 2010, and ask him his thoughts.

Tell that Founding Father that the feds and state governments want to tell me how much salt to eat, want to tell McDonald’s they can’t serve toys with Happy Meal, want to tell cops in AZ they can’t research someone’s citizenship who has been pulled over for a DUI, want to tell me I have to purchase health care insurance, and then record their thoughts.

I don’t believe the quotes would be printable:)
WeThePeople says:

April 28, 2010 at 10:02 pm

@Peter, I too find that interesting that Hamilton and Madison went on to be so influential. It’s odd that their beliefs, or at least one of them, changed. But wasn’t Andrew Jackson behind the creation of the democratic party?
I think that by signing the papers by the name PUBLIUS, the actual writers separated themselves (all of them being significant political figures of the time) from the Federalist Papers, and made the connection back to the people. I think that, despite the elevated language, it would make the public feel more closely related to the topics addressed in the papers. It would make them feel like the concerns expressed here should be theirs as well.
Tricia Revolinsky says:

April 28, 2010 at 10:06 pm

“From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.”
What confuses me about this is that the creators of the Constitution decided that the Constitution was effective immediately and that the Articles of Confederation were debunk. They didn’t wait for all the states to ratify that the AOC was now null and void. They hoped that most of the states would ratify it and all the others would fall in behind them. Only after stubborn little Rhode Island ratified it, did it really become a true document formally accepted by the people. Until that point, the Constitution was in all respects, self-enacting.
Carolyn Merritt says:

April 28, 2010 at 10:32 pm

The US Constitution that Hamilton, Madison & Jay defended has become one of the most copied and admired documents in the history of mankind. The Federalist itself was published in Spanish in 1811 by the Venezualan Manuel Garcia de Sana, along with copies of the Declaration of Independence and the Constitution. The Federalist influenced movements in Argentina, Mexico, Brazil and in Europe.

Hamilton believed in the future greatness of America and believed that our nation could and would be one of power and strength. He somehow knew the United States would be a world power. (And wouldn’t apologize for it either).
Joshua Foote says:

April 28, 2010 at 10:34 pm

the articles of confederation was an absolute disaster. The states didnt wait to ratify it and because of this many problems arose. Even after the constitution was formed these states were fihting over many other issues than the ge=reat compromise resolved. ONly after rhode island ratifed the constitution did the people of the new wnited states accept the constitution. Be fore this document was ratified howver, the articles did a bad job at holding the counrty together, and only after the constitution was formed did the US truely become a self sustaining nation.
Greg Zorbach says:

April 28, 2010 at 10:41 pm

In response to the two posts by Robert Shanbaum, in no particular order:
Of course “Federalist #1 doesn’t shed much light on the Constitution at all.” It is, after all, titled “General Introduction.” As Mr. Cooper points out, The Federalist Papers “were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787.” It seems to me that to argue means to point out the superiority of your argument and the flaws in opposing ones, as well as any ulterior motives that may exist in those making those opposing arguments. I’m perplexed as to why you would find Mr. Cooper’s blog to be “curious.” He is after all, commenting on a general introduction to an 85-article two-volume set. It did not surprise me that: “The bulk of the essay is not about government at all.” It was billed as an essay on Federalist I, which got the process of persuasion under way. As Mr. Cooper put it: “Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.” Messers Hamilton and Cooper were both setting the stage for what was/is to follow.
The sense I got from this rereading of Article I was that Hamilton was attempting to introduce the Publius articles by remarking on the “mud-slinging” as you put it, that had marked debate to that point in order to keep that most-important public dialog (as Jay puts it in today’s reading – Federalist II) more substantive, and with candor, even good will. The history of politics is replete with evidence of Hamilton’s warning that those who would stand to lose power (the states’ legislators) under the new Constitution would oppose its ratification, regardless of the strength of the arguments for it. We see that same dynamic in play today: Congress will never vote for a flat tax or term limits: too much restriction on their power. (The closest to the exact opposite I can recall in my lifetime was the new Republican-led congress voting on the first day in session to limit the terms of its committee chairmen.) Hamilton goes on to admit that “Candor will oblige us to admit that even such men may be actuated by upright intentions…blameless at least if not respectable.”
As you point out, of course Hamilton was on the side of a more-powerful centralize government. That was the point of the Constitutional Convention: to fix the weaknesses in the governing Articles of Confederation and the resulting weak federal government. I do not believe that Hamilton was (or does in subsequent articles) see ‘good guys’ or ‘bad guys.’ It is true though that, as you put it: “Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.” After all during the previous administration dissent was characterized as patriotic. Today the Tea Partiers are accused (by a former president no less) of fomenting violence.
I believe that a main genesis of our current exercise of rereading the Constitution and the Federalist Papers is rooted in how far the federal government has strayed from the Constitution, especially from the Tenth Amendment. In that regard, the Anti-Federalists and other skeptics were correct to insist on the Bill of Rights. Although the fact of the Tenth Amendment’s inclusion seems to have had no obvious effect on limiting the federal government’s powers to those enumerated in the Constitution.
Upon rereading Lillian’s blog, I have no doubt that she understands where Hamilton’s views lie. After she lauds the Anti-Federalists, she makes the basic point of Article I (and our current civic exercise) quite nicely: “Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew?” You do realize, do you not, that it takes arguments from both sides of an issue to have a rich debate? Is not the point of any debate or series of articles on an important public issue to “to bias the reader against the other side”?
As to the question of how Mr. Hamilton would feel about the healthcare “power grab” Lillian mentioned, I disagree in your conclusion. First, we don’t know how Hamilton felt about the issue of establishing hospitals for soldiers and sailors. (Since he served General Washington admirably and loyally, I can hazard a guess.) Secondly, the only thing that the concept of caring for those who flight our wars and/or defend our liberties has in common with the current government’s takeover of the entire nation’s healthcare system is that both are/were federally run. Enlisting in the armed forces requires one to give up significant personal rights and freedoms. In turn, the country, with the government as our agent, provides for those individuals. Not many of us who will see our healthcare choices inevitably restricted under the new law ‘enlisted’ in anything, but we will see our freedoms and liberties limited nonetheless. I believe that Hamilton would be perplexed, if not appalled. In fact, Shannon may be right: his reaction may not be printable.
OBTW, very nice post, Melanie.
Daniel Smith says:

April 28, 2010 at 11:47 pm

Given the history of large governments in the past why do you think Hamilton had such faith in this new county?
Andy Sparks says:

April 29, 2010 at 12:02 am

@Shannon – Undoubtedly, you are right. But then again, Madison and Hamilton probably could not conceive that women and blacks would ever be elected as representatives of our government, or be able to even vote for that matter…
Melanie says:

April 29, 2010 at 2:56 am

Janine, the new series, “America, The Story of Us” is wonderful. The focus of the narration seems to be the deep faith, the independent spirit, and the determination of the Americans to live unfettered lives of limitless possibilities! I was thrilled to hear the commercial announcement that every school in America will receive the DVD series. Let’s hope it is put to good use. (And let’s hope its message remains unchanged.)

The First Amendment “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” when clearly understood, is so powerful! It makes me want to come to the defense of people of all faiths. If we don’t reclaim and assert our religious heritage, and stand up against the progressive secularization of our country, we will be lost as a nation, and the world will be lost. A little good news today… the Supreme Court upheld the right of the Mojave Desert WWI War Memorial to display the Cross.

The more we study these writings, the more profound the gems we find.
Robert Shanbaum says:

April 29, 2010 at 9:55 am

Greg, thank you for responding to my comments.

I did not write that I thought my observations were surprising, and I apologize for being critical of Mr. Cooper. However, I thought that remarks on Federalist #1 should probably include some comments on the content of Federalist #1, and not just reflections on its title, and that’s what I was trying to (happily) supply.

I didn’t realize that the object here was to learn about “how far the federal government has strayed from the Constitution”, but to learn about the Constitution. An intellectual inquiry that begins with the former purpose may well find its object, but it will fail to understand its subject well, as only that which was sought will be revealed.

I am not convinced that the oft-cited fourth paragraph has been well understood here. My use of the term “good guys” and “bad guys” was an attempt to use modern vernacular to describe that which is couched in the unfamiliar prose of another era. If you think that Hamilton was not trying to set up the debate as between what we would call “good guys” (his side) and “bad guys” (the other side) in that paragraph, what do you think he was saying?

I do indeed realize that a debate requires two positions. A debate does not, however, require what Hamilton has done here; that is, attempting to demonize his opponents before the actual debate begins. I am not passing judgment on the use of this technique – I’m simply observing that that appears to be his main purpose here.

By the way, the Marine Hospital Fund (and its related income tax) covered not just naval personnel, but merchant seamen as well. Also, I am curious about your comment that the healthcare plan will restrict your healthcare choices, and thereby limit your freedoms and liberties: if this or some other healthcare plan implemented by the government were to increase the number of choices available to you, would that expand your freedoms and liberties? Would that make it OK?

I do agree that Hamilton’s reaction, and for that matter, the reactions of all of the founders and framers, to the modern federal government, and for that matter, the modern world in general, might well be perplexity and dismay (though I think sheer shock would be the most likely reaction); after all, those are reactions of many who have grown up in it.

With regard to Mr. Cooper’s comment, wherein he disagreed with my conclusion as to what Hamilton’s possible reaction to healthcare reform might be, saying that Hamilton would have been attached to the enumerated powers in the Constitution, I refer both of you to Hamilton’s actual proposal for the new general government, which you can read here:

http://avalon.law.yale.edu/18th_century/debates_618.asp

Also, you may find his side of a debate with Jefferson regarding the chartering of a national bank informative:

http://avalon.law.yale.edu/18th_century/bank-ah.asp
Dale Swartzel says:

April 29, 2010 at 6:42 pm

Wonderful article! I think I understand a lot more about what the founders were trying to say and why. Thanks so much.
Ross Bigney says:

April 30, 2010 at 5:57 am

To me the most important lesson from Federalist #1 is the importance of hearing again that even the greatest idea — for example the Constitution — isn’t valid unless the people consent. Our founding fathers were marvelous people — they had such foresight. And people like George Washington who were popular enough that he could have become king of our country but would not. They are truly marvelous people.
Arizona Citizen says:

May 1, 2010 at 12:06 pm

Arizona lawmakers have approved changes to the state’s controversial law cracking down on illegal immigrants. The changes were designed to answer charges made by protesters that it will lead to racial profiling by police. The original law stated police can conduct an immigration status check during any quote “lawful contact,” if they have reasonable suspicion a person is an illegal immigrant. It replaces “lawful contact” with “lawful stop, detention or arrest,” clarifying police may not stop people without cause. The revised law also removes the word “solely” from the phrase “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.” Read the new Arizona Immigration Law
Kristine says:

May 1, 2010 at 4:46 pm

Please note, there is a great article enitled “Could the Constitution stop the new health-care law?” by Nathan W. Tucker in the Christian Science Montior Volume 102, Issue 23 (current issue..weekly publication.) In it he mentions that the enumerated powers of Article I, Section 8 do not mention the power to “legislate our health.” He goes on to discuss why the common claim by Congress that the Commerce Clause, and Tax and Spend Clause, and references to general welfare do not support the power grab of mandating the purchase of healthcare. He also mentions the “FEDERALIST PAPERS.”
Rod Criscillis says:

May 29, 2010 at 9:38 am

That is some inspirational stuff. Never knew that opinions could be this varied. Will all of the Federalist Papers be brought down to earth in such a compelling way? Thanks for all the enthusiasm to offer such helpful information here.
Susan Craig says:

July 1, 2010 at 7:51 am

I don’t know about the suffrage of other races but I see no reason that they couldn’t imagine the suffrage of women because women had suffrage in the late 1700 in the state of my birth New Jersey.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 2 – Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)

Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 02, Marc S. Lampkin, The Articles of Confederation

Guest Essayist: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Thursday, April 29th, 2010

Federalist Paper #2 was written by future Federalist party chieftain John Jay to address what many founders felt was a critical deficiency regarding the then existing government authorized by the Articles of Confederation. The deficiency was the major vulnerability the young nation faced because it lacked sufficient national authority to defend itself or to enforce its laws.

Reflecting his view that the public “choose” the new central government contemplated in the Constitution rather than simply acquiesce in it, Jay presents his arguments in terms of the “self interest” of the readers. “It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.”

John Jay was the oldest contributor to the Federalist Papers at age 41. Jay, a staunch abolitionist who would go on to become governor of New York and successfully ban slavery statewide, also had served as President of the Continental Congress and was a principal negotiator of the Treaty of Paris. After the U.S. Constitution was ratified, he would become the first Chief Justice of the United States Supreme Court.

At the time of the writing of Federalist #2, it had only been a few years since the Revolutionary War had ended. Although the Americans had just successfully defeated one of the most powerful military forces on the planet when it successfully won its independence against England, barely five years later the capacity to carry off a similar feat was dramatically undermined by the operation of the Articles of Confederation. In addition, compounding matters there was increasing sentiment among the political class that instead of presenting a “united” front as part of a United States of America, the states should actively consider whether even the loose association authorized by the Articles was either useful or worthwhile.

John Jay vigorously argues that not only should the states remain united; they should adopt the proposed Constitution’s federal style of government. It was Jay’s view that the crisis of the Revolutionary War had led to the hasty creation of the Articles of Confederation and even as its defects became apparent, those deficiencies were not great enough to prevent America from prevailing in the war.

Now that the war was over, the problems of the Articles had been so severe that the Philadelphia Convention had been convened to attempt to ameliorate its difficulties. Of course the result of the convention was an entirely new compact being drafted. The central theme of this compact is that it contains a Federal Government with specific authority and power to carry out its limited but important duties in a way that the Federal Government authorized under the Articles of Confederation could not.

John Jay presents two basic premises that are basis for his argument: it is a fundamental responsibility of government that it has the necessary power to regulate conflict and administer the laws it has lawfully enacted. Secondly, in order for any grant of authority to be legitimate it must be consensual — that is the people must grant the government the powers.

While Jay recognized that any of the government powers exercised ultimately came from the people, the issue was which of these powers should be reserved for citizens and which were usefully granted to the government. The test for Jay was whether a particular grant of authority best protected the safety and interests of the American populace. However, this problem was made more difficult when the question of whether the Americans should unite under one national government or instead become separate states.

To Jay the answer was a strong union. He believed that for all intents and purposes, the confederation of states were already a union. He argued that the geographical make up of the nation including its topography and “navigable waters” created natural boundaries that encouraged commonality. Additionally the faith, language, principles and customs of the people who dwelled in this land which were overwhelmingly similar also argued for a strong union.

“This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”

Since the land, people and language made it naturally more efficient to remain together then Jay believed that it was essential that the government they were subject to had the authority and power to carry out its duties in a way that the Articles of Confederation had never allowed. “It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object.” It was John Jay’s considered view that the adoption of the Constitution in the long term would prove beneficial to all Americans both in a time of military conflict and in times of peace.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From Foreign Force and Influence (Jay) – Guest Blogger: W. B. Allen, Professor of Political Philosophy at Michigan State University

Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 03, Federalist No. 04, W. B. Allen PhD

Friday, April 30th, 2010

Essay # 3 investigates the causes of war. Publius seems to raise the question, not merely from curiosity but rather because it’s important to be prepared to prevail in war and also to place one’s state in the position to avoid war. The Federalist Papers seem to adopt this perspective in its approach to foreign policy inquiring not how to adopt an active posture for engaging in war but rather how to make war as little likely as possible. The argument is laid out by the end of the third essay, and then stated outright in the fourth essay, where he says of the American people, “Wisely therefore do they consider Union and a good national Government as necessary to put and keep them in such a situation as instead of inviting war will tend to repress and discourage it.” This deterrence theory is based on a number of factors deriving from human nature, and it therefore forces us to ask whether Publius generally understands the causes of war. Again, in the third essay we see a claim that the pace of America highly depends upon observance of the laws of nature towards all foreign powers, a thing more perfectly accomplished in proportion as we have one national government rather than thirteen or some other number of states. We expect, therefore, to close with an argument from efficiency, less chance, greater consistency, and greater stability in foreign relations.

Surprisingly, Publius does not do that in the third essay. He instead states the following: “When once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed.” He argues not from efficiency but from the character and talents of the officeholders. The first reason for increased national security is clearly that one obtain the best statesmen. The question of safety calls for intelligence and consistency.

It is wise to avoid war, and Publius illustrates this by arguing that “Hence, it will result that the administration, the political councils and the judicial decisions of the national Government will be more wise, systematical, and judicious, than those of the individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.” The chief means to avoid war is good order at home, and it includes satisfying other nations.

A third reason for a foreign policy of justice and consistency is that the national government will avoid tempting other nations to offend the United States because a United States that is well organized will be successful and prosperous, and that is what will bring peace. It will dispose other nations to cultivate our friendship as well as yielding strength. This will attract other nations into peaceful association, and this is what makes it possible to avoid war.

W. B. Allen

Michigan State University

Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

39 Responses to “April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From ForeignForce and Influence (Jay) – Guest Blogger: William B. Allen, Professor of Political Philosophy at Michigan StateUniversity”

Susan Craig says:

April 30, 2010 at 7:12 am

So far the argument for union, is the implied understanding that in strength there is peace.
Carolyn Attaway says:

April 30, 2010 at 10:06 am

There was so much in Paper #3 that lends itself to a good discussion. However; the 3rd and 4th paragraphs sum up the whole paper for me when John Jay talks of Foreign Arms and Influence; and Like Kind arising from domestic causes. And whether the wars happen or will happen because of REAL or PRETEND causes that will PROVOKE or INVITE them.

I am constantly amazed at the insight our Founders had regarding the present State of the Union during their time, as well as future conditions that could, and most likely will, occur. Without the strength of a Union, the individual states existence were in danger because of their lack of reinforcements from the other states; that combined with their statenot only ensured safety of external forces, but internal conflicts as well.

Think of all the small countries in Europe that have been abolished and/or reformed into other countries because of internal or external conflicts. The country of Yugoslavia, for example; until 1941 was the First State of Yugoslavia with a monarchy rule. The Second of Yugoslavia was from November 29, 1943 until June 25, 1991, and it was a socialist successor state to the Kingdom of Yugoslavia and existed under various names.

The Federal Republic of Yugoslavia was from April 27, 1992 until February 4, 2003 and it was a federation on the territory of the two remaining republics of Serbia and Montenegro.
The Union of Serbia and Montenegro was formed on February 4, 2003, and officially abolished the name “Yugoslavia.” On June 3 and June 5, 2006, Montenegro and Serbia respectively declared their independence, thereby ending the last remnants of the former Yugoslav federation.

This present day example could have very easily happened to any individual state during the Founders time if they allowed themselves to believe they were stronger as an individual entity as opposed to an entity within a greater union. As John Jay explains, there were threatening forces for the Border States, as well as internal conflicts with native Indians within other states. With a Union, individual states were protected from aggressors, as well as being prevented from becoming a rogue state that would threaten the security of the Union.

Today, many of our states are experiencing turmoil from neighboring countries, other states, and citizens. The Founders had put in place measures on the Federal level to keep the Union secure. However; I find it ironic, that today it is the Federal government that is threatening the security of the Individual States.
Chuck Plano, Tx says:

April 30, 2010 at 10:08 am

The very argument that is made in Federalist #3 for Peace through Strength was the very essence of the Ronald Regan Administration. Remember when he refused to give up SDI and the media belittled him and yet what do we see today, missile defense. When Regan let the summit in Iceland go with out an agreement with the USSR on arms control every one said we were doomed and yet who fell from the world stage, the USSR and not the United States. The most important question is where are we headed today and how will we mantain our strength when those who are supposed to be our leaders and willing to give up our strenth by crippling our economy after all it is economic strength that produces the real stength in any nation.
Bill Kenagy says:

April 30, 2010 at 10:17 am

In “strength bringing peace” the opportunity then will present itself to aid our fellow man rather than war with our fellow ma.
Shannon Castleman says:

April 30, 2010 at 10:36 am

Chuck, insightful. I fear where we are headed today is disater on a global scale. I think Jay ande others of the time would tell us today, “Let’s be as strong militarily as e can, so that others will not cause us harm. In return, let’s not have troops in fifty nations, (lik we do today), so that other nations will not feel the need to wage war against us.”

What better use of our resources if we took 80% of the troops we have spread around the world and secured our borders, south and north. I care not what the North Koreans do (our troops there); I care intensely what the Mexicans do.
Susan H. says:

April 30, 2010 at 11:06 am

Hi All,

I’m catching up on my reading today. Thank you everyone for your great comments.

I was struck today by the passage “Because when once an efficient national government is established, the best men in the country will not only consent to serve, but will also generally be appointed to manage it…..” I feel like maybe at this point in time we don’t have the best men or women in the country serving. Of course this behooves the population to place better people in office.

I also wanted to say that I agreed with the comment from a few days ago regarding how the founding fathers WANTED the people to know what the government was doing. It really does feel to me like the present government is being sneaky.
Randy Nutt says:

April 30, 2010 at 11:13 am

I took from Federalist #3 the need for a centralized govt to protect the whole of the States and wage war if necessary… Federalist #3 ties in to the border question we have today in my opinion… if we have between 12 and 25 million illegals crossing the border and Art IV section 4 of the Constitution has the Federal Govt responsible for protecting the borders from an invasion, then if the numbers I stated are correct, what, pray tell, would constitute an invading force than up to 25 million non-citizens?

Just saying…
Chuck Plano, Tx says:

April 30, 2010 at 11:28 am

Shannon it is very frightful as we see what is going on, on our southern border. In the late 1980′s after Casper Winberger was Secetary of Defense he wrote a novel outlining 5 senerios where the USA could fing itself in war. One of those was Mexico, as that country would become so corrupt and violent due to it’s drug problem that the US would have to send troops to stabilize it in “our” national security interest. It appears we have reached that point but our Federal Government has niether the plan or the will to do so much less secure our own borders.
Constituting America says:

April 30, 2010 at 11:34 am

Morning. It’s Janine. I think it is very interesting and quite relevant how John Jay talks about the states dealing with their neighboring countries in a passionate manner as opposed to the Federal government who would deal with the state’s neighboring countries in a cool, objective manner.

This begs the question: If the Federal government is to protect the states re her foreign borders then should they not neglect the states needs and causes? What happens if the states are left in middle of desperate situations with no aid from the Federal government. Is this where the Tenth Amendment comes into play?
Susan Craig says:

April 30, 2010 at 11:38 am

I think that in their worldview the order of responsibility went person, family, local, state and last and only as a final resort federal.
Damon Wilson says:

April 30, 2010 at 12:36 pm

Professor Allen points out something that I’d never thought about before — the question of what should nations do to avoid invasion. It appears that the founders didn’t think that merely being friendly was a sufficient basis for ensuring that one would be free from an attack. President Reagan comes to mind, but I’d be curious what Presidents over the 20th and the 19th Century before thought about this principle?
Gary says:

April 30, 2010 at 12:39 pm

Janine. I think your scenario is a prime example of when the 10th Amendment would be very operative. After all, the central government cannot state that an obligation is Constitutionally reserved to it, then refuse to exercise that obligation. I beleive Congress has defacto abrogated the right to “control naturalization” and the sovereign states must do it themselves.
Carolyn Merritt says:

April 30, 2010 at 1:22 pm

@Constituting America and Gary: James Madison wrote in the Federalist No. 45 that “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the StateGovernments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce;…The powers reserved to the several states will extend to all the objects , which in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.”

In my humble opinion, I believe Arizona is correctly operating under the States’ Rights set forth in the 10th Amendment because the Congress is not doing its duty to protect Arizona from its loss of life, liberty, property and prosperity.

What say someone else?
Carolyn Merritt says:

April 30, 2010 at 1:24 pm

Federalist #3 is the first of 3 of Jay’s arguments that the Articles of Confederation are inadequate for our defense. In this third paper, Jay puts great emphasis on the reasoning for a national united Government as opposed to the 13 states each governing their own way.

He states that we Americans long hold the belief that in order to continue with peace and prosperity; we do so under a single governing body, the federal government. The first provision by the governing body is the safety of our Country and We the people. Though the Founders were more concerned about our being protected against foreigninvasions and influence, they were also concerned even then about the dangers of domestic insecurity. Jay goes on to state that through a friendly and efficient national government can we best be protected from foreign hostilities. Our Nation would not be the provocateur because we would be an America that is united. “The Union tends most to preserve the people in a state of peace with other nations.”

Jay goes on to state that it is extremely important that in order to maintain the peace of America we respect and observe the laws of nations in which we have signed treaties and this can be done only by and through one united Government, not by the several states or sovereignties.

He gives the sound reasoning as to why we needed a national government run by men of intellect appointed to serve wisely, systematically, and judicially. Jay felt that left to their own governing, separate states would selfishly guard their own peoples and borders.
Maggie says:

April 30, 2010 at 1:35 pm

Federalist #3, for me, drew the strongest parallel thus far to what we are experiencing today. Jay states that “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first.” Has our government lost sight of this? “We the people” have stated time and time again that our biggest concern is safety. Jay also states that “The neighborhood of Spanish and British territories, bordering on some States and not non others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations”. Doesn’t the Federal government have a duty and an obligation to HELP AZ? Is this not one reason WHY a centralized government was established rather than having several smaller governments?
Maggie says:

April 30, 2010 at 1:42 pm

@ Carolyn….I too was struck by the fact that our founding fathers had the foresight to understand that dangers can come not only from “Foreign Arms”, but can also arise “from domestic causes”. These wonderful men seemed to have thought of everything that could possibly go wrong. God Bless them.
Susan H. says:

April 30, 2010 at 2:01 pm

To Carolyn M.

I wholeheartedly agree that AZ is doing the correct thing considering that the Federal government can’s seem to find the will to protect that border. Here we are reading the writing of our founding fathers arguing that the federal government is needed for just this sort of thing and yet currently the federal government is failing. It will be interesting to see if any other states follow suit in this issue.
Constituting America says:

April 30, 2010 at 2:08 pm

Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William B. Allen, for his words of wisdom about Federalist Paper #3. Thanks William!

What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’sFederalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.

Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.

John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.

During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.

It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.

We are the United States of America.

God Bless,

Janine Turner
April 30, 2010

P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!
Susan says:

April 30, 2010 at 2:28 pm

I am struck by the amount of thought put into these papers to explain the authors’ reasoning for the adoption of the Constitution to the people. It is a stark contrast to today’s bills which are so long and convoluted that I don’t think anyone can read them let alone explain them and probably few even try.
John Harris says:

April 30, 2010 at 2:34 pm

I believe some of the founding fathers had an idealistic view of it’s new country and republic. Most specifically, Monroe believed that the brotherhood of republics transcended national boarders and expansion of induvidual liberties was central to the policies of modern governments born of revolution and the revolution would tear down national bounaries and unite mankind. Once the revolution was over he/they realized real quick that self interest was a greater force than any republic. England, France and others coveted the riches of the new world. The founding fathers found themselves having to preserve the united colonies (thank you Federalist Papers), protect them from invasion and promote trade abroad. And the best way at the time was through diplomacy and not war.

Translating to our present situation we find ourselves relying on others for natural resources, trade abroad has resulted in a large deficit, and our boarders have been invaded. It is vital that every citizen in America today understand our Constitution and how it was formed. If we dismiss the wisdom of our forefathers we are doomed to tyranny.
Jesse Stewart says:

April 30, 2010 at 3:06 pm

You all have said things that struck me when reading Federalist 3. But what really stood out, as others have suggested, was that the best men will fill the roles of “administration, the political counsels, and the judicial decisions” of the national government because there is a large population in the Union from which to draw these men.

Would Jay roll over in his grave given the quality and honor of those serving today? It is our responsibility as citizens to ensure that the “best men” are filling those important roles!

PS: realized I didn’t put my last name on previous comments; not intentional!
Eli Hazelett says:

April 30, 2010 at 5:08 pm

There would seem to be many ways that a country could fall apart — does an invasion have to be formally waged by a nation as such or can it come from an unorganized group?
Peggy Brittain says:

April 30, 2010 at 5:48 pm

“The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.”

It seems to me that our national representative government has turned this around. They are the ones who justify their actions, and oppose their acknowledging, correcting, or repairing their errors and offenses.

If we cannot believe in our national government to protect us from harm and ensure our safety then don’t the states have the right to protect themselves?

I don’t think our founders intended for our representatives to be career politicians. This state has led to our elected officials being more protective of their own self interests and their voting blocks than protecting the citizens of the states. Today, the interests of our elected officials is all about power and control. To them our founding documents are living documents meant to change with the times. I am learning that it is just the opposite. Our founding documents are just as relevent today as they were at the time of their writing.
Christina Quinn says:

April 30, 2010 at 6:16 pm

It is staggering to me from our vantage point now looking back through time that that we in this present generation have so much greater abilities than our forefathers to both study historical documents and communicate to our fellow citizens, yet do not. It was beyond comprehension that a day would come where information regarding all past and present civilizations, their failures and successes, their forms of governments would be or could be juxtaposed and weighed against each other. The vast superiority of Our Constitution is not even debatable in world history and is in fact I would suggest self-evident to all that apply their reason, but therein lies the rub. It was a given during the time of our forefathers that applied reason would win the argument and that the citizenry out of self-interest would deem it necessary to educate themselves in a form of government that was to be run by themselves. Out of all the considerations, safeguards, checks and balances, they sought to circumvent or eliminate in the wording of the Constitution the one blind spot now a glaring omission was not to mandate it’s reading by the citizenry. The implied self-interest of a government by the people for the people for our forefathers it went without saying that all citizens would know and read the Constitution and thus understand our foundation and liberty. Again beyond their comprehension would be a day that “self interest” for a majority of citizens regarding their government could be assessed as what they can “Get from” it not “Vest To” it, yet here we are. While “Foreign Force and influence” were on Jays mind clearly foreseen as a great potential threat not so was the idea of threat of domestic ignorance… that specter that topples all freedom and liberty, let us pray for the defeat of ignorance in our this Constitution Revolution:-) .
Nickie Summers says:

April 30, 2010 at 6:39 pm

I to am amazed at the foresight of the Founding Fathers. I’m as amazed at the ignorance or disregard from our current leaders to bring history forward as guidance on what NOT to do to overcome troubles today.

Fed Paper #3 – As I read it, I couldn’t focus on the paper itself…all I could focus on is the relevance to Arizona vs. the Federal Government. Jay states that a national government is more likely derterrent for warding off war than astate…and I agree. But since the Federal Government has been unable the state has to step in.
Ron Meier says:

April 30, 2010 at 7:41 pm

@ Janine, the Arizona situation seems to bring rebirth to the Confederation instead of the Union. Only 4 states share the Mexico border and our Representatives and Senators spend their days about 2,000 miles away in Washinton, DC, far from the points of conflict. Because they are so far away, and the 46 states they represent don’t have the samedirect problems with illegal immigration, they seem to be acting as if they lived in a Confederation, where they don’t care enough to act on the problem because the problem is not in their own districts.
In many instances such as this, our elected representatives are acting more like delegates than representatives of a Republic. As delegates of a state, they vote only for those things that are problems for their own states; as representatives, they should be voting for those things that are in the national best interest, even if not in the best interest of their home state.
Greg Zorbach says:

April 30, 2010 at 8:01 pm

@John Harris… I agree in your entire post, but would amplify your statement: “And the best way at the time was through diplomacy and not war.” It was probably true that in 1787 the new country was weak enough to the point that diplomacy was the only option in most cases of foreign provocation or dispute (therefore, the recurring argument for adoption of the proposed Constitution to replace the AOC in order to give the country a stronger national government). Several times in our history when we were not strong enough militarily, our diplomatic efforts proved to be impotent. The best explanation of national power or effectiveness in foreign affairs I have heard was presented at the Naval War College by a visiting lecturer from the government in the late 80’s: any nation’s power is like a stool with four legs. The legs are military power, economic power, national resolve or character, and the last one that depends the most on the other three – diplomatic skill. However, if the stool’s legs are not in relative balance, national effectiveness in foreign affairs (the most critical being the avoidance of war without resorting to the ‘tribute’ that led Jefferson to take on the Barbary pirates) is diminished. I believe that Chief Justice Jay was make this same point in argument for adoption in Federalist 3.
Beverly Benson says:

April 30, 2010 at 11:39 pm

If our country became unified would it mean that we would have more people to select from in terms of making up the military force? And I guess I haven’t read the Articles of Confederation, but I noted that the Constitution allows the federal government of the U.S. to have a draft. Would unity mean that the founders wanted to be able to draft people from every single colony?
Cindy Thompson says:

April 30, 2010 at 11:42 pm

Our country has truly been blessed to have men such as John Jay to take such an interest in the nation and to accept the risks that they did. It is really too bad that historians have tried to rewrite their profiles to turn them into lesser men. I am honored to read their essays and thankful for the Constitution we have. I’ll do my part to spread the word about it.
Tricia says:

April 30, 2010 at 11:44 pm

It is amazing how persuasive the 3rd Federalist Paper is. I like how Publius used moderate language throughout the essay in order to gradually convince the reader of his cause. By the end, I found myself agreeing with him in the idea that “strength is peace.” I envy the eloquence of this essay!
Seij De Leon says:

May 1, 2010 at 1:29 am

The Federalist Papers no. 3 makes a point to explain how things will go well, concerning the people running the country. It states that the best men will serve the country, and to defend that explains that “for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,–especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States.” Like what Jesse Stewart was saying, this is nowadays an overall hollow statement, and I’m sure that John Jay could not of envisioned how things really work today. Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.
Nancy Martin says:

May 1, 2010 at 8:33 am

It interests me that three men could agree so strongly on the benefits of the new constitution that they could all use the same pen name Publius. I’m curious about what this means in terms of the trust they had for one another?
Shannon Castleman says:

May 1, 2010 at 2:02 pm

Nancy, thoughtful question. These men trusted each other because they were Statesmen, not “politicians”. They loved their new country more than they loved to disagree with one another.

They don’t make people like that anymore, at least not many. Could you imagine Pelosi, Paul Ryan, Harry Reid, and a Libertarian doing this together?

I can’t.
Peter says:

May 1, 2010 at 6:22 pm

Dumas captured the spirit of Federalist #3 when he wrote “All for one – and one for all.”
Susan Craig says:

May 2, 2010 at 8:35 am

What has become inverted is the foundation of peace. What the founders here argued is that diplomacy functions best when supported by three legs. These legs are; one a strong defensive capability (making it hazardous to attack), two a strong economy (ability to sustain) and three a collective understanding of principle and the will to back them up. Currently termites are attacking all three legs and still insisting that diplomacy unsupported will work.
Lynne Newcomer says:

May 2, 2010 at 10:20 am

Hello all. Peace through strength,,I think the founders knew this and up until these past few years that axiom has held us in a secure grip in a very dangerous world.Reality exists and to pretend that we can behave out side it because it suits our wishes is a dangerous and irresponsible failure of understanding.I expect our Government to be adults,people who will hold themselves errect and bear the burdens of truth, and this does not mean we are imperialist ,Facist,etc.These over the top charges make me wonder about the depth of understanding of those using these distructive words.It stikes me as as very young and immature teen who has heard a few new words and can’t wait to use them,and have no idea how foolish they appear .I am imbarrased for them most of the time.
Strong mature silence is quiet and deliberate in its action and words. Unity is in our best interest and I pray for a leap of comprehension on the part of America.
Andy Sparks says:

May 2, 2010 at 12:24 pm

Shannon, you may find it interesting to know that two of the people who wrote the Federalist Papers (Alexander Hamilton and James Madison) went on to become bitter enemies. Madison switched sides so to speak, and joined Jefferson’s Republicans and denounced and worked against Hamilton’s Federalists, and vice versa. Once the Constitution was ratified, they did not work together as statesmen, but became politicians.
Patrina L. says:

May 2, 2010 at 7:25 pm

RE the statement by Seij De Leon: “Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.”

It is true that people can, have done, and will make mistakes in selecting their leaders via their voters’ voice; however, I fear how much WORSE it would be if the PEOPLE did NOT have the power to make these monumental choices…

Would anyone want the current leaders (or any leaders, for that matter) making these important choices of leadership for us? How much worse would that be? We, as a people, have the CHOICE to oust, what we perceive to be as, any bad lot of leaders at the voter’s box. This is what gives US the power. We must jealously guard it through our own education regarding our national history and our current events. This is what Benjamin Franklin meant when asked by a woman what kind of government the Founding Fathers had given the Country. He responded, “A Republic- if you can keep it.” His answer implies that we bear an ACTIVE responsibility toward maintaining our power as a people. Not only must we educate ourselves, but we must also actively exercise our freedoms through voting. We have been given a rich wealth of freedom and power through our national inheritance, but we cannot become passive because our inheritance will not maintain itself. We, as the ones who have inherited this great gift, have an ETERNAL RESPONSIBILITY toward ACTIVELY preserving it by being knowledgeable, diligent, and vigilant regarding its upkeep, or else it will be stolen from us while we slumber. We the People must insist upon learning about our inheritance of power and freedom, and preserving it through proper tending, or else it will surely wilt and die, yielding us nothing but disappointment and grief, making us very poor inheritors, indeed.

So, the truth of the matter is that if the PEOPLE did not make the choices of leadership, the outcomes would be far worse. I believe that is why the Founding Fathers put the “US” in the USA.
CJ says:

May 3, 2010 at 10:40 am

Amazing how forthright the Founders were and how devastated they’d be today.
There are certainly a lot of words and as my High School teacher said of my essays….”flowery pansies”….The speaking back then certainly were colorful.

In my mind I summed it up to: Together we are strong, separate open to prey..

In this section of Federalist 2 it seems to be their lack of foresight and elitism that America would be a people of thesame kind and equal in religion manners and customs…CJ

Federalist 2……
..”With equal pleasure I have as often taken notice that Providence
has been pleased to give this one connected country to one united
people–a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same
principles of government, very similar in their manners and customs,
and…”

These paragraphs in 4 struck out at me: CJ

Federalist 4
…”But the safety of the people of America against dangers from
FOREIGN force depends not only on their forbearing to give JUST
causes of war to other nations, but also on their placing and
continuing themselves in such a situation as not to INVITE hostility
or insult; for it need not be observed that there are PRETENDED as
well as just causes of war.
>>>>>>>>>>>>.
hostility and insult have been invited. CJ
>>>>>>>>>>>>

It is too true, however disgraceful it may be to human nature,
that nations in general will make war whenever they have a prospect
of getting anything by it; nay, absolute monarchs will often make
war when their nations are to get nothing by it, but for the
purposes and objects merely personal, such as thirst for military
glory, revenge for personal affronts, ambition, or private compacts
to aggrandize or support their particular families or partisans.
These and a variety of other motives, which affect only the mind of
the sovereign, often lead him to engage in wars not sanctified by
justice or the voice and interests of his people. But, independent
of these inducements to war, which are more prevalent in absolute
monarchies, but which well deserve our attention, there are others
which affect nations as often as kings; and some of them will on
examination be found to grow out of our relative situation and
circumstances….”
>>>>>>>>
…. “Have our wars been sanctified by justice……”CJ

…………
This is sad for our government has put us in this position…I fear today with this administration even more so.
America was so very young…… CJ

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)

Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 04, W. B. Allen PhD

by W.B. Allen, emeritus dean and professor of Political Philosophy at Michigan State University

Saturday, May 1st, 2010

Having established the “utility” of the Union for avoiding foreign wars, Publius proceeds to reinforce the argument in essay number four. In the second paragraph he acknowledged the claim that the United States should avoid inviting hostilities, insults, from other nations. But the third paragraph shows how difficult that might be. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it, nay that absolute monarchs will often make war when their nations are to get nothing by it but for purposes and objects merely personal… These and a variety of motives, which affect only the mind of the Sovereign often lead him to engage in wars not sanctified by justice, or the voice and interests of his people. What this suggests is that many of the wars that arise will do so because people having the power to make war or to a void war yield to temptations that we find perfectly ordinary in human nature. People see opportunities and try to take advantage of them.

We should question the causes of war and the premise that if we knew the causes it would be easier to avoid war. In this point, though, it seems that the very resource we relied upon in the beginning == namely, the people with the power to decide — is also one of the chief causes of war. People in office who yield to temptation happen to be one of the chief causes of war, and Publius reminds us of this.

This is not an aberration. All we need do is to expect leaders to be human to expect these causes to operate. That is not the exclusive cause of war. Publius is clear about this, but it is the most difficult to deal with. And in that respect we ask once again is the Union better at dealing with the causes of war? will the Union make it less likely that notional office holders yield to personal illusions that carry their nation into war? The significance of this is that with the national union our personal illusions come packed wait a far greater punch In spite of that, Publius argues that, yes, in spite of greater fire power, the greater temptations, the greater illusions, the answer is yes. How?

Publius does not claim to alter human nature one bit. He suggests, though, that we need to pay as close attention to the effect of the new government upon the governed as upon those who govern. There is a deterrence theory in essay four that suggests the response: “Wisely, therefore, do they consider union and a good national government as necessary to put and them in in such a situation as, instead of inviting war, will tend to repress and discourage it.” Then he repeats the argument from essay three, namely, that a Union will foster the involvement of the “experience of the ablest men” in the entire nation in guiding the nation. But he adds a caveat that was not in essay number three, namely, that “it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each.” That is a new argument, an argument that a government for the union can in fact create homogeneity where diversity existed previously: e pluribus unum.

Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

28 Responses to “May 3, 2010 – Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Forceand Influence, for the Independent Journal (Jay) – Guest Blogger: William B. Allen, emeritus dean and professor ofPolitical Philosophy at Michigan State University”

Ron Meier says:

May 2, 2010 at 11:40 pm

Those bumper stickers “War is Never the Answer,” and similar slogans always bother me because they assume that there are no humans who would ever choose war over peace. History proves that this simply is not true. I don’t know where I read it, but I remember reading sometime in the past several years that there have been at least two wars going on somewhere in the world every year of recorded history.
The idealistic left assumes that peace is normal and conflict is abnormal; in my analysis of history, conflict is normal and peace is an anomaly. We don’t even have to look at the history of nations; we can look at families, homeowners associations, clubs, and the like, and what we find is that conflict is normal and peace is not. When good nations have unilaterally disarmed in the name of peace, we normally find that war comes shortly thereafter. Therefore, we should always be prepared with a strong defense.
Shannon Castleman says:

May 3, 2010 at 6:42 am

My question to you all: After reading #2-#4, Do you believe our Founders-if the came here in a time machine-would support or not support our being in the Middle East right now?

Most of me says no, but a small part of me says maybe. Any thoughts??
Susan Craig says:

May 3, 2010 at 7:25 am

I find it very telling that the first four papers in defense of the new Constitution dealt solely with mutual defense and security! It is almost as if they wished the primary and dare I say almost the only purpose of the Federal government was dealing with external influences leaving the internal to the individuals and their respective States?
Jeff James says:

May 3, 2010 at 8:32 am

Isn’t it interesting that one of the main points in Federalist #4 is the balance of trade and the U.S. ability to supply ourselves with commodities once supplied by India and China. Times sure hve changed!
Roger Jett says:

May 3, 2010 at 9:31 am

In answer to Shannon, who posed the question ….” would our founders support or not support our being in the Middle East right now? I think that at least some insight can be obtained by studying our involvement in the “First Barbary War 1801-1805″ and the “Second Barbary War 1815″. Based upon the bold actions taken by the young United States with it’s fledgling military at that time, I believe it is probable that the Founders would be in support of any action that has taken place in recent decades to protect American Citizens and American commercial interest. However, I suspect they would not have engaged in the level of police action and nation building that our modern time leaders have burdened us with.
Carolyn Attaway says:

May 3, 2010 at 9:52 am

I am going to miss John Jay’s writings in these Papers. I find his Papers very easy to read and very thought provoking.

Shannon, in paragraph 3, our conflicts with Iran and Iraq immediately jumped into my mind. Many speculate why we entered this war; national security, oil, democracy, many more views, and a combination of many. But with both Iraq and Iran, their leaders have expressed an ambition for themselves and their country that has enveloped the rest of the world. Unfortunately, a down side of the founder’s logic of being a strong union is that we have became too strong and we are depended upon by the rest of the world to intervene in global crisis. I do not believe our founders would have wanted this for their beloved Union, but could they themselves have prevented it given the cost of noinvolvement. As Edmund Burke, a supporter of the American Revolution said “All that is necessary for the triumph of evil is that good men do nothing”. If the Middle East conflicts happened during our founder’s time, we probably would not have become involved, at least not to the degree we are now. But given the domino effect of global fallouts today, I believe they would feel they had no choice but to intervene.

Why? In paragraphs 7 through 10, John Jay writes of America’s involvement with China and India, and how that trade involves other countries. He explains how this trade can irritate other countries with our success in commerce and in our navigation of the oceans that give America a greater share in the territories that they at one time monopolized. So even at this time, America was heavily involved in foreign affairs and commerce; the founder’s wanted to protect the Union’s stakes of interest in other countries and this was one of their reasons for the States to be unified.

The last paragraph could be taken from any Tea Party and Patriot Activist Guide Book today. Of the many Rallies, Town Halls, and Prosperity meetings I have attended, this is the rallying call: “If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.”

The Conservative Movement feels it is way past time to return America to her previous Glory. Was she perfect? No. And a lot of things changed to make her better and her people freer. But the change we did not need is our overbearing and non-transparent government, an overregulated and crippling trade policy, liberal agendas to dictate our military, our resources and finances in ruins, our credit in the toilet, our citizens losing freedoms to the NannyState and becoming quickly discontented and divided.

Was America perfect? No. But; she was the closest thing to liberty and freedom the civilized world had ever known.

I believe most of us on this site probably believe this, otherwise why bother being here.
Donna Hardeman says:

May 3, 2010 at 10:32 am

@Bob Greenslade-before I get immersed in the next Federalist paper, I wanted to take a moment to thank you sincerely for your reply to my question about the Bill of Rights. It was an excellent read – one of the main reasons I’m on this site because of bloggers like you!
Neal C White says:

May 3, 2010 at 10:53 am

Shannon asks the question whether our Founders were to visit us would they or would they not support our being in the Middle East now? It is a good question and one we all should examine. I think the answer to this question depends on the faith we have in who our elected officials are and whether we are convinced of their resolve and purpose. Most of us do not have the time to research and totally understand such matters.

Unfortunately, at present it is doubtful that our leadership are capable of steering our country in the right direction. I guess in the end we will have to depend on God having control and guiding our leaders to make the correct decisions.
Marc W. Stauffer says:

May 3, 2010 at 10:55 am

Remember the school yard bully? How that bully singled out and picked on the weak? There are always going to be the “school yard bullies” out there in the big bad world. Remember what happened when “the picked upon” banded together? You found out that the “school yard bully” wasn’t so big and bad after all and they turned to easier prey.
I think Publius makes an excellent point with his fleets of Britain and trade market competition. The corner on the trade market was held by Britain and the inference that human nature would not stand idly by and allow that hold to simply be taken from them by a small, relatively defenseless state or confederation merits a good understanding. When you are banded together with a common cause strength is realized and with that strength comes deterrence…something every “school yard bully” thinks twice about.
Bache says:

May 3, 2010 at 11:11 am

In the First Barbary Wars,family letters written by Daniel T. Patterson from the Tripoli Prison, Nov. 23, 1803 are fascinating. He was a midshipman, from the shipwrecked frigate Philadelphia and now a prisoner at the age of 17. The prisoners were kept in “a stone bulding, the walls very thick, it is about 20 ft. wide, 25 ft. high, and about 80 ft long, with arches overhead, the walls could scarely be distinquished from cob-webs, and dirt, it had formerly been used to dry hides in, and had never been cleaned out, the strings by which they suspended them are still hanging there. The light and air is admitted through a space in the top, about 4 ft.square, grated over with Iron Bars, by 2 small holes in the side wall near the top, which are almost choked up with dirt and a small grated window near the door, there was the ground for seats and an old sail spread for beds, this place was to contain three hundred persons, the doors shut every evening at sunset and opened at daylight when they want any fot the men to work, they arrange them all in a line and take those they like…but when they misbehaved they are bastionandoed, two small loaves of bread made of barley bran and as much water they can drink is all they live upon.” He latter writes that the Turks had 50-60 million dollars in their treasury, in unchained captivity 1,500 Christians…a demand of $3,000 per sailor for ransom is made to President Thomas Jefferson.

I find these letters from a young man held in captivity along with Captain Bainbridge and fellow officers enlightening. His words paint a picture of the demands of the First War of Terror on our newly founded republic and navy.
Elizabeth says:

May 3, 2010 at 12:46 pm

After reading the fourth paper, the last paragraph jumped out at me. It seemed as though it was written for today and how the world views us. Are we sure it was written in 1787? Talking about how foreign nations, “if they see that our national government is efficient and well administered…they will be more disopsed to cultivate our friendship than provoke our resentment…How much more true does that ring today?
Susan Craig says:

May 3, 2010 at 1:40 pm

I think this is a function of our founding fathers knowledge and understanding of human nature and realistic approaches to dealing with it. Whereas today’s ‘leaders’ wish try and impose their picture of an ideal. They ignore at their peril the human nature that resents and resists imposition of someone else’s picture of how we should be vice how we truly are; flawed and sinful.
Carolyn Merritt says:

May 3, 2010 at 2:06 pm

I too, was taken with the past paragraph of #4 and how it rings true today. We must continue to show our strength and unity, if we do not and we continue on the path our current government is trying to take our Nation, we are going to keep losing the respect we once had from other Nations.

The last sentence of John Jay’s argument was echoed almost 100 years later by Abraham Lincoln: “A house divided against itself cannot stand.” (1858) This holds true today as well.
Ron Parson says:

May 3, 2010 at 2:24 pm

Three short points:
– first: We subsidize consumption and tax investment, which is “eating the seed corn.” It leads to poverty. Thus, a wholehearted second to Carolyn Attaway’s point above, in part quoting “our resources and finances discreetly managed, our credit re-established.” We must do this, and quickly.
– second: re Iraq and Afghanistan: both lacked a “strategy”; both were a full level below that, at “operations.” To distinguish strategy from operations, ask . . . “and then what?” as in, We capture Baghdad . . . and then what? We flatten the Taliban (temporarily) . . . and then what? Both operations implied nation-building, which was scarcely anyone was thinking about; and I believe it impossible by outsiders.
– third: In Washington, a “strategic plan” is neither; Washington abounds in incoherent scraps of strategy. A coherent strategy has 7 elements: context, assumptions, ends/objectives, ways/concepts, means/resources, The Plan, review-adapt loop. If we’d applied that template to Iraq & Afgh before moving in, likely we wouldn’t have done so. The best monograph I know of on this is at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=641 by a Dr. Harry Yarger.
Will says:

May 3, 2010 at 3:49 pm

I strongly suspect that the standing and respect we once had in the world has been declining for some time, at least since the close of the Marshall Plan (itself a big social spending program). It’s being going on long before the current administration.
Susan Craig says:

May 3, 2010 at 4:01 pm

Ron your second point is a function tieing our hands via the UN and limiting conflicts to police actions. War is not a sporting event in which ties are a good resolution to the game. War is a Darwinian evolution of the survival of the fittest.
Your third point is one of the things the world holds against us – a lack of continuity/consistency between administrations. Case in point the missile shield promised to eastern Europe in the Bush administration and reneged upon by the Obama.
Carolyn Attaway says:

May 3, 2010 at 6:46 pm

Susan, you have apoint about the lack of continuity between administrations, but I do not believe our past presidents strayed so far from each other as our current President has. Whether Reagan, either Bush, or Clinton; I do not believe our Allies ever considered that the USA would sever ties with them, or desert them. Now, I believe they are unsure of their relationship with us. You mention the world holds this inconsistency against us, but the sad part is many of our own citizens hate America as much as our enemies do. I came across a liberal the other day that hated America so much she said it was time we became a 3rd World country and suffer the abuses we inflicted on other countries. Her history was so skewed, I could not make any headway with her.

So picking up Ron’s point of a strategic plan, I agree that we shouldn’t enter a war with just the first line of attack planned out, and then when that is over, you say “Now what?” I also realize that the world in constantly changing, and priorities are constantly changing, so National Security, our first and foremost proirity, needs to be constantly one step ahead of the world, and sometimes that is very hard to do. Ron, I look forward to checking out the link you provided. I joined Liz Cheney’s group “Keep America Safe”, and she and her contributors have indepth information on our current State of National Security. I haven’t been able to get to the site lately, but I recommend it.
Lynne Newcomer says:

May 3, 2010 at 7:10 pm

Hello all…….There are so many problems these days it is hard to keep up.The question was asked about our waring in the Middle East… great question and a very tall one.I suppose to bring the war to them could be argued for,WE were attacked by an idology not a country,this is very unconventional and a bit elusive by our past experiences.Our tactics need to be contemporary ….(going back, when the English attacked us during the revolution they followed strict and cumbersome methods of war,marching in bright red coats, and were quiet horrified that the militias did not line up and march in neat lines as they attacked, they instead used slight of view, snipers, etc.War had evolved and the Brits fought (may I dare say ,in a bit of an old fashon way) .Are we in a similiar delema ,fighting terrorist who fade from full annoument of their presence sneaking up using our very freedoms against us.Perhaps we need to reconsider some of our tactics.One way I think this is being done are the drone attacks.I know there are those who have objection to their use , but I like using stealt as often as possible .
The mention of BIG government was also brought up. The thought that comes to mind over and over again when I see an attempt to control salt use,sweets , meat. fats and the such is the Temperence movement, and Prohibition. It was so against the Nature of humans and merely a product of the imaginations of the movers of Prohibition that we went right on doing what we knew was our own business.Crime rose and the repeal followed 13 years later. Of course this is a problems for sure but the most important problems we are facing is the Admin, taking control of Health Care, Banks, Financial markets, Car industry,errosion of Property ownership,wiping out contracts and so on and so on.We have much to right and thank God for our Constitution and the will of the people coming to life. This effort that has been offered to us by the contributers of the Constituting America site is a thrill.
WeThePeople says:

May 3, 2010 at 7:22 pm

I really like the attitude this takes toward war: that it’s not something we ever want to invite upon ourselves. Its nice to know that the creators and supporters of our constitution strongly believed that peaceful solutions could be reached. It’s obvious that the constitution did need to give consideration to our national defense, but still. Now, if only our government had this same attitude today…
Charles Babb says:

May 3, 2010 at 8:15 pm

This has been a wonderful opportunity to better understand what my ancestors faced, when they took their “Oath of Allegiance to North Carolina” at a Safety Committee meeting in Bute County (later to become Warren and Franklin Counties) in 1775.

My question is; Where have all the Statesmen gone?

They seem to have been replaced by patisan political thugs (result of career politicans?) that have usurped authority never granted them in the Constitution and have intentionally allowed our Nation to be invaded by a foreign forcewhich they hope will allow them to rip away the very last vestiges of freedom our Founding Fathers had intrusted to us.

When America wakes up and realises what her apathy has brought us, I pray it is not too late for the People to regain control.

Your posts give me hope that the United States can regain her way.
Susan Craig says:

May 3, 2010 at 8:21 pm

Having spent sometime overseas (government sponsored tours and college) and listening to my hosts, it was a generic theme even back in the 1970′s. At that time it was Viet Nam Kennedy had committed to them and Nixon backed out under domestic political pressure.
Tricia says:

May 3, 2010 at 9:13 pm

After reading the fourth Federalist Paper, I’m confused. John Jay sought to show how having a large, unified government would help protect the different states. He uses examples of how monarchies have started wars over personal matters and how three or four little governments aren’t as strong as one big one.

But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check? I don’t know if I missed that point or if it’s going to be further developed later…
Joshua Foote says:

May 3, 2010 at 9:44 pm

wow the founding fathers were right in so many aspects about war, trade, and just life in general. This country now feeks that we need to be in everyones affairs where as many of the founding fathers felt we needed to stay out of europes affairs. I wish the government was like this today, and that we needed to stay united unlike the polotics of today
Andy Sparks says:

May 3, 2010 at 10:31 pm

To understand fully Jay’s essays regarding foreign relations, it is important to look to the near future of his time. The new republic’s life blood was trade with Europe. While America was rich in staples such as tobacco, timber, indigo, and rice; our manufacturing was relatively non-existant. Basically, we traded our raw materials for manufactured goods. The Quasi-War with France and the War of 1812 with Britain grew out of the disruption of trade with those respective countries. When both countries began boarding, impounding, and confiscating our merchant ships, it became a potential cause for war. Adams was able to avoid a conflict in the late 1790′s through shrewd diplomacy; Jefferson also avoided conflict by implementing a disasterous embargo policy that plunged the new nation into an economic crisis; Madison was not able to avoid war as the war hawks like Henry Clay and John Calhoun demanded the U.S. go to war with Britain in 1812. And although the U.S. claimed impressment and trade violations as the ultimate reason for war; imperial designs on Canada were as much a factor as those sited. So, despite (or because of) Jay’s warnings in Federalist #4, the nation not only could not avoid war, but in the case of 1812, actively sought it out.
Peter says:

May 3, 2010 at 11:58 pm

There are some great comments being made tonight. It is interesting, but in a way obvious (at least to me) that the first few Federalist papers dealt with national security. Not only is the primary purpose of the state to organize for war – something the indiviudal is least prepared to do of all government functions – it is in my judgment the best argument for why the various colonies/states needed to come together into a centralized arrangement – or as one of the founders put it, for their mutual protection and, and this is important, defense.
Seij De Leon says:

May 4, 2010 at 1:43 am

In the last section of the article, Publius makes a remark saying that basically, if we as a nation are strong and powerful, other nations will want to befriend us and not provoke us. At the time, this may have been a more beneficial concept. But now as we are a large world power it has not only earned better feelings from other countries, but their dependency on dealing with larger affairs that our founding fathers may not of foreseen, and in turn made things what some might consider worse for us. I think it is interesting how goals were met, but even with the very thorough analysis that is offered by the federalist papers not everything can be predicted such as foreign dependency.
Sandra Rodas says:

May 5, 2010 at 10:17 pm

I am very much enjoying this reading project and the blog. I read every comment each day. I have been meaning to read The Federalist Papers from “cover to cover” for some time now, and it is nice to have someone inspire me to get busy and do it. It is especially nice to get so many insights from others as I read. Thank you Cathy and Janine for sponsoring this.

In #4 the comment, “when a people or family so divide, it never fails to be against themselves,” keeps coming back to my mind.
There have always been different opinions and different sides of issues — some of them very nation-changing and serious — but I feel a lack of unity in our country at this time that alarms me. It somehow feels different and more hostile.
We are dividing against ourselves. We need to realize that we can disagree without the hostility. The “shape” of our nation will be irregular and asymmetrical as we all push and pull in the different directions that our hard-won freedoms allow. That is OK—it is even good. The harmony improves the melody. However, we need to remember that our center should be one.
Greg Zorbach says:

May 5, 2010 at 11:08 pm

re Tricia and her question: “But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check?” Only the congress candeclare war. it was true with FDR in 1941 and with W in 2002. Yjey both had to make their points with the people and their representatives in congress.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Horace Cooper

Tuesday, May 4th, 2010

John Jay continues explaining the need for a United States of America as opposed to either an association of 13 separate and individual states or a collection of three or four nation states. Jay explains his view that there were significant arguments in favor of a union, specifically by arguing that the recent experience with England and Scotland offer good examples of the benefits.

“QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the Union then forming between England and Scotland, which merit our attention.”

Taking up an example that may have been familiar in the eyes of his readers was a useful means for Jay to use to help voters understand the issues that were at stake. The situation facing Scotland and England provided an excellent rationale for the states to reconsider the developing position among some that a confederation or a breakup into separate states would be useful in the long term.

Jay concludes: “We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.”

Moreover, the problem was not simply that 13 separate nations were never going to cooperate. Jay argued that even if the States were to divide themselves into as many as three separate nations, they would still face problems that would ultimately jeopardize the well-being of the entire people. ”Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.”

In fact, it was Jay’s considered view that by their very nature there would be differences between the various nations now comprising the original 13 states; and that this would lead to disputes. Perhaps you could imagine one nation having more commerce, another more population, still yet another possessing larger navy. Whatever the differences might be – they could not be avoided because the nature of things would be that different influences would occur in each of the separate states — they ultimately would lead to conflicts or fear of conflict. If you increased the number of nation states from three to 10, you likely would only increase the risks of conflict threefold or more because success or failure by one nation would cause her sister nation to take notice and feel some obligation to adjust in response.

“Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them.”

Jay recognizes that having one nation would eliminate all of those peculiar instances at least in terms of their perception to other countries and greatly attenuate the potential for envy or fear to develop internally. Because as Jay recognized, nation states naturally are attentive to the concerns and changes that occur in other countries and tend to evaluate them in terms of whether these changes either advance or retard their own perceived interests it is useful to minimize them wherever possible.

“Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.” Jay concludes by pointing out that the very distance between the states and Western Europe made it more likely that any conflicts that would cause government leaders to take sides would occur here in the Americas and not with “distant nations.”

The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

23 Responses to “May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) GuestBlogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”

Brad Tepper says:

May 4, 2010 at 7:35 am

This experience has been fantastic! Thank you Janine and Cathy.

Now I am stumped. In 1786 John Jay argues for and attempts to secure specific and limited commerce for the Northeastern states with Spain. This was not his assignment either. I believe he was to negotiate rights for the entire confederation of 13 states with Spain. His actions, the Jay-Gardoqui Treaty, thankfully was never ratified.

One year later, he authors Federalist #5. He then argues AGAINST such a negotiation and specific treaty for a factional section of the states.

Can someone explain how this 180 seemed to occur? Who/What were the influences?
Susan H. says:

May 4, 2010 at 7:59 am

Good morning everyone,

I had a few thoughts as I read #5. Jay writes “The history of Great Britain is the one which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.” I guess this just drove home the point that history does indeed repeat itself. It behooves us all to be students of history. I recently read a historical novel, The Constant Princess, by Philipia Gregoria. In that novel one of the constant worries of the King was invasion from the Scots in the north.

The other thought I had was in regards to the AZ contoversy. It feels like that state is being forced into a us vs. them position. Instead of the federal government looking out for the Union, they are forcing states to protect their own interests. Now you have other states looking to boycott and withdraw invetments, etc. Sounds to me just like what John Jay was warning against.

I continue to be impressed by the founding fathers.
Chuck Plano, Tx says:

May 4, 2010 at 9:42 am

Susan you are exaactly right the Federal Government has failed in it’s first responsibility and that is to protect our borders. This situation has existed for years it is not new. The border states have had to contend with the failure of the Federal Government and the other states have sat by and said it is not my problem. If we are to mantain this union we had better start thinking about what is best for all the states and not just our own. Texas has been at the for front of the EPA because of some of our emmisions but it is because we refine the majority of the oil and gas in this country if we did not the Northeast and Midwest would freeze in the winter and not have transportation. Remember the righters of the Federalist Papers were arguing for this Union with the Enumerated Powers in mind not this Government we see today.
Carolyn Attaway says:

May 4, 2010 at 9:45 am

Horace Cooper’s last line in his entry summed up Paper #5 for me; “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.”

I find it curious that I read this article on the day after I watched the 2nd part of the series “America – The Story of Us”. In the Series, the narrator explained how pioneers continued to expand the States through events such as the Lewis and Clark expedition, the Alamo, the Gold Rush and the Westward Movement in order to create a better life for themselves. The point that was constantly stressed that what made America so different from all other countries was the ability for their people to be free and that they could carve any life they wanted for themselves.

The Series went on to explain how Americans in the West wanted to be connected with the East, so with the existance of steamboats and the building of the Erie Canal, the expansion of commerce crossed the continent and had a major impact of the American way of life.

The great need for commerce and the economic differences between the Northern and Southern States led to a great discord within the Union. This difference eventually led to the Civil War.

I think of the Civil War in this Paper, because I wonder if the Founders had not pushed so hard to create a Union, if the Civil War would have ended differently. Would the Southern States have remained intact, or consumed into the Northern States after their defeat? Would the Northern States have had the right to demand the abolishment and expansion of slavery?

I find that the Founders relentless drive to form a Union may not have prevented disunity between the States, but the formation of the Union gave us an ending which could have otherwise been disastrous to America as a whole.

Like Great Britain, the individual States could have spent years upon years of internal fighting; disrupting any chance of expanding their trade and increasing their strength to be a profitable nation. Instead the Civil War could have turned into multiple civil wars, weakening the states resources to the point of becoming a target for foreign countries to attack. Would we even be a Superpower today?

Even today with the problems we are facing, there are faint whispers of state secession in the wind. I believe the Union should always remain intact. However; the powers the federal government currentlly holds should be scaled back and limited, and the state’s powers should be restored to their full capacity. Also, if the federal government fails to do its job in protecting the states from invasion (i.e. Arizona), then the states should have the right to protect themselves without federal naysaying.
Neal C White says:

May 4, 2010 at 12:13 pm

Excellent comments by all on Federalist No 5. I cannot help but think that we are today experiencing a continuation of the argument that prompted Jay to write this piece. It seems to me that there is an effort to divide our country. It is amazing the number of so called pundits have written articles criticizing Arizona for the realistic passage of legislation suggesting that they wished to see the law upheld in their state. None of those who are protesting had any suggesting how to deal with the very real problems of murder, drugs, destroying of personal and public property to say nothing of the heavy burden of economic support demanded by the Illegal Immigrants.

If this attitude continues we will see division of our great country in different groups just as Jay is warning us about – and for many of the same reasons he mentioned. Why do we, the citizens, allow this to happen. The vast majority of us are in agreement with Arizona and believe the rest of the Union should support similar action. We are headed for a very bad ending if something is not done to change this attitude and direction that America is now following.
Chuck Plano, Tx says:

May 4, 2010 at 12:40 pm

The whole problem we have today is the Federal Government with the aid of the Courts exceding the Enumerated Power it was granted under the constitution. If the government operated today as was intended under the original intent of the Constitution the Federal Government would not be involved in 90% of the issues they are involved in today. Just look @ the move today to revise the Clean Water Act to read “all” water instead of just the navigatable waters. With this change the Federal Government will have control of any water in the United States including Playa Lakes. Is this what the Founders intended.
Susan H. says:

May 4, 2010 at 2:28 pm

No Chuck, I don’t believe this is what the Founders intended. We the People have the power to make a change at the ballot box. The critical question is will the “vast silent majority” get of “our collective duffs” and do something about it. I think websites such as this one and other venues promoting basic civics education may be the key.
David Hathaway says:

May 4, 2010 at 2:48 pm

Today’s Federalist Paper references the earlier letter from Queen Anne. An editorial I read today referenced even earlier the Magna Carta. Clearly, our Founders were men of letters who understood the precedents of their age. I surely wish our leaders today were as well versed. I would be pleasurably shocked to learn that any of our Congress were reading along with us.

I live in Texas. We are proud of our state, and our superior policy and good management. We are fiercely jealous of our state’s power and push back on the Federal Government’s imposition of policies and costs. In the context of today’s reading, if we were still a Confederacy, it is not hard to imagine that the current AZ brouhaha would lead us to side with her, against the neglectful central government. Heck, we do already!

Likewise, can’t you imagine Michigan or other economically challenged states looking enviously at Texas? It would be a war waiting to happen.

I found it interesting that Jay touted the strength of the Northern Hive against that of the southern states. Remember, he was writing to encourage New Yorkers to ratify the Constitution. Isn’t saying “we are more powerful than those lazy southerners” more of an argument against the Constitution? If this were today, and the writer was a Texan, I bet there would be many voices that said, “what do we need New York for?”
Andy Sparks says:

May 4, 2010 at 3:07 pm

Excellent comments and observations, especially Brad and Carolyn. I sometimes hear people say the nation would be better under the Articles of Confederation because the states were independently sovereign. However, they don’t seem to realize the internecine conflicts between borders and commerce that would arise if this were the case. Jay and the other Federalists saw first hand what path a loose confederation of nation states were headed. Eventually, even the United States under the Constitution could not hold the union together without a bloody war.

Brad, I believe Jay thought that a 25 year moratorium on use of the Mississippi was reasonable at the time. The territories to the west of the Appalachians were still fairly sparse and perhaps he felt getting Spanish agreement in writing that the river would eventually revert to the U.S. was more important than instant gratification. Also, I don’t think he realized the deep resentment the southern states and western territories had for his negotitations until after the treaty was vilified and eventually not ratified. I think it speaks well to him that he realized the mistake that was almost made and changed his line of thinking regarding it.
Melanie says:

May 4, 2010 at 4:31 pm

To Brad Tepper, I am equally confused about John Jay’s apparent 180 on the virtue of states’ sovereignty verses a strong federal government. I look forward to others’ comments on this.
Ron Meier says:

May 4, 2010 at 5:18 pm

@ Carolyn. Re the Civil War. Would there even have been a Civil War if a Confederation had continued, with the slave states being soverign? Possibly not, but there might have been other wars between the various Confederacies. We just don’t know, because that’s not the path we chose.
We can look at current day Europe for an example of what might have been. Effectively, the EU is a confederation. Look at the problems that are occuring right now with the Greece situation. We can see the very things the writers of the Federalist were warning us against coming to pass in the EU. The other members of the EU confederation are becoming self centered now that they may have to rescue member Greece. They are asking why should they have to pony up money to rescue their member which has not been fiscally responsible. It will be instructive to see how that one plays out over the next months and years.
Melanie says:

May 4, 2010 at 6:27 pm

Today in The American Thinker is an article entitled “Declaration of Independence As Law”,
written by Ronald R. Cherry. It begins “Our American Declaration of Independence is the supreme, unamendable lawof the United States. Declarational law preceded and trumps our supreme, amendable secular law, the Constitution. As stated in our Declaration, the purpose of secular law (Constitution) is to secure our sacred, unalienable, equal, individual rights to life, liberty, and the pursuit of happiness–i.e., private property honestly earned through creative labor : ‘That to secure these rights, Governments [constitutions] are instituted among Men…’ While our Constitution and Bill or Rights are the greatest secular laws ever written, it must be acknowledged that our secular Constitution has a sacred mandate–the Declaration of Independence.

It’s well worth reading the entire article, the premise is sound.
Carolyn Attaway says:

May 4, 2010 at 6:37 pm

@Ron, I think a civil war would have ensued eventually; just like today we do not like to see other people in other countries being mistreated or enslaved, the people of the North would have began to challenge the morality of slavery. It would still have been an issue.

Greece is a scary situation because the unions in that country have cuddled the Greek citizens for so long. The citizens are rioting in the streets for cut backs such as getting paid for 12 months out of the year instead of 14. Can you imagine?
Joshua Foote says:

May 4, 2010 at 7:38 pm

john jay was a brilliant man who along with the other authors of the federalist papers helped to address issues that the american people felt needed to be addressed. the federalist papers however seem to address issues that hadnt even happened yet. . some of the federalist paers seem to forshadow the civil war that devistated this country. at this time the federal government was trying to force the country to become a union, and this along with issues such as slaverymay have caused the civil war in 1862
Susan H. says:

May 4, 2010 at 7:40 pm

To Ron – that is an excellent point you bring up about the EU!
Carolyn Merritt says:

May 4, 2010 at 7:59 pm

In my opinion Jay was prescient in using the example of the north being generally “the region of strength” and at some time in the future exert the power over the southern portions of the confederacies. They would not act as neighbors but as borderers, would be prey to discords, jealousies, etc. In short, we would be in exactly the situations which some nations want to see us – formidable only to each other. Was Jay talking about the future civil war?

@Ron, not only are we seeing what Jay wrote about happening in Europe, we are seeing it happening here on our own shores today. As he states in Federalist 4 . Now we were a nation that could defend ourselves, and provide ourselves with goods and not only that could now export these same goods to other countries cheaper than they could produce them. What has happened to our commerce? It has gone overseas. We no longer manufacture and export goods that are cheaper than other countries can produce. We no longer provide ourself with goods that we produce.
Tricia says:

May 4, 2010 at 8:00 pm

@ David. I agree. States wax and wane in power and if they were all independent of each other as under the Articles of Confederation, every state would have some resentment against the others for some past fight or jealousy.

Under the Constitution, the states can get along (to an extent). By being united as one entity, the separate states can still have their differences, but also work together during times of hardship, such as the Great Depression.
WeThePeople says:

May 4, 2010 at 8:02 pm

One of the extracts from the union in England states that a strong union will be able to resist any enemy. It also suggests that our union would be divided by the North and South from the very start. Hmm, it seems that the founding fathers hint about a civil war a lot…So, for the civil war, since part of the union became it’s own enemy, does that detract from our strength as a whole? I know it did at the time, but overall, was it for the best?
This paper seems to focus on the fact that it would be a burden NOT to separate ourselves from Britain. Wonder how parliment reacted to these papers.
Peter says:

May 4, 2010 at 10:45 pm

What is important to conisder is the context – remember the Federalist Papers were printed/published in New York and were, largely, about persuading New Yorkers to accept the idea of a new nation with a new system of government. Virginia was the largest colony while Pennsylvania was probably the strongest in economic terms. Without New York the country could of – and probably would have – split into a northern country and a southern country. What Jay is doing here in one of the last papers he wrote is to build the case for unity from Massachusetts to Georgia. And he does a brilliant job, in my opinion.
Constituting America says:

May 4, 2010 at 11:07 pm

A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No. 5. Excellent analysis fromHorace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.

As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”

As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!

Carolyn pointed out Horace’s last line, which I loved: “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!

I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!

Looking forward to Federalist No. 6!

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
Seij De Leon says:

May 4, 2010 at 11:36 pm

The reasoning in Jay’s writing is solid, there wouldn’t of been any other way to make this nation powerful without unity. But it wasn’t a problem free solution, even as the states came together there was still constant internal bickering mainly between the North and South concerning slavery. Had the United States not been formed, their would have been no single power to regulate decisions concerning slavery in newly formed states and separated states could have made chaos in fighting for what they want, earlier in time than just the civil war.
Constituting America says:

May 5, 2010 at 12:00 am

Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.

I thank Horace Cooper for his wonderful essay today. Thanks Horace!

I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.

In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.

As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.

So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?

I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.

It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.

The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.

God bless,

Janine Turner
5.4.10
Kellie says:

May 6, 2010 at 8:04 am

The conflict in AZ today really brings home this issue of unity and states’ rights which is so important to understand if we are to protect our country. The federal government needs to get back to playing the role of protecting the states by enforcing the federal laws already put in place. By turning their back on AZ, they are essentially advocating the disunity. I never really understood how important it was to give the states rights to govern their citizens, yet have the federal government to protect and govern the states. I think the only hope is that people of America and especially AZ understand these concepts and educate each other on the consequences of disunity, and they not let our federal government forget the original principles as discussed in these papers.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Federalist No. 06, W. B. Allen PhD

Wednesday, May 5th, 2010

Federalist #6

Essay number five closed with recognition that what is decisive in human communities is the political distinction, the political identity. That settles the question of what is “near and dear.” That distinction lies at the root of warfare. It follows accordingly that one lessens the chance of war by setting thins up so that people will call the same things “near and dear.” This means, at a minimum of course, that when people seek to resolve their most important questions they will all expect the authoritative answer to come from the same source. They will all appeal to the same Solomon.

None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans. This is made clear in essay number six, in which Publius speaks explicitly against utopian speculation.

Men, he argues, are ambitious, vindictive, and rapacious. They are so because they differ regarding the things that are near and dear to them. One reacts to those things which are not one’s own more under the influence of those passions of ambition, vindictiveness, or rapaciousness than with in respect to what is one’s own. The founding seeks to insulate this characteristic in human beings by teaching some set of human beings to hold the same things “near and dear.”

Note, too, that the statement about human character does not add the familiar phrase, “by nature.” It is not necessary to conclude that human nature is evil in order to see that certain evil (fallenness) is attached to human nature. There is another view that human nature itself is evil, that is sometimes falsely attributed to Publius. This very negative portrait of constitutionalism makes it appear that the whole purpose of the constitution is to prevent Americans from doing all the evil they can to one another.

The first essays in The Federalist Papers convey exactly the opposite picture: it is admitted that evil is possible; it is admitted that government is necessary; it is admitted that people do violence; it is admitted that there are causes of war rooted in human nature; but there is still the positive endeavor, which is the real driving force of this founding, and that is the endeavor to build a nation of one people who call the same things near and dear.

This emerges clearly in the third paragraph of essay number six:

The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society: Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed, though an equally operative influence, within their spheres: Such are the rivalships and competitions of commerce between commercial nations. And there are others not less numerous than either of the former, which take their origin intirely [sic] in private passions: in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members.

These separate categories that Publius has listed all relate to one another, but the most important thing about them is that they are distinct, separate. The love of power, to take an example, is different from the private passions. The rivalries and competitions of commerce also differ from private passions. In a manner of speaking, these factors may not be passions at all, they may be perfectly rational. If by passions, we mean what is not rational, then we cannot call all these things “passions.” That means that the causes of war are not necessarily irrational.

To imagine that wars come about only because of failures of reason is probably one of the greatest mistakes. Some wars are thoroughly rational. Above all, ina case wehre people palce themselves ina situation to invite war. Let’s remember essays three and four: “the nation must place itself in such a situation that it will not invite war.” It will invite friendly intercourse, not war; which is why prosperity is a precondition for peace rather than a consequence of peace.

Having made that distinction, and having distinguished the private passions from other conceivable causes of war, we now note that the private passions are not less interesting because they are arational. For they bear upon the question of public opinion, and the preceding discussion turns almost entirely upon the question of public opinion.

In paragraph seven of essay six Publius again discussed the general clauses and examples of wars, now focused on the United States. He remarked that great national events sometimes are produced by petty personal matters, and he described Daniel Shays of Massachusetts as a desperate debtor. Then he added that it is much to be doubted whether there had bee a rebellion had Shays not been a desperate debtor. Thus, Publius wonders out loud whether the brief civil war was caused because a desperate person was carried away or because a person of enormous capacity for leadership was desperate. Accordingly, private passion must be taken into account no less than rational opportunities. If Shays with his talent had not been made desperate, he had not organized thousands of debtors and farmers.

In the next two paragraph Publius set up a measure of the distance what he called visionary or designing men, on the hand, and the hardheaded realists of political life on the other hand:

The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men and to extinguish those inflammable humours which have so often kindled into wars. Commercial republics, like ours, will never e disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

What a lovely, visionary portrait of the modern dispensation! But Publius rejects it, no matter how close it comes to the view that prosperity is a precondition for peace. Publius says that it is not enough to form a republic and to practice commerce. In fact, he responds to both issues, when he wonders whether “it is not the true interest of all nations, whether republics or not, to cultivate the same benevolent and philosophic spirit.” Commerce may well soften manners, but it equally well provides new occasions for jealousies, new occasions for conflict. In short, Publius rejects the new and modern principles of the enlightenment, that greater human understanding will eliminate causes for war.

Publius’s argument is particular to the political organization of the untied States. Our discussion emerged from considering domestic violence. Publius examined commerce among the states, but noted that the commerce would not disappear because of Union. The only difference is a difference in practice or habitude. The various states (New York, New Jersey, Connecticut, say) would experience the same necessities. But under the Union they would all turn to the same source for help when problems arise. They would call the same thing near and dear by turning to a single Solomon. IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.

W. B. Allen

Dean and Professor of Emeritus

Michigan State University

27 Responses to “May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Maggie says:

May 5, 2010 at 8:31 am

I found it very striking that he brought up the jealousies that can and will occur between states due to successes. Is this not what is happening today with our jealousy of corporate America? We want the fruit of other’s successes.

I was also moved by this paper because, to me, it seems to reflect upon the current unrest and calls for dissension by a few states. We look to each other (as states) and want what others have or don’t worry about other’s problems because we don’t see them as our own. Hamilton knew so many years ago that this could be an issue.
Susan Craig says:

May 5, 2010 at 8:56 am

The first five papers argue for the primary reason for government defense of the people. Now in six it is posited that the next reason for a national government arbitration between the sovereign states to peaceably resolve differences. They do not start from the belief that man is inherently good, argue from the knowledge that man is inherently flawed and sinful and will often act from any of the seven deadly sins (greed, lust, etc.)
Bache says:

May 5, 2010 at 10:08 am

B. Franklin once said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” I believe the life of every American citizen and or state was and is impacted by the whole, ie. one nation. Relinquishing a liberty for the short term forsakes longterm security. “We must indeed all hang together or most assuredly, we shall hang separately.” This famous quotation by Benjamin Franklin is a principle our Founding Fathers agreed to not only as a nation but personally by pledging their fortunes, families, and honor. Who today would be willing to take such an oath as this?
trish says:

May 5, 2010 at 10:35 am

Susan I really like how you brought a central theme for the first 5 papers. Good thought!
Kay says:

May 5, 2010 at 11:30 am

Hamilton’s sentences are long and more involved than John Jay’s, and take more concentration on my part. The essays and commentaries on each Paper condenses the information, bringing out the highlights. I am so enjoying this series.
Samantha Curtis says:

May 5, 2010 at 12:01 pm

None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans.

— So he is saying that America is not prefect that we are always going to have wars. But we need to control the war in a political way?
Carolyn Attaway says:

May 5, 2010 at 12:37 pm

After reading Alexander Hamilton on #6, I realize how much I miss John Jay’s writings. John Jay was very concise, whereas I find Hamilton’s words very flowery. It reminds me of when Abigail Adams told her husband “John, people know you are highly educated, you don’t have to remind them in your speeches.” I guess I am going to be an unhappy camper for awhile

That being said, there were 2 phrases that jumped out at me: “A man must be far gone in Utopian speculations who can seriously doubt that,” and “There have been, if I may so express it, almost as many popular as royal wars”.

One definition of Utopian is an ardent but impractical political or social reformer; visionary; idealist. I believe we are experiencing this mindset today regarding our national security. Many believe we only need to discuss our differences with those that oppose us and we can solve all our problems. This is unrealistic for many reasons, and as Hamilton explains, this logic forgets that some men are ambitious, vindictive and rapacious for no other reason than human nature. Hamilton realizes that most people strive for a Utopia, but he writes that because of the many causes of hostility between nations, this place is seldom, if ever found.

The second phrase regarding popular versus royal wars, reminded me of when the majority of Americans supported the IRAQ war, when their passions ran high and demanded action for the horrendous crime committed on our soil. The outcome of this war has split our Nation after several years because of many reasons, and now many question why we entered the war in the first place.

@Bache Today, only about 50% of the American population if you take in consideration that about 47% now receive some form of government entitlement.
Susan says:

May 5, 2010 at 1:50 pm

@Carolyn, I so totally agree with you on the styles of the two writers. Hamilton requires my complete attention. That being said, I am so impressed with how the Founding Fathers have anticipated all these problems in the future.
Roger Jett says:

May 5, 2010 at 2:05 pm

The Federalist Papers , as other commenters have pointed out, were directed toward a New York readership in hopes of bringing them into the camp that was arguing for a strong national government. Hamilton in particular wrote from a point of view that didn’t play as well in other parts of the country. This I think was particularly true of Paper #6 as some perception has been (both past and present) that he trivalized and mocked the plight of a very large portion of the citizenry when he labeled their protests as disturbances, revolts and rebellions. These people who had been made destitute by the war and by subsequent economic depressions, felt severely oppressed by their government. Those in position of power demanded payment of obligations in gold or silver. Many soldiers, farmers and other contributors to the war effort found themselves after the war undercompensated or even unpaid entirely for their sacrifices. The continental notes at that point in time were devalued to the point that they were widely considered of little or no value. The courts confiscated property to settle debts and many found themselves in debtor’s prison. A few protestors found themselves hung for treason! In this paper Hamilton mentions situations in three of the states ….North Carolina, Pennsylvania and Massachuetts. In his commentary Professor Allen identifies for us Shay’s Rebellion as the Masssachuetts’ incidence. I believe the disturbance in Pennsylvania that Hamilton alludes to would be the “Fries Rebellion” which is were the people were being assessed taxes for the number of windows they had in their homes (this was way before they had tanning beds). I presume, but may be doing so wrongly that the reference to North Carolina was referring to the establishment of the temporary and unrecognized State of Franklin which was located at what is today eastern Tennessee, but which was at that time considered a part of western North Carolina. The Federalist Party took political hits from their opponents due to the perception they were often against the common people in these various events and others. In saying all of this, I have no intentions of taking away or minimizing the enormous contribution that Hamilton made in leading our country to a magnificient republic with a constitution that is enequaled and has long endured the test of time. Hamilton is certainly deserving of the great honor bestowed upon him as a ” Founding Father.”
Andy Sparks says:

May 5, 2010 at 3:04 pm

Hamilton speaks directly to the weakness of the federal government under the Articles of Confederation in this essay: “Let the point of extreme depression to which our national dignity and credit have sunk,…from a lax and ill administration of government.” The loose confederation under the AOC is causing the new found freedom established by the Declaration of Independence to be threatened both without and within. Only under a new government such as proposed by the as yet ratified Constitution can prevent the discord among the states (such as Shay’s Rebellion) from ruination.
Laurie says:

May 5, 2010 at 3:22 pm

I too need assistance with Hamilton’s writings, so I want to thank professor Allen for his helpful comments. I was struck by his use of what is “near and dear” to us as a nation, our political identity, what truly holds us together as Americans. That identity has been under such terrible attack by so many for so long, that it has undermined our unity as a people. Now we are being pushed into groups, not so much warring states, except for Arizona, but isn’t that really a group identity issue, too. It is not the states at war so much as the political groups we are being made to identify with and to feel are more important than anything else. Aren’t people thinking of their political identity with their group, rather than with America as a whole? Aren’t we being set up here with the shift to think of what is “near and dear” to our group, rather than to our country?
Constituting America says:

May 5, 2010 at 3:32 pm

Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
Thanks Mr. Allen!

The complexity of this particular paper is mesmerizing.
I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.

It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.

Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.

God Bless,

Janine Turner
5.5.10
Maggie says:

May 5, 2010 at 3:39 pm

@ Carolyn…….You have a way of putting into words exactly what I am thinking after reading these papers. I can’t thank you enough for your contributions here.

Laurie stated “Aren’t people thinking of their political identity with their group, rather than with America as a whole?”……and I couldn’t agree more. We need to stop thinking about issues on a “Right” or “Left” (or Republican vs Democrat) basis and get back to doing what is right for America.
David Hathaway says:

May 5, 2010 at 4:21 pm

I personally enjoy Hamilton’s writing style. He uses difficult but valuable words that an earlier reader would have understood quicker than us. I am reminded of the difference between Spanish and English. Spanish tends to use more, easier, words while English uses longer, meatier words. The net result is that Romance language writings take more space. Just imagine how long this Paper would have been if Jay had written it!

I find it interesting that Hamilton invokes Shay’s Rebellion. Again, I find it timely. DESPERATE DEBTOR Daniel Shay was largely desperate and in debt because his government had levied such high taxes. Massachusetts levied high taxes to pay off their war debt. So crushing was the tax burden that citizens insurrected against their own government!

The experience was fresh in Hamilton’s mind as he became the first Secretary of the Treasury. It spurred him to address the National debt (not independent State debts), ultimately forming the First Bank of the United States.

I think the rebellion is timely, because our present government is likewise saddling us with debt. How long will it be before we are inflicted with crushing tax rates? How long will it be before Tea Parties become Shay’s Rebellions? Well, at least to the mainstream media!

I mentioned before the biography of Alexander Hamilton by Andrew Chernow. It’s very readable, as you’d want while straining the Federalist Paper soup. If you read the few chapters on Hamilton circa the post-Revolution and pre-Constitution, you might have even more insights.
Carolyn Attaway says:

May 5, 2010 at 4:23 pm

@ Maggie . . . Thank you so much for your kind words. I, too, enjoy everyone’s contributions to this site. I have learned so much already!
Chuck Plano, Tx says:

May 5, 2010 at 4:28 pm

I totally agree with getting back to doing what is right for America but remember we must think in terms of the Enumerated Powers of the Federal Government and not what has become today a total Federal System that has usurped the power of the States and the People.
ERL says:

May 5, 2010 at 6:52 pm

After completion of the Federalist (and possibly Joseph Story’s Commentaries on the Constitution), I would recommend reading a biography of Alexander Hamilton. He had one of the most fascinating careers in American Politics. Unfortunately, he has been cast as the “villian” of the Founding Fathers, but our political, economic, and governmental system is more in line with his vision than that of Thomas Jefferson and James Madison.

Hamilton wrote the Federalist Papers with little editing, making the finished product all the more impressive. (When he grew tired of writing, his wife recorded his dictation). He was also instrumental in creating the initial cabinet departments (he was the first Secretary of the Treasury), and in establishing the Presidency as a powerful policy-making branch of government, rather than simply an adminsitrator for Congress. Evidently, Jefferson and Madison envisioned a British-style Parliamentary system, where the leader of Congress would also be the leader (i.e., Prime Minster) of the US Government.

Alexander Hamilton is probably the most misunderstood of our Founding Fathers.
Ron Meier says:

May 5, 2010 at 7:21 pm

Two phrases struck me in Prof. Allen’s post. First, “prosperity is a precondition for peace rather than a consequence of peace.” Second, “IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.”

As I mentioned a couple days ago, with respect to the first phrase, conflict is normal & peace is abnormal. Where properity doesn’t exist in the world, nations are run by dictators and seem to be in a state of constant civil war. Increasing prosperity does seem to have helped us avoid civil war for the past 150 years. Now, though, it seems that some of our countrymen are setting up prosperity as a straw man to be attacked and vilified and drawn and quartered in the name of peace through equal outcomes. Instead we should praise God for the prosperity that has enabled us to be the most generous nation on the face of the earth and the nation that other nations call upon to bring them peace.

As to the second phrase, I wonder, what is the SINGLE SOLOMON upon which we might all, left and right, agree upon today that might nullify the internal conflict that is beginning to tear us apart? Troops in combat have that single Solomon, which is that they shed their blood and endure personal hardships for their comrades; that makes them a Band of Brothers. We don’t seem to have that single thing that makes all Americans feel like a Band of Brothers; we don’t endure much hardship together and we certainly don’t have each other’s backs to watch out for. Remember Curly from City Slickers who said the secret to life is ONE THING; Mitch asked what the one thing was and Curly’s response was “that’s what you’ve got to figure out.” We’ve got to figure out what our one thing is. While we might all agree on the qualities that Janine mentioned as those American hold near and dear, they appear important, but not sufficient, today to be our single Solomon. It seems that we, collectively, need to agree upon that before we can overcome our current internal conflicts. Anyone have any ideas on that Single Solomon? Or, as Curly might say, that one thing?
Andy Sparks says:

May 5, 2010 at 7:48 pm

David, Hamilton addressd both the national AND the state debt. His assumption plan incorporated all the individual state debts with the national debt. The federal government would assume all the debt and pay off the interest only at a guaranteed rate. This would establish good credit with the rest of the world and insure that the wealthiest classes of America would be heavily vested in the success of the United States federal government: a very shrewd plan that worked wonders at putting the new nation on solid financial ground.

But you are right about early hints at his eventual policy in Federalist #6. I think he was saying that if the debt crises created by individual states financially at odds with one another were replaced by a government that did something like assume all of their debt, perhaps Shays would not have had a reason to rebel.
Roger Jett says:

May 5, 2010 at 7:52 pm

Would like to make a correction to a tidbit in my earlier post this afternoon. I had speculated that Hamilton was referring to the “Fries Rebellion” when he alluded to a late menacing disburbance in Pennsylvania. Well that was wrong since this rebellion took place about twelve years after the ” Federalist Papers” were written. It’s a small matter, but does anyone know what event Hamilton was referring to ? My initial thought had been the “Whiskey Rebellion” of western Pennsylvania, but that took place later also.
Andy Sparks says:

May 5, 2010 at 8:36 pm

Roger, Hamilton was referring to an incident in the Wyoming region of Pennsylvania where a group of people were trying to separate with other local regions to form their own state. It was serious enough that the Pennsylvania legislature resolved to call out the militia if things had gotten worse. See the minutes of the the legislature below:

http://www.archive.org/stream/minutesofgeneral178790penn#page/n11/mode/2up
WeThePeople says:

May 5, 2010 at 9:11 pm

Bringing up previous regions and unions that have experienced internal conflict… What is it with the federalist papers authors and the idea of an imminent civil war? This subject was touched upon in all of the federalist papers so far, and it was mentioned in the Constitution. It’s like they are psychic or something… just kidding, but I do find it strange.
Roger Jett, if your previous assumptions about the rebellion were wrong, which one is it referring to? Any further insights?
Jim Sykes says:

May 5, 2010 at 10:39 pm

In response to Ron Meier. There is no “one thing” for all individuals and that is what I believe Curly was trying to tell Mitch. The reference to Solomon to me refers to the Solomon of the Bible. To answer Ron’s question about “my one thing” is my belief in God and His power to heal our nation if we will simply pray for Him to do so. I ask each person who reads this to do exactly that tomorrow at your local meeting to observe our National Day of Prayer. A special thank you to Janine and Cathy and may God bless you all for participating here and for trying to return our great nation to it’s rightful place as our Creator intended.
Ron Meier says:

May 5, 2010 at 11:10 pm

That may be the “one thing” we’re lacking as a nation, Jim. “One nation, Under God.” It is being undermined every day.
Constituting America says:

May 5, 2010 at 11:53 pm

Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.

I love the realism of Alexander Hamilton: “men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.”

We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.

My favorite line from this essay was “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.

The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
Jesse Stewart says:

May 6, 2010 at 2:23 pm

Many of you have commented in a similar way to mine today. My initial reaction to this paper was that Hamilton’s argument made sense, but upon reflection realized that even the holding the same “near and dear” can’t always keep the states together – we had a Civil War after all! From disagreements over land in the early days of our nation to today when states and other governmental entities are fighting Arizona over its own state law and states taking sides on the constitutionality of health care reform, we will never get rid of the personal and “momentary passions” that afflict man.

We’ve come through disagreements before and united in times of crisis – I hope we will do so this time!
Tim Shey says:

July 20, 2010 at 2:31 pm

The nature of life is antagonism. Life is war; war is life. Why? Because of our fallen nature. As long as there is Christ and Satan at work in human endeavor, there will always be conflict. Alexander Hamilton knew this. We need limited government to protect the innocent and powerless from those that would abuse their power.

As a Christian, my life is governed by the Lord. If I abide in Christ (or if I am strong in Christ), then it is very hard for Satan to tempt me or influence me. If I am an unbeliever or weak in Christ, it is much easier for Satan to disrupt my life.

If a nation is morally weak, this invites attack from other nations. The Marxist remedy is to concentrate on education (liberal propaganda) and redistribution of wealth and a mega government that solves all of our problems and everything will be fine and dandy because there is no such thing as Original Sin. The Christian remedy is to repent of our sin, seek God and the Lord will heal our land–and then the Lord will raise up righteous men to govern the nation.

When the Israelites were in sin, they wanted a king to govern them just like the nations around them. But this is being conformed to the world. Mosaic Law and to be ruled by the judges were what the Lord wanted for the Israelites. But sin breeds more selfishness and more blindness, and so they wanted a worldly king (King Saul). The Lord told Samuel that Israel did not reject Samuel, but they had rejected the Lord and the Lord’s plan for their lives. King Saul ended up being one of the worst kings in the history of Israel.

This Obama Administration is another King Saul. If the United States turns back to God, the Lord will raise up another King David, so that we can get rid of demonic strongholds in high places.

Obeying the Lord is internal government; the U.S. Constitution is external government. The internal must come first before the external can be effective.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 07, W. B. Allen PhD

Thursday, May 6th, 2010

Federalist # 7

Publius in the seventh essay of The Federalist Papers focuses entirely on examples of the kinds of disputes that could, in the event of disunion, reduce the United States into a replica of the European wars that had long colored that continent.

The examples cover territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers. In each of these examples Publius adopts the probable reasoning of prudent statesmen, not predicating intrinsic hostilities among the states but rather arguing from the operations of interest and the resentments of injuries real or perceived.

His point is simple and clear: without a trusted judge either to settle such disputes or to obviate them altogether through uniform rules where appropriate, there would be no ready instrumentality of resolution. Sometimes the disputes would be regulated through negotiation. But at other times, as occurs elsewhere, they would eventuate in conflicts that remain unresolved save through war. Publius’s point is not that war among the states is a likely prospect, but rather that the habits of independence and self-reliance would eventuality develop into hardened positions that would not admit of easy resolution.

The arguments developed especially in essays two through six, therefore, receive their concrete political application in a consideration of the actual circumstances of the states and the effects of their contiguity. What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force. He concluded:

The probability of incompatible alliances between the different states, or confederacies, and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of the all. Divide et impera must be the motto of every nation that either hates or fears us.

The force of the argument is immediately discernible in the eventualities o the War for the Union of the 1860s, in which not only the differences among the states produced eventual warfare, but the prospective intervention of foreign powers was seriously bruited and nearly obtained. Stated plainly, the Union was created for the sake of the rights of self-government described in Federalist one but also to grant Americans space to grow in peace.

W. B. Allen

Dean and Professor Emeritus

Michigan State University

21 Responses to “May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Brad says:

May 6, 2010 at 8:37 am

I am still thinking about Shays “rebellion”. Quite frankly, I feel that Shays got a really bad deal. From my reading, he was a Revolutionary War veteran of much decoration having served in several theaters with distinction. He seemed to desire to return home and live out his life in peace UNTIL such time that the state of Massachusetts had other ideas. Did the elite “intellectuals” in Boston really believe they could tax and tax to death the common man to ruin? Shays pleaded for reconsideration and relief from this new oppression. What he must have been thinking to face a new taxing tyrant.
Hamilton and Jay are correct to point out the dangers leading man to revolt. In this case, though, the state of Massachusetts was able to take care of this problem on its own. Albeit in a way that I feel was disgraceful. Gov. Boudin’s actions were tyrannical. Thank goodness Hancock replaced him soon enough to restore calmer heads and unified the state. It is a fallacy to think that a greater Federal Government was needed at that time. What was needed was a smarter and more humane state government. I feel that Publius falls short in argument here. I feel that this is not a good example where a unified central government would be more productive in local affairs.
Note our current state of affairs. We the people do not need more oversight on a local level pushing its weight around.
Maggie says:

May 6, 2010 at 9:08 am

This part of Hamilton’s essay jumped out at me as I read…”There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.” Truer words were never written. We battle over money and who pays more tax and who gets more benefits from those taxes EVERY DAY.
Susan Craig says:

May 6, 2010 at 10:36 am

So far in the past two Federalist Papers (6 and 7) I’ve seen nothing to suggest that the National Government was to regulate and control commerce between states. What I see is a proposed arbitration and adjudication of differences between the sovereign states.
Carolyn Attaway says:

May 6, 2010 at 12:04 pm

Maggie, I would have to agree with you on the accurateness of the quote by Hamilton. Not only is it distasteful to have to pay taxes to a government that carelessly uses the money it receives from it’s hardworking citizens; but to have to pay mandatory taxes for causes that many believe are unconstitutional or wasteful, is adding even more salt to the wound. Case in point, the current HC Reform bill, and sending taxpayer money to the World Bank to bailout countries like Greece.

Which brings me to the statement that was written with a highlighter on it: “The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity.”

All I could think of when I read this statement was CALIFORNIA. Today, through the policies and laws the state of California has adopted, this state has crippled their economy to the point of backruptcy and now cries “FOUL!” California demands that her sister states bail her out and pay for her bad decisions. The other states, especially those who have watched their budgets and acted prudently in good times to help themselves through the bad, bristle at the charge that they must pay for California.

Without the Union, I believe the majority of Americans would allow California to fail. Hopefully, because of the Union, California can be assisted but with very strict conditions. California needs to take the New Jersey route.
Roger Jett says:

May 6, 2010 at 12:37 pm

The stated mission of “Constituting America” is to educate America about the validity, necessity and Providential Divinity of the Constitution. On this National Day of Prayer let us pray for the success of this mission. As Janine Turner says “we must not let those who devalue freedom to dominate the debate.” Before we debate though …. let us be sure to pray for wisdom…. learn all we can and can all we learn …. discern truth and preserve it …. be absolutely sure we are right …. and then …. by all means …. go ahead !
David Hathaway says:

May 6, 2010 at 12:49 pm

@Maggie – leapt out of the page at me, too!

@Susan Craig – I believe these were written to show the merit of the proposed Constitution. Yesterday’s Federalist No 6 began,

“THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions.”

So rather than proposing a system of arbitration and adjudication, or regulation and control of commerce, these last two papers describe the sorts of conflicts that The Constitution could prevent. Or perhaps mitigate. “Adopt The Constitution and these sorts of problems between States won’t occur [as much]“.

I hope I didn’t misread the intent of your comment. I’m sorry if I did.

I also like how Dr. Allen summarizes this:

“What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force.”

Nicely stated.
Maggie says:

May 6, 2010 at 2:09 pm

@Carolyn…….I immediately thought of California as well. We’re in a rather sad state of existance here in Michigan as well due to the auto industry. I agree that we need to help each other out, but we also need to make sure that bad policy NEVER allows this to happen again.
Susan Craig says:

May 6, 2010 at 2:31 pm

Yes what I was driving at is the current iteration of our government is seemingly intent on control of the national commerce not arbitrating differences between states. As I’ve read these papers the regulation and control of what business can and cannot be was States purview and any disagreements between States were to be adjudicated or arbitrated at the Federal level. I do not see Department of Labor and I certainly do not see a Department of Commerce that can and did tell a man who wanted to grow wheat for his own families consumption that he was in violation of interstate commerce laws.
Debbie Beardsley says:

May 6, 2010 at 3:14 pm

Carolyn, While I am not going to argue with you about California’s budget issues, I am going to take exception to saying we want the other States to bail us out. Yes California is a mess right now partly due to the uncontrollable spending habits in Sacramento and the stranglehold the environmentalists and unions have on us. Another very large part of our problem are illegal immigrants and the fact that the Federal government is not doing their job in securing the borders and dealing with the fact that border states pay dearly for having illegal immigrants. Our Governor has asked the Federal government to pay for incarcerating the illegal immigrants that commit crimes and are sent to jail. This amounts to billions of dollars annually.

As in Arizona, we have a huge problem with illegal immigration in California and the Federal government is choosing to do nothing. It is time for the Feds to step up.
Carolyn Attaway says:

May 6, 2010 at 4:48 pm

@Debbie – I was referring to back in January of this year when Gov. Schwarzenegger asked for a federal bailout up to $8 billion. According to the Hill, “the California gov’t. knows they can’t raise taxes significantly without further destroying the state’s economy to generate jobs. With that option virtually eliminated, the governor is looking for help from outside the state; from the rest of us. Bail us out, he says, or we will end our welfare-to-work program and eliminate services for the elderly and the disabled.” The reports I read did stress that the majority of the voters didn’t favor a bailout, but approx. 33% did.

I agree that the Federal Government needs to step up on illegal immigration. It is creating a huge problem in all states, but mostly in the southern border states. With those borders open, anyone from anywhere can enter the USA.
Chuck Plano, Tx says:

May 6, 2010 at 5:04 pm

Carolyn i agree with you on the problem of illegal immigration but part of the problem in California is that eventhough your Governor has ask the Federal Government to pay for the cost of the incaration of the criminal element involved in illegal immigration it has done very little to confront the problem itself such as Arizona has done. As long as the legislature in Sacramento continues to tax and spend and to encourage illegal immigration as it has done the problem will continue. Each state has it’s responsibility to uphold the Union as well as it’s own soverinty.
Carolyn Attaway says:

May 6, 2010 at 6:10 pm

Chuck, I was replying to Debbie. I am not from California. I agree with you about the taxing and spending in California, and I realize that illegal immigration is a problem.

The original point I was trying to make is that California has the 8th largest economy in the world, so even though it is a state, it’s economy is larger than most countries. Saying that, some legislators feel California is too large to fail, and if we do let it fail, the effects will be felt globally. Look at the impact Greece is making. Many say California is Greece three years from now, if things do not drastically change.

From everything I read, California is also one of the highest in taxes, so they cannot tax their citizens anymore. Therefore, the Gov. requested a Federal Bailout. If California is awarded a Federal Bailout, it will be paid from the taxpayers of the other non-crisis states. Also, from what I read the states are reluctant to bailout California for many reasons, but 2 of them are 1) States are trying to save what money they have for their own needs, and 2) California refuses to change it’s liberal programs if awarded a bailout.
Joshua Foote says:

May 6, 2010 at 7:28 pm

i agree with what carolyn and chuck said. immmigration is not the federal governments responsibility. In my opoinion it shpuld be on the state, its their responsibility to keep the country in working order. The uniuon itself keeps the states in check, and without the union, states would turn on eachother.
Maggie says:

May 6, 2010 at 9:57 pm

@ Joshua……I don’t think that Carolyn and Chuch and saying that immigration is not the Federal Government’s responsibility…..on the contrary, it is very much their responsibility. They, however, are not living up to their responsibility. The problems already exist with too many illegals and incarceratiion issues. Since the Feds refuse to due their job, AZ HAD to take matters into their own hands. California wants to boycott AZ….forget trying to get them to help themselves and deal with the illegals on a state level. The point I believe that others were trying to make is that 1) California needs to deal with the illegals to try to better their own situation and 2) California needs to change it’s incredibly liberal entitlement programs…..these two things need to happen before a national bailout will do anything other than throw money down the toilet.
Maggie says:

May 6, 2010 at 9:58 pm

Sorry….I meant to say “Chuck”. I’m typing too fast.
Carolyn Merritt says:

May 6, 2010 at 10:47 pm

@Joshua. Unfortunately or fortunately, however you want to look at it, immigration is the federal government’s responsibility. However, the federal government is not doing its job, therefore, the states are left to take care of it. Because the government is turning a blind eye to its duties to the states, the states are turning on each other. I find it reprehensible that this president is misstating AZ’s law since it follows the federal law and by misstating the facts, he has helped incur the anger on both sides of the illegal immigration issue.

Please correct me if I am wrong.
Constituting America says:

May 6, 2010 at 10:50 pm

Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?

I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!

Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!

Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.

Strength in numbers and unity through diversity is a true American-ism.

One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.

There are a couple of Alexander Hamilton’s phrases that caught my attention today:

The spirit of enterprise which characterizes the commercial part of America,
has left no occasion of displaying itself unimproved.

“The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.

And we still are.

This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:

The redistributing of wealth and pooling of property are despotic
and unconstitutional.

American’s thrive on the spirit of free enterprise and the freedom to pursue it.

The government must not cripple America’s genius.

God Bless,

Janine Turner

5.6.10
Constituting America says:

May 6, 2010 at 10:52 pm

Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!

Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!

Please check these videos out for the lighter side of Constituting America! You will be glad you did!

In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.

Territorial disputes, trade disagreements, apportionment of the public debt of the
United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.

The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.

It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “From the view they have exhibited of this part of the subject, this conclusion is to be drawn that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.”

Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
WeThePeople says:

May 6, 2010 at 10:59 pm

So, does this mean that any future “territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers” will fall to the hands of the Supreme Court? It said that there should be a judge, so I assumed Supreme Court or the judicial review.
In response to @Joshua’s comment, if the federal government IS failing to do that job, wouldn’t the next logic step be that the immigration power goes to the states?
Susan Craig says:

May 7, 2010 at 8:36 am

From our initial founding document!
We hold truths these to be obvious and beyond reproof. First God created all men equal, granted them rights; some of them being life, liberty and the freedom to strive for happiness. Second, our Government is instituted to protect and secure these rights; retaining power only with the consent of the governed. Third, When the government disregards its purpose and becomes destructive of these undeniable rights, it is the Right of the People to alter it or institute a new Government.
Tim Shey says:

July 20, 2010 at 2:49 pm

I like what Janine Turner wrote:

“Americans thrive on the spirit of free enterprise and the freedom to pursue it.
The government must not cripple America’s genius.”

Faith in God is freedom. Non-faith is sin–which is slavery. The opposite of faith in God is faith in human convention that rejects God (Marxism, big government). Slaves (Marxists) want to make slaves of other people because this is what their fallen natures dictate (“dictate” is an appropriate word, don’t you think? Somehow it reminds me of the word “dictator”).

Free enterprise comes ultimately from some faith in God. I believe the Hand of God works much more smoothly and effectively in a free-market economy than in a slave (Marxist) economy.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New York Packet (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 08, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 08, Federalist No. 09, Federalist No. 10, W. B. Allen PhD

Friday, May 7th, 2010

Federalist #8

The eighth essay presents a hypothetical case of a dis-United States. But it is the general argument that has been built that is germane to understanding the argument. Publius is aware of a “new politics” that has come to be, but Publius is no less aware that it will not produce perfect wisdom and virtue. That creates the moral and practical dilemma of defending the creation of a powerful government, one capable of “harmonizing and assimilating” diverse peoples and interests, while recognizing simultaneously that the government will not make people virtuous and wise. We wonder how to justify doing so, because we wonder whether there is any guarantee of a government’s goodness apart from the virtue and wisdom of its people.

The answers to all these questions, it seems to me, are conditioned on a single premise, namely that one refer to the consequences of the government and not its operations. Now, the chief consequence is peace where war would otherwise prevail. It is true that governments that are energetic – powerful governments – affect the characters of the people they govern. That is a necessary condition of energetic government, a fact that Publius makes clear. We may admit two facts, then – namely, that people will not be made virtuous and wise and, further, that government will nonetheless be driven by public opinion.

Publius calls it an idle theory or “utopian speculation” to imagine removing human weaknesses, but we still question, not whether theories of humans transformed into angels are correct but, rather, the reason for confiding all authority in society into the hands of imperfect human beings and ignoring all the other claims to rule that have existed in human history. There have been claims based on age; claims based on strength; claims based on reason, on wisdom, on piety. Why must we reject all those to place the entire society into the hands of what may be the foolish and the vicious, as Publius has done?

From this perspective even the principle of descent in a monarchy may seem intelligent. For, though from time to time an occasional stupid bastard will be born king, most of the time men get fairly decent, well-bred people (which in the absence of better guarantees is at least something to rely upon) and thus may hope for stability if not good government. The alternative seems to be to submit to rule by people that are not going to be improved by government and that might not govern well. Publius reserves the response to this dilemma to later essays discussing the operations of government. Still, he has raised the stakes very high in this argument, showing that, while the government will not itself make people virtuous and wise, it is nevertheless wise and virtuous to construct such a government.

The eighth essay allows Publius to demonstrate the propriety of such an undertaking in the hypothetical context of an America disunited. For, though no one knows how the experiment will work in the end, it is still possibly to speak at length about the opportunities afforded by modern principles (as he anticipates the elegant ninth essay!). He draws a firm distinction, noting that “the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce are incompatible with the condition of a nation of soldiers…” Thus, the Americans will not have the old fashioned virtues, based on the martial spirit in small republics of ancient times.

But that observation serves only to augment the question, how does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue? That such reflections introduce the eventual and ultimate response to the question of domestic violence is of great significance. Essays nine and ten deliver the conclusion. But the end of the introduction in the eighth essay firmly establishes that what we desire to now is precisely how turning power over to the people (defending popular government, self-government) produces the promised prosperity and peace without changing human nature. One might almost think it to mean that human nature is no mean thing to begin with!

W. B. Allen

Dean and Professor Emeritus

Michigan State University

27 Responses to “May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New YorkPacket (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Susan Craig says:

May 7, 2010 at 9:07 am

The worldview that Hamilton argues from is the fallen condition of man, this worldview has been warped into today where the self-esteem worldview insists that man is inherently good. This is sharply in contrast to all men have value in an inherently fallen condition.
Carolyn Attaway says:

May 7, 2010 at 9:53 am

In reading Paper #8, I could not help but notice that a lot of the arguments Hamilton made to convince his readers of the need for the states to have a Federal Government, can be used today as a defense against our war against terrorism.

The following statement brought to mind the Patriot Act that was written into law on Oct. 26, 2001, shortly after the attack on New York. “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

Many Americans did not oppose this legislation at the time of its creation because the attack on American soil created a great fear of possible repeat attacks and Americans were greatly concerned for their safety. Nine years later, more Americans find the Patriot Act outdated and an intrusion into their private lives.

Today, I believe many are in the ‘Utopian speculations’ that we discussed in Paper #6.

@Susan – I agree with you that today the overplayed importance of self-esteem has warped our society and has taken us from the mindset of “The needs of many outweigh the needs of one” to “The needs of one outweigh the needs of many”. The majority in this country are quickly being stripped of their rights to meet the rights of a few. Whoever thought the toy in a happy meal would put extra burdens on a parent and keep them from giving their children healthy food?
Maggie says:

May 7, 2010 at 10:28 am

“The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”……ok…I find this just too eerily close to what we have been doing here in the U.S. Under the guise of “keeping us safe” the government has convinced us for far too long to keep handing them more and more of our liberties.
Maggie says:

May 7, 2010 at 10:37 am

Sorry for the partial repeat of Carolyn’s quote reference. My computer is running very slowly today and her blog post had not yet come through at the time I wrote mine. It just causes me to reiterate that she has a knack for writing exactly what I am thinking.
Constituting America says:

May 7, 2010 at 10:45 am

This is Cathy Gillespie – that quote leapt off the page to me as well!
Carolyn Attaway says:

May 7, 2010 at 11:05 am

@Maggie – great minds think alike

The part that really makes me sit up and take notice are the liberties that are being stripped domestically in the guise of “We know what is best for you”. And all these concerns come in the form of regulations and taxes. Is our government today going the way of the Stamp Act of 1765? And; will the American people follow Patrick Henry’s stance against it?
Peter says:

May 7, 2010 at 11:24 am

Professor Allen poses an excellent question: “How does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue?” This, it seems to me, is one of the most important and ongoing issues in the life of the nation. Can we, in fact, force people to be wise and virtuous in the name of preserving the construct of the nation? There are those who believe we must – and on both sides of the ideological divide. There are others who believe that people have the right to be wrong, to be stupid, to be unviruous. This is one of those places where, it seems to me, it is often hard to thread the needle of liberty.
Susan Craig says:

May 7, 2010 at 11:46 am

Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry is own weight, this is a frightening prospect.
Eleanor Roosevelt
Freedom is the sure possession of those alone who have the courage to defend it.
Pericles
Just a few thoughts on the value and price of freedom.
Constituting America says:

May 7, 2010 at 6:28 pm

Howdy, it’s Janine. I want to say to Carolyn, Maggie, Susan and Peter.. it’s great to have you guys blogging on our site everyday. Great comments! Thank you! I am learning so much.
Carolyn Attaway says:

May 7, 2010 at 7:04 pm

Thank you Janine for putting this site together for all to learn and study our founding documents. I saw your interview on FOX and started with the site on Day 1. I cannot tell you how much I enjoy reading my assignment every night and then getting the opportunity to talk to everyone the next day about what we read. Your guestbloggers have been so informative, and very helpful in understanding what was written. I have learned so much already, and what amazes me most is how timeless our documents are; they could have been very easily written for today!
Barb Zakszewski says:

May 7, 2010 at 7:59 pm

This is a Wonderful Website..I just read about it last night in Human Events, Conservative Spotlight, and checked it out. This is JUST what I have been looking for, as I have recently decided to study the REAL constitution. I’ve been reading, of all things, the Politically INcorrect guide to the Constitution and have been reading those parts of the Constitution as I’ve progressed. Your 90/90 project is GREAT!! I know I’m jumping in a little late, but intend to pick up at this point, May 7, and move forward. In order for us to return our Country to the Principles of the Founding Fathers, we have to know what those principles are, and the reasoning behind these principles. The Founders had differing points of view about what direction to take this country, Federalist v Nationalist, and many of the arguements made back then are being repeated now. I agree it is vitally important for our children to be taught the REAL history of the United States, not the Liberal, America is bad history that is being taught now. Thank you, Thank you!! for this wonderful site.
Constituting America says:

May 7, 2010 at 8:59 pm

Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.B. Allen for his astute interpretation. After reading both Federalist PaperNo. 8 and Professor Allen’s essay here is what I have gleaned:

With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our newrepublic would be monitored and governed by the people instead of military figures.

This was truly an enlightened and inspired experiment.
Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.

To quote Alexander Hamilton:
“Even the ardent love of liberty will, after a time, give way to its dictates..”

“To be more safe, they, at length, become willing to run the risk of being less free…”

If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.

“They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”

War was thus incompatible with the new industriousness of the American people:

“The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics.”

Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.

Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.

In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in astate of awe. The experiment of liberty and union, though bruised along the way, has remained vital.

Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.

Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.

If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.

Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.

God Bless!!

Janine Turner
5.7.10
Constituting America says:

May 7, 2010 at 9:01 pm

Barb, It’s Janine. We are happy that you have joined us!
Ron Meier says:

May 7, 2010 at 10:18 pm

It seems that this one quote has impacted more than one of us today: “To be more safe, they at length become willing to run the risk of being less free.” Obviously, what is happening in our country today makes us more sensitive to this quote than we might be if we were not living in the age of the progression of entitlements to the levels we see in the EU, with Greece being an example of what can happen if we allow what is happening in our country to progress to that extreme.

A second quote that got my attention was this: “The desire to shed the characteristics of the “old world” was very strong in our founders, who were not far removed from living under those types of governments.” Today, we are far removed from those types of governments and many of our brothers and sisters seem to be wanting us to move in the direction that our founders wanted us to move away from. If more of us had a better knowledge of history, or a knowledge at all, and if more of us knew what we few who are going through this exercise are learning, perhaps we would see through the eyes of our founding fathers. Let us pray that, at the conclusion of this 90/90 exercise, we can see through those wise eyes as clearly as they did.
Constituting America says:

May 7, 2010 at 11:59 pm

Well said Ron! Thanks for joining our 90 in 90!
Susan Craig says:

May 8, 2010 at 9:44 am

Carolyn, I need to address your application of the Patriot act to the quote “To be more safe, they at length become willing to run the risk of being less free.” That is why every time a limiter is needed for safety we have put ‘sunsets’ into them when enacted. Habeus Corpus was suspended for a while during the Civil War. One of the things that brought down Woodrow Wilson was his abuse of free speech during WW I. FDR is still reviled for the restrictions placed on people of Japanese descent even though it is provable that some were active for the Japanese Empire. He decided that in order to continue to dedicate the needed resources to prosecute WW II he did not have the need resources to investigate individually all those of Japanese descent so he decided to quarantine the probable source of espionage and sabotage. The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.
Susan Craig says:

May 8, 2010 at 9:46 am

I did not post this yesterday as I did not wish to hunt on that rabbit trail while discussing Federalist 8.
Constituting America says:

May 8, 2010 at 12:56 pm

Thank you all for another week of wonderful insights!

Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at http://www.constitutingamerica.org

A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.

Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?

What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.

Have a great weekend, and wishing you all a very Happy Mother’s Day!

Cathy Gillespie
Carolyn Attaway says:

May 8, 2010 at 3:00 pm

Susan, I appreciate your feedback on the Patriot Act. The point I was trying to make was when the Patriot Act was signed into law, most Americans felt that the safety of their country was more important than the need to restrict our government from possible communications information. I wasn’t trying to define the Patriot Act in everything that it did, just that most people supported it at the time even though some claimed it gave the Federal Government to much freedom into communications and records. Today, there are some who claim that parts of the Act give the government to much authority.

I believe 16 sections of the Patriot act were set to expire unless Congress decided to extend them. After much debate, Congress passed a bill in March 2006 which renewed the Patriot Act but implemented additional safeguards for civil liberties. 14 of the 16 measures were permanent, but the roving wiretap provision and the FBI access to business records were extended only until 2009. Then in February 2010, Congress passed a one-year extension on three expiring Patriot Act provisions which were:
–Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
–Allow court-approved seizure of records and property in anti-terrorism operations.
–Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
Susan Craig says:

May 8, 2010 at 3:04 pm

I don’t know how much more civil they were; there are stories of Senators or Representatives going after each other with their walking sticks.
Carolyn Attaway says:

May 8, 2010 at 4:58 pm

True, but don’t politicians always balk. I always find it interesting how a politician finds a law or rule wrong when he is in the minority, but a similiar rule when he is in the majority is the right thing to do. (Not all politicians, but quite a lot) I would find it interesting to see which Congressmen voted against the Patriot Act, but are for Net Neutrality.
Susan Craig says:

May 9, 2010 at 9:24 am

I agree Carolyn that that would be a fascinating statistic! General observation would suggest that the number would be high.
Susan Craig says:

May 9, 2010 at 9:28 am

Item three was (I think) not necessarily to go for the lone nutcase but to cover instances of a singular person sent out like a sniper. Snipers function on their own but are part of an overall strategy. All of the others I believe were caveated with a predicating contact with known terrorist or sympathizing entities.
Glenn Roberts says:

May 9, 2010 at 9:50 am

Like Barb Zakszewaki, I read about this site in Human Events. I just completed reading all the blogs made to date. Now I am going to Barnes & Noble in Chattanooga, Tn with a list of books that will help me keep up with this program. Thanks for making this site available and best of luck.
Mary Lou Leddy says:

May 9, 2010 at 11:31 am

I have been following this course of study since the very first day. It is so moving that the Founders were so insightful for the future of this great country. I have also been uplifted by the fact that so many other bloggers have had the same thoughts as I have had . And , of course, the guest bloggers ‘ interpretations have been most helpful to me.

As I read the Federalists Papers, I am amazed at how pertinent they are to this day and age.

I thank you all for sharing your thoughts .
Greg Zorbach says:

May 9, 2010 at 6:12 pm

@ Carolyn. You are right on the money with this: “The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.” In fact, most of the rights its critics are complaining about are ones that do not exist – i.e. for non-citizens. Carolyn’s later summary was a very good one. The final point about enabling surveillance against a non-U.S. citizen engaged in terrorism is true about the latest legislation, but it should not be a requirement for non-citizens. However, given the courts’ unprecedented intrusion into this war’s prosecution it is probably necessary.
Yesterday my fifth-grader grandson noticed this web site up on my laptop and asked me if I was reading the Constitution. He eagerly explained to me that they were studying about the Constitutional Convention. So, he and I got out his Social Studies book and went through it. To my surprise, the book got most of it right, especially the statement that the most important principle underlying the Constitution is individually liberty. My joy was dashed when I came across the following explanation of the First Amendment: “It also says that the government cannot promote or financially support any religion.” And this is at a Catholic academy. However, the textbook is a CA standard one. In my opinion, it would have been better had they just used the simple wording of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Found another surprise in his textbook – the last three lines of the second stanza of “America The Beautiful”: “God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!”
Self-control and liberty in law. How pertinent.
Susan Craig says:

May 11, 2010 at 8:51 pm

@Carolyn: Our ‘wonderful’ Congress has just removed the “sunset” from the Patriot Act!!! Them’s fighting words.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Joerg W. Knipprath

Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

29 Responses to “May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

May 10, 2010 at 7:20 am

Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.
Maggie says:

May 10, 2010 at 8:54 am

Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

@ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.
Susan Craig says:

May 10, 2010 at 9:08 am

This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.
Kay says:

May 10, 2010 at 10:02 am

Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.
Carolyn Attaway says:

May 10, 2010 at 10:50 am

Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’

I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.
Richard Heck says:

May 10, 2010 at 10:59 am

I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.
Margaret Wilkin says:

May 10, 2010 at 1:26 pm

Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .
Susan Craig says:

May 10, 2010 at 1:58 pm

I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.
Andy Sparks says:

May 10, 2010 at 3:03 pm

I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.
Chuck Plano, Tx says:

May 10, 2010 at 3:17 pm

Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.
Carolyn Merritt says:

May 10, 2010 at 8:08 pm

I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.
Lynne Newcomer says:

May 10, 2010 at 8:29 pm

I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .
Constituting America says:

May 10, 2010 at 10:43 pm

Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

I am in the middle of tornados whirling through

our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

History truly is the key to our future.

My favorite passage of Federalist No. 9 is:

The regular distribution of power into distinct

departments; the introduction of legislative balances

and checks; the institution of courts composed of

judges, holding their offices during good behaviour;

the representation of the people in the legislature, by

deputies of their own election; these are either

wholly new discoveries, or have made their principle

progress towards perfection in modern times

“..or have made their principle progress towards perfection in modern times.”

This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

God Bless,

Janine Turner

May 10, 2010
Constituting America says:

May 10, 2010 at 11:54 pm

Thank you Professor Knipprath for yet another enlightening essay!

I would like to take a moment to recommend a book that I have found useful, and that you all may too:

How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!

In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

“The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

Looking forward to Federalist 10!

Cathy Gillespie
Roger Jett says:

May 11, 2010 at 12:12 am

Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”
Susan Craig says:

May 11, 2010 at 7:08 am

Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.
Carolyn Attaway says:

May 11, 2010 at 8:28 am

As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?
Lynne Newcomer says:

May 11, 2010 at 8:49 am

@Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.
Chuck Plano, Tx says:

May 11, 2010 at 10:42 am

In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.
Susan Craig says:

May 11, 2010 at 11:03 am

Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.
Paul S. Gillespie says:

May 11, 2010 at 11:11 am

Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.
Roger Jett says:

May 11, 2010 at 2:32 pm

Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.
Susan Craig says:

May 11, 2010 at 8:14 pm

The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.
Tina Bogani says:

May 12, 2010 at 5:48 pm

This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…
Susan Craig says:

May 12, 2010 at 7:33 pm

I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.
Roger Jett says:

May 12, 2010 at 7:51 pm

Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.
Kellie says:

May 16, 2010 at 3:39 pm

@Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.
Roger Jett says:

May 16, 2010 at 8:15 pm

Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).
Sydney Siskind says:

May 28, 2010 at 12:27 am

Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison)

Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 51, Joerg W. Knipprath

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

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

Monday, May 10th, 2010

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

May 11, 2010 at 8:04 am

Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:”

AND

“The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”
Maggie says:

May 11, 2010 at 8:41 am

Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.
Carolyn Attaway says:

May 11, 2010 at 9:04 am

I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!
Carol Frenier says:

May 11, 2010 at 9:41 am

In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

“The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?
Susan Craig says:

May 11, 2010 at 10:24 am

What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.
Roger Jett says:

May 11, 2010 at 10:54 am

In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.
Kay says:

May 11, 2010 at 11:02 am

This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
“Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!
Maggie says:

May 11, 2010 at 12:35 pm

@ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.
Ron Meier says:

May 11, 2010 at 2:06 pm

This struck me most: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. We well know that neither moral nor religious motives can be relied on as an adequate control.”

This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.
Andy Sparks says:

May 11, 2010 at 2:58 pm

Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.
Susan Craig says:

May 11, 2010 at 3:46 pm

From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.
Susan Craig says:

May 11, 2010 at 3:47 pm

They also were the lone State to initially not send delegates to the Constitutional Convention.
Quillhill says:

May 11, 2010 at 6:31 pm

Is the recent and current path of our federal government proving the Anti-Federalists correct?
Joerg Knipprath says:

May 11, 2010 at 7:06 pm

As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”
Lynne Newcomer says:

May 11, 2010 at 8:29 pm

Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.
Susan Craig says:

May 11, 2010 at 9:08 pm

Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.
Constituting America says:

May 11, 2010 at 10:29 pm

It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

Thank you again to everyone for your insights today!!

Cathy Gillespie
Constituting America says:

May 11, 2010 at 10:49 pm

Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

I thank all of you who have blogged with us today and for your stimulating dialogue.

There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

To quote James Madison:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

God Bless,

Janine Turner
May 11, 2010
Carolyn Merritt says:

May 11, 2010 at 11:21 pm

I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.
Joe Drum says:

May 14, 2010 at 8:40 am

Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 11 – The Utility of the Union in Respect to Commercial Relations and a Navy, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Joe Postell, Assistant Director of the Center for American Studies, the Heritage Foundation

Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 11, Joseph Postell PhD

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 11^th essay is part of a series (running from Federalist 2 through 14) on preserving the Union. The 11^th 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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New York Packet (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC

Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Paul S. Teller, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 12, Paul S. Teller PhD

Thursday, May 13th, 2010

In Federalist 12, Hamilton seeks to convince skeptical states that forming a union will increase and regularize a revenue stream. His main argument centers on the assumption that the best source of revenue is the taxation of consumption, particularly consumption from abroad. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Any sort of direct (i.e. income) tax would also be “impracticable” because collection is difficult, hard currency is scarce, and such tax has never generated enough revenue in other places they had already been tried.

So duties was the way to go—and especially “duties on imported articles.” But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. After all, he reasoned, the states were all adjacent to several others, shared a language, enjoyed a long history of interaction already, and were connected by myriad modes of transportation, including rivers and bays. Therefore, “all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other.”

But a unified system of duties across all states, collected and enforced by the federal government via “a few armed vessels,” would not create such incentives to cheat and would greatly improve the efficient collection of revenue.

But why do we even need revenues? Well, as Hamilton asserts in Federalist 12, “a nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.” That is, to Hamilton, an independent and consistent revenue stream is necessary for political independence.

To increase the universe of revenue, Hamilton saw only one acceptable path: increase commerce. After all, he argued, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.” It also increases the quantity of currency in circulation and thus makes the payment of taxes much easier (thereby increasing the “supplies” to the treasury). Plus, and not insignificantly, a growing and varied commerce contributes to the individual—and thus the national—happiness.

So let’s follow the Hamiltonian logic here. To maintain political independence, a nation must have a consistent and increasing revenue stream. A consistent revenue stream best comes from a federal government levying duties on commerce—particularly commerce with foreign nations. An increasing revenue stream comes from expanding commerce. And expanding commerce “multipl[ies] the means of gratification”—or happiness.

Hamilton might find it fascinating that, 223 years after he wrote Federalist 12, some of the themes he addressed in it form the basis of some of today’s most furious debates. For example:

Should the federal government receive an ever-increasing revenue stream? While many Americans regard any increase in revenue to the federal government as a positive development, other Americans regard increasing federal revenues as a guarantor of increasing federal spending on matters less and less constitutional. After all, for example, how could we expect a grossly overweight man to gorge less when more and more food is put in front of him?
Should the federal government levy taxes on commerce with foreign nations? This question is of course at the center of the ongoing debate between free trade and so-called “fair” trade. One would be hard-pressed to find any modern evidence of tariffs and other such duties being a net benefit for either levier or levee.
Should the federal government encourage the expansion of commerce? Here, Hamilton is spot-on. Robust commerce benefits man and nation alike and thus should be positively promoted. Hamilton would be horrified, however, at today’s practice of the government participating in commerce—not just facilitating it.

Regardless of how you feel about these three questions and other issues addressed in Federalist 12, we all can likely agree that Hamilton could never have conceived of the levels of revenues that pour into the federal government today. Over the last forty years, tax revenue has averaged 18% of the Gross Domestic Product, and is projected to increase significantly under a variety of scenarios.

Paul S. Teller, Ph.D. is the Executive Director of the RSC the caucus of House Conservatives

17 Responses to “May 13, 2010 – Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New YorkPacket (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC”

Shannon Castleman says:

May 13, 2010 at 8:06 am

It seems that Hamilton would be a Fair Taqx supporter today, and here is where I base my hypothesis:

1. He writes, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.” . The Fair Tax would increase commerce and one reason would be that large corporations would move to our shores as they would pay 0% corporate taxes.
2. He mentions the best form of taxing is that which taxes consumptions, not income. He notes that wherever a tax on income had been tried, it had failed. He also points out that efficient collection is difficult, which we all know to be true.

3. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Part of the system we have today is the death tax. This keeps beneficiaries from growing their family wealth.
4. But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. Do we not see this today with all the loopholes in the tax code? People try to wiggle in a “dubious” tax deduction to get a little more back. A one time sales tax paid at the cash register will knock out the fraud 90%.
Susan Craig says:

May 13, 2010 at 8:46 am

If the counter intuitive circumstance could be understood by the general populace that the less you tax and activity there is opportunity for more of that activity to occur yielding more tax revenue. Hamilton seems to have grasped this very well.
Ron Meier says:

May 13, 2010 at 9:19 am

Federalist 12 can take us down many rabbit trails. Obviously, the transition from an agraian society to a commercial and industrial society, overlayed with the increased velocity and quantity of information delivery, has made some assumptions about taxation extinct. Direct taxation is pretty efficient in our country and tariffs are frequently roadblocks to efficient and productive international trade. Commercial regulation was yet to begin, as the Congress was not yet formed.

In 2010, most of us might observe that complex and repressive personal and corporate taxation as well as strangling regulation is making commerce difficult to expand as anticipated by our founders and as necessary today to provide sufficient revenue for all the government redistribution programs. If anything, the Congress seems to be more focused on limiting the ability of commerce to expand as rapidly as required today because they want to shield and protect the public, not from the government, but from risk and uncertainty. Our founders were very willing to accept both risk and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty. “Security FROM government,” not “security OF government,” was the objective in the late 18th century America.
Paul S. Gillespie says:

May 13, 2010 at 10:04 am

The argument of inefficient collection of direct taxes is as valid today as in the late 18th century. While a very large percentage of American citizens voluntarily submit to paying their direct taxes in a lawful manner, a not insignificant number of people skirt or avoid these taxes altogether. This places a burden on the law abiding citizen as he must not only pay his share, but necessarily shoulder the shortfall of the uncollected taxes of those that enjoy the benefits of our free society but do not contribute to its expense. I think this is a very real cause of discontent and resentment among tax payers.
The “Fair Tax”, much discussed today, would have many advantages over the present system. Primarily it is infinitely fair to all and would bring millions of people into the tax system who pay no taxes today. On the Federal side the cost of tax collection would be significantly reduced and the efficiency of tax collection would improve dramatically. On the commerce side there would be a resulting drop in the cost of goods and services, artificially high because of the added expense companies incur in order to comply with Federal tax law. The chief danger to this system is the temptation to congress to grant exceptions to interest groups in order to “promote the general welfare”.
Would Hamilton agree?
Roger Jett says:

May 13, 2010 at 11:13 am

Ron Meier, I very much liked a lot of what you said in your post concerning “Federal Paper #12″. I especially appreciated your closing remarks, “Our Founders were very willing to accept both risks and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty”. However, I do have to disagree with one statement which was, “Direct taxation is pretty efficient in our country”. Coming from an accounting background and having had extensive exposure to it, I have to contend that taxation in this country is anything but efficient. I’m retired now and my perspective comes from having worked in the private sector. Nothing is simple about our federal tax code and the system is inefficient beyond all comprehension. Blame the Congress for this. By their smoke and mirror tactics, they have constructed a tax system that is a complete monstrosity. I have nogreat love for the IRS, but I recognize that there are many good people working there under extreme conditions . They are left with the difficult job of carrying out the unseemly tax laws enacted by Congress …. they’re left holding that bag. We the people are encumbered not only by the direct tax burden, but also the substantial cost for compliance.
Maggie says:

May 13, 2010 at 1:43 pm

@ Roger….I couldn’t agree more with our tax code being anything but simple. Even those in charge of overseeing tax law can’t seem to figure it out and pay their taxes. A consumption tax ensures that EVERYONE pays based upon what they use or consume. What does it matter how much money you make if you are not spending it? It is ultimately when you spend it that you impact the economy. It is at this end that it should be taxed….not before. Consume more…pay more. Consume less…pay less. It leaves the end results for each individual in their own hands.
Susan Craig says:

May 13, 2010 at 2:04 pm

Roger, just think of what we’d do to the unemployment numbers if we put all the tax lawyer out of business by virtue of a consumption tax? ooo I shudder to think. No longer wending my way through that impenetrable maze in order to see if I can find another way to lessen the burden just a wee bit.
Shannon Castleman says:

May 13, 2010 at 2:14 pm

I think the Fair Tax would be closest taxation method to what our founders would agree with; or mayb a few large excise taxes on certain items.

1. It would increase the tax base -illegals, toursists, underground income, etc. An increased tax base would mean the economy would be less jolted by a small segment of the population going through economic harship. Today, if there are 100 million income earners, one person out of work is 1/100 millionth of the tax based lost; if 300 million people are paying a sales tax, then one person out of work is only 1/300 millionth of the tax base lost.

2. Definitely fair. We all pay the same % at the register.

3. Harder for the government to pay off their cronies. Today, a tax give away is sent in the form of a line you check off in your 1040 form. That is how segments of society get a tax break. When I get a $10,000 mortgage interest deduction, and I am in the 25% tx bracket, tat is the same thing as the government mailing me a welfare check for $2,500. If it is in the form of a check, I am looked down upon as a leech. If it done through my 1040, I am called a productive member of society. Under the Fair Tax, in order for a politician to decide to raise the sales tax to spend more money on his cronies, we ALL would have our taxes raised at the cash register. This way, the people would be better educated and more informed on the true cost of government.
Dave says:

May 13, 2010 at 3:10 pm

“Revenue . . . must be had at all events.” “[T]he necessities of the State . . . must be satisfied[.]” So the question remains who will bear the public burdens of our constitutional federal republic. As previous generations of children at play knew instinctively, everyone could not ride in the wagon at the same time–everyone, with few exceptions, had to pull their fair share. Again, kids knew what was fair–”you pull for five minutes then I’ll pull for five minutes.” Recently, The Tax Policy Center estimated that 47% of households pay no federal income tax. How come they get to ride in the wagon all the time and never get out and pull?

In No. 12, Hamilton makes a good case for ratification based on the States’ and individuals’ economic self-interest. With a federal tax system, much less revenue would “escape the eye and the hand of the tax-gatherer.” And there would be no need to bear the costs of administering 13 redundant state tax systems.

Okay, so I’m sold on the idea that the new federal government will have a sufficient source of revenue to accomplish its constitutional objects. But I have other concerns: How fairly, equally, or justly does any source of revenue spread the burden over all Americans who benefit from the federal system being advocated? And, what restraints will be in place to keep the general government from spending any and all money it collects, instead of collecting only that amount it needs to accomplish its constitutional responsibilities?

I think the founders and their successors were wrong to concentrate on tariffs. Indirect taxes are stealth taxes and you never really know who’s paying them. “In the 1850′s, the federal government obtained 92% of its revenues from customs duties imposed on goods imported from abroad.” (Weisman, The Great Tax Wars) And the reliance on tariffs led to, in my mind, at least questionable results–a farmer enjoying sugar-sweetened coffee at his local early-american Starbucks would pay more in taxes than someone buying $1,000,000 in bonds. The regressivity or progressivity of any proposed tax system should be transparent and is of course debatable. The amount and sources ofrevenue coming into the federal government has changed dramatically over the last hundred years or so–I just want to know why and has it been to our benefit. “In 1913, nearly half of federal revenues came from customs duties, and almost all the rest came from tobacco and liquor taxes.” (Weisman) Hamilton was way ahead of his time advocating “sin” taxes and luxury (“extravagance”) taxes on “ardent spirits.”

Thank you to everyone at Constituting America for creating this wonderful project. How impressive and awe-inspiring!–To encourage ordinary Americans to study our founding documents. Thanks also to all the contributors. I enjoy reading what you think is important about our great country and where you think we’ve gone wrong and what we can do to get us back on the right track.
Ron Meier says:

May 13, 2010 at 5:01 pm

Although all rational human beings would prefer a “fair tax” or “flat tax,” the probability of getting one is zero. The tax laws long ago ceased being a method for generating the revenue required to run the affairs of the federal government. Instead, the tax law has been the means for Congress to raise revenue to achieve the social and economic outcomes it desires at a particular point of time. It has also been used by the Congress to modify behavior of its citizens and corporations.

There are two types of economic triggers available to the federal government, monetary policy and fiscal policy. Monetary policy is solely under the control of the Federal Reserve; fiscal policy is under the control of the legislative and the executive branches. The legislative branch initiates and passes fiscal policy laws and the President approves or disapproves. Fiscal policy has three elements: (1) government spending management, (2) federal debt management, and (3) taxation. We know that the Congress will not really control government spending; therefore, it needs to have a means by which it can adjust the cash flow required to fund the programs it wants to fund. There are two primary ways it can fund the programs. It can borrow money, thereby increasing the federal debt; there are limits to how much additional federal debt can be sold to investors. This leaves only one remaining way to raise the necessary funds – TAXATION.

If a flat tax or fair tax were to be inititated, Congress would have it’s only real method of modifying behavior and raising money for social engineering taken away from it. Although you and I would love to see this happen, it won’t happen because Congress critters know that the game is over if their only toy is taken away.

By the way, if you’ve been paying attention, Congress knows that it may be reaching the end of its rope with respectto its ability to keep increasing taxes, so it has used the current economic crisis to attempt to extend the reach of its powers to control monetary policy by making the Federal Reserve subject to its review. That sounds pretty benign, and like a good idea on the surface, but it is nothing but a first baby step to get its fingers in the monetary policy pie; once it gets a pinky in, the hand will follow. It’s important that we don’t let them get any control over the Federal Reserve’s Monetary Policy toolbox. Most people don’t understand any of this, so they ignore it. Keep your eyes and ears open for more in this arena.
Lynne Newcomer says:

May 13, 2010 at 5:09 pm

Great stuff…. The fair tax seems the way to go,here are two reservations /unexpected consequences (not without solution) 1) Would this create a black market? 2) would this hit the very poor right between the eyes,.If the margin they live on is close and they are not paying taxes would that throw them under the bus? Oh yeah… what about Social Security tax how would that be managed,,how would we assertain if someone has woked their required number of quaters to be elegible…. I don’t like the monsterous tax code we have today,but beleieve we could do this taking many cautous steps.
Shannon Castleman says:

May 13, 2010 at 5:51 pm

Good points nDave. That is why nI like the Fair Tax. Every taxpayer pays 23% sales tax on the purchase of final goods. Every tax payer gets a monthly prebate deposit into their checking account to cover spending to the poverty level-a one time tax deduction. This ensures the poorest of the poor will not pay sales tax.

If it were up to me, government would be cut 66%, and we would have a sales tax of 10% or so, with no prebate checks.
Carolyn Merritt says:

May 13, 2010 at 10:45 pm

We are running under the assumption that if the powers that be decided to go with the fair tax system, they would do away with the federal income tax. There are states that have a sales tax and also collect a state income tax and all collect real property taxes. Therefore, depending on what state a person lived in, with the fair tax and the state taxes, some would still be paying more than others. True, the underprivileged would pay their fair share.

The next question would be: What would be taxed and what would not be taxed? Food? Medicine?
Carolyn Attaway says:

May 13, 2010 at 10:59 pm

I didn’t get to participate in the discussion today, but I enjoyed reading everyones comments, especially on a day when our Governor just eliminated 2 of our state taxes: the Senior Citizens Retirement Income Tax and the States portion of the homeowners property tax!
Constituting America says:

May 14, 2010 at 12:23 am

As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.

Their wisdom and foresight continue to astound me.

“A prosperous commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful, as well as, the most productive, source of national wealth and has accordingly become a primary object of their political cares.”

A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.

“The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”

This is very relevant today in regard to businesses being heavily taxed.

And lastly, “A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.”

Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?

These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.

God Bless,

Janine Turner

P.S. I thank our fantastic scholar today, Paul S. Teller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions! I also thank each and every one of you who have blogged! Fantastic.
Roger Jett says:

May 14, 2010 at 12:38 am

I found Ron Meier’s post today very helpful in getting a bigger picture of our nation’s current predicament. His depiction of the “fiscal policy” as it should be compared and contrasted to the “monetary policy” was insightful and he points out clearly the importance of both tools being used wisely and by the right people. I think the call for more accountability from the Federal Reserve with it’s management of monetary policy is prudent. I see great danger however in allowing those who through political motivation (Congress), have wrecked and misused the fiscal policy so badly, now gain undue influence over the management of monetary policy also. Thank you again Ron Meier in helping us get the bigger picture.
Constituting America says:

May 14, 2010 at 12:58 am

Federalist Number 12

Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through theFederalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.

“The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”

Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.

Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little orno say in how the money is being spent!

Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :

“A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede.Revenue, therefore, must be had at all events.”

The question is how.

It is fascinating to observe the progression of taxation in our country. From Article I, Section 8 of the United States Constitution:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)

What happened?

In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”

In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.

It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.

If only we had listened to them more closely!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton)

Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 13, William Morrisey PhD

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, May 14th, 2010

Federalist 13: Why Union?

Always, Americans face two questions: the question of regime; the question of the modern state.

By “regime” I mean three things: who rules; by what forms or institutions the rulers rule; and what way of life rulers and ruled will lead. These three dimensions of the regime intertwine. If, for example, a tyrant rules, he will require such institutions as a large standing army controlled exclusively by himself for internal policing as well as for conquest, a judiciary dependent on his will alone, and a legislature without independent powers. If a tyrant rules, the way of life will encourage a moral atmosphere of mutual distrust and self-protective secrecy among neighbors, habits of fear punctuated by moments of terror.

If the people rule, the same thing might happen. The popular majority might tyrannize as well as—maybe worse than—a `majority of one.’ Hence republicanism or representative government, a republic of extensive territory and population wherein no one faction may obtain a ruling majority.

The first fourteen numbers of The Federalist address the crucial question of regime—whether a people can truly govern themselves non-tyrannically, by reflection and choice, not accident and force. But they equally address the question of statism.

Modern political philosophers—in England, such men as Francis Bacon and Thomas Hobbes—sharply criticized feudalism. A feudal society structures itself politically rather like a cinnamon roll: ruling authority organizes itself into swirls and morsels—an aristocrat here, a city there, with a king mixed in and a network of churches and common law courts throughout, each with more or less independent sources of power, sometimes overlapping one another but none simply superior to the others.

The statists did away with this. Statesmen organize states along the lines of a wagon wheel, with a central hub of authority and spokes radiating out to the border. Along these institutional spokes reside administrators or bureaucrats, beholden to the center for their appointments and salaries, exerting control over the population, now reconceived as the nation organized into the nation-state. From the center of the state commands and force flow out; to the center, recruits and revenues flow in, far more efficiently than under the feudal order. Wherever a state appeared, neighboring political communities more or less needed to imitate it, lest the wheel roll over them.

For Bacon and Hobbes and their royal sponsors, the best regime for the modern state was monarchy, giving unity of command to the powerful state. Having felt the pincers of monarchic statism, the Founders disagreed, with muskets.

But the defense of the natural rights enunciated in the Declaration of Independence via institutions of political liberty required the strength and unity that only a modern state could provide. Only a state could muster the economic and military strength to defend itself against the surrounding European empires, with their contempt for republicanism.

Publius therefore puts the matter of federal union front and center in his introductory essays. The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—states equally represented in one house of the national legislature.

In the thirteenth Federalist, Publius warns against disunion by appealing to Americans’ sense of economy. Were we to divide into separate confederacies, the two or three new governments would nonetheless rule extensive territories, larger than those of the British Isles. Instead of one federal government we would have at least two, with unnecessary duplication of ruling institutions and commensurately heavier expenses per capita. If jealousies arose between these confederacies, commercial tariffs and larger militaries would further degrade prosperity. North America would look more and more like the Europe from which Americans had declared their independence. To those who look askance at a national government, Publius replies, one such thing is better than two or three. To undertake to found thirteen such sovereignties would involve Americans in “a project too extravagant and too replete with danger to have many advocates.”

But can one government—even a carefully limited government—truly govern one such large territory? Publius answers this question in his fourteenth essay, concluding his introduction to the new Constitution.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

31 Responses to “May 14, 2010 – Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Ron Meier says:

May 14, 2010 at 6:20 am

Thanks for such an interesting discussion of the underlying reasoning to what our founders were proposing, Dr. Morrisey. You’ve put it in a way that seems so simple, yet we and our representatives seem to prefer to make it complex. Who rules, by what form, and leading to what way of life; if only we could focus on that, instead of arguing about some of the minutia we hear every day in the media, perhaps our conclusions on the issues would become more clear, more quickly.
Susan Craig says:

May 14, 2010 at 7:38 am

The more I read, the more I’m struck with the truism that “What goes around comes around”. We are again arguing the size and structure of the best form of governance. The irony of the situation is that ‘strict constructionists’ in the late 1700′s were called Anti-Federalists and now they’re called Constitutionalists.
Will Morrisey says:

May 14, 2010 at 8:53 am

Thank you, sir. I deserve no credit, really. I’m only repeating what I learned from Aristotle’s “Politics” about forty years ago in Harry Clor’s class at Kenyon College, supplemented by what the late Robert Horwitz taught in his class on Machiavelli, Hobbes, Locke, and Rousseau.
Shannon Castleman says:

May 14, 2010 at 9:25 am

Dr. Morrisey, you said, “The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—..”

Thanks for writing it like that. It makes it clear in my mind how the Founders thought, as well as their intentions for the new government.

The notion that the federal government is basically responsible for protecxting the US while leaving the states to basically handle domestic idea—-I guess the 10th Amendment may apply here?

Thanks!! Good thought on your part.
Marc W. Stauffer says:

May 14, 2010 at 10:21 am

Incredible explanation Doctor! Thank you for the insight. I think it was prudent of Publis to remind his fellow Americans what is was they were separated from as when a little time passes we tend to forget. The continued use of economic consequences to disunion is, as always the best “attention getter”. Economic, rather than moral consequences to actions, have, unfortunately, always received the quickest attentions and reactions from the populous. Explaining the economic disadvantages of disunion most likely stirred the senses of the people to see the folly of disunion…much like people today. We tend to look at our government in terms of economic remedies/gain and less at its moral implications. According to statistics we choose our elected officials most commonly by their economic views and less on their moral character/stances…something I believe that is causing a lot of the trouble we are experiencing today.
Chuck Plano, Tx says:

May 14, 2010 at 12:02 pm

Now that we have learned through the first 14 Federalist Papers how our Founders envisioned the benefits of a Union of States formed into one national government with limited enumerated powers vested in the Federal Government and the powers not granted to the Federal System to remain with the People and the States. We now see how that system has been perverted and usurped by the Federal System in it’s grasp for uncontrolled power over the States and the People the question is how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government.
Will Morrisey says:

May 14, 2010 at 12:22 pm

Mr. Stauffer, I think that you make a good point about the contemporary attempt to emphasize economics at the expense of moral character. The Founders understood the relation between morality and economics in a much more careful way than we do. Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest. The best example of this may be seen not in The Federalist but in George Washington’s Farewell Address, which is also a defense of federal union.
For example, here in #13 Publius defends union on economic grounds; however, as previous papers have already made clear, the purpose of union is American prosperity in the comprehensive sense–ultimately, the defense of activities that conduce to human flourishing in a regime that defends the natural rights of its citizens. The later habit of looking to our government for economic remedies, which you remark, tends toward passivity and attitudes of dependence, not self-government.
Maggie says:

May 14, 2010 at 2:43 pm

@ chuck…..You asked the question, “how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government?” I do believe there are ways….the question is will people be willing to make the sacrifices necessary to get us back to our Founders’ original intent? Many of us HERE are, I am quite certain…..but most of us have already made many sacrifices trying to survive the government largess. Those that still NEED to make the sacrifices are least likely to be willing to make ANY.

Thank you so much for your wonderful essay Dr. Morrisey and for your willingness to come back and give further insight throughout the day.
Chuck Plano, Tx says:

May 14, 2010 at 3:50 pm

Maggie you have made my point, the fact that so many of our citizens today have “no” investment in our government today. What i mean by that is they pay nothing or very little for the cost of the government we have that they do not see any need to change it. Those who are willing will do those who are unwilling will not and i am afraid that we have way too many who are unwilling today.
Dave says:

May 14, 2010 at 4:12 pm

Thank you Professor Morrisey for sharing your thoughts on Federalist No. 13 and jump-starting my brain this morning. Hamilton seemed to know which buttons to push to get the citizens of New York to go along with the plan of union–their security and their pocket-book. Could it be the case that Hamilton was right in November of 1787, but might be wrong in the long run? Or to put it another way, is there a limit to the size of a republic such as ours; and are their certain characteristics of the governed which will either foster or inhibit the expansion–did he really think that virtue would remain the defining characteristic of the populace as the “celebrated Montesquieu” said it must? I agree with the Federalists that the circumstances at the time pointed towards union as the only means of survival. The Articles of Confederation were deficient in a number of respects and enemies were ravaging America’s trade on the high seas.

Based on experience, which Hamilton will call “that best oracle of wisdom” (No. 15) and Madison will call “the oracle of truth” (No. 20), can we not infer that any particular structure made by man, according to any applicable natural laws, will have a necessary limit? Can the integrity and composition of the parts be maintained to continue to support the whole?–Will the wheel simply collapse at some point? Hamilton’s focus was mainly external; and rightly so. But even Madison (No. 10 & 51) didn’t foresee any problems (as long as virtue was predominant.) He thought that an extended republic, composed of many different interests and where the combining of interests was difficult, would be a sufficient guard of the people’s liberty.

As our attitude and outlook become more and more national as opposed to federal, and as more and more power, control, and money coalesce in Washington D. C., I see more and more waste, fraud, and oppression. We may not have a national plebiscite but through modern media a national consensus is “reached” to determine national policies on any number of topics–healthcare, immigration, energy use. Modern communication seems to vitiate Madison’s argument for extended republics. Today, small, vocal, well-placed factions can combine quite easily and gain power. There does seem to be a tendency for political power to follow some sort exponential growth curve (maybe it’s “Power tends to coalesce, and absolute power coalesces absolutely.) Is there a vicious cycle with the increasing public sector depending on a decreasing private sector?

For external concerns, a centralized government is probably the answer. But for local, private concerns, local government is best. The best government is that government which governs closest to the people. As John Adams wrote to Jefferson, “Human nature, know thyself.” A republic composed of citizens lacking virtue is not long for this world.
Marc W. Stauffer says:

May 14, 2010 at 4:54 pm

Mr. Morrisey;
I agree with your thought, “Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest.”
Exclusive self interest is the blinded path to a Unions destruction. Mutual interest must be taught in the formative years of life lest self interest take firm root.
Many generations have been taught economic based history rather than history with its eye on the motives and morality and as such we have lost touch with the original intents of our Founders or great leaders. President Woodrow Wilson said; “A Nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we don’t know where we have come from, or what we have been about”.
Many history books, my High School history text (1977) included, are going as far as to expunge any morality or mutual interest from their text. This, unfortunately, leads our youthful generations to the self-serve trough without care as to how personal success is accomplished, only looking at the economic gains/losses of a situation. It also leads to an unhealthy reliance on “nanny state” governance to control those economic factors. Things which we are now seeing blossom forth.
Shannon Castleman says:

May 14, 2010 at 4:55 pm

Chuck and Maggie, I do not know either. But I think the best vehicle for getting back to the intent of our Founders would be to have a few Governors (look at Chris Christie of NJ, maybe Rick Perry of TX, maybe Jan Brewer of AZ) stand together and say “NO MORE MANDATES.”

If we could find just 4-5 men and women Governors of integrity who will stand up to the federal government-even if that meant a stand off with federal police authorities- and proclaim the 10th Amendment alive again, then PUR movement will gain some traction. It will gain credibility.

Remember the movie “Braveheart” when William Wallace pursuaded Bruce the Earl to lead his people? I am paraphrasing but he says something like, “People don’t follow titles, they follow leadership. They will follow you if you will just lead them. I see it in you.”

That is what need today, because no one is going to take “normal” citizens like us seriously. We need people with some credibility in the government sector-Governors. 90% of Congress can’t provide that leadership, but I believe 4-5 Governors could start a snowball, mixed with the Tea Party movement.

Any thoughts?
Mrs. Stone says:

May 14, 2010 at 4:57 pm

It’s interesting to see how knowledgeable our founders are about the world around them. Although people like Newt Gingrich speak in ways that convince me that they have an informed historical perspective, it is hard to see that in a lot of our countries leaders.

Hamilton gives a very interesting insight into why the nations of Europe were constantly fighting one another and what we should do to avoid it. Without minimizing our nation’s civil war it is telling that the actual conflicts on our own nation’s soil have been limited over the year that our nation has been in existence and that proves that Hamilton really understood the importance of us having one nation here in America instead of 3 or 4.
Chuck Plano, Tx says:

May 14, 2010 at 5:32 pm

Shannon you are right but we must motivate the people to stand with those Governors and let them know that we will be there to support their efforts. That is why it is so important to let Arizona know that we support their efforts in the immigration fight. It is not about profiling or any thing else but protecting the citizens where the Federal Government has refused to do so. If “We” The People let the Federal Government run over Arizona then what is left for the rest of us but the same.
Ron Meier says:

May 14, 2010 at 7:20 pm

Good point Shannon. It doesn’t take a majority of Governors to make something happen; it takes just a few strong willed Governors willing to stand up and say no. The Governors have failed, over many decades, to stand up to the Congress and say no to mandates that come with almost any money the feds distribute, for example, for highway construction, education, etc. As originally constructed, as I read these papers, the States made sure the Constitution protected their rights as States. Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights on the larger local issues, such as education. We’re fortunate to have some strong leaders at schools like Hillsdale College say no to federal money so they were not forced to do things they felt were contrary to their own values. If only we can get some of our Governors to do the same thing. The ones you’ve named are a great start; let’s hope more come along with them, especially after the November elections, when we are more likely to have change at the State houses.
Jeff Hill says:

May 14, 2010 at 7:52 pm

Susan, you have made clear some feeling I have had while reading along, that the Anti-Federalists often had arguments equally as compelling as the Federalists. And issues that dominated the Constitutional Convention are still, or once again, being debated today.
Will Morrisey says:

May 14, 2010 at 9:04 pm

Dave, thanks for that excellent post. My own view is that it’s impossible to posit a natural limit to a commercial republic, but in practical terms every such republic will find such a limit, depending upon its neighbors. The oceans pretty much set such a limit, east and west, with the eventual exception of Hawaii and other smaller holdings in the Pacific. No sensible person supposed that we would actually integrate the Philippines permanently into the United States, for example. British Canada set such a limit on the United States to the north. Mexico turned out to be the complicated case; we solved the problem for more than a century by seizing its underpopulated, northern sections and effecting a regime change in the capital.
Another way of putting it is to say that an extended, commercial republic must eventually find some limit; the question will then be whether it can secure its borders militarily but in the final analysis politically. It can do so politically if the neighboring regimes are also commercial republics. It helps if they are also weaker.
In my opinion, the statism that you and I worry about derives not from the size of the territory but from the change in the regime effected by the Progressives in the last century. The Progressives managed to legitimate a much more extensive, bureaucratic state than anything seen here before, taking their cues from German political thought and practice. Germany had unified the 37 or so German states under the Kaiser; Bismarck organized a substantial welfare state along with a formidable army. Many of the American intellectuals who founded `political science’ as an academic discipline in the 1880s (the young Woodrow Wilson among them) studied in Germany, so they picked these ideas up right at the source.
Constituting America says:

May 14, 2010 at 9:15 pm

What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!

I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.

There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.

Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.

Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.

Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.

The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?

Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pong together yet maintain our different stripes.

God Bless,

Janine Turner

May 14, 2010
Andy Sparks says:

May 14, 2010 at 9:49 pm

Im going to say something controversial in answer to the implied question of Ron’s statement “Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights”: The the issue is slavery. If slavery had not been defended to the point of secession by the Confederate states, I don’t believe we would now have as bloated and powerful a federal government as we have today.

While the Federalist papers do not touch on the subject of slavery, it is the proverbial elephant in the middle of the room throughout U.S. history up until 1861 when shots were fired and the union was torn asunder. Without that peculiar institution, it is my belief that we would have a more balanced power between the federal government and the state governments. Without the Civil War, there would be no 14th ammendment which once and for all declared the federal government as supreme.

A lot of Lost Causers will scream “Hallelujah”, but I approach the subject from a different viewpoint. Unlike their belief that Abe Lincoln was a tyrant; I say that the southern states that promoted and defended their institution to the tune of 600,000 dead were more to blame for the current situation of states playing second fiddle to the central government. How we can transfer back the power of the federal government back to the states, I don’t know; but I do know how we got here, and it started when the founding fathers refused to deal with the issue of slavery that quite possibly would have prevented the union from forming in the first place.
Lynne Newcomer says:

May 14, 2010 at 10:54 pm

SUPER stuff !I think the first thing I want to say is about the “disunion” that pleges us today. We are divided and it seems that Obama is not given to putting things back together,but into factions serving what he believes will promote his idology. He is displaying an arrogance a times which concerns me a lot. I wonder if he realizes that a man is diminished to the degree that he indulges his arrogance?AZ is a perfect example of this, he makes a joke about the PEOPLE of that state while his failure to deal with immigration while a 900 lb gorillia standing at his shoulder as his jokes cleverly distort .His Attorney General threatens to sue AZ,but never read the bill he is objecting to. Obama addresses a graduation class and implies that too much tech, may be harmful??????What on earth????Is he afraid of too much information that may encourage deeper thought about matters facing us today????I think most people are feeling concerned about the deficite,and the spending at the hands this Administration ,and there seems to be no end to the billions and now trillions that are now weighing us down, and making us vunerable .
We have much to do and I suppose the first thing is to engage in places like this. Thank you so much for all your hard work and creating this site. November may serve as a bell weather and surly information will underpin our sucess.
I think our founders would be going cross eyed if they were to see things today.Their beautiful carfully constructed thoughts/principles were a gift to the ages and I do hope we can blow off the dust of the times,we allowed to settle in on them and revitalize them.
Maggie says:

May 14, 2010 at 10:57 pm

Shannon you are so right and I am glad to see that a few Governors are starting to take a stand. Even Arnold S. is talking about cutting entitlements in Calif. It remains to be seen if he is all talk and no action or if he’ll actually do what needs to be done. If he actually goes through with it, it will be interesting to see how many other states follow suit.
Roger Jett says:

May 15, 2010 at 12:57 am

Shannon Castleman, I especially enjoyed your earlier comments on what it will take to get us turned back toward what the Founders intended. I’d like to point out though that before Robert the Bruce became “the lion in the north”, it was the acts, deeds and exploits of the “normal citizen” William Wallace that united the diverse clans and rallied them to resist tyranny. Before Stirling Bridge and Falkirk and long before Bannockburn there were the skirmishes and battles of Lanark ,Loudoun Hill, Ayr, Scone, Aberdeen and Perth. Before the nobles resolved that they would lead the fight, the common people determined and declared that they would be free and be independent. It was a long road, not a short one. I’m reminded of what Paul S. Gillespie said a few days ago, in reference to Federalist No. 11, “We are quickly loosing our ability to remain free and independent, because unlike Hamilton who obviously took the long view, we have concerned ourselves with the expediency of the moment and see only the quick fix from the short view”.
Susan Craig says:

May 15, 2010 at 9:39 am

Andy, in the battle to return to the founding principles you are half way there. There is a principle that says in order to fix a problem one first has to correctly identify it and how it came to be. It is only then that effective strategies can be formulated.
Dale Pettit says:

May 15, 2010 at 9:44 am

We are all on this boat together and just maybe this study is the flick of the wrist that changes our direction. We are seeing signs that a new atmosphere of attitude is rising. The recent ousting of incumbents or life long politicians is a sign. I pray that our simple response to a long over ignored actions of our politicians is not too late.

The national debt, promises of future entitlements, and actions to devalue our currency to zero is bankrupting our nation and it’s citizens. Our position and strength to be a major world power has tanked significantly because over the last 100 years our selected leaders forgot to defend our constitution. Or……our citizens did not know enough to be more selective. They did not know what they had or did not know that we have to take an active part in our government actions.

Yes we have to have leadership because many will follow. Getting traction and attention for these ideas is a real challenge.

Thanks to all of you for this study.
Dave says:

May 15, 2010 at 12:08 pm

Roger, I liked what you seemed to suggest about the common people, the individual, being a key to solving our current crisis of liberty. Many Americans (myself included) have not been paying attention as a century-long, ever-so-subtle incremental drift away from our founding principles has put our liberty in some jeopardy. Dr. Morrisey mentioned the Progressives and how they view the governing of our country. In my limited reading of the Progressives (mostly selections from American Progressivism by another Hillsdale educator, Ronald J. Pestritto), they seem to have a firm belief in the perfectibility of man brought about by just the right social and political control. And there are academic, legal, political, and artistic elites who have the “wisdom” and good intentions to “improve” upon our founding principles so that we can attain the perfection they so ardently desire for us.

I know the modern elites are really, really smart and everything, but I think I’ll stick with the Founders. Informed not only by their religious sentiments, but also by their study of human history and man’s various attempts to form civil societies; they accepted man as an imperfect being, and the structure of any suitable government would take into account man as he truly is not as he might be imagined in some utopian, fantasy world. How smart were the Founders? I recently heard a scholar say that President Kennedy’s quip about Jefferson dining alone was probably literally true–”I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” (Remarks at a dinner honoring Nobel Prize winners of the Western Hemisphere. 4/29/62)

The increasing centralization of power and tax dollars in Washington would horrify the Founders. They did not fight a revolution against the centralized power of the King and Parliament only to have it brought 4000 miles here to Washington to exercise tyrannical power over the individual American. Our founding document the Declaration of Independence tells us where the Founders put their political faith and trust, and it wasn’t in the State. It was in the certain unalienable rights of the individual. We possess those rights independent of any government. We establish government to secure our rights. Ours is a protector government not a provider government.

We have lost that necessary faith in the enlightened self-determination of the autonomous individual exerting his free will in a material world governed by natural laws. If Ludwig von Mises is right that “government is essentially the negation of liberty,” individuals who innately yearn to be free, will always come to be frustrated by looking to a bigger and bigger government to make their life choices for them. One of the greatest gifts God has given us is free will; without it life would cease to have any meaning.
Paul S. Gillespie says:

May 15, 2010 at 12:09 pm

Thanks for quoting me Roger. Its nice to be remembered. I was otherwise occupied yesterday, but am catching up this morning. Great comments by everyone following a thoughtful essay by Dr. Will Morrisey. I do however take great exception to Andy Spark’s idea that slavery was the chief cause of the War for Southern Independence. (Civil War is used incorrectly in this type of conflict)
States Rights, much a concern today, was the key issue to the South. On this subject, the South was entirely right as we see the present subjugation of the States to the actions of an all powerful federal government. The main issue to the North was not slavery but revenue. Over 60% of Federal income, distributed unevenly to Northern States came from Southern States. Most Northerners had no strong feelings about Southern succession until the Northern newspapers and banks started pointing out the need of the North for the continued wealth of the South. (Before the war, Mississippi was actually the richest State in the Union) When asked why he was against the South leaving the Union, Abe Lincoln replied: “Where would we get our income?”
It was only when the “greenbacks”,through rapid inflation from printed money had caused more financial problems than lost revenue did the North need another reason the shore up faltering support for conquering the South.
A quick look at the laws most of the Northern States restricting the rights, freedoms and movements of the non slave black population, makes it very evident that no Northern State was willing to start a war with the South to free a black person. But since the Union was already knee deep in blood and debt…why the hell not try to put a moral face on their actions.
I agree that the resulting 14th Amendment has its flaws and should be repealed, but lets not throw out the baby with the bathwater. It does restrict the States from passing laws that infringe on our Bill of Rights.
Andy Sparks says:

May 15, 2010 at 7:28 pm

If you don’t think slavery was a chief cause of the Civil War, then you look at history with a jaundiced eye. True, economics was an underlying cause of conflict, but you have to look deeper than the surface; something lost causers and slave state sympathizers refuse to do.

I don’t disagree that the northern states are without culpability in the livelihood of the peculiar institution, but to point to the non-slave holding states as the ignoble precipitators of the war is disingenuous. If the cotton-growing states had been willing to confine their slave holding status to those within which they currently existed, there might not have been an issue. Likewise, and more to my point, if the institution had been irradicated at the outset of the Constitution, then the likelihood exists that a war would have been avoided entirely.

Unfortunately, with help from the 3/5′s clause, the Southern states dominated the presidency, Congress, and even the Judiciary (Andrew Jackson alone appointed 7 of 9 supreme court justices including Chief Justice Roger B. Taney). Only when immigration and westward expansion from 1815 onwards precipitated a transition of power from congress to the northern states did congressmen like Jefferson Davis worry that the government would shift power towards the rapidly industrializing north.

It wasn’t northern financial improprieties that led to a war; it was the south trying to hold on to its power based on an already antedated institution that led to war. Try as you might to blame something other than slavery on the war, if you know your history and the underlying causes to straw man excuses like the tariff and states’ right, then you know that slavery was the principal cause of the Civil War.
Kay Tournay says:

May 15, 2010 at 8:21 pm

How fortunate you were to have Harry Clor for a teacher – would that all our kids in government schools could, too. That’s not possible, so, we all must become Harry Clors (read, read, read) and find opportunities to re-educate America’s children on the exceptionalism of America!
Christopher says:

May 15, 2010 at 9:30 pm

It is truly exciting to see how interested people like Hamilton were in promoting industry and business. When I look at essay #14 I see a much more robust concept — government should facilitate commerce not restrict it. The limited powers of the federal government look much more logical when I see that encouraging commerce through the post office, highways and interstate trade were explicit powers. I guess I’m now wondering what happened that caused us to get off track today? It often seems that rather than facilitating commerce, many in government see it as they job to try to stop business in its tracks.
Mark Dixon says:

May 15, 2010 at 11:47 pm

This is an amazing site and Janine and Cathy have really made the essays relevant. The contributors you guys have found as guest bloggers are awesome. I want to say thank you so much for doing this!
Will says:

May 17, 2010 at 3:57 pm

“When asked why he was against the South leaving the Union, Abe Lincoln replied: ‘Where would we get our income?’ ”

Do you have a link for that or a text for attribution? I’m curious to see the remaining context of that Lincoln quote.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 14 – Objections to the Proposed Constitution From Extent of Territory Answered, From the New York Packet (Madison)

Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 14, W. B. Allen PhD

Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Sunday, May 16th, 2010

In the fourteenth essay Publius argues that America has discovered the merit of making the mechanical principle of representation the basis of unmixed and extensive republics. This is not only an extended republic, but it is a republic in which we do not have to make a special place for the rich and the poor. We will not reserve one legislative house for the rich, another house for the poor. We will not create formal classes in government, and the government will not depend on class distinctions.

It may not have been observed that the tenth essay’s principle of the extended sphere of the republic has a consequence in the operations of politics. There will be commerce, and single district representation also. There will be the “multiplicity of interests.” But we must not neglect that as interests multiply they must affect more people. The consequence of that fact for the ancient distinction between the rich and the poor is a significant diminution in the numbers of the poor. The logic and dynamic of the extended commercial republic is precisely to squeeze rich and poor towards the middle.

The real impact of this constitutional design is to get rid of the struggle between the rich and the poor. The great American middle class is an historical oddity that has come to characterize all the modern world impacted by the industrial revolution and the principles of modern republicanism. This growing middle class is the basis of the unmixed constitution, a constitution founded on the middle class that turned almost into the only “class.” One of the most extraordinary things about the argument in the tenth essay, which is reflected as well in the fourteenth essay, is that it anticipates the nineteenth century debate about class and political life. Publius responded in advance, in effect, to the arguments of Marx and others, insisting that the United States need not have the rich overcome the poor or the poor overcome the rich. It could rather offer a social, economic, and political dynamic through which in fact those distinctions disappear in terms of their political significance.

Grant we must that what are called the super-rich do exist, as do the tabloid sheets that celebrate. But we do not view the rich, or even the super-rich as a class. Which is the reason that they can be just about anyone, from extraordinarily gifted athletes to people of very old money and families. They are isolated; they are individuals. They are not a class. In fact the only thing that distinguishes them today is their money. Otherwise they seem much like everybody else, and sometimes less. What matters is that this happened not by accident; it happened by a constitutional design that aimed to base the Constitution’s support on the strength of a very large middle class.

The claim, therefore, in the fourth paragraph of the fourteenth essay, that we have an umixed and extensive republic, goes to the very heart of the Antifederalist challenges to the Constitution and leads Publius to inquire in the paragraphs following, what are the limits of a democracy? and how are we supposed to calculate this? The question must be asked because we know that general arguments must be tested by practical limits. We cannot assume that there are no limits to representation as an approach, especially if we take seriously the task of “harmonizing and assimilating” differences. Differences must at least be kept to such a level that they are subject to being thus harmonized.

Publius provides a calculation in the fifth paragraph and those following. It is interesting because of what it says about 1787 technology and what it implies about the future. First, he describes the limits of democracy as a dynamic function: “the natural limit of democracy is that distance from the central point, which will just permit the most remote citizens to assemble as often as their public functions demand.”

The natural limit is the distance determined by public functions. The natural limit of a republic is that distance from the center, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said the limits of the United States exceed this distance? “It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled.”

To say that members of the Confederation Congress were “continually assembled” is a bit disingenuous; for although the Congress was almost constantly in session, one of the chief complaints about it was the notoriously poor attendance of delegates.

Publius then conducts a lesson in public geography, leading him to conclude that the ability to travel from any point, within a certain period of time (two weeks in 1787), to reach capital and conduct business, sets the allowable size of the system. This is a fairly mechanical definition, and it can be misleading. Not only does it not respond to the matter of harmonizing and assimilating, but it deflects attention from the ultimate basis of Publius’s judgment. The twelfth paragraph makes this clear, when Publius appeals to ties of affection to sustain “one great respectable and flourishing empire.”

In other words, Publius reminds us that we started with a Union, not with a theory on the strength of which we generated a Union. A theory may tell us that the Union is not too big for its britches, but that does not imply its indefinite extension. The condition for extending the Union is the continual existence of the Union. But that, in turn, would depend upon people accepting its principles, and first and foremost those principles enunciated in the Declaration of Independence.

Thus, two things operate simultaneously: first, the notion of the mechanical theory, the distance limit and, second, the moral limits, the moral distance. To the extent that we accomplish Union on the scale of the moral distance, it becomes possible by the mechanical theory to justify extending the reach of the Union, and not one bit farther.

W. B. Allen is Dean and Professor Emeritus of Michigan State University

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)

Allison Hayward, Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 14, Federalist No. 15

Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics

Tuesday, May 18th, 2010

Federalist #15

Alexander Hamilton’s Federalist 15 is a gloomy counterweight to Madison’s optimistic Number 14. Madison ended No. 14 praising the noble course set by the founders of the new nation. Hamilton’s No. 15 is like a splash of cold water, reminding citizens of the moment’s terrible perils.

And the troubles are many. The nation’s present configuration is inadequate to the task. The central government cannot govern, and thus cannot honor its debts, defend its territory, engage in diplomacy, or unite its constituent state governments.

And therin lies the rub, not just for Hamilton and the founders, but for generations afterward. How should the central national government relate to the states? The states are the unit of government charged with the ratification of the constitution. But Hamilton knows that a “mere” confederation of states will not survive, not in the dangerous world of the late 18th century. The central government needs sufficient power to govern the nation as one unit, when solidarity is required. Recalcitrant states must be brought to heel to honor their obligations. That meant, in contrast to the Article of Confederation, extending the federal government’s power to impose obligations upon real citizens as individuals, not just intangible state governments.

This is a big step. Hamilton’s challenge is to appeal to his reader’s fear of irresponsible state governments. He can then position the national government as a solution to that problem, rather than as a tyrant to be feared itself. But among his readers are also the political leaders within New York, so he must argue carefully. He isn’t attempting to convince his New York readers they need to fear for irresponsibility in their own state government. He doesn’t need to accuse them of fecklessness. It is enough that other states will take advantage of a weak central government to pursue short term agendas to the ultimate detriment of all.

As we know, debate over the size and scope of the federal government persisted after the ratification, even to this day. From our vantage point, it may seem odd to entertain the notion that the central government could be too weak. Federal statutes and regulations reach deeply into American society, and into areas of governance traditionally left to state and local governments, such as criminal law, education and corporate governance. But in 1787, the prospect that the United States could become a “failed” state was real. However one feels about the size of government today, reading Hamilton should remind us that “ordered liberty” requires some authority to maintain the order.

Federalist 15 makes interesting reading in light of the financial crisis in Europe. Although the EU has an executive, the power of the central government is fragile and nothing like that established by the Constitution. Is the European Union sufficiently powerful to bring fiscal order to its constituent nations? Or will the lack of fiscal discipline in Greece, to name but one member, pull the EU down, destroy the Euro, and provoke domestic crisis throughout Europe? Can Europe impose a federal solution? I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.

Professor Allison Hayward teaches election law at George Mason School of Law and is also a fellow with the Center for Competitive Politics

16 Responses to “May 18 – Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics”

Susan Craig says:
May 18, 2010 at 10:01 am
Honor and restraint seem to be the necessary ingredient that both Madison and Hamilton imply. Especially in this quote from #15: “should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.” Unfortunately quite a few of the list seem to be rampant in today’s world. I think the most damaging is misrepresentation (aka lying). Presenting your self or your program in language that obfuscates the intent. Most recent example “Employee free choice Act”. How ironic the “Big Government” of 1787 is now looked on as the ideal of the “Small Government” people. As we traveled from 1787 to now it seems that we suffered from the belief that if this much is good maybe a little more will be better.

Susan Craig says:
May 18, 2010 at 10:37 am
Found an interesting chart defining the ‘factions’
The Parties as they were constituted at inception:
Republicans (aka Anti-Federalist)——————–Federalist
radical Whig—————————————-moderate Whig (can anyone define Whig belief)
localists——————————————–more centralist
agrarian——————————————–commercial
less taxation—————————————-taxation
balanced budget————————————deficit (as a tool for credit)
egalitarian—————————————— enlightened paternalist
strict construction———————————–broad interpretation
pro-French——————————————pro-British
expansionist—————————————–reluctant expansion
became modern Dems——————————–became the modern Reps
Does it strike you that there is coming another 180?

Charles Babb says:
May 18, 2010 at 11:21 am
Professor Hayward, your analysis of Federalist No. 15 is very enlightening.
However, Publius may have been short sighted in his view. The balance of power still seems to be a problem. In 1787, the States were “recalcitrant” of their fiduciary and other responsibilities to the Confederacy. The Constitution seems to have solved that problem, but will it solve today’s dilemma caused by a Federal governments bribing the States into prostituting away (using the citizens tax dollars) the liberties of their citizens, with it’s tentacles wrapped firmly around our throats in many areas. Especially in the area of education. They realize that a people made dumb as sheep, are easily led to slaughter.
Today we have a federal government that refuses to enforce the laws it has passed; but wants to bring legal action against a State which, in desperation for life, limb and property, tries to take upon itself that task of citizen security, for which the federal government is now recalcitrant. The federal legislature is so enthralled with a power grab that all they can talk about is creating “comprehensive legislation”, rather than insisting on the enforcement of the laws already on the books. K_I_S_S.
Friends, passion has caused me to exceed the bonds of strict adherence to the analysis of FEDERALIST No. 15, I beg your indulgence.
MAY GOD BLESS AMERICA

Ron Meier says:
May 18, 2010 at 12:24 pm
We are going through this exercise of reading the Federalist Papers @ a time in world history when we get see first hand what our founders were talking about in the first 20 or so papers. As Professor Hayward notes, we are watching a Confederation in Europe crumble before our very eyes, and we can refer back to the various FPs to understand why.
At the same time, we are seeing in our own country the very thing that the States and citizens were worried about with respect to our Federal government attempting to consolidate power by having complete control over two of the three branches of government and attempting to neutralize the ability of the states, particularly Arizona, from protecting their own interests.
It’s great that we are able to analyze what we see, hear, and read more rationally, rather than just passionately, as a consequence of reading the FP. The language of the authors of the FP makes reading and understanding somewhat arduous, but enlightening when the gist of each article comes through.

Carolyn Attaway says:
May 18, 2010 at 12:24 pm
I found Paper 15 to be very relevant to current events. I could not help but think of all the situations that are occurring in and around America today, as I read Hamilton’s debate for a Federal Government.
The third paragraph had excerpts that jumped from the page which served as reminders of why we need a sound and common sense Federal Government, and not one set on pushing its own agenda. Hamilton states “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience….Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?….We have neither troops, nor treasury, nor government….Is commerce of importance to national wealth?….Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us.”
These statements, though written at an earlier time to defend the need of a Federal Government, can be looked upon today as a defense to rid ourselves of the status quo in Congress. Hamilton tries to convince the people of New York of the need for a basic Federal Government whereas today it has become overbearing and oppressive. The Congress has allowed the United States to be humiliated, and has apologized for her standing as a Superpower to other countries. They have endangered our AAA rating in the financial markets by increasing our debt to foreign powers as well as to their own citizens.
We may have military power, but it is constantly being undermined by accusations and political correctness. We have no treasury, and our federal government is quickly becoming imbecilic. I believe Congress has forgotten the reason behind its creation.
Hamilton writes: “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I realize that this statement was intended for the States in trying to form a Union, but I cannot help but see the hypocrisy in this statement when in it is applied to the Federal Government in relation to the immigration laws and dealing with enemy combatants.
One of the main reasons for a Federal Government was, and is, National Security. Our Congress views the laws to these issues as recommendations, to be applied to their best advantage, when in fact, it should be their number priority.
I heard the following on the news yesterday, “Most of the illegals caught crossing are from Mexico or South America, but thousands are classified as OTMs, “other than Mexicans,” including hundreds from nations that sponsor terror. These are the records we obtained at this federal detention center near Phoenix, Arizona. We find illegals from Afghanistan, Egypt, Iran, Iraq, Pakistan, Sudan, and Yemen in custody. This congressional report on border threats confirms members of Hezbollah have crossed the southwest border. It also contains photos of military jackets found on the border. The Arab insignia reads: “Martyr: Way to eternal life.” The other depicts a plane crashing into the Twin Towers. The congressional report also reveals the route Middle Easterners take. They travel from Europe to South America to the tri border region where they learn to speak Spanish, then travel to Mexico and blend in with other illegals heading to this country. Former Arizona Governor Janet Napolitano is now secretary of Homeland Security. We wanted to ask her about the border threat, but our request for an interview was never answered.” (Link: http://www.wsbtv.com/news/23434381/detail.html)
Instead of securing our borders, Congress is inviting illegal immigrants to the bounty produced by hardworking citizens, and admonishes those who question their actions.

Dave says:
May 18, 2010 at 1:15 pm
Thank you, Professor Hayward for your thoughts on Hamilton’s No. 15. I was struck by the tone of the paper, and more specifically, the words and phrases Hamilton used to describe the situation back in the early winter of 1787. The “troubles are many.” They probably were, but I couldn’t help picture Hamilton as Professor Harold Hill in the Music Man singing “We Got Trouble.” In writing about the “material imperfections” and “those defects in the scheme of our federal government” under the Articles of Confederation, Hamilton does seem to be a tad hyperbolic: “impending anarchy,” “national humiliation,” “imbecility of our government,” “mimic sovereignty,” “melancholy situation,” “brink of a precipice,” “plunge us into the abyss,” “destitute of energy,” “political monster,” “desperate extremity,” and “the frail and tottering edifice.” He sums it all up by basically saying that anything that could have gone wrong has gone wrong. Here is a master salesman at work.
Hamilton knows the stakes and is not shy in making the hard sell. America is in dire straits and anyone who opposes the plan of union can be characterized “by ambition or by avarice, by jealousy or by misrepresentation.” The negative aspects of our human nature never seem to be present in the supporters of the plan. They all have the Wisdom of Solomon, the calm patience of Job, and the self-sacrifice of Jesus. Let’s be honest, Hamilton knew his duly revered General Washington would most likely be chosen as the first president and that he, Hamilton, would be in the first administration. It is to be remembered that it was Hamilton’s plan at the Constitutional Convention that had a president for life with supreme veto power over any and all laws.
So, even if his Bill of Particulars, “enumeration of particulars,” presents a convincing indictment against the existing Confederation, Publius should still be tasked to justify his solution to “this desperate extremity.” Publius has 70 more papers to make his case. Will the new plan of union truly protect the governed so they may enjoy the prime object of government, ordered liberty?
One is tempted to ask, “Who decides what, and how much, order?” In the end, force or the threat of force must become a real possibility. Washington said, “Government is not reason, it is not eloquence—it is force! Like fire, it is a dangerous servant and a fearful master.”
Thank you Professor Hayward for bringing in the current EU troubles. This seems to be analogous to what Hamilton said about the law must have sanctions. How is the EU to act against Greece but by force (“military execution”) or the threat of force, if Greece decides not to honor her agreements.
In No. 15 there exists a rallying cry for our times: “[L]et us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm [of Statism of all kinds] which has too long seduced us from the paths of felicity and prosperity.”

Carolyn Attaway says:
May 18, 2010 at 1:44 pm
Thank you Dave for mentioning the statement in your last paragraph. I too feel this is a rallying cry for our times. I highlighted it in my reading of Paper 15 and drew an arrow to the last sentence six paragraphs down: “we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.” As citizens of the United States, I believe it is our task to keep our government in check, and be more active in our involvement than just voting.

Maggie says:
May 18, 2010 at 2:19 pm
Carolyn I couldn’t agree more. When I read “Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?”, I instantly thought of China and how much of our debt they hold. We are literally selling away our power. I was also struck by this statement: “We have neither troops, nor treasury, nor government”. Yes, we have a very strong military; but for how much longer when every democratic administration that comes into power further defunds the troops? I, too, immediately thought of the immigration issues with Hamilton’s writing “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I believe that this quote stands for many laws on our books that are simply NOT being enforced. Every time a politician brings up gun control and how “we need more laws” all I can do is think about the many laws we already have controlling the ownership of firearms….they just aren’t being enforced. Why is it that those in Washington just don’t seem to comprehend that criminals don’t care about laws? They have already broken laws…that is why they are CRIMINALS. Further revoking the rights of law abiding citizens will NEVER change that.

Lynne Newcomer says:
May 18, 2010 at 3:22 pm
Thank you Professor Hayward for your quidence on this paper.
I do so agree with so much that has been written by everyone that it would waste time to name everyone.
Simply… with regard to AZ, we are either a Nation of laws or we are not.The Gov of AZ.showed remarkable fortitude to stand up to Washington.She is no fool she knew she would meet with much hateful speech etc, but went on and is weathering the storm hip- hip- hurray.The fact that Washington is lowering the standards of civil, and acceptable dialogue is surely regretable but the sanctions are going to come their way,and they will come from the voting booth.We are a smart people and we know the Pres,and Congress ore failing to do their jobs.
I like the EU example, the officers of the EU,seem to be toothless and of a more ceremonial nature.I do hope that they find their way .

Dave says:
May 18, 2010 at 3:49 pm
Carolyn, what I think everyone can accept is that a sovereign implies some control over the individual. The sticking point for the Anti-federalists (and for me I’ve lately learned) seemed to be how justly and efficiently a distant, centralized power would govern. We’ve seen some elaboration and we’ll see a lot more of the compromise reached between the consolidators and confederals. The consolidators placed their trust in the State. Those advocating for more of a true federal system wanted a buffer between the national government and the individual. There would be two sovereigns over the individual, each with their own sphere of authority. General, national concerns would fall under the purview of the general government, and the local, private, every-day concerns would be handled by the state or local government. I think it’s quite workable in a republic of virtue, in spite of Hamilton’s slam of an imperium in imperio as a “political monster.”
The irony should not be lost on any of us reading No. 15–Hamilton was indicting the weak national system of the government under the Articles of Confederation and yet almost every malady he mentions could apply today in spite of a very strong leviathan, national government. Publius is constantly urging opponents of the plan to open their eyes to the light of reason and experience and see that an energetic, wide-ranging central power will cure all their ills. We’ve gone wrong somewhere. Would that there were a modern-day Publius to counsel us on how we’ve gotten off course and what we can do to get back on the right course.
I do know our state governments have let us down. Here’s a sampling of excerpts we will read in the next few weeks showing the buffer role of the states I mentioned:
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. (No. 85)
The executive and legislative bodies of each State will be so many sentinels (No. 84)
But ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm (No. 46)
schemes of usurpation will be easily defeated by the State governments (No. 46)
I should not have rambled on so. All I wanted to say is that I agree with you in the role of the individual, but the states have a responsibility and they seem to be shirking it.

Jimmy Green says:
May 18, 2010 at 4:32 pm
The theme of the States surrendering some power to the Federal Government via the Constitution to strengthen their security and prosperity through a Union of these same states is a continual
theme in the federalist papers.
While I generally agree with the adage of “united we stand divided we fall”
I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.
What are the states rights if the federal government abrogates or is lacking or deficient in its constitutional powers.
I’ve seen mentions of the Arizona law in some people’s writings. What would Hamilton think the proper response of a state to the Federal Governments lack of securing the borders? There are many such examples but as the federalist papers are to explain why the states should unite one is left to wonder what Hamilton’s view are on states rights as a consequence of the failures of the Fed.

Shannon Castleman says:
May 18, 2010 at 4:38 pm
Dave, indulge away. Great points. Those who have brought up the EU are right on. True, we have a front row seat , as though we went back in a time mchine, to watch the disintegration the former empire across the pond.
But the Professor’s statement brought it to a new light for mr when she said that the EU actually needs to be stronger (like hamilton wanted for the US). It was hard for m to grasp as I always viewed individually the nations of Europe to be too much beholden to central government.
But now I see the reasoning behind that.
I am learning so much.

Carolyn Attaway says:
May 18, 2010 at 5:26 pm
Maggie, I agree with you about being over regulated by our government. If I hear of one more law that strips away our right to make choices, I think I will scream. Oops! Sorry! I have already done that. This latest push to take away McDonalds right to put a toy in their happy meal because parents shouldn’t be burdened with having to tell their children NO, I think takes the cake. If I wanted a nanny, I would have hired one.
I agree as well that our 1st and 2nd amendment rights are under major attack, but the people in Congress who are suppose to care, just roll over and admit defeat. I am soooo ready for November.
Dave, you have me in your corner in the belief that States have been giving away their rights piecemeal by piecemeal. Many are starting to wakeup in lieu of all the costs that they will be burdened with, I just hope it is not to late. Regarding your wish for a modern-day Publius, Gov. Chris Christie is on the right track, and if he succeeds in lifting up New Jersey, we may have someone other Governors may try to imitate.

Carolyn Merritt says:
May 18, 2010 at 7:51 pm
Thank you Professor Hayward for your enlightening analysis of Federalist 15. Hamilton could have written this paper for what is happening to our Country today. We are heaviily in debt, our military is being undermined by Congress and this President; toll roads, power companies, oil companies owned by foreign countries; we print money just as fast as this government can spend it and worse of all – our respect around the World is diminishing because of all the apologists in the current admininstration.
I liked Hamilton statement “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Amen Charles: “May God Bless America.”

Constituting America says:
May 19, 2010 at 12:23 am
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot, which binds the people of America together, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner

May 18, 2010
Constituting America says:

May 19, 2010 at 12:55 am
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780’s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
May 18, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton)

Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 16, Marc S. Lampkin, The Articles of Confederation

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Wednesday, May 19th, 2010

Federalist #16

In Federalist #16, Alexander Hamilton continues to outline the deficiencies of the present system of government authorized under the Articles of Confederation. It is Hamilton’s view that the loose confederation will lead to lawlessness and ultimately anarchy once the inability to enforce its own laws becomes apparent.

This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.

The system that was in place had two important facets: it was a voluntary association of the states and secondly it was in most respects a government whose actions were non-binding. The fact that the Articles of Confederation were voluntary meant that the Congress ruled with the consent of the governed and therefore exercised their authority lawfully. However, the fact the government could not enforce its dictates meant that ultimately festering conflicts could result in armed conflict among the several states as the enforcement mechanism of last resort. Furthermore, due to the differences between the size and influence of some of the states, the confederation was particularly ill suited for America. With no enforcement power, the confederation created asymmetric power centers encouraging large and powerful states to see national policies for their benefit while disregarding the needs of the smaller and less powerful states. In the unlikely circumstance wherein the Congress adopted a policy that might benefit small states, larger states might ignore them with impunity. Such a circumstance potentially leads to civil war.

In fact, Hamilton observes that this asymmetric distribution of authority had other problems unrelated to the tendency towards internal armed conflict. Even when faced with exogenous threats, because the states view themselves as sovereigns — motivated primarily by their own self preservation — the national government would either not have access to the resources necessary to prevent an attack from a foreign enemy or perhaps simply not respond to an attack if the attack was perceived as being against one of the states rather than the nation as a whole.

If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense.

On the other hand, since the Articles of Confederation do not give Congress the power to lay and assess the taxes without consent or to compel the armies necessary to stave off attacks, the weakness that the American government presents to other nations would appear quite provocative. Hamilton complains that by their nature, the states as sovereigns are not transparent entities and therefore even assessing duties or raising armies is unduly difficult. Does a state refuse to pay up its share because of actual shortages it is experiencing or because its support for the cause identified is lackluster?

If there were a national government like the one described in the Constitution, it would already have the authority to defend itself — recognizing that an attack on one part was an attack on all.

Even if the conflict from foreigners is not the result of a coordinated assault i.e. a war, foreign governments would still be tempted to sow dissension among the states, Hamilton argues. As long as the states themselves are complete sovereigns, they have every incentive to evaluate foreign relations, trade, and even aid solely in terms of its impact on them as sovereigns and not on the nation as a whole. Hamilton calls this “Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form.”

Nevertheless, even if the states were to voluntarily provide the resources for an army, would the force be used to intimidate would be attackers or instead to enforce through intimidation its policies among the states themselves?

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority.

Then this would present concerns that are even more troublesome. Wouldn’t it be the case that what Hamilton calls the “delinquency” (meaning the failure of compliance) would occur not just among one state but also likely among several? In addition, wouldn’t powerful states attempt to align themselves in ways to avoid suffering the consequences of their delinquencies? If so using the military to enforce compliance begins to look a lot like civil conflict or civil war now that the states joined together in alliances are using enforcement of national policies as a tool of enforcing their perceived advantages.

Hamilton writes, “It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause.”

A final critique that Hamilton makes of the Articles of Confederation stems from the notion that it would be beneficial that states would affirmatively approve most of the policies adopted by the national government. While on its face, it might appear that requiring a second step in order to assure that a given statute must go into effect would be good for liberty, Hamilton argues that it was more likely to lead to anarchy or civil conflict.

Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.

Hamilton asserts, If it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

Hamilton reveals himself to be quite alarmed by the potential threats posed by the Articles of Confederation. While he may not see the U.S. Constitution as a panacea to all problems that the young nation might face, he believes that by its design, it is far better able to prevent conflict, or in the event that conflict occurs, it would be able to see that the nation was ultimately able to survive it.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

18 Responses to “May 19 – Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton) – Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School”

Susan Craig says:
May 19, 2010 at 9:03 am
The more I read and study what transpired between the Declaration of Independence and the end of George Washington’s second term the more I find myself squarely between the two factions. I see the deficiencies of the Articles of Confederation but seeing how some of the programs that were darlings of the Federalists have developed I think I would have fought to caveat the Federal Government a little more strictly and defined the relationship of State to Federal a little more clearly.

Charles Babb says:
May 19, 2010 at 11:55 am
How would we ever make any sense of these writings, were it not for the wise interpretation and guidance of our special guest bloggers? Thank you.
I would like to explore Mr. Lampkin’s thoughts in the following observation;
“Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.”
Do we not see a design fault here, resulting in excessive legislation, happening today? Is this one of the areas where you, Susan, would like to have seen greater clarification?
I shudder to think what the volume of legislation is that has been passed over the years. And yet in November we will elect, or re-elect, representatives who will go to Washington and pass more confusing and conflicting legislation, largely because (1) they try to hide the intent of their proposed legislation through volume and “legalize” and (2) our representatives are too lazy to read it.
How can you “deliberate” that which you do not comprehend?
And once it becomes the law of the land, if they do not enforce it, are they not in violation of their “Oaths of Office”?
What recourse then do “we the people” have?
We have November.
MAY GOD BLESS AMERICA

Nickie Summers says:
May 19, 2010 at 12:47 pm
Two thoughts come to mind reading the founding papers:
First, it is crystal clear to me how far our country has moved away from the Constitution (defining principles and the relationship between the federal government and the states/citizens.) The Federalist/founding papers are redundant making the case to caution people of an ‘over reaching’ government. Hamilton says in No.15, and I’m paraphrasing, the idea of the Constitution is incompatible with the idea of government and therefore a Republic is the only safeguard against an unruly government. No. 16 expands on that and much more. Federal government has to remain small and ‘in check’ to their boundaries/responsibilities….that brings me to my second thought…’The People’….
Second, the founding papers completely empower each citizen – they own the begining and the end of the political process. Our political leaders are turned around in that thinking today. Americans are engaged and ‘owning’ their role to govern…we can/will change the political mindset and landscape in DC and around this great country.
Go Team USA!!

Susan Craig says:
May 19, 2010 at 1:57 pm
That is a symptom, Charles. What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri. Before if you did not like the way Massachusetts regulated its business, you could choose from any of the established States or explore into the territories. Now its Massachusetts or Massachusetts lite.
I would have liked a more elaborated upon clause. My suggestion, States may order commerce within their borders as they see fit. Should disagreements arise between States in the conduct business the Federal will act as Good Faith arbiter to facilitate and promote the smooth conduct throughout the country. Not exactly a legal beagle but I think something like this would have kept the SCOTUS from declaring wheat grown on private property for private consumption under the jurisdiction of the Federal Government by virtue of the Commerce Clause in the Constitution.

Ron Meier says:
May 19, 2010 at 3:59 pm
Too bad the creators of the EU didn’t read the first 20 or so FP before creating the EU. Had they done so, they wouldn’t have let some members in and they would have instituted some kind of enforcement mechanism. More likely, the EU would not have been created, since the prospective initial members would not have approved the sanctions for misbehavior.
re Charles’ comment about the sheer volume of legislation, to say nothing of the thickness of each individual piece, when our legislators run for reelection, they have to demonstrate that they were in attendance for xx% of all votes, the higher the better. If someone has a lower than acceptable percentage, then the opponent runs negative campaign ads demonstrating that the legislator is not doing his or her job. I submit that it might be better if our legislators would spend more time deliberating on the really important legislation and skip showing up to vote for legislation that they know nothing about and that is not critical to survival of our nation. As our Attorney General and Director of Homeland Security have just demonstrated, they don’t even have time to read a simple 10 page piece of legislation (Arizona’s law), yet they feel qualified to speak authoratatively on the law they haven’t read. Our legislators are in similar constraints and likely have staff read certain portions and give them briefings; I doubt they even read legislation they propose.

Carolyn Attaway says:
May 19, 2010 at 4:04 pm
Nickie, I too picked up on the citizen empowerment theme toward the end of this paper. There were several parts that begged to be read out loud, but two statements caught my eye, and I had to read them several times to absorb the impact of their words: “An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority . . . . If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.”
The first statement contained the sentence a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. I find this choice of words interesting given that enlightened means to have intellectual or spiritual light; and usurpation of authority means illegal seizure and occupation of a throne. How true do these words ring today that the people must remain vigilant of their government and the laws that are passed unto the citizens themselves less they become subjects to the throne of government through unconstitutional laws and practices? Are we not experiencing a degree of this usurpation of authority today? Is one of the main reasons we gather daily on this web-site is to renew our vigilance and become enlightened with our founding documents?
The second statement reiterates this theme with the words as the natural guardians of the Constitution would throw their weight into the national scale and give it a decided preponderancy in the contest. In Paper 15 Hamilton tells us that the only proper objects of government are the persons of the citizens, so it stands to reason that they would be the natural guardians of the Constitution. And being guardians they would have the decided preponderancy; superiority in weight; power, to defend the Constitution against illegal practices on either State or Federal levels to ensure its authority. We, as citizens of the United States, are charged with this duty.
I find these words amazing.

yguy says:
May 19, 2010 at 4:55 pm
“What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri.”
However vague it may be, there is no way it can be reconciled with Wickard v. Filburn (1942), wherein SCOTUS held that a person not engaging in commerce could be penalized under color of the commerce clause.

Jimmy Green says:
May 19, 2010 at 5:34 pm
Interesting that Hamilton’s belief of state delinquencies in a confederacy would result in civil war.
Yet less than a century latter a civil war between the states would arise under a constitution that Hamilton felt would prevent it.
I believe Hamilton’s desire for a constitution that must be able to legislate over the state and citizens is an implicit understanding of the nature of any true Federal System. The problem is the balancing act between a sovereign state jealously protecting its states rights and an federal government with certain enumerated powers over the sovereign states. Hamilton’s view of the powers of the federal government often seem like a dark cloud on the horizon. Granted the federal government in order to maintain the union has to exercise a degree of control over the states and citizenry.
However this is done via our elected officials in the congress. The States and peoples views are expressed through them such that hopefully any federal legislation is not unseemly harsh on the state or citizens as if they were blindsided. Hamilton’s writings seem somewhat of a dark nature and come across to me as someone who places state sovereignty a distant second to federal prerogatives. However reading the founding documents will show that states vigorously enforcing state rights its necessary to prevent that which Hamilton believes will occur under a confederacy.
Its good that Hamilton recognizes that the states should definitely intervene if the feds legislation becomes a “tyrannical exercise of the federal authority”.
However that’s an extreme viewpoint with most government tyrannies today being a rather long affair that slowly change the country with most of the citizens unaware of the slo-mo tyrannical creep. Interesting read.

Andy Sparks says:
May 19, 2010 at 7:29 pm
Jimmy, I think you hit the nail on the head with Hamilton. Remember he was born and grew up in the British West Indies. He didn’t come to America until he was 17, so he had no loyalty to any particular state. While he was educated and settled in New York, he joined the Continental Army only a few years later. What better place to gain an interstate perspective than in the army. Under Washington’s tutelage, he quickly learned about the deficiencies of the Congress under the AOC during the war in regards to raising troops, supplies, and other necessaries to keep the army going. I think any reference he makes to state power is so to appear not too enthusiastic for a national government. After all, he is trying to convince those moderate anti-federalists to vote for ratification. If it were up to him, he would have preferred a British style government; in fact his detractors referred to him as a monarchist while he headed the Federalist party.

Barb Zakszewski says:
May 19, 2010 at 8:59 pm
Both Hamilton and Madison seemed to have crystal balls at times, with their keen ability to look 100-200 years into the future. Hamilton argued that the Articles of Confederation could eventually set of a “civil war”..Yet 75-80 years after Ratification of the Constitution, the United states was involved in a “Civil War”…the War for Southern Independence. Although this war was considered to be chiefly over slavery, it was a war also for States Rights, for the 10th Amendment..Many of the things Hamilton predicted in Federalist 16 actually came to pass, by then, and that is what got things started.
As for comments made towards the end of the paper, Hamilton is saying that citizens will tolerate a lot from their government, unless government evolves into a tyranny, similar to what is happening today with the Socialist President and Congress we seem to find ourselves with. I believe there is a tie in to what Hamilton says here and the part in the Declaration of Independence that warns when government sinks to absolute despotism, it is our right and duty to throw off such government and provide new guards for our future security.
The more involved I become in this project, the more I can see where the Nation is going now; we must educate ourselves our families and our friends so that we can fight this and reclaim our Great Country!! The Founding Fathers, rather than being irrelevant as many Liberals think, are becoming more relevant with each passing day. We MUST listen to what they have to say.
God Bless this Great Nation!!

William Matthews says:
May 19, 2010 at 8:59 pm
No one has mentioned this, but under the Constitution Senators were selected by their states not like they are elected today. Before a bill could become a law, each of the states two senators had a chance to weigh in on it. In essence the states had actual representatives in the national government and states could actually control much more how their Senators voted. So perhaps when Hamilton is referring to the Constitution being superior he’s also meaning that states get to exercise their influence without needing to individually approve each law?

Jimmy Green says:
May 19, 2010 at 9:00 pm
Thanks for the input Andy. I plan on reading Hamilton’s autobiography in the near future to gain a better insight on him. Sadly as I’m living in the peoples republic of California, the founding fathers and the founding documents are not rated very highly. But there is hope that one day it will.

Susan Craig says:
May 19, 2010 at 9:14 pm
I think we have a lot to thank or accuse Rhode Island for. If they had not refused to consider ratifying any and I do mean any amendment to the Articles of Confederation how different a picture this would be.

Constituting America says:
May 19, 2010 at 11:45 pm
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –
their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
May 19, 2010

Roger Jett says:
May 19, 2010 at 11:45 pm
As I have been reading day-to-day the many comments posted to this wonderful forum, I’ve come to appreciate how well read many of you are. It challenges me to study, learn and evaluate how our nation’s Founders strove to provide us with the best government possible. It was not easy for them to establish it, nor will it be easy for us to do our part to restore what has been largely lost. I too find myself at that point that Susan Craig described earlier today, after having read a lot of the writings from the time of the “Declaration of Independence” through the second term of George Washington’s Presidency, she finds herself squarely between the two factions on the issues of the day. As I have read a number of the arguments presented by Jefferson, Mason and Henry, I find myself influenced by points that they made. I don’t find that troublesome …. I do find it most helpful in obtaining a more balanced understanding and more informed opinion. I don’t always find myself agreeing with all that gets said on this forum, but I believe that the process has challenged me to evaluate what I think is right, true and has caused me to grow a little more strong and firm. Thank you Janine, Cathy and all the rest of you who participate. May God bless you all !

Constituting America says:
May 20, 2010 at 1:35 am
May 19, 2010 – Federalist No. 16 – Cathy Gillespie
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! http://www.youtube.com/watch?v=XGpmqkx1_JQ
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guaridan of the Constitution,
Cathy Gillespie

Dave says:
May 20, 2010 at 1:41 am
Here’s how I see No. 15 and No. 16. Hamilton is laying the foundation of his argument for ratification and basing it on man’s actual experience through history of forming civil governments, human nature, and most importantly for his argument, the actual experience the Americans had with the government under the Articles of Confederation. I need not repeat his parade of horribles here. He had to convince the New Yorkers that the current system was making their lives miserable whether they knew it or not, and that a strong, energetic, centralized, national government was the answer to all their prayers. If they would just stop being so biased towards their narrow, local interests. He assures them that the states will retain their due sovereignty, but the national government will be the supreme sovereign concerning the national objects under its authority.
The new plan would be different in significant ways from the failed confederations of the past. Those alliances always broke down in predictable ways because they were not consonant with human nature. If I may jump ahead an essay, in No. 17 Hamilton tells us:
“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”
We care more about that which is close to us, and we should. Hamilton wants us to give up some of that local care and concern and cede it to the national government in our own enlightened self-interest. And up to a point I think he’s right.
I would caution vigilance for the corrupting influence of power, for the tendency to be profligate with other people’s money, and mission creep. If the national government had stuck to the plan of being a limited government of enumerated powers, and if it had not spent decades and decades trying, and failing, to be all things to all people, we might not be in the sorry state we are in now.
The Founders saw the states within the new plan as laboratories of democracy. Some states’ experiments would be successful and emulated; other states’ experiments would be colossal failures and be rejected, or at least should be rejected (think CA, MI, and NJ.) In this way, mistakes would stay local and not doom the entire republic. The fiscal black hole some states, cities, and corporations are in has been caused almost exclusively by bad legislative, economic, and business decisions. Bailouts using taxpayer dollars to reward imprudent local decisions creates what economists call a moral hazard and offers exactly the wrong kind of incentives with other people’s money, our money.

Dave says:
May 20, 2010 at 3:15 am
Andy, good points about Hamilton the man. I tend to bask in the glow of his brilliance and genius (he was only 30 or so in the summer of 1787,) but then I force myself to consider what aspects of his psychology and life experiences could be influencing his thoughts on government. Madison’s notes of the Federal Convention have Hamilton laying out his plan on June 18. An executive elected for life with supreme veto power? How could he think that was a good idea?
Jimmy, you had written yesterday, “I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.” That’s exactly what I’ve been wondering. The three branches of our federal government seem to have come to the conclusion that it’s just too much trouble to get the people to act in their constituent role as the “natural guardians of the Constitution” and amend the Constitution; they, our “agents and trustees” (No. 46) just ignore the Constitution and work their way around it, but they do make sure to pay it lip service at the appropriate times.
With the benefit of hindsight, I am amazed at how often in the papers, Publius warns us of what, to him, was the major threat to liberty. He thought the abuse of power would come from the states. After all, the federal government is a creature of the states or a servant of the states. It could never be the case that the creature would supplant the creator or the master would become the servant. Oh really? And something else that still troubles me in the federal system that they were proposing, with its dual sovereignty in different spheres and even with its guarantee of republican government in the states—What is to be done when a state exhibits tyrannical tendencies and is technically not in violation of the Constitution, but is in violation of the founding principles located in the Declaration of Independence? How was the slavery issue to be resolved? Abortion?
Last thought: For the new federal plan to work, the Framers had to have some presuppositions in mind about man and about the world. Were any of the presuppositions necessary for the perpetual success of the union under the constitution to be ratified? And would it be the case that any state of affairs not including those requirements would spell doom for the union.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)

Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, William C. Duncan

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Thursday, May 20th, 2010

One of the most significant criticisms of the proposed Constitution was that it would eviscerate the autonomy and authority of the individual States. As Alexander Hamilton described it, the argument was that the Constitution “would tend to render to government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes.” While some today would not think of that as a weakness, this criticism was important because both the Framers and many of their contemporaneous critics believed that functioning States were crucial to ordered liberty. Thus, the Constitution provided that of all the appropriate objects of government authority, only a small and specifically identified set would be delegated to the national government, by the States.

So, in Federalist 17, Alexander Hamilton could respond to the criticism by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.

In support of this last point, Hamilton notes that it accords with human nature: “It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.” Thus, “a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large” so “the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, unless the force of that principle should be destroyed by a much better administration of the latter.” The States also have the important advantage of being responsible for matters “of criminal and civil justice” which make them “the immediate and visible guardians of life and property.” The national government, dealing only with “more general interests” that are “less immediately under the observation of the mass of the citizens” is “less likely to inspire a habitual sense of obligation, and an active sentiment of attachment.” Since the States “will generally possess the confidence and good will of the people” they “will be able effectually to oppose all encroachments of the national government.”

Hamilton’s analysis is persuasive but might seem a little alien in a climate where the national government increasingly dominates not only the objects of proper governmental authority but areas of life the Framers would not have contemplated government would regulate. Nevertheless, Hamilton does hint at a motivation for this dramatic incursion of the national government. Thus he notes that hypothetically “mere wantonness, and lust for domination” could lead national leaders to desire to interfere in State prerogatives. He believed, however, that the political process would turn back any such incursions since the States, with the support of their citizens, would “control the indulgence of so extravagant an appetite.”

Why has this check not been more effective? Perhaps it would have been if the sole threat to the notion of a national government of limited powers was the personal ambition of national leaders and others who might have a financial stake in government functioning. A more menacing challenge, however, was developing in Europe at the time of the Framing but which had not taken root in the fledgling United States. This was the emergence of ideology and its attendant schemes for improving not only the administration of traditional government functions but rather human nature itself. The scope of such an ambition obviously would not be confined to interstate commerce and international relations but would also contemplate the objects of State governments like criminal and civil justice. In this project, the States have too often been complicit in order to secure largesse from the national government. Then, as the province of the power of the national government expanded, the subjects which might tempt ambitious individuals and financial speculators multiplied and created interest groups with a strong incentive to continue national involvement in traditional State concerns.

The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

33 Responses to “May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Carolyn Attaway says:
May 20, 2010 at 8:06 am
I appreciated Mr. Duncan’s insight into Paper 17, and realized as I read his analysis of Mr. Hamilton’s writing, that where the Paper was to warn of the dangers a very robust State may have on National authority; today we see the reverse to be true, where a robust National authority usurps the State’s power.
During Hamilton’s time, the men in Congress served part-time and worked a great deal in the private sector. So when Hamilton writes ‘relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment’, I realize how far we have come from the framers original intent. Today our representatives in Congress are full-time delegates; many never having worked in the private sector, making laws over citizens with no sense of reality as to what it takes to survive in mainstream America.
This part of our framework I fear is broken. I believe our founders never intended Congress to be so removed from their citizens, taking on the role of knowing what is best for their constituents, and making laws without their consent. The Great Cement of society has cracked.
I enjoyed Hamilton’s reference to the feudal systems of Great Britain. Being an avid reader of that period of time, I could visualize the struggles between the feudal baronies and clans, not only against the crown, but with each other, and within each group of people. Hamilton writes ‘the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government.’
Again, during Hamilton’s time, I believe this statement had greater import, but today with the States giving the Federal Government so much of their power, they do not retain a great deal of the confidence and good-will of their citizens. Many of their citizens do not realize that a lot of the entitlements that they receive from the State are due to monies being received from the Federal Government in exchange for State authority. And if they do realize it, how many of them understand the consequence?
With the ratification of the 17th Amendment, I believe the power of the State diminished.

Charles Babb says:
May 20, 2010 at 9:00 am
Thank you Mr. Duncan, for that synopsis and for your analysis. Hamilton seemed to miss one “fact of human nature” regarding “its affections”; that is the one of individual and collective greed. “In this project, the States have too often been complicit in order to secure largesse from the national government.” We’ll give back some of your citizens’ tax dollars, for school construction as long as you agree to teach your children what we tell you to teach them.
And it could not be said better; that, “The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.”
What is needed now is a plan to accomplish that goal.

Susan Craig says:
May 20, 2010 at 10:52 am
While I grant that Hamilton’s point of view has merit from the divisiveness that comes from internal squabbling. But what happens to the country when the abuse comes from the other direction? What happens when the greed and power hunger abuses the intent of the enumerated powers? In Federalist 17, Alexander Hamilton responds to this by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
Today I don’t see much of that but I do see a lot of usurpation of State, local and individual rights by the Federal Government, this I think is a result of ignorance and laziness on the part of the individuals.

Linus Behne says:
May 20, 2010 at 1:04 pm
Boy, I sure wish that Alexander Hamilton was correct about the national government staying out of the business of the states. Hamilton would be shocked if he came back to life today. The Federal government wants to stick its’ nose into everything.
One of my favorite lines from Fed 17: “It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government”.

William Duncan says:
May 20, 2010 at 1:54 pm
Thank you for these excellent comments. I am much from your responses and am glad the essay sparked these thoughts.
I agree that our situation now is pretty grim in terms of centralization of power in the national government. One thing that I believe would make a difference is for states and individuals to resist the temptation to accept federal funding in some instances.

William Duncan says:
May 20, 2010 at 1:56 pm
The first sentence in the second paragraph of my comment should have read “I am learning much.”

Susan Craig says:
May 20, 2010 at 2:08 pm
How I wish that today’s iteration of our ‘Constitutional’ government would think that the usurpations were “nugatory” (of little or no consequence: trifling, inconsequential: having no force: inoperative: synonym – vain)

Carolyn Attaway says:
May 20, 2010 at 2:09 pm
Susan, I agree with you to some degree on the ignorance of the individual due to the lack of correct US History being taught in the public school system, however; I do not concur with the word laziness. The majority of Americans today are very hardworking people, many taking several jobs to keep afloat, and I think that is the crux of the problem. So many people are on auto pilot in political matters of our country, and do not have the time nor energy to keep up with all that is happening today. Many people work long hours and only look for a small reprieve from their work by the end of the day/week. Others honestly thought that the problems we are experiencing today never could happen.
I heard a current poll today that asked if you were satisfied with the direction the country is going. Only 23% of the people polled agreed, the rest were deeply dissatisfied. I think we can safely assume that the 23% is from the left who have very liberal agendas.
I believe with every day that goes by, more and more people are finding the energy and the courage to take a stand. Now if we could get our representatives in Congress to do likewise.

Maggie says:
May 20, 2010 at 2:11 pm
I don’t think that Hamilton ever envisioned things going so far in the opposite direction because it has always been the American Spirit to work hard for what we have. We have become a nation full of people with our hands out. When you expect others to take care of your every need without working for it yourself, you give up many rights in return. We the People have handed our rights over, slowly but surely because we have become lazy and complacent.

Ron Meier says:
May 20, 2010 at 2:43 pm
As others have noted, the current situation is greatly different from what could have been anticipated 200 years ago. States have allowed themselves to have their authorities and powers over certain areas of responsibility be minimized by federal mandates on a whole host of areas. As a consequence, the states have allowed themselves to become dependents of the national governmennt. Today, we see that many of the most populous and powerful states are in a state of almost permanent weakness, due to their own fiscal mismanagement, and thus are not able to take back what the federal government has taken away; they are responsible for all that is wrong in their states, but the federal government holds the reins of authority, and the states have no power to correct anything. Effectively, the states have been neutered in small bites by the feds.
Therefore, it is now up to the people. It seems that many of us have intuitively realized that the states cannot and will not fight back, and that is the genesis of the tea party movement. This movement is unfolding and untested, and we won’t know if it can effectively take back what has been taken from us over a hundred years. I remember Warren Buffett saying recently that “we have been selling our country to foreigners a little bit at a time.” Indeed we have; we’ve also been selling our individual and states’ rights a little bit at a time. Each tiny step didn’t hurt at all, so we kept selling. Now, while the individual steps were no problem, the cummulative effect of those tiny steps is killing us. Kinda like smoking; pleasurable over many years, but fatal sooner than hoped.

Will Morrisey says:
May 20, 2010 at 3:06 pm
I think that Hamilton’s key point is that the original design or structure of the U. S. federal system gave the states the means of resisting federal-government encroachment. The centerpiece of this was the Senate. Recall that the senators under the original system were not elected directly; they were appointed by the state legislatures. Quite often, those legislatures would sent `their’ man to Washington with expressly-stated directives on how to vote. Contrast this with the system brought in by the Progressives, under the Seventeenth Amendment. From then on, a U. S. Senator simply did not need to worry much about any directions or resolutions from his/her state legislature. A Senator’s political `power base’ is quite independent of the legislature of his home state. This is one major reason why federalism doesn’t work as intended. It’s not Hamilton’s fault, or the fault of any of the founders. It’s a much later development.

Constituting America says:
May 20, 2010 at 3:50 pm
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!

Susan Craig says:
May 20, 2010 at 4:09 pm
The ‘laziness’ I was alluding to was not that of hard labor but of intellect and inquiry. Our propensity to go along to get along. The laziness is in trusting what the ‘talking heads’ and politicians say not digging into the details of what is behind the pretty sounding titles and sound bites. My current example of this is the trust we had when the ‘talking heads’ and politicians said that the passed version of “Health Care” [prime example of a misleading title] did not contain a public option – THEY LIED! It is there just buried in the care of the Director of the Office of Personnel Management (Section 1334, pages 97-100).

Dave says:
May 20, 2010 at 4:24 pm
Carolyn, well said. You got me thinking about how different public officials and citizens were in Hamilton’s time compared to today. Citizens were probably not as mobile back then, so when they settled on a place, it was a place where they would invest considerable time and resources. Early Americans must have been very attached and loyal to their local communities and states. They knew that any public improvements would be improvements they would enjoy for many years, so public projects were heavily supported locally (no stimulus money needed back then.) How loyal to their local communities are today’s representatives of the people. They are in Washington more than their home states. They won’t even meet with constituents for town hall type meetings. They vote for social policies even when their constituents are against them 5 to 1 or even 10 to 1. How loyal were the Clintons to Arkansas? How many politicians sell out their states to obtain a federal post? From how many laws do the federal legislators exempt themselves? Arlen Specter wanted power so bad he switched parties and abandoned any principles he may have had.
As I read No. 17, I kept writing in the margin “wrong.” Hamilton had certain expectations of how things would play out. Evidently modern man has become much more imperfect and degraded than Hamilton could ever conceive. It’s obvious to me Hamilton has a blind side. He cannot envision the general government being the source of infringements on individual liberty. Granted the states at the time were not bastions justice and magnanimity, and something had to be done.
Hurray Charles. I’m sick and tired of what Ronald Reagan, many years ago, called the money merry-go-round—citizens compelled to send their hard-earned tax dollars to Washington, only to have it trickle back to their state at the whim and behest of federal bureaucrats. Federal money is for FEDERAL PROJECTS duly enacted that benefit the whole republic. Spending federal dollars on non-federal projects is unconstitutional.
Reps have a duty to protect their state’s enlightened self-interest and constitutional sphere of state authority on behalf of their constituents. This duty I’m suggesting is not to imply an abrogation of a state’s federal responsibilities, nor is there any implication to disparage or diminish the constitutional prerogatives of the federal government or those of the 49 other states. What cannot be allowed to continue is for the states, and the state actors, to continue to accept the role of mere agents for the federal government. Madison in Federalist No. 46 puts the agency relationship in the proper perspective: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” In a nutshell, local money, to the greatest extent possible, should stay local for local purposes.
My thanks to Mr. Duncan.

Dave says:
May 20, 2010 at 4:44 pm
Thanks for bringing up the Seventeenth Amendment Professor Morrisey. What was it that sold the Amendment to the states? Why would they give up such a key component of federalism and a check on the passions of the people’s house with a different scheme of composition for the senate?

Carolyn Attaway says:
May 20, 2010 at 4:57 pm
I think it is more stupid arrogance of our elected officials. When in any other time of history would you have heard these responses:
“Many senators and congressmen have taken offense to the idea that they read these bills.
Representative John Conyers didn’t know what the point was in reading it because he wouldn’t understand it anyway.
House Majority Leader Steny Hoyer laughed at the idea of reading the health-care bill saying, “If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes.”
Representative Henry Waxman admitted he didn’t know the details of his own Cap and Trade bill.
And Senator Arlen Specter said they couldn’t read the whole bill, because they have to “make adjustments very fast.” Link:http://www.redcounty.com/note-representatives-us-constitution-should-be-your-guide
More constituents knew what was in the HC Bill than Congress did. I do agree many constituents are lazy when it comes to researching their candidates before voting for them; but hopefully this Novemeber that won’t be a problem!

Dave says:
May 20, 2010 at 5:48 pm
Susan, nihil sub sole novum (nothing new under the sun.) Jefferson had this in the Declaration of Independence: “all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” Hard-working Americans have been hard at work supporting themselves and their families. As individuals they give time and money to their churches, charitable organizations and to the community. They never saw the slow switch when public offices became places of profit instead of places of honor. Hard-working Americans have been too busy to be political activists and “organizers.” I think they’re realizing quickly that they cannot afford to be too busy too much longer.
I think the masses have become too accepting of pronouncements from a self-anointed elite class. Universal healthcare? Let’s see, Social Security, Medicare, Medicaid, PGBC, Amtrak; failure, failure, failure, failure, and failure. Why would anyone think the government being everyone’s doctor is a good thing?
The moral fabric of Americans having become frayed, Americans have succumbed to the siren song of the free lunch. Too many Americans think it is morally acceptable to have others provide for that which they can, but refuse to, provide for themselves. I love Janine’s
line about America being built by Americans, not with their hands out, but with their hands at work. Contrast that with Nancy Pelosi’s recent utterance about the healthcare bill: ““We see it as a entrepreneurial bill – a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”
So, if the marketplace has determined that you really suck at something, no worries, the taxpayers will subsidize your “artistic efforts.”

Jimmy Green says:
May 20, 2010 at 6:43 pm
Hamilton’s arguments that the Federal Government would never usurp the States sovereignty in its laws simply due to the lack of interest or as Hamilton states “can never be desirable cares of a general jurisdiction”. is something I agree with not because of a lack of desire by the fed’s but rather a restraining system of checks and balances working properly to enforce this restraint. Power generally begets more power when it can and Hamilton knew this so a simple belief the Feds would have no further interest to usurp state sovereignty regardless of a constitution seems week at best.
This paper seen in the perspective that the constitution will work as written would in effect allow everything Hamilton wrote in essay 17 to work as so written. In that context I agree with Hamilton and we could rewrite essay 17 as essay common sense.
Our attachments are greater to those nearer. Our bias would be towards our State. Even the state criminal and civil laws or justice will bind the people to their states. “Unless you’re guilty.” Okay all common sense.
The exception is Hamilton’s belief that the feds need to worry more about the states encroachment on the fed. The congress will be enacting “federal” legislation and since the “federal” courts will determine the constitutionality of the “federal” laws vs. the states.
I would have thought this alone would give Hamilton pause in his belief on the reality or not of state encroachment.
Hamilton upbringing and early adulthood probably colored his view differently from the average Americans as some have pointed out to me.
Also the essays were written to achieve consensus in New York on ratifying the constitution so some liberties may have expressed Hamilton’s desire but not actual beliefs.
I’m curious to know if Hamilton believed there was a threat to state sovereignty or if he cared. He understood the corrupting influence of power. The drive of power for powers sake and the inherent jealousy and ambitions to abuse the common man in pursuit of power. Yet he seems devoid of understanding that when the Federal Government is left to determine the constitutionality of any law against a sovereign state through the federal governments own federal courts that your only asking for trouble. The final arbiter of constitutional law is the Supreme Court. Just a bunch of federal “lawyers” sitting around deciding what they believe is write or wrong. If they follow a fairly strict interpretation of the constitution then were all reading from the same play book. Life is fine, the sun shines and the bees buzz. It’s when decisions based on egos or the sudden finding of a hidden meaning in the constitution that no one before them found or god forbid “I want to leave a legacy”. Then the rule book is always changing and we start to look like those feudal systems Hamilton discussed. This was an inherent danger the founders overlooked that we need to remedy today less we move further away from the founding documents.

Susan Craig says:
May 20, 2010 at 8:17 pm
There’s the rub. (to quote a famous Dane). What we have at federal level is not the deliberative body it was envisioned to be. They are trying to be all things to all people and being none to everybody. They are reactive thinking [and I use the term loosely] that we being an instant society need everything done yesterday if not sooner.

Roger Jett says:
May 20, 2010 at 8:34 pm
Dave, You asked earlier in reference to the 17th Admendment, ” what was it that sold the Admendment to the states?”. I think the answer to that question is that it was the desire of the people. Overtime their was enormous dissatifaction over the process of having U.S. Senators elected by state legislatures. Pressure was exerted on both the U.S. Congress and upon the state legislatures to allow their direct election by the citizens. Congress resisted, but state legislatures acquiesced to the will of the people. By 1912, (29) state legislatures elected U.S. Senators via state referenda. It was only after the state legislatures were on the verge of achieving a two-thirds majority in a movement to call for a convention for a constitutional admendment, that congress relented and proposed the 17th Admendment. The Admendment was ratified by 37 out of a possible 48 states with only one state explicitly rejecting it.

Susan Craig says:
May 20, 2010 at 8:46 pm
I don’t know but when it was briefly covered in either my high school or college history courses I think the selling points were supposedly “We the people” are supposed to be the final say in our ‘democracy’ (note how the fact we are a representative republic is not to be spoken) so why should there be another body of our ‘betters’ choosing the most powerful position in the legislature. Somehow they neglected to point out it is the directly elected representatives who have the power of the purse and that legislation at least nominally is to originate from there too.

Will Morrisey says:
May 20, 2010 at 9:47 pm
There had been numerous attempts to amend the Constitution to require direct election of senators; the first such attempt was in 1826. By the time the amendment was passed in 1912, 29 of the 48 states had direct elections `in effect’; that is, they had nonbinding elections, but the state legislators pledged to vote for the top vote-getter. Amendment 17 is one of the Progressive-era amendments; as one would expect, the argument was that democracy in principle should involve direct popular election of legislators. The Heritage Guide to the Constitution has a good, short account of the matter.
Janine Turner adds an important point about the income tax amendment, passed around the same time. These two amendments were characteristic moves of Progressivism: If you are out to build a centralized, modern state, you need big revenue source, such as an income tax (mere tariffs won’t do); in addition, you need political structures that do not in any way depend upon the will of the subordinate political structures in the system. This sets up a system that appears to be more democratic than its predecessor (and in some respects is more democratic) while at the same time funding a bureaucracy that will effectively serve as an UNelected `fourth branch of government’–that is, as a new and oligarchic element in the regime.

Roger Jett says:
May 21, 2010 at 12:55 am
Dr. Morrisey, Many seem to be in agreement that the 17th admendment was a poor decision. I’ve tried to listen and remain open on the matter, as I have evaluated the various arguments for and against it’s ratification. I have to entertain thoughts about where would we be now if we still left it up to the state legislatures to determine who represents in the Senate. Who can say what impact the 17th Admendment has had in the last 96 years or so, but certainly there has been some effect caused by it. What that might be is speculative at best. One point however is that the legislative landscape at the state level has been dominated by one party consistently for a long, long time, while at the national level there has been substantially more balance between the parties in the U.S. Senate. I don’t want to argue that we are always better off if a particular party is in the majority. However, I believe most people recognize that when we have a party that has too large a majority for too long a period of time, then abuses occur. Many Americans breathed a little easier when the balance of power shifted ever so slightly in the Senate this past January. If Article I, section 3, were still in effect , with partisan politics as it is, what would be the status in the Senate. We currently have Republican control over 14 state legislatures and Democrat control over 28 state legislatures. In seven state legislatures neither party controls and apparently Nebraska’s Legislature is considered nonpartisan. In my mind, I see this scenario resulting in at least 56 Democratic Senators and at least 28 Republican Senators, with a lot of contention transpiring in the remaining 8 states over how to decide who gets the remaining 16 Senate Seats. I for one am glad it’s the people who decde.

Dave says:
May 21, 2010 at 12:59 am
This is better than a college seminar. Thanks for all the great comments about the 17th Amendment. I think the amendment disrupted the balance the Founders’ tried to achieve in accommodating the different faculties of men and hence different material conditions as Madison wrote about in No. 10. The Senate seemed to be designed to keep the levelers at bay. But now you have two lower houses, one of which has a 6-year term–let the great leveling begin, for Madison tells us that “the most common and durable source of factions has been the various and unequal distribution of property.” (No. 10) To “the People” of the populism movement who wanted a senate that looked like them, I have one thing to say–”How’s that working out for you? A few years back a study was done of the financial wealth of senators and found that 40 percent of them were millionaires. Not quite a mirror image of the general populace.
Isn’t getting rid of the aristocratic leanings of the senate like Hamilton’s example of when the sovereign and the common people “effected a union between them fatal to the power of the aristocracy[?]” In this context, I can’t help thinking about the title of a history book on the Russian Revolution by Orlando Figes–”A People’s Tragedy.” The people always think they’re going to come out way ahead and they never do.
As I read more and more about our early republic, I’m troubled with a recurring thought–Have we become a people incapable of governing ourselves?

Susan Craig says:
May 21, 2010 at 8:18 am
The more we push self-esteem over self-accomplishment and allow “the devil made me do it” instead of insisting on the self-determination of ones actions the less governable we become. Governance begins with self.

Will Morrisey says:
May 21, 2010 at 9:09 am
Roger Jett makes a key argument. My point is simply that one can’t have two opposite things at once. That is, you can’t have federalism as “The Federalist” conceives it and also have the popular election of senators that has brought greater representation to the Republican Party in the Senate–unless you figure out some other institutional device that would shore up the states by giving them a more direct voice in the federal government. Alternatively, under a system of renewed control of state legislatures over the Senate, Republicans would need to take state legislative elections much more seriously and work to win majorities in them. There would undoubtedly be much more media focus on such elections if more were at stake in them. When it comes to state legislative elections, maybe Republicans have reaped the harvest of their own inattention.

Dave says:
May 21, 2010 at 10:31 am
Roger, thanks for your insight. But the people did decide before the 17th Amend., it’s just that under the framers’ plan they decided indirectly by electing the local legislators. The senate was to be the repository of the accumulated wisdom of the nation. It was set up to throw cold water on the heated passions of the lower house. They were supposed to be the best and the brightest; an aristocracy of merit not heredity (if my ancient Greek does not fail me, I think aristos means best or most noble.) The unique concerns of the senate laid out in the constitution were far removed from local concerns. Treaties, foreign trade, federal appointments, and national security were not what the common people were thinking about on a day-to-day basis–they wanted to know if the crops and animals were taken care of.
I haven’t had a chance to read up on the 17th Amend., but my guess is that there had to be corruption, or abuse of power of some kind, to upset the people of the time.
The American people of the 21st century are too ignorant of the long-term impact of their ill-considered public policy desires. Our rights of private property will always be sacrificed on the altar of democracy. If the masses can confiscate the wealth of the few through the use of government under the color of “social justice,” “economic justice,” “environmental justice,” and “shared responsibility,” they will. The senate was supposed to be populated with disinterested statesmen of integrity and honor–closer to Franklin than Franken. The civic knowledge landscape of the American electorate and the elected is not a pretty picture. The Intercollegiate Studies Institute’s (www.isi.org) reports for the last few years present a dismal, horrifying dumbing down of Americans. We’ve gotten to the point where someone like me, just a common man, could now be seen as an elitist.
Just give the people their bread and circuses (panem et circenses) and the individual rights and liberties of others can be trampled without notice or concern to the long-term detriment of all.

Dave says:
May 21, 2010 at 10:57 am
Susan, we do irreparable harm to the individual and his potential to lead a meaningful and fulfilling life when we show such little respect for his free will and his autonomous self-determination by not holding him accountable for the consequences of his actions.
I got an idea. If anyone wants a bailout, they must seek it from family, friends and willing strangers. The anonymity of individual and corporate welfare payments lacks the transparency to make people accountable. There’s no sense of shame, no sense of honor; just entitlement. It’s so easy to spend other people’s money.

Susan Craig says:
May 21, 2010 at 1:23 pm
Dave, that is my prime objection to a majority of national welfare programs. It subtly tells the recipient that they can’t make it therefore they need to be cared for. Enslaving those take the ‘entitlement’.

Dave says:
May 21, 2010 at 2:28 pm
Susan, to me it’s even more insidious than simply telling the recipients that they can’t make it. The “welfare” is sold as something they are entitled to because their situation came about through no fault of there own–certain external constraints kept them from living a life of excellence. But for certain classes of people holding the recipient back because of prejudice, monopoly power over capital, or any other made up reason our recipient would be the next Edison or Gates. The system allows people to forget that before the government can “benefit” certain individuals, it must necessarily deprive others. A government has nothing prior to taking from the governed.

Roger Jett says:
May 21, 2010 at 7:50 pm
Dave, I find that what Dr. Morrisey and you have had to say today has great merit and serves to help us focus more upon the real underlying issues and less upon the “appropriateness” or, perhaps the “inappropriateness” of the 17th Admendment. The Founders sought to preserve sovereignty to the states and to the people in those areas which were not specifically enumerated to the federal government. I believe we each agree that to the detriment of America we have drifted substantially away from where the Founding Fathers intended for us to be . In my opinion some of that drifting may have been the result of unrealistic expectations on their part. After all, much that they attempted was experimental and on a grand scale. However, while they may have been mistaken in a few of their methods, they proved to be overwhelmingly correct in their concepts, precepts and principles. Our goverment as built upon our Constitution, has withstood many tests over a period of time that is unequaled in history. However, I believe I’m on target when I say that there is a consensus that we are in grave danger of losing our republic form of government. We face many difficulties. By way of what Dr. Morrisey calls a Fourth Unelected Branch of the federal government (bureaucracy), the executive branch is managing to usurp power from the legislative branch. By judicial activism, the judiciary branch further usurps power from the legislature as they legislate laws from the bench. Of course as has often been discussed already, the federal legislative branch in conjunction with the federal judiciary has routinely overriddened the sovereignty of the state governments. We the people have grown selfish, complacent, apathetic and in increasing numbers more and more dependent upon the federal government. Such actions and lack of action invites bondage. We still have a “republic” and it’s time for us to wake up, cast off our fears and fight to save it.

Kay says:
May 21, 2010 at 11:21 pm
I have nothing to add, except my thanks for all the bloggers and essayist Mr. Duncan. As one of you mentioned, this is better than a class. I read today one little ray of hope: the Constitution is selling like hotcakes. The Heritage Foundation, the Cato Institute, and even our Congressional offices who have free copies are experiencing a rush of requests for the Constitution.

Dave says:
May 22, 2010 at 9:24 am
Roger, I wholeheartedly agree. Thanks for taking the time to write so many well thought out comments for this project. You used the word “drifted” and that is a word that has found its way into my vocabulary with increasing frequency. Paul Rahe used it in the title of his book Soft Despotism, Democracy’s Drift. I haven’t read it yet, but it did get me to read selections of Tocqueville–check out the short chapter six of part four in volume two entitled What Kind of Despotism Democratic Nations Have to Fear. Tocqueville foresaw the Nanny State and the Administrative State 175 years ago.
I’m not well read enough to see the big picture yet, but I’m going to keep reading.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)

Andrew Langer, Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 18

Guest Blogger: Andrew Langer, President of the Institute for Liberty

Friday, May 21st, 2010

Federalist #18

What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it. This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”. In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed. In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.

Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing. The message was simple: we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient. It is the essence of archival scholarship: those who do not know history are doomed to repeat it.

Two key lessons emerge. First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa. It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2^nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17^th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.

The second lesson arose out of the first—that whatever federal union would be created, would have to be strong. That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself. There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).

Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence. The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it. Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.

Andrew Langer is the President of the Institute for Liberty

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 19 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)

Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 19, Joerg W. Knipprath

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

Monday, May 24th, 2010

E Pluribus Unum. “Out of Many, One.” This aphorism is one of the mottos adopted by the Confederation Congress in 1782 for the Great Seal of the new United States. It not just describes the union of states that was put together through the efforts of the Second Continental Congress. That particular choice also recognizes the relative novelty of the political experiment Americans were undertaking, a novelty memorialized as well in a motto on the Seal’s reverse, Novus Ordo Seclorum, “A New Order for the Ages.”

Federalist No. 19 continues the examination of dangers from weak confederations, a topic that has, in one form or another, been at the core of most of Publius’s preceding efforts. As in the adjoining papers, the theme is the tendency of weak confederations towards internal turmoil, external weakness, and eventual collapse. Here, Madison focuses on the weaknesses of the Holy Roman Empire of the German Nation, an entity intended to re-create an old order for the ages.

The historical evolution of the Germanic realm that Madison describes is the opposite of E Pluribus Unum. “Out of one come many” better represents the unfolding of the usual order of things. That theme is common in creation explanations from religion, philosophy, and science. God created Adam, then Eve from Adam, who together multiplied. For Plato and his later interpreters, reality followed from the singularity of the Form of the Good. In physical science, everything developed from the singularity that is the source of the Big Bang. Under the theory of biological evolution, all life multiplied from some original single-celled organism. Out of one, many.

Likewise, the usual order of things is for systems, once established, to move from flourishing to decay, from order and unity to chaos and multiplicity, from the whole to the parts. This holds true for physical and biological systems, as well as systems of human organization. The body decays. Stars decay. Personal relationships decay. Political orders decay. Personal experience and a basic study of science and history lead us to these common sense conclusions.

Following initial Creation, subsequent creations may form new systems from pre-existing parts. People come together to form new families, communities, and states. At the level of states, these events are infrequent, and, as Madison points out in a later essay, usually the result of one charismatic man’s influence. But any such creation is immediately threatened by the tendencies towards decay and multiplicity.

The protection against decay and chaos is “energy.” To maintain our bodies, we use energy through food. Plants use the sun’s energy to stay alive. In families, it takes energy (physical and emotional) to maintain a well-functioning unit. So it is with political systems. The Germanic realm was created by Charlemagne, a very energetic statesman. But subsequent emperors were more ordinary, and the system itself failed to provide the structures that would allow the government to act with the requisite energy to maintain it. This need for “auxiliary measures,” that is, constitutional structures, to insulate the country from instability caused by variability in the qualities of the governing officials is raised in several essays.

Publius frequently raises the critical quality of energy in government in various writings. To underscore the force of his argument in Federalist 19, Madison’s recitation of the emperor’s formal powers suggests, not too subtly, those under the Articles. The princes, with their own claims to particular sovereignty, produced chaos within the system and intrigue from without. Madison’s warning about the deleterious effects of the decision to devolve power onto “circles” within the Empire was a pointed rebuke to supporters of the Articles who argued that common interests and customs within regions of the United States would produce amicability and desire for concord among neighboring states in ordinary matters, while the Confederation took care of external challenges. The Empire’s structure could not provide the conditions for energy in government when the emperor’s personal ordinariness could not surmount the system’s deficiencies. Neither could the Articles. The Constitution would.

Too little energy in government is a problem; so is too much. The sun’s energy is necessary for living systems. Yet too much energy kills as relentlessly as too little. Much of the debate over the Constitution was not about the need for energy in government, but about the amount. Some opponents of the Constitution thought that the Articles supplied enough. Others agreed with Publius that the Articles were defective, but worried that the Constitution went too far.

Though the particulars of Madison’s historical account might be open to question, his basic conclusions have merit. Still, the Empire lasted a thousand years. Indeed, Antifederalist writers lauded the relative stability and continuity of the systems that Madison derides. For well over three centuries (from the early tenth through the thirteenth), the Empire functioned effectively and energetically. It will take more than another century for the United States to reach that longevity. Meanwhile, we must ask whether the system that has emerged under the Constitution provides the right amount of energy to the central authority—or too much. Or did the Framers get the structure right, but have the people, through a lapse of republican virtue and political participation, permitted politicians and bureaucrats to stretch the structure beyond its original contours and to draw energy from individuals and other constituent parts to the central government?

As the mottos declare, the forming of the United States was a creative act to forge one out of many, first under the Articles and then, “to form a more perfect union,” under the Constitution. This was to be a new order for the ages, one that would seek to avoid the inevitable decay and dissolution through a novel constitutional accommodation. There is, too, a revealing third motto on the Great Seal, “Annuit Coeptis,” translated as “He [God] Approves Our Undertakings,” to complete the description of the project at hand. To avoid the fate of the polities that Madison describes in Federalist 19, we must remain vigilant to keep our constitutional, political, and social order true to the aspirations expressed in all three mottos and in the Constitution.

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison)

Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, Federalist No. 20, The Articles of Confederation, William C. Duncan

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Tuesday, May 25th, 2010

Federalist 20 is one of a series of essays that discuss the governmental precedents of other nations as illustrations of some of the weaknesses of the Articles of Confederation. In it, James Madison discusses the Netherlands, painting a picture of a weak government held together by a strong magistrate and the pressures created by hostile surrounding nations. Madison underscores the fact that the government has overstepped its constitutional bounds on occasion because those bounds do not allow it to meet emergencies.

A lesson here is that a weak and ineffectual government is a threat to liberty just as an overly strong and active government would be. He explains that the experience of the Netherlands demonstrates: “A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.” The implication for the United States Constitution is that it must create a government capable of meeting true emergencies and dealing forcefully with threats from other nations. The failure to do so not only could result in dissolution, but ironically, could lead to too strong a government: “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.”

Madison attributes the weakness of the constitution of the Netherlands to “the calamities brought on mankind by their adverse opinions and selfish passions” and recommends that Americans “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.”

In addition to evoking gratitude, there is another important lesson in Federalist 20 for current political debates.

In the Pennsylvania Convention, John Dickinson had taught: “Experience must be our only guide. Reason may mislead us.” At the end of Federalist 20, Madison explains why he has spent time describing the precedent of other nations in words that echo Dickinson’s: “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

An obvious application of this point is to the ongoing debate over whether our government should continue to press for greater and greater social controls. It would seem obvious that the unequivocal disaster of socialist and communist governments ought to warn us away from that precipice.

More generally we can heed the Framers’ example of willingness to learn from experience rather than to trust only in their unaided ability to reason out new solutions. Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.

Returning to a theme from the discussion of Federalist 17, there is a temptation to apply not experience, but ideology, to problems we face as a nation. Doing so appeals to a hubristic temperament. Some will always be dissatisfied if political reality is not made to conform to prefabricated theories even when doing so requires compulsion and control. In fact, the ability to control society may be the attraction of such theories; at least to some of their adherents.

The Framers eschewed easy answers and paid the price in experience, deliberation and study to create a secure foundation for our national government. That foundation incorporates the lessons of experience. Our response to current challenges must do the same.

16 Responses to “May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Charles Babb says:

May 25, 2010 at 10:09 am

This morning I sent the following message to my children.

“Those who are not informed of what they possess will not recognize when it is taken from them. Nor, can they preserve it for their prodigy.

William Duncan has blogged an informative op ed in response to our reading of FEDERALIST No. 20 this morning and I invite you to take a few minutes and read it.

https://constitutingamerica.org/blog/?p=578

Love,
Dad”

Understanding what is needed won’t help much if I don’t take some positive step toward implementation. Eventually we can all begin to demand that those seeking elective office exhibit an of understanding of and a desire to support the truths we believe in.
Maggie says:

May 25, 2010 at 11:12 am

Madison and Hamilton state that “a weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.”…..It is in the name of “safety” that the government has continued their unrelenting power grab. I’m sure we have all seen what an overbearing parent does to the will of a child. When does a parent let the child grow up and fend for himself? This goes for both “safety” concerns as well as being financially responsible. How brilliant these two men were when they said, “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.” Our “new” system works. Why are we not rejoicing to God that it has brought us thus far and doing all we can to protect it rather than looking back with fondness upon the many systems that have failed time after time?
Susan Craig says:

May 25, 2010 at 11:50 am

What crystal ball did they have? Or was it just a true understanding of history and its lessons?
This paragraph brought me up short!

This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.

We have Michigan, California, Louisianna and Arizona. We have Islamic radicals, several countries that don’t like us very much (Venezuela, North Korea and Iran) not to mention those that wouldn’t mind seeing us taken down a peg.
Ron Meier says:

May 25, 2010 at 12:44 pm

Thanks for the Dickinson quotes, Mr. Duncan, especially “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

For the longest time, I had tried to show several otherwise very logical and rational friends, all with advanced degrees, including PhD, the folly of their thinking, by comparing reality to their ideology. For example, an atheist friend believes Radical Islam is not a problem and we should not be fighting a war in the Middle East. I pointed out that an atheist has the most to fear from Radical Islam because they would be forced to convert to Islam or be killed. Since an atheist does not believe in life after death, they would be most disappointed to be killed before their otherwise natural death; yet, if they are true to their atheism, they should not convert. Therefore, I would submit that Atheists should be the ones whom we might expect to be most adamant in pursuing the war on Radical Islam, to insure that they are never faced with that impossible choice.

After awhile it finally hit me that logical and rational reasoning, supported by experience and facts, was 100% ineffective in arguing with those whose ideology trumps all facts and experience. Now, generally, I ignore their comments and don’t waste time. It seems that my time is better spent discussing with those who are fence sitters and open to ideas rather than those who are confined to their ideological straitjackets.

I wonder what Mr. Duncan might think about the utility of arguing with these kind of ideologues and what advice he might have for us so we can be more effective? Certainly marriage counseling has many similar circumstances and I would assume similar roadblocks are encountered there.
Dave says:

May 25, 2010 at 1:42 pm

Mr. Duncan, well said. Thank you.

Charles for Father of the Year!

Maggie, I concur. With increasing frequency we are told of a crisis and the impending doom if we don’t grant Washington more power, control and more of our money.

And we haven’t been rejoicing to God for our good fortune for over one hundred years, because some pointy-headed, hubristic “intellectuals” thought man could do better. Man can create that utopia that God has so cruelly and stingily withheld. After two world wars one would think our days of longing for a man-made utopia contrary to “the laws of nature and of nature’s God” would be over.
Karen Sherer says:

May 25, 2010 at 2:21 pm

This study of the Federalist papers has really brought home to me the plain fact that a thorough knowledge of history is not “a useless course of study. I’ll never use it in my life. Why take it?” It is so very true that our current administration (and many others before it) DO rely on their pure ideological goals and either ignore or never learned the lessons of history.
Bache says:

May 25, 2010 at 2:32 pm

The wisdom obtained and applied by the Founders required diligence, dedication and knowledge. The personal principles each contributing writer and scholar to our Constitution and foundation of our country came with sacrifice. I believed that they recognized their own inadequacies and were willing to listen to experience and to the history. B. Franklin once said, ” The doors of wisdom are never shut.”
Susan Craig says:

May 25, 2010 at 2:33 pm

There is a book titled ‘The World Turned Upside Down’, that demonstrates that reason comes out of religion and that eventually all genres of thought that say religion is inimitable to reason and logic eventually hit a point which is unreasonable and illogical. The author is Melanie Phillips.
Carol Frenier says:

May 25, 2010 at 3:23 pm

I, too, continue to be interested in the impact of ideology on both 1) failing to see the importance of experience and 2) the desire of some to expand the power of central government. Can you recommend a good history of ideological development in American politics?
Laurie says:

May 25, 2010 at 3:58 pm

I was concerned that no one responded to Carol Frenier’s writing yesterday about what this ideology from Europe is that we keep referring to as the one that is a threat to the America that our founders gave us. I immediately think of a mandatory course in 11th grade, “Americanism vs Communism.” Bet that’s not mandatory anymore. Whether you want to call it Socialism or Communism, it is an ideology that gives the wealth to the political or ruling class and makes the rest of us basically equal. (See Russia, China, Cuba, Venezuela) A European book that was recently translated into English is “The Coming Insurrection” by the Invisible Committee, how to bring down governments, even the family. (Amazon.com has it) Also, study Saul Alinsky’s Rules for radicals and the Cloward and Piven strategy, you can Google those. They also preach how to overwhelm the welfare system in order to bring American capitalism to an end. The Drudge Report has a story today how “government provided benefits are at record high” and “paychecks from private businesses at record low.” (About 42%) Who is going to pay all these benefits? Unions want a 165 Billion Dollar bailout for their pensions. State worker unions want 100 Billion Dollar bailout. This is what the radicals want. Who is rioting in Greece? Labor Unions and Radicals. I’m afraid we are being set up by Overspenders in Washington, who want to collapse free enterprise and all our liberties. That is why this Federalist study, learning what Americanism is again is so terribly important.
Carolyn Attaway says:

May 25, 2010 at 4:08 pm

As Susan pointed out, the paragraph that begins ‘This unhappy people . . .’ could very well be written to some extent of America today. Reading headlines such as “Redistribution Victory: Private Pay Plummets, Govt Handouts Soar”, “ObamaCare Lawsuit Reveals National Grab to Regulate Individual Decisions”, and “Nonpartisan Proof: Cap-and-Trade Is an Economy-Killer”, brings home the point addressed in Paper 20 that ideology over experience always leads to failure. I believe that many nations have their eyes fixed on us, some praying for our strength, and others for our demise.

Which leads me to the most important statement that I have read so far in the Federalist Papers; with added words “Experience is the oracle, the divine revelation of truth; and where its responses are unequivocal, absolute, they ought to be conclusive, decisive and regarded with reverence, sacred.

As Mr. Duncan points out, “Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.”

Of this great strength in our Constitution, can we make the argument that our Congress is not paying much heed to the second application, and that many of America’s citizens themselves have forgotten the valuable lessons of history? I am always taken aback when I mention a relatively known country such as Wales, and the large number of people who do not even know that Wales is a country, much less where it is located.

So how can one study the history of a country, if they do not even know that that country exists? One of my favorite videos on AFV is when the father of a little 2 year old girl asks her to point to various states and cities on the map, and when she is correct in her answer, she does the “Smarty Pants Dance” (It still makes me giggle) Anyway, maybe we should take this lesson and apply it to students of all ages, reinforcing the idea that knowledge of history makes one very wise.
Kay says:

May 25, 2010 at 10:50 pm

The premises and arguments of The Federalist Papers are seeping into my being. Two weeks ago I wrote a two page letter to my congressman (remember the NY 23rd district race) with concerns, and ended it with: “Our founders were wiser than the whole Congress put together today, having foresight because they had hindsight on what works and does not work for a nation to prosper. They did not live in the moment because they desired that the Constitution be a lasting document, not like the legislation Congress is passing that will destroy us as a people.” Because of the essayists and commentators on this project, my thinking is being refined and focused on the whys behind our wonderful Constitution. May we all have opportunities to pass onto others what we are learning.
Constituting America says:

May 25, 2010 at 11:22 pm

The Ransom of Reason

Reason be and reason we
Away our distant shores
Wander not and wanton trot
Afraid of written mores

Did we not through seasons see
The meaning, yet for many
We forgot the how,
We riddled out the penny

“I know this and I know that
Believe me for I’ve the vision
Follow me and listen now
For I rewrite the mission

We is the forgotten us
It matter not for you
I seek your best and vest my truths
It is I who reap the view.”

Freedom this and Freedom that
Ring in empty vestibules
History renders ghosts forgotten
Lost the written tools

“I seize the rapture
Seek doleful and the bane
Meeker making spirit spree
I linger not in vain

Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”

By Janine Turner
May 25, 2010
Laurie says:

May 25, 2010 at 11:50 pm

The God that the founders turned to in 1776, is the same One today. Without Him, we will not succeed in our desire to re-found our nation on the principals of the Declaration of Independence and the Constitution. Make no mistake. Without Him, we will be overwhelmed by the agenda from others. Our founders didn’t just have incredible knowledge of history, they believed in God, and His special purpose for America. That was their strength. We must have the same strength today. Those who believe in America, must believe in the God of our Founders, Who gave the incredible power and foresight and knowledge to help them to create our exceptional-ism, never before in the history of the world, a country of freedom and liberty and justice for all. Truly, a miracle.
Maggie says:

May 26, 2010 at 9:03 am

Janine……that’s absolutely beautiful!
Roger Jett says:

May 26, 2010 at 9:31 am

Laurie, I agree. Even the “Deist” of our day can see that we live in “a time that try men’s souls”, but it will require that “we the people” once again awaken to the faith of our fathers. A faith that not only acknowledged Him the “Creator” as He was ….., but that He is and that He will always be the “Sustainer” and “Giver” of all good things. You said in your post that “they believed in God, and His special purpose for America.” There are those who dispute that and have long been laboring in the margins of our society to knit a fabricated false rewrite of history. Unfortunately, they are no longer operating in the margins. They are positioned in high places and with each day they seek to entrench. As you say, “Without Him, we will be overcome by the agenda of others”. We can reason and trust that He that is the “First Cause” is more than able and can effect the restoration and sustainment of all that we desire, “a country free and liberty and justice for all”.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton)

Federalist Paper 21, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 13. Guest Constitutional Scholar Essayists, Federalist No. 21, Horace Cooper

Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

Wednesday, May 26th, 2010

The Federalist #21: In Defense of Politics

Hamilton opens Federalist #21 with a continuation of a theme: it will be easier to understand the need to adopt the new Constitution if the defects of the old Articles of Confederation are better understood. He embarks on an effort to outline what he calls the “enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves.”

He starts with the fact that under the Articles of Confederation, the federal government had no power to enforce its rulings. He sees this as an almost fatal flaw. He complains that the “most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode.” In addition to the hardships that beset any government incapable of enforcing its on rules and laws, Hamilton explains that such a posture is certainly unique among nations. He argues that there are no nations — kingdoms or any other kinds of governments which operate without the fundamental ability to carry out its interests.

A second flaw in the present system is that in almost all respects the states are left to fend for themselves. In one crucial way, Hamilton points out this isn’t even in the interest of states. What happens in the event there is a local insurrection? There is no ability for the governor of one state to enlist the citizens of another state to step in and offer assistance. Thus, there is the potential that states would have to devote significant resources solely for domestic armies that would lay in wait for an uprising meanwhile draining the treasury. Collectively one might imagine this duplicative waste across the several states equaling more than the amount that a federal government would use to handle the same concerns. Additionally, the mere fact that the federal government could respond to an internal insurrection could be sufficient to prevent one from forming altogether. Hamilton further points out that the Constitution’s guarantee that all its citizens would have a “republican” form of government means that in the event the leaders of a state attempt to declare a dictatorship or otherwise suspend democratic control the Federal government could intervene to return liberty back to the hands of the people.

Hamilton turns next to the taxation system set up under the Articles of Confederation. The “quotas” system that he derides essentially assessed the states themselves instead of having direct taxing authority. Hamilton explains that a system based on state assessments would fundamentally fail to meet the needs of the American government. It would be insufficient and in his view significantly inequitable in that it simply presumed that all states were equal in most respects financially. Hamilton explains that “there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative.” Furthermore he explains, “there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.” While making his argument for a federal consumption tax, Hamilton demonstrates a degree of clarity about the consequences of tax rates being too high that many modern leaders would do well to recall. If you tax too high, you get less. Hamilton explains, “It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.

With the three defects that Hamilton identifies by implication the answers provided in the U.S. Constitution are clearer and more readily understood. The Federal government in the Constitution has the power to enforce its rules, defend each of the states individually and collectively and finally assess taxes directly rather than through the states. Prior to this change the Federal government was indebted, powerless and in many ways so weak, it threatened the liberty of all Americans because it was unable to defend them against most threats.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation

12 Responses to “May 26, 2010 – Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation”

Ron Meier says:

May 26, 2010 at 7:50 am

Cathy has called us to encourage children to participate in this project and contest. I’ve forwarded the link to a principal of a Christian school, but it then occurred to me that schools will be closed for the next several months. So, I sent a link to the woman at my church who runs the Children’s ministry; Sunday schools and Vacation Bible Schools will continue to operate all summer, so they are a good source to get children involved with Constituting America. If we all contact our church children’s ministers, we might get more kids involved.
Maggie says:

May 26, 2010 at 9:39 am

That’s a fantastic idea Ron. I’ll be sending a link to my church’s youth leaders.
Charles Babb says:

May 26, 2010 at 9:41 am

Good move Ron; It is frustrating, to me, to see how easy it is to acquire this information, and to realise that many of our leaders don’t seem to possess it. We have a mid-term election this year and I decided to send the following email to a candidate for Congress from my District.

“I would sure feel more comfortable casting my vote for you, if I saw that you were participating in this program.

http://www.constitutingamerica.org/

It appears that too many of our leaders have not made a commitment to understanding our Constitution and why it developed as it did.

Knowing that those who seek leadership roles are truly committed to preserving that which has made US the greatest Nation in existence, is important to all voters.

You cannot preserve it, if you don’t understand and live it.

Seeing your name in our daily blogs would mean to me that you truly do understand and that you are truly committed to preserving our way of life.”
Susan Craig says:

May 26, 2010 at 11:40 am

With the first flaw identified in #21 has merit I don’t think the power of enforcing unfunded mandates was something the founders envisioned. Unfunded mandates in many ways contribute in major ways to not only State budget woes but to the health care costs problem.
With the second expounded, we see an abrogation of that in the current illegal alien situation. The invasion of our country by people who start off their residency demonstrating a disrespect for our laws is compounded by the movement for boycotts between neighboring states.
Problem 3 is a well duh! I find the counter-intuitive fact that the more you tax the less you get one of the things that I can not understand how the people in politics do not see it.
Chuck Plano, Tx says:

May 26, 2010 at 12:55 pm

Susan people in politics do see it and they ignore it. It is all about the next election cycle and what will get them reelected. When politics became a very profitable profession with life time benifits and very little service is when “We” the people started loosing control of our government and as the number of citizens grew that do not have an investment (income tax) in our government they demand more and more and politicins are all the more ready to give it to them to insure their election to office.
Susan Craig says:

May 26, 2010 at 1:47 pm

I suppose I sort of knew that. But being the pie-eyed optimist I hoped that it was not across the board.
Roger Jett says:

May 26, 2010 at 4:20 pm

With much insight and skill, Horace Cooper has expounded upon the increased focus that Hamilton has placed toward the “defects” and shortcomings of that form of government prescribed under the old Articles of Confederation. In my post, I ask to be allowed to take a bit of a light-hearted yet I hope pertinent look at that process that we as a nation went through as we debated, charted and then negoitiated our course by which we arrived at a newly designed and better government.

I begin by confession to the fact (as my family will verify), that I have this tendancy to reduce and relate many things (for which I devote much time), to either an episode of the old Andy Griffith Show, or to a scene from the movie “O Brother Where Art Thou”. Well today’s epiphany was inspired by the afore mentioned movie and it helped me grasp a better understanding of how things were for our young country during that time that we were linked together under the “Articles of Confederation”. If you are familiar with this movie, let me direct you to a scene that appeared early on. The main characters, Everett, Pete and Delmar while in prison have formed a “confederacy” with the common goal of achieving freedom. While they are able to escape the chain gang, they are still hindered by the fact that they are in shackles and chains that link them together. As they make their awkward and laborious run for freedom, they must work as a unit because they are literally bound to each other. Necessarily, a joint and coordinated effort must be made in order to put distance between them and the pursuers hounding them. Disaster strikes as they attempt to hop a freight train and it is quickly revealed that there are serious “defects” in their newly formed confederacy. The outside viewer quickly realizes even if Everett, Pete and Delbert fail to fully do so, that this small confederacy, as it is currently formed, is in great danger of not surviving. As they made their run to hop the train, Everrett manages to make it inside the freight car, but fails to remember that his success as an individual is linked to the rest of the confederacy. Delmar only makes it halfway in and Pete after running too great of a distance, falls down and of course Delmar and then Everrett are pulled from the train. After this debacle they individually arrive at the conclusion that a convention is needed in order to review and reconsider the the current form of government for this “outfit” and debate what changes are needed.

The individual wills are causing division and friction within the group. Also, it has become clear that there has been a failure to determine and define definite lines of authority by which effective leadership can be achieved and maintained. Pete is especially unhappy with Everett’s presumption of a leadership position. Everett makes the case that he, because of his superior intellect should lead. SORRY! I’ve apparently exceeded an allotted amount of space. Hope to finish in another pos
Roger Jett says:

May 26, 2010 at 5:27 pm

This is a continuation of my earlier post at 4:20pm. Everett makes the case that he, because of his superior intellect should lead. However, the viewer has already witnessed Everett’s failure to help Delmar and Pete succeed in getting into the freight car ….. a failure that caused the whole confederation to fall off the train in defeat. Self proclamations and self appointments do not make leaders “bona fide”. Later scenes give us further reason to question the ability of Everett to act in the best interest of the others. Everett is determined at all cost to hold his position as “pater-familias”, but finds himself in grave danger of losing his headship over his seven young daughters. If a man fails his wife and daughters, can he then be trusted to be the “bona fide” leader of our little confederacy? Oh constant sorrows!
Pete displays that he is independent minded and strongly stands up to argue and vie for the leadership role. He has common sense, is committed to duty and loyal (especially to kinfolk). Pete will not be railroaded (though he might fall down while catching a train), but does he have vision and the overall capacity to lead?
Delmar is the valley of humility in between the two mountains of self-interest. Instead of siding with one faction over another he simply takes the diplomatic position of ” I’m with you fellars”. We chuckle, but that individual quality was greatly needed during the time of transition from the old way to the new. Delmar best represents the many who are first and formost self-governed by the “golden rule” and they serve to be cohesive for the group at large. They hold us together during times of heated debate so that the debate can be completed and hopefully the best interest served. Thankfully, our Founders were successful in their great endeaver to bring about a strong constitutional republic. A government that has enabled us to protect our persons, our property and our freedoms. Thankfully, long after they lost their chains and shackles, Everett, Pete and Delmar also went on to form a more perfect union ….the “Soggy Bottom Boys”.
Carolyn Attaway says:

May 26, 2010 at 6:29 pm

Thank you Mr. Cooper for your insightful analysis of Paper 21.

The 3 flaws that Hamilton describes are indeed matters of grave importance for the reasons he mentions, as well as National Security beyond invasion by a foreign power.

In the second flaw Hamilton points out that States are left to defend themselves, and the trouble the States incur may be too large for them to handle alone.

Today, many States have to fend for themselves because the Federal Government won’t help them whether by choice or oversight, many speculate on the reasons, but the fact remains that many States are without federal assistance. Border States have to deal with illegal immigration relying on their own resources to guard against illegal entry and activity. Gulf States have to direct their own cleanup efforts from the BP oil spill because of the absence of Federal help; and then on the other hand the Federal Government criticizes them for taking action.

I believe we as a country are at the point where Hamilton states “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.”

The third flaw is very present in our Congress today. Hamilton states “If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.” My daughter and I were discussing our economy today, and how that states compared to each other.

On average, the northern states are heavy laden with unions and high taxes, whereas the western states are quickly becoming bankrupt because of their liberal policies. Yesterday the headlines disclosed the following: Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds. At the same time, government-provided benefits — from Social Security, unemployment insurance, food stamps and other programs — rose to a record high during the first three months of 2010.

According to news reports, most states in the Sunbelt have the lowest taxes and largest amount of private businesses. Even though all states are struggling to balance their budgets, and are having to make major cuts in state programs, the Sunbelt states are generally faring better than their sister states. This example tends to support Hamilton’s third flaw and should give high tax states and the Federal Government pause.
Susan Craig says:

May 26, 2010 at 7:28 pm

2nd attempt. Chuck, I sort of knew that but being a wild-eyed optimist did not wish to believe it was deliberate.
Constituting America says:

May 27, 2010 at 12:32 am

Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: http://www.twitter.com/secretdelegate .

The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.

Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!

In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.

From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.

How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.

All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!

For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:

Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.

Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.

What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”

Good night and God Bless!

Cathy Gillespie
Debbie Bridges says:

June 22, 2010 at 5:23 pm

I was really surprised when I read the argument for the Consumption Tax. We have this same idea being raised and fought for today with the Fair Tax. The IRS has become way to powerful and invasive and the tax system in our country is broken just as it was back when we were under the Articles of Confederacy. I have been learning so much from these posts and will continue to read and eventually catch up with everyone.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton)

Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 15, Federalist No. 21, Federalist No. 22, William Morrisey PhD

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15. To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics? This seems an odd question. There seems to be no shortage of politics in the modern world. And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics. In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life. Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it. An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child. Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule. In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts. Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes. Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise. At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical. They solved the problem in principle by adopting and refining the idea of federalism. A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to? Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning. Your character as a human being suffers. In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation. But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states. As Publius has argued in this series, however, the Articles constitution contradicted itself. The general or federal government could only raise revenues and soldiers with the consent of the member states. But there can be no “sovereignty over sovereigns.” Disunion threatened. Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect. As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral. Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another. Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it? Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system. Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.” Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress. The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states. But this caused another problem. Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime. This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble. Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches. This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010 – Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Shannon Castleman says:

May 27, 2010 at 6:26 am

There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

In my opinion, these groups of Federalist essays proves those naysayers wrong.

The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

Hamilton would in no way support “bigger” government if he awakened in 2010 America.
Susan Craig says:

May 27, 2010 at 8:42 am

Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.
Charles Babb says:

May 27, 2010 at 9:43 am

Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

Few of them today, would acknowledge that “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”
Constituting America says:

May 27, 2010 at 10:09 am

Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22

Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
The answers are in the United States Constitution.
Spread the word.

God Bless,

Janine Turner
P.S. I thank you Horace Cooper for joining us today and for your brilliant insights
Susan Craig says:

May 27, 2010 at 10:09 am

Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.
marjay says:

May 27, 2010 at 10:27 am

The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.
Roger Jett says:

May 27, 2010 at 12:55 pm

Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
“empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.
Charles Babb says:

May 27, 2010 at 2:47 pm

@Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.
Carolyn Attaway says:

May 27, 2010 at 4:38 pm

I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
What are you going to do?
What are you going to do?
What are you going to do?

Have we come to that place in history again?

One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

“US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com
Jimmy Green says:

May 27, 2010 at 5:40 pm

Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.
Roger Jett says:

May 27, 2010 at 7:19 pm

Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.
Kay says:

May 27, 2010 at 10:13 pm

Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

“The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

Good night and God Bless!

Cathy Gillespie
Constituting America says:

May 28, 2010 at 1:24 am

Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

1. Though the genius of the people of this country..

2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

Are these words being honored in our American government today?

God Bless,

Janine Turner
May 27, 2010
I thank our guest scholar, Dr. Will Morrisey, for joining us today!
Jesse Stewart says:

May 29, 2010 at 6:06 pm

Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 23 – The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, From the New York Packet (Hamilton)

Daren Bakst, J.D., L.L.M., Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 23

Guest Bloggers: Troy Kickler, Ph.D., Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., Director of Legal and Regulatory Studies at the John Locke Foundation

Friday, May 28th, 2010

Federalist #23

When Alexander Hamilton attended the 1787 Constitutional Convention in Philadelphia, he was thirty-six years old. Despite his young age he was a leading statesman, who was knowledgeable not only regarding current events at home and abroad but also the classics and the historical lessons that they contain. The future, first U.S. Secretary of the Treasury, Hamilton incorporated his political observations and knowledge into The Federalist.

Hamilton penned more than half of The Federalist essays. In them, he pointed out the defects of the Articles of Confederation and argued that the Constitution and the powers that it enumerated to the national government were necessary for the Union’s survival. To remain under the Articles, Hamilton contended, meant certain death for the Union, for the states would continually act in their self-interest and ignore the Union’s interest. Laying the foundation for his reasoning in subsequent commentaries (24-29), the New York lawyer put forth this particular argument in Federalist 23: “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.”

When debating Anti-Federalists–those who questioned or opposed the Constitution’s ratification–Hamilton and other Federalists used the word “energetic” to describe a government that had power to fulfill its given responsibilities such as providing for a national defense. An “energetic” government was not one that encroached on individual rights. It meant simply giving life to a dormant national government and allowing it to exercise and fulfill its responsibilities.

In Federalist 23, Hamilton asks what are the proper duties of a national government. He contends they are providing for the common defense, preserving public peace, regulating interstate commerce and foreign trade, and conducting foreign affairs. For the remainder of the essay, Hamilton emphasizes why it is essential for the national government to provide for the common defense and what means are necessary for it to ensure the Union’s longevity.

To charge someone with a responsibility yet not empower them to perform their duty is imprudent. That is what Hamilton believed. In Federalist 23, he writes that if the national government is given the task of providing for the common defense then it should have the necessary authority to do so. Even the framers of the Articles, Hamilton points out, understood this necessity: they allowed Congress to ask the states for unlimited requests for men and money to wage war; however, they erroneously trusted states to provide adequate goods and munitions and men for the national government to use at its discretion. States many times ignored requests.

The assumptions of the framers of the Articles, Hamilton declares, were “ill-founded and illusory,” and he claims that states worked strictly for their self-interests. To make the Union last, a change in governmental structure, Hamilton contends, was imperative: power and the means necessary must be given to the national government to provide for a common defense. To meet this particular end, Hamilton argues that the federal government should, in effect, bypass the states and “extend the laws of the federal government to the individual citizens of America.”

In regards to national defense, Hamilton believes it is “unwise and dangerous” to not give the national government power to provide for a common defense: the powers “ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” He reminds his political opponents that to withhold such means and power from the national government is counterproductive and welcomes national instability. (Hamilton was aware of the lingering Anti-Federal skepticism and considered many of their objections to be merely nitpicking).

The change in government was needed to preserve national interests, and the proposed federal government was worthy of the people’s trust. Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that “interest, reputation, and duty would bind the representatives to the Constitution and public opinion.” That belief is expressed and implied in Federalist 23.

Although Anti-Federalists and Federalists waged a genuine and intense intellectual battle, both were concerned with protecting American liberties. In many ways, they were champions of freedom and had much in common. Both considered constitutions essential to the existence of a free society, and both believed that restraints should be placed on government. Both would be horrified how far many modern-day lawmakers and constitutional theorists have strayed from original intent.

–Troy Kickler, Ph.D., is Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., is Director of Legal and Regulatory Studies at the John Locke Foundation.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton)

Allison Hayward, Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 24, The Articles of Confederation

Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics

Monday, May 31st, 2010

Federalist 24

Allison R. Hayward

Federalist 24 continues Hamilton’s argument in favor of strong national government for national security purposes. Here, he addresses the explicit complaint that the Constitution would permit standing armies in peacetime.

Critics of the Constitution feared that standing armies would become either a tool for those in power to seize power in perpetuity, or a means to usurp elected government with a military one. Colonists in America were not far removed from the days of Oliver Cromwell, who after prevailing in the English Civil War became Lord Protector of England, Ireland, Scotland and Wales. Quite possibly the families of many of the colonists reading the Federalist Papers migrated to the New World to escape Cromwell’s Britain (or the Restoration aftermath, plague, fire, and general 17th century misery). Certainly many were familiar with the fall of the Roman Republic at the hands of the Roman General, Julius Caesar. In any case, popular opinion would have feared standing armies as a destabilizing force and a threat to democracy. This is thus a powerful argument that the Federalists need to answer.

Hamilton responds to these critics in several ways. First he implies that these critics misinterpret the constitutional separation of powers. He reminds them that the Constitution places the responsibility for raising an army with Congress, not the President. Moreover, any appropriation may be for no longer than two years. Under this division of authority, the election branch – Congress – which is most responsive to the public, must consent to military mobilization. Unlike the Roman and English examples, sole military authority is denied the American Executive. Moreover, the existing regime under the Articles of Confederation contains no standing army limit. This fact allows Hamilton to imply that the anti-Federalist criticisms are disingenuous.

Moreover, notes Hamilton, the world poses security dangers to America apart from “formal” war. The nation is bordered by territories of Britain, Spain and France, and much of the frontier is inhabited by native Americans. Any of these could threaten Americans (and America) if the nation relaxed its guard. Frontier garrisons in particular require support even during “peace.” Finally, for American to meet its potential as a commercial power, it needs to build a navy, which requires outlays for dockyards –even in peacetime. Hamilton argues that the Constitution properly leaves these decisions to Congress, the people’s elected representatives.

Today, the Pentagon’s proposed budget for the coming fiscal year is $708 billion, including a $56 billion “black budget” for classified programs. About 1.5 million individuals are in the active service, about 560,000 in the Army alone. Notwithstanding concerns voiced through time about the size, expense, and “military industrial complex” the United States has, since World War II, maintained a large professional armed force. Moreover, it has done so under the supervision of the Executive – not, as Hamilton contended, under Congress.

Further, military spending is seen by many Congressmen as an important part of their representative role – not simply to keep the country safe, but to keep constituent military contractors profitable. One wonders what Hamilton might have made of the current political “war” over the military’s budget, in which the Defense Secretary has demanded the end to certain programs. Yet Congress insists on keeping them.

Allison R. Hayward is the Vice President for Policy at the Center for Competitive Politics.

7 Responses to “May 31, 2010 – Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton) – Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics.”

gianna cerullo says:

May 31, 2010 at 9:42 am

Great Job Janine! I am impressed with your determination tho I am not at all surprised!

I share your views : )

Juliette is gorgeous !
Susan Craig says:

May 31, 2010 at 10:50 am

I have long felt that America has had a schizophrenic relationship with its military. Stemming from two factors: desire to be a most Christian nation living in peace, and a recognition of human nature. On one hand experience and faith (the insult of the British quartering of troops, desire to live in peace and threaten no man, and a belief that a military in the hands of a tyrant would threaten our liberty) inclined us to wish to do away with standing armies. On the other hand the recognition that the proven, visible ability to fend off invaders and threats allows for security and freedom (freedom requires vigilance). Out of these factors come our constant debate on things military. The Articles of Confederation left it in the hands of the States. In effect in today’s world it would be as if there were no regular army, navy or air force just the various guard units in each state. The opposing view was a standing force sole under Federal jurisdiction a permanent military such as was in existence at the time, uneducated and owing allegiance to the leader a separate ‘career’ path or class. What has developed is an amalgam of these two views a small voluntary standing military which depends in time of strife on a ready militia (national guard). The oath our military takes its oath from top to bottom “protect, preserve and defend the Constitution”. It, also, chooses from educated or those who wish to be educated not from those lacking knowledge or understanding. All of those in the military are instructed as to what is or is not a lawful order and are encouraged to resist any unlawful instruction. Yet to this day we still have the debate how much is sufficient and necessary. We continue to think that a “Peace Dividend” is to be had by the reduction and/or elimination of a standing military.
Fred Mars says:

May 31, 2010 at 5:24 pm

I am a Philadelphia-born Constitutional Libertarian, which is to say that I am not talking about a political party, I am referring specific ideology and not a party platform.

Above all, I feel that the Constitution as it was written, including the Bill of Rights, which is part of the Constitution, And the articled of Confederation from which this nation was born, are the only things that stand between freedom and tyranny. That being said, it is also as relevant today as it was in 18th Century America, that we still require the vigilance of citizens to protect the liberties granted to the people at this nation’s founding.

Sometimes it seems that we are being attacked from many sides, and I do not doubt that it is accurate. We have always been loved and hated by other nations, but mostly we are resented for the very freedoms we enjoy.

All Americans must stand together as one voice in demanding that our Congress repeal the damage caused by the 16th and 17th Amendments, charge Congress with it’s obligations to coin (and print) currency and set the value thereof (and use gold/silver to give it real value) and end the extortion of the Federal Reserve System and it’s collection agency the Internal Revenue Service.

Return the selection of Senators to the State legislatures, who we have elected to represent us in our sovereign States, and remove the two party system from its monopoly on the electoral process.

Instead of election day, each State may have an election week, and hand-written ballots used instead of electronic machines and mail-in ballots. Because of the importance of votes, it must be done in such a way as to insure the integrity of the system for all citizens.

We must save our nation by restoring Constitutional integrity to the federal government, and control of the armed forces returned to Congress. The President only assumes status of Commander in Chief when a war is declared by Congress, and then power is voided after the war is over or two years unless Congress acts too extend the war and hence Presidential powers beyond two years. But not in perpetuity.
Constituting America says:

May 31, 2010 at 9:59 pm

It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring their control. The abuses that the anti-federalists feared have not come to pass.

An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.

Cathy Gillespie
Susan Craig says:

May 31, 2010 at 10:09 pm

@Fred, welcome. I consider myself a fiscal and social conservative with libertarian leanings. As I continue to read the Federalist debate and early American History while watching the shenanigans of today, I must say I could inveigh against all factionalism along with the most vehement of our Founding Fathers. I see it in the stasis in Washington and it is part and parcel of the intellectually incurious who have voted the line since Methuselah was in diapers.
Gary Tillery says:

May 31, 2010 at 10:14 pm

As a veteran, I stand with other Veterans who have served this nation with dignity, courage, and honor. In our time, which young people today see as antiquated, we saw the Constitution as a document representing the very heart of America. Even though we were divided by different beliefs in life the Constitution was the very umbrella that kept us united as one people. Different states (republics) but one nation. It was to be honored,cherished, and respected. Due to that belief, when we as veterans went to battle to serve our nation we did so with committment, dedication, pride. Unfortuinatley, people today do not talk this way anymore for they have so taken the Constitution and freedom for granted that they, as we speak, are in danger of losing their freedom.
The Constitution is like the Ten Commandments – When we look at them both is reveals to us the goals we strive to reach. Yet, at the same time it shows us our weaknesses and vulnerablities. When we vote, we should look and ask each candidate their interpretations of the Constitution and how their campaign is based on the Constitution. Yes, They need to prove themselves from here on out. We can no longer take their word for anything. I would be interested in how many of our politicians today truly can tell you about the FEDERAL PAPERS and the CONSTITUTION. Because by the actions of our some current government officials they do not mind violating it.
It is our obligation, as young and old Americans, to protect the Constutution and remove any politician that violates it. That is why we all, old and young, need to know the Constitution and keep it in the forefront of our minds when it comes to politics. For those of us who served, risked, and watched friends die, it is heart wrenching to see the real threat of Socialism creeping in the back door knowing that all the sacrifice could be for nothing if our children/grandchildren live under any other form of government than a Constitutional Democracy. For God and Country. God give the youth of today the courage to stand for Democracy.
Maggie says:

June 1, 2010 at 9:16 am

@ Gary….I agree with everything you said, with the exception of our children living under a Democracy. We are NOT a democracy…we are a Republic. This is one of the big problems we have today. People don’t even realize what form of government we are supposed to have. How, then, can they protect and keep it?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton)

Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 24, Federalist No. 25, Joerg W. Knipprath

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

Monday, May 31st, 2010

Alexander Hamilton began his Revolutionary War service as a member of a New York militia unit. He then joined the Continental Army as an artillery officer and became General Washington’s adjutant in 1777. After resigning that post, he persuaded Washington to give him a position as a field commander at the decisive Battle of Yorktown in 1781. From his experience as line officer and staff member, Hamilton was well aware of the capabilities of a trained army and those of the militia. More, in 1783, the Confederation Congress had appointed Hamilton to head a committee to investigate the creation of a standing army.

That background stands out in Federalist No. 25. Supporting Congress’s power to create a standing army, Hamilton rejects the argument that, if there is to be such an institution, it should be under the control of the states. Hamilton also rejects a more moderate position supported by Brutus and other Antifederalists that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime. He uses a rather trite “where-do-we-draw-the-line” argument to defend drawing no line at all. Brutus has a ready response: Just specify the purposes for which peacetime troops may be raised and kept, and require a two-thirds vote for Congress to act.

But, rejoins Hamilton, “how easy would it be to fabricate pretences [sic] of approaching danger?” A peacetime army might be kept up, through collaboration between Congress and the President, on the flimsiest of excuses and for however long they judge the danger to exist for their own political ends.” Hence, there should be no restriction on Congress’s power to raise and keep a peacetime army. Because a limited power might be abused, there must be an unlimited power? It is this logical leap that the Antifederalists reject.

Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action. As Publius notes in several other essays, government thrives on crisis, while individual liberty shrivels. Power flows from the individual to government, from local governments to the central government, and from the legislative and judicial branches to the executive. Such crises fuel an explosion of political energy that produce dangerously excessive unity over individuality, and conformity over liberty, at least temporarily. Government officials gain from such crises, be they real or contrived. “Never let a good crisis go to waste,” is a brilliantly apt aphorism of this phenomenon. Wars and natural disasters are real crises, but one frequently hears crisis terminology used to describe more run-of-the-mill political issues, from “wars” on poverty and drugs to health care and obesity “crises,” to justify government intrusion into individual autonomy. Not long ago, there was even a “hidden” child care crisis, with government efforts made all the more critical because the crisis was so insidious no one recognized it.

Hamilton also anticipates the assertion that the militia suffices for the national defense, an argument he roundly rejects. This was a particularly sensitive ideological issue for Americans of the time. The myth of the citizen-soldier was a powerful republican tale. The ideal soldier was Cincinnatus, the Roman consul-turned-farmer who was subsequently called to be dictator and general during a war, which offices he resigned upon successful completion of the military campaign. He then returned to his farm. Making this republican myth concrete for Americans was that they had their own Cincinnatus in the person of George Washington. Revolutionary War officers formed the Society of the Cincinnati to promote this republican ideal.

The militia embodies the ethos of the citizen-soldier. Hamilton pays due homage, but recognizes the inferiority of the militia to a regular army in sustained military operations. “The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.” As he noted in Federalist 24, even in peacetime the militia would be unsuited to perform regular soldiering duties such as guarding the frontier. “The militia, in times of profound peace, would not long, if at all, submit to be dragged from their occupations and families, to perform that most disagreeable duty.” Worse, he declares, is the economic inefficiency of compelling the militia to such service, produced by a loss of labor and industrious pursuits and by the expense to the society of frequent rotation of the militia. Since militia service was universal for adult males of a wide age range, such burdens would be even more objectionable than if they fell on a body of citizen volunteers, such as today’s National Guard.

Our current military system depends on a combination of a professional standing army in active service and volunteers in the National Guard and in various reserve units. The system has advantages in training and professionalism, which become more important as the technology in fighting becomes ever more complex. The war-fighting skills of the massed citizen soldiers of the ancient Athenian hoplite formation or of the Roman legion were relatively simple to master. Today’s warfare is infinitely more complex, and continuous campaigns are measured in years, not weeks. Relying on citizen-soldiers, even volunteers in the National Guard, for long commitments produces hardships and economic dislocation, as news reports often point out. This is well worth remembering when politicians blithely call for a state’s national guard to be deployed to guard the frontier against trespassing aliens, or when cuts in the defense budget are proposed while the scope of military commitments abroad continues at a high level.

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

15 Responses to “June 1, 2010 – Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

June 1, 2010 at 9:13 am

On an average there is at least one sentence per paper that brings me up short. This papers contribution is: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.”
Ron Meier says:

June 1, 2010 at 11:33 am

Some interesting stats to consider. About 60 years ago, before the Korean War, our population was about 150 million; today it’s about 310 million. Before the Korean War, we had a standing peacetime Army and Marines of about 15 Divisions; today, our standing Army and Marines, in time of war, is about 13 Divisions. Before the Korean War, we were not at war; today, we’ve been at war for 9 years and yet have not increased the size of our active Divisions. We’ve actually decreased them, in spite of a 100% increase in population. I don’t know what an appropriate size is of a standing military in time of peace, but it seems to me that, during a time of war, there should be some kind of increase. I don’t think our current military size is a threat to our population, given the 100% increase in popluation and the decline in the standing military, but I do think that it is inadequate to perform our multiple missions without having our professional volunteers burn out with family stress that comes from the multiple deployments that are today’s reality.
W. B. Neate says:

June 1, 2010 at 1:34 pm

First let me add my thanks to Janine and Cathy for this wonderful forum.

I would agree with Ron Meier that in the manner our military has been used our smaller force has caused undue hardship on those who serve and their families as well. I would suggest, however, that with our superior military technological capabilities, we have badly mismanaged the use of our forces.

The scope and techniques of our armed forces activities are dictated by our political leaders. Of the 535 members of the 111th Congress only 121 are veterans. This is less than 25% and this percentage declines with each new congress. The major concerns seem to be political correctness and collateral damage. I don’t think political correctness was even a “buzz phrase” during WWII and had we been overly concerned about collateral damage we would have never dropped the atomic bomb which ended that great war. I am not a war monger but do believe that whatever might we have we should be willing to use if we are to engage in warfare and I am much less concerned about collateral damage in foreign lands than I am about the lives of our young men and women who serve so selflessly. War is hell and “playing nice” is not only too costly but encourages our adversaries.

Having stated this position I would like to suggest that there exists at least three good reasons for required national service; 1) fresh troops to take some of the burden from our career military personnel, 2) a larger pool of those who have truly served our country from whom we might choose future leaders and 3) a larger number of future Americans with greater sense of national pride that can only be gained via service to country or close relationships with those who serve. As a Viet Nam era veteran I can assure you that I see this deep sense of patriotism diminishing as time goes by.

Please note that in the preceding paragraph I used the phrase “required national service” as opposed to suggesting a re-institution of the draft. I think all young people should serve but also think they should have the choice of opting out of military service if they choose. We have plenty of other areas where service could be applied.
Susan Craig says:

June 1, 2010 at 2:57 pm

@W.B., I agree about the ‘required national service’. If it can be kept out of the political paws, I think things like Vista and Peace Corps should be offered as viable options for national service.
Jimmy Green says:

June 1, 2010 at 5:12 pm

It’s natural to accept a professional standing army as better equipped and trained than a militia and the control resting in the Federal Governments hands instead of the states is obvious to me. Hamilton’s experience in the military makes this quite clear. I believe he short changes himself somewhat by not heeding more seriously the concerns about the inherent dangers of our liberties that could result from a standing army. I have not yet read the anti federalist papers but the point mentioned by the Anti federalists according to Prof. Knipprath “that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime”. Seems to be a practical approach. This would be somewhat like a trip wire giving us warning of an approaching storm without incurring the high cost and inherent dangers of a continual standing army.

Under the scenario of the Anti Federalists I wonder if our military would have been used in past conflicts such a Somalia or Bosnia or any U.N. police actions which I doubt the founding fathers would have agreed with. Also something that bothers me were incidents such as the Pennsylvania mutiny in 1783 by a small part of the Continental Army over pay. If I remember this was one of the reasons the Federal Government relocated away from Philadelphia and eventually established the federal district of Washington D.C. Is there any chance of this reoccurring if our economy takes a serious nosedive beyond anything we have experienced so far?

George Washington in his farewell address stated “Overgrown military establishments are, under any form of government, inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.”

Another General who became president, Dwight D. Eisenhower warned in his farewell speech of 1961 “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

I grew up as a kid on a Marine Corps base “Camp Lejeune” so I know the professionalism and power of our armed forces. In reading history it seems some of our most prominent members of America and other countries understood the value of a standing army but also gave us stern advice on the inherent dangers. Let’s hope we understand both clearly and use the military in the interest of our country only.
Constituting America says:

June 1, 2010 at 6:30 pm

On this Memorial Day season, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.

Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.

It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.

No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.

Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”

We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.

They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.

They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.

They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.

They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.

A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”

Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”

A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”

Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”

On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.

May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

God Bless,

Janine Turner
June 1, 2010
Constituting America says:

June 1, 2010 at 6:36 pm

W.B. Neate – I thank you for your kind words! And I thank all of you great patriots for joining us and for being a part of our blog. I am learning so much from your perspectives!
God Bless.. Janine
Susan Craig says:

June 1, 2010 at 7:46 pm

To Professor Joerg Knipprath: Thank you I look forward to each of you posting with anticipation.
Joerg Knipprath says:

June 1, 2010 at 9:23 pm

Great comments again, and, as Janine writes, especially fitting on Memorial Day. Susan, that quote is from Fed. 28, I believe, but it is a very important principle that many of the founders had actually lived. It also fits well with the historical purpose behind the Second Amendment, which protects people’s right to own weapons. Although that right extends to personal self-defense, those who adopted it were keenly aware of the right of self-defense against a tyranny by the people organizing themselves into a militia. Kind of a “nuclear option,” if all other means have failed. But that’s a whole other topic.
Greg Zorbach says:

June 1, 2010 at 11:19 pm

Upon reading #24 this caught my eye: “…a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.” I found myself thinking not of today’s army or navy, but rather the current administration’s response to the immigration, financial and health care ‘crises’. Then today, right on cue, Professor Knipprath’s comments on #25: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action.”
One of the basic differences between the two political parties, or if that is too confining for your tastes, for those on the left vs. those who are ‘conservative, is that the statists (as Mark Levin accurately calls them) believe that government is the answer to all problems. But the basic inconvenient truth countering that is that our country was founded on the premise of individual liberties and limited government. These days even the most sincere calls for civility and ‘bipartisanship’ can’t bridge that divide.
That statist mentality is what leads the left to call for all solutions to be ‘comprehensive.’ How else could the government solve a problem if its not a total-control solution.
I have detected a similar strain in some of these blogs. Don’t get me wrong, this forum and all of its participants are demonstrating exactly the kind of involvement required in these times. However, we cannot realistically expect a complete and immediate return to the kind of government we are reading about in these timeless papers.
History teaches us a lot. And, it has much to teach us about the time that this great country has been in existence (i.e. since these papers were written). For instance, all of these concerns about standing armies have been proven to be groundless. As one of the Pope Pius’s put it (paraphrasing here) there has been no greater institution for good in the world than the United States Army. General Colin Powell put it this way: “In all the wars America has fought in this century, we have sought no more land in conquest than enough to bury our dead.”
Re. Jimmy Green: George Washington also said this: “To be prepared for war is one of the most effectual means of preserving peace.”
More applicable quotes:
“Let us speak courteously, deal fairly, and keep ourselves armed and ready.” –Theodore Roosevelt
“Whatever enables us to go to war, secures our peace.” –Thomas Jefferson
“The urge to save humanity is always a false front for the urge to rule it.” — H.L. Mencken
Constituting America says:

June 2, 2010 at 2:36 am

Juliette’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE

We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.

Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.

Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!

And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.

If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!

As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day. Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.

In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!

A hard task at 2:26 a.m. as I write this post!

Good night and God Bless,

Cathy Gillespie
Susan Craig says:

June 2, 2010 at 8:10 am

Oops caught me out; reading ahead the quote is as you say, Professor.
ryan says:

June 2, 2010 at 10:47 am

Professor Knipprath is my absolute favorite guest blogger. Today’s is particularly excellent!!
Susan Craig says:

June 2, 2010 at 11:17 am

I’m with you, Ryan. I especially like that he revisits his blogs and adds clarification and answers questions.
Neb Witt says:

June 2, 2010 at 3:27 pm

Sorry for the delay in posting, I wanted to read the essay first. I must say these are really remarkable. They have debates a lot like my grandparents said used to happen when they were kids.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton)

Daren Bakst, J.D., L.L.M., Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 26, Troy Kickler PhD

Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project

Wednesday, June 2nd, 2010

At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty. Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.

While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense. Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”

He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.” He goes on to suggest that anarchy would result and the American people would not support such an anarchy.

Hamilton then turns his attention to the question of standing armies during peacetime. Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power. After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.

The only manner in which an army could exist in peacetime was with the consent of the Parliament. As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.

The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime. There always needed to be troops ready to meet any contingency that faced the nation. By placing power with the legislature, this was the proper balance between liberty and public safety.

According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power. To support this argument, they used Rome and Britain as examples.

In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.” In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.

Hamilton though counters these concerns by stressing the role of the legislature. One key protection was the appropriations process. The legislature must, every two years, vote on whether to allow a military force. Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.

Further, according to Hamilton, state legislatures would protect their citizens. Hamilton saw a strong federalist system where states fought against the encroachments by the federal government. States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.

Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators. They were not elected like they are now by a direct vote of the people. This was a major check that states possessed in preventing excessive national power.

However, under the current system, state governments are mere shadows of what Hamilton envisioned. This does undercut his argument. The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.

Fortunately, the military has never posed a significant threat to domestic tranquility. This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26. Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.

– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.

11 Responses to “June 2, 2010 – Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”

Jace Broadman says:

June 2, 2010 at 8:14 am

So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?
Susan Craig says:

June 2, 2010 at 8:53 am

I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.
Jimmy Green says:

June 2, 2010 at 4:00 pm

As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.

As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.

The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .
Jimmy Green says:

June 2, 2010 at 4:02 pm

Sorry meant to say Article 1 section 8
Dale Morfey says:

June 2, 2010 at 4:55 pm

Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.

Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.

Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.
James Roman says:

June 2, 2010 at 5:03 pm

James Madison Federalist papers
Military: country capable of supporting without breaking the bank.
Population 300 million

Army 1/100 population= 3 million
organized Militia 25 * Army= 75 million

Militia@Large rest of population capable of bearing arms
Barb Zakszewski says:

June 2, 2010 at 7:42 pm

Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.
Constituting America says:

June 2, 2010 at 10:30 pm

Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.

I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
2 : given to fantastic schemes

Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

Good night and God Bless!

Cathy Gillespie
Constituting America says:

June 2, 2010 at 10:46 pm

“…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

“the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

“against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

“and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.

Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

How will America survive?

If American’s do not know what they have they will not know when it is slowly being taken away from them.

As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

The tenth amendment needs to be revisited and rekindled.

We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!

It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

God bless you!!
God bless America.

Janine Turner
June 2, 2010
Constituting America says:

June 2, 2010 at 10:50 pm

“…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

“the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

“against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

“and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

How will America survive?

If American’s do not know what they have they will not know when it is slowly being taken away from them.

As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

The tenth amendment needs to be revisited and rekindled.

We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!

It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

God bless you!!
God bless America.

Janine Turner
June 2, 2010
Neil Simpson says:

June 6, 2010 at 9:39 am

It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton)

Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Julia Shaw 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 27, Julia Shaw

Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies

Thursday, June 3rd, 2010

We are all familiar with the recent skepticism about government’s performance. Ever since Rick Santelli’s rant on the floor of the Chicago Board of Trade, Americans across the country have gathered in tea parties to discuss and protest the plethora of bad policies pouring forth from Washington. Frustration with government, though, is not limited to tea party participants. The recent oil spill in the Gulf Coast has renewed discussions on the left and the right about what the federal government can and should do in such emergencies.

How should we understand the recent frustration with government and skepticism about its role? Writing as Publius in Federalist27, Alexander Hamilton explains the cause of such dissatisfaction and the suggests a remedy to restore the people’s confidence in and affection for government.

In Federalist27, Publius addresses the charge that the new government “cannot operate without the aid of a military force to execute its laws,” ultimately because “people will be disinclined to the exercise of federal authority in any matter of an internal nature.” Publius counters the presumption that people will be disfavor this new government, arguing that “I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.

This is not an unfamiliar argument. President Obama acknowledged that Americans were desperate for a well-administered government. But when Obama proclaimed in his inaugural address, “the question we ask today is not whether our government is too big or too small, but whether it works,” he suggested that effective government is unrelated to the size and scope of government. Good administration is necessary for good government. But this does not mean that good administration is unrelated to the size of government.

But Federalist27 anticipates Obama’s argument. Good administration is inseparable from limited government. Publius explains, in Federalist27 and throughout the entire Federalist, that the constitutional design of the government lends itself to gaining the affection of the people. In Federalist27, Publius highlights the expanded choice in election, the selection of the senate, and the reduction of factions as examples of the changes that will engender good will toward the new government. The rest of the Federalist discusses in greater detail the powers and limits on the new government. And, it is this limited government of enumerated powers that “the citizens are accustomed to meet with it in the common occurrences of their political life, [and] the more it is familiarized to their sight and to their feelings, the further it enters into those springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community.”

Considering that people have affection for good administration, and that good administration is inseparable from a limited government, it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations. Every day, entitlement programs grow, government spending increases, and Washington bureaucrats issue new regulations to control our lives. It may be a difficult task to return to limited constitutional government, but, as Publius reminds us in Federalist27, the affection of the people and the long-term health of the country depend upon the such a return.

Julia Shaw is a research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies.

16 Responses to “June 3, 2010 – Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton) – Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies”

Susan Craig says:

June 3, 2010 at 9:44 am

Oops! “the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit.” I fear that in arguing for the increased power of the central government also put his finger on the problem we face today. Via gradualism and how can you argue against the good of these mandates the creatures of habit have grown used to the meddling of the nanny state.
Ron Meier says:

June 3, 2010 at 11:40 am

In the town hall of Siena, Italy, is a very large classic fresco painting of the Effects of Good Government and the Effects of Bad Government, painted in the 14th Century. Now, I wish I had spent more time looking at it than I did. You can google that to find various descriptions. As I understand, Siena, at that time, was a republic. We might all benefit by spending some time examining the painting and its various meanings to better understand where we are today and what we have to do to get back to where we started. It would be good to have a reproduction of that painting in the Congressional Rotunda.
Maggie says:

June 3, 2010 at 12:42 pm

This leapt off the page at me….”A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people.” I do not think of this as “distance” in a literal sense, but rather “distance” in their understanding of the every day man. Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.
Jimmy Green says:

June 3, 2010 at 3:00 pm

Military force is not needed but honestly lets agree that many taxes and fees that are charged to us often unfairly would never be paid if their was no implicit threat of fines, incarceration ,loss of property, violence of some type by the federal or local government if you do not obey them. Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.
The administrative efficiencies of the government good or bad would have little bearing on us in a constitutionally run government. The issue as mentioned is the relative size and intrusive nature of it into our personal lives.
No doubt the Federal Government was corrupt a hundred or more years ago but that corruption did not affect us much. The constitution was still in effect and the wall preventing the Federal Government from meddling in our private life was limited

Most every serious problem in America today can easily be traced back to unconstitutional decisions the Federal Government made and the judicial system approved. Is there any limit to the government’s intrusion into our private life?
Are we becoming wards of the government?. Each one of us should be furious about this. Unless you wish for a cradle to grave welfare state or maybe entered the country illegally then the Federal Government is the nightmare on Elm Street. Or from another great show “We are the Federal Government….Resistance is futile…..You will be assimilated
You life as it has been is over. From this time forward you will service us” or something cool but scary like that.

I believe our guest blogger Julia Shaw hits the nail on the head when she states “it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations”. I believe this is primarily what we all tend to think and the comments I have read from you all tend to support that idea.

Maggie says: “Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.”
Absolutely true, the only question of importance now is what are we willing to do to change this. What efforts or discomforts are we willing to accept for a restoration of the government and the constitution of the people.
Susan Craig says:

June 3, 2010 at 4:27 pm

Jimmy, let me pose the question to you this way. Consider you and your neighbors homes to be a microcosm picture of two countries. Let us say that is common knowledge that both of you have on your properties something of great value. You are not armed, while your neighbor is known to have at least one gun. I consider this the individual equivalent of a national standing army. Which house is more vulnerable to thieves?
Jimmy Green says:

June 3, 2010 at 4:41 pm

Okay Susan I give. Please explain your point and the relevence to essay 27.
Thanks
Jimmy
Constituting America says:

June 3, 2010 at 6:48 pm

“Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.

Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.

We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.

Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.

It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”

We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.

Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.

Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.

God Bless,

Janine Turner
Susan Craig says:

June 3, 2010 at 7:08 pm

Jimmy, and I quote ‘Military force is not needed’ even if it is not used it has a function.
Susan Craig says:

June 3, 2010 at 8:17 pm

In America under ‘posse comitatus’ the standing military is not permitted to act internal to the boundaries of the union. The only ‘military’ body that may be called to internal action are the individual state guard units and that only at the behest of that states governor. Under the Constitution the military is purely an extention of foreign policy whether it is declared war or the ‘big’ stick that others know we have and are not afraid to use when provoked.
Jimmy Green says:

June 3, 2010 at 8:37 pm

Susan, yes thats correct if I understand you correctly were talking about coercion. My statement of “Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.”
The government always gets what it wants by the implied threat of force, rarely the actual use of it. Hopefully I understood you correctly but maybe not.
Jimmy
Richard says:

June 3, 2010 at 8:41 pm

“I hope we have once again reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.” — Ronald Reagan
Susan Craig says:

June 3, 2010 at 8:55 pm

Okay your point was [if I understand you right] is that for government coercion to occur our government has found a way to do it without military involvement? Okay there we can agree. One of our founding fathers said [and I probably paraphrase] ‘Where government fears the people you have liberty, where the people fear the government you have tyranny!”
Peter says:

June 3, 2010 at 9:24 pm

This observation “Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.” is the central point of Federalist 27, in my judgment, and of much of the debate in which we find ourselves today. Big government is hard to administer, is arbitrary and ineffective – which is part of the reason people feel the way they do about the IRS, the Post Office, the EPA and, at the local level, the DMV. This point is certainly worht thinking about in the contemporary context.
Adam Estep says:

June 4, 2010 at 12:27 am

Enslavement:

Though it be by whip and chain or by excessive common laws and many taxes its name does not change!
Jesse Stewart says:

June 7, 2010 at 7:29 pm

I know this posting is late, but I’ve been unable to participate for a few days. I too was struck with “I believe . . . general rule that their [the people] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

The “badness” of our government over a long period of time has lead to the mistrust now felt by the people. I hope and pray that we will be able to reverse this trend, or we will be lost!
Constituting America says:

June 8, 2010 at 1:08 am

Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!

I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!

I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:

“Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”

As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.

Alexis de Tocqueville summed it up best:

“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”

God Bless,

Janine Turner
June 7, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton)

Federalist Paper 28, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 22, Federalist No. 27, Federalist No. 28, William Morrisey PhD

Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense. In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions. He argued that union finds its primary bulwark in peaceful habits of cooperation. Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force. The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union. Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract. This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament. The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel. Indispensable to good government, rule by law will not always suffice. Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like. Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny. The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.” The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority. This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles. Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states. The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia. A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights. The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation. “The people, by throwing themselves into either scale, will infallibly make it preponderate.” By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears. There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole. Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America. States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states? Could the federal government suppress the rebellion? Publius cannot predict the outcome of such a struggle. If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.

Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

13 Responses to “June 4th, 2010 – Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Susan Craig says:

June 4, 2010 at 7:29 am

This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?
Will Morrisey says:

June 4, 2010 at 10:50 am

Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.

Or am I missing the point of your question?
Billie says:

June 4, 2010 at 1:20 pm

This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.
Jimmy Green says:

June 4, 2010 at 2:24 pm

Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.

Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.

It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.

You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.
Susan Craig says:

June 4, 2010 at 2:46 pm

Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.
Constituting America says:

June 5, 2010 at 1:26 am

Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

“The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”

“Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

God Bless you for your willingness and courage,

Janine Turner
June 4, 2010
yguy says:

June 5, 2010 at 2:20 pm

“in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”

I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.
Will Morrisey says:

June 5, 2010 at 8:07 pm

Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.
Susan Craig says:

June 5, 2010 at 11:21 pm

Thank you Professor Morrisey, you have given me food for thought.
Greg Zorbach says:

June 6, 2010 at 10:42 am

Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.
yguy says:

June 6, 2010 at 1:03 pm

‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’

I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.

IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.
Susan Craig says:

June 6, 2010 at 7:20 pm

I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.
Roger Jett says:

June 7, 2010 at 12:18 am

The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
“Where once we had spoken of government aid programs, we began speaking of entitle-
ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 29 – Concerning the Militia, From the Daily Advertiser (Hamilton)

Federalist Paper 29, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 29, Marc S. Lampkin

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Monday, June 7th, 2010

Federalist #29 written by Hamilton continues the focus on the subject of the militia and the standing army. Hamilton is quite enthusiastic in embracing the needs for a common or national military force. He explains, “THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.”

In Hamilton’s view, the efficiencies of having one national force as opposed to 13 were significant enough even to overcome the fear that this national force might oppress the people. Since domestic rebellions in a given state were of interest to the national government (as part of its responsibilities for national defense) as well as to the particular state where the rebellion occurred, it wouldn’t be necessary for a state to expend the resources necessary to handle such a capability and the national force would provide a sufficient capacity to handle such problems.

Arguably, Hamilton claims there could even be advantages that a national force might have over a state force in such a situation. He says, “uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness.”

In Federalist #29, Hamilton wants to respond to those who say that the new Constitution would be far better if somehow the national defense power remained diffused between the several states. Hamilton believes this would be in the long term destructive to the new American nation. Moreover, remarkably he turns the argument on itself. If a standing army is a threat to liberty he asks, why have thirteen standing threats? Hamilton asserts, “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.”

A second point that Hamilton makes is that sometimes the type of federal or national response needed may not include the need for lethal force. Because the federal government might have various alternatives to pick from it may not see the need to respond first with a purely military show of force. A federal government may have a variety of administrative forms that it can use to respond to a given situation, varieties that a state government might not have or if it does to have it across multiple states would be unnecessarily duplicative and therefore inefficient.

Next Hamilton directly addresses Posse Comitatus – also sometimes referred to as sheriff’s posse – originally part of the English common law it involves the authority of a law enforcement officer to obtain assistance from non law enforcement personnel to assist him in keeping the peace or to pursue and arrest a felon. Hamilton insists that critics can’t have it both ways. They cannot say that the federal Constitution should be opposed because it does not explicitly provide for this authority or be opposed because its power to engage in posse comitatus is unlimited. Hamilton argues, It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.”

Then Hamilton turns to the question of the threats associated with the national militia. Repeating arguments he has made earlier, Hamilton expands upon the concept that not only would 13 armies be unnecessarily duplicative, but it also would be financially and personally burdensome on the people as the force necessary by the aggregation of the states armies across the several states would be greater than the total force used by the national level and even this wouldn’t succeed because the burden would ultimately be rejected by the people. Hamilton explains, “It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.”

Finally, Hamilton asks whether the critics who worry about the national militia are being serious. After all the national army is not made up of people from a foreign land, he says. “What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”

In addition, how could the federal government agree to unfairly subdue a state when not only the state is represented in the federal government, but all of the other states through their representatives would need to consent to such an action. “Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?”

In Hamilton’s considered view opposing the new constitution over the issue of a militia at the federal level is a red herring. The benefits of having national concentrated authority far outweigh any perceived gains of dispersing this authority over multiple states.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet

Federalist Paper 30, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 30, Janice R. Brenman, The Articles of Confederation

Guest Blogger: Attorney Janice R. Brenman

Tuesday, June 8th, 2010

Alexander Hamilton is widely known as the first Secretary of the Treasury, and one of the strongest advocates of our Constitution. Born illegitimately in the Caribbean to a Scottish merchant father and a mother of French Huguenot descent, he was already managing the affairs of an accounting office by age 15. After penning an essay in French detailing the devastation from a local hurricane, Hamilton was offered educational opportunities in the new, promising American colonies. He volunteered with a local militia, and became an aide to General Washington during the Revolutionary War. Afterward, Hamilton began an expansive career as a lawyer and political activist. One of his most enduring achievements was authoring many of The Federalist Papers (originally known as, The Federalist), a series of manifestos advocating the ratification of the United States Constitution.

To maintain anonymity, Hamilton, along with co-authors James Madison and John Jay, used the pseudonym “Publius” (after famed Roman Empire consul) to publish articles in three prominent New York newspapers, and later in bound volumes. These articles reflect Hamilton’s enthusiasm for the new American country and his sharp mental abilities. His death, via a duel with political rival Aaron Burr, was the final touch on a life filled with vigorous advocacy in the public policy arena with a special focus on promoting a strong national government for the United States.

Federalist Paper #30, “Concerning the General Power of Taxation.” is perhaps Hamilton at his finest. Hamilton begins by explaining that the National Treasury exists to subsidize a wide range of legitimate pursuits of the federal government. The Articles of Confederation gave Congress responsibility for managing needs of the confederacy, yet did not provide the means to do so.

Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government positioned to furnish a functioning army, paying government employees, repaying current and future national debts, and other appropriate expenses. He posited that a government cannot function absent some taxes, and its power to collect taxes among the populace is necessary. Without taxes, the people would be plundered as a substitute for legitimate taxation, or, the government would eventually perish.

Hamilton delves into what many of his contemporaries saw as a substantive controversy: internal and external taxation by the new federal government. Hamilton explains the difference between an external tax and an internal tax, and then describes how the federal government should be responsible for both. An external tax is a custom duty levied against any item coming into a colony to raise revenue – for example, a piece of machinery made in England. The duty is paid by the shipper and passed on to the consumer, in the form of a higher price for that machinery. An internal tax is unrelated to imports or exports. The Stamp Tax in England set an example – an excise tax imposed on stamped paper for legal documents (including licenses and permits), bills of lading, pamphlets and newspapers. Therefore, the price of a newspaper included the cost of the stamp placed on the paper as the tax.

Critics of the new Constitution charged that internal taxation should be used exclusively by the State governments and external taxation reserved for the federal government. Hamilton noted this ideal to be “romantic poetry” and that external taxes alone, on items such as commercial imports, cannot provide enough revenue for a government as extensive as the one proposed, especially in times of war. Disallowing the federal government from internal taxation violates the maxim of good sense and sound policy he argues. Essentially, critics claim internal taxation should be the sole authority of local government, and trade revenues should go to the federal government. This policy, however, not only subordinates the federal government, but also forces it to rely on states for security and prosperity of the nation as a whole. Eventually, the Union would weaken and create conflict between the federal and state government, and perhaps even between the states themselves.

This conflict becomes even more evident during wartime. The United States was in its infancy, thus capital reserves minimal. The federal government could not depend on State requisitions alone – a loan would be needed for even the wealthiest of nations since no government would extend credit to the United States absent a reliable method of debt repayment. Dependence on the states, which might not prove reliable, would force the federal government to seek loans in the private markets essentially subsidizing loan sharks that would charge the new government high interest rates. For any other national emergency, some might fear funds allocated via taxation would be diverted, even if the national government has the unrestrained power of taxation.

However, two considerations will quiet these fears: (1) during a crisis the full resources of the community will be used for the benefit of the Union; and, (2) deficiencies can be supplied by loans. Thus, Hamilton argues for a federal internal tax as well as an external federal tax.

Special thanks should be given to a myriad of sources (including Mary E. Webster) with regard to translating the complex lexicon of Chancery Standard used in the Papers into modern English.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000 Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

22 Responses to “June 8, 2010 – Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet – Guest Blogger: Attorney Janice R. Brenman”

Dave says:

June 8, 2010 at 9:59 am

“Revenue . . . must be had at all events.”—Hamilton No.12

“Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.”—Hamilton No. 30

Okay, okay, I get it—the general government needs a dependable and sufficient supply of money. The questions remain: For what purpose and from whom? And most importantly, how is the federal government going to be restrained from taking too much from the citizens?

According to Hamilton, the proper check on government taxing is the limit of the “resources of the community.” That’s great if you get to spend other people’s money by becoming the first Treasury Secretary under the new Constitution. It’s not so great in the early years of the 21st century given that, in the last 80 years or so, the federal government has increased its share of the GDP by about 25 times.

I wish I could go back in time and knock some sense into the good Colonel. With the benefit of hindsight and that oracle of wisdom, experience, we all know that the federal government has an insatiable appetite for citizens’ hard-earned dollars—it never has stopped, and it never will stop, at simply taking money for only those necessary, enumerated objects. One need only review a random sampling of the earmarks (bribes) in any recent legislative monstrosity to discover the government will redistribute our money for just about any project here at home or even abroad.

What’s happening to various countries in the EU should be a cautionary tale for Americans. The problem countries got in their current situation by the same big-government formula our current administration seems to be adopting: Tax and spend, tax and spend, borrow and spend, borrow and spend . . . . The end is not good—worthless dollars in Americans’ pockets and shared misery for all but the various elite groups. And every aspect of the everyday life of Americans (and now with ObamaCare, the manner and time of our deaths also) will be under government control.

LIMITED GOVERNMENT IS THE ANSWER. “PUBLIC WELFARE,” “SOCIAL JUSTICE,” “ECONOMIC JUSTICE” ARE THE DISTRACTIONS.

George Will has a good piece on the Limitless Welfare State:

http://www.jewishworldreview.com/cols/will060310.php3
Susan Craig says:

June 8, 2010 at 10:14 am

Granted that taxes are a necessary evil where it went off the rails is that we allowed the situation where people were able to vote themselves other peoples money.
Nickie Summers says:

June 8, 2010 at 11:41 am

So much to wrap the brain around!! Again, as I read each paper the clarity of how far this country has moved from the outlining principles over the years is amazing…and I thought most of our politicians were contitutional lawyers/professors! The intended use of taxation has been mutated, leaders manipulate the English language to justify their encroachment into the private sector and individuals.

BUT…I read ahead Federalist 31 this morning and without spilling the beans, there is a fabulous point made. One that we’ve all heard before and one that is in full action mode across the country!!
Kurt says:

June 8, 2010 at 11:57 am

Dave,

I think your argument just underscores how we as citizens need to stay involved and monitor our government. When they get out of hand, kick them out of office. I think many of the founding fathers views where predicated on the idea that the citizenry would cherish their freedoms/rights and would jealously protect them. My reading of their writings show quite a distrust of government. We were expected to constantly question and limit what it does, we are the ones to decide the limit of the resources of the community not government. Do you allow the employee to decide his own pay or do you set it?

I imagine they would be shocked, dumbfounded and maybe even disgusted at the state of the citizenry’s protection of its rights today – just give us some government cheese and we’ll go back to sleep.
W. B. Neate says:

June 8, 2010 at 12:32 pm

Ms. Brenman in the first sentence of paragraph #4, “Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government …..,” highlights what has been lost in our system of taxation. No longer do “all citizens have a stake.” Not only do nearly 1/2 of our citizens pay no federal income tax, but a large and growing portion of this group are recipients of government/taxpayer subsidies. Most sadly these subsidies, along with much of our government spending, come from borrowed funds. I am fearful that this may become a voting block too large to overcome.

Our system of taxation has morphed from a means of “balancing benefits and costs of government” to a means of social/economic engineering. In large measure the left uses the system to pander to the masses and the right uses it to curry favor with big business. Regrettably I can’t remember who said it but early in the last century it was said that Democracy will fail when the elected realize they can bribe the electorate with their own money. Well, I think they long ago figured it out.

Survival of life in America as we have known it requires our returning to our founding roots of truly limited government and a method of taxation less susceptible to misuse. Surely the time has come for a Flat or Fair tax. If only we could elect statesmen, rather than politicians, to step up to the plate, make the tough, unpopular decisions and lead with boldness.
Ron Meier says:

June 8, 2010 at 1:47 pm

“How can it undertake or execute any liberal or enlarged plans of public good?” This is the essence of the problem today – a definitional problem. The left argues that the “public good” is far more expansive than the right believes it to be. Until we come to grips with and fully understand just how wide and deep the “public good” should be allowed to be, we will not get off the track we’ve been on since FDR’s time. We are arguing this today, but we have not yet reached the crisis stage. History demonstrates that problems are not really addressed until the crisis bubble is pricked by some outside third party (e.g., China refusing to buy more of our bonds). Our legislators are like real estate bankers who will continue to loan money as long as it’s available long after their rational brain tells them that the ending will be ugly. We now know the ending will be ugly, but it’s business as usual in Washington, DC.
Michael says:

June 8, 2010 at 2:20 pm

There is wide space to debate what is important to national security. To the extreme, we’ve seen national interest used to justify globalism, i.e., all nations must be intricately woven economically to prevent wars, save the environment, distribute resources most efficiently, etc. The debate has gradually pushed us to where we now finance the defense of other nations, fund wars to defend/install democratic societies, bailout state governments and private enterprises, and so on. There is now a huge federal bureaucracy engaged in nothing more than enforcing and collecting the federal income tax. As many early Americans feared, the power of taxation has helped to create the monster that now paradoxically dictates how we live and pursue happiness (and if we should live) under the guise of protecting us. The monster is now attacking wealth-makers and producers and will see its money supply drastically diminished as a result. This seems to be purposeful and intended to destroy our great nation.
Carolyn Attaway says:

June 8, 2010 at 4:12 pm

The words Hamilton wrote to promote the need for a general power of taxation were meant to reassure the citizens of his time of a responsible government. However, when read today, during a time of high national debt and undisciplined spending, these words tend to leave a sour taste in my mouth.

Two statements in particular sent an aversion through me as we tackle present day events, and rereading Hamilton’s words, I wonder if the Founders even envisioned such abuse to our tax system.

Hamilton writes “Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?”

This first statement tends to have been twisted over time to such a degree that today a large number of citizens feel that it is the government’s job to ensure their needs are met and their pursuits are guaranteed. Many people today do not even make the connection between their taxes and what the government can spend. I believe it was a mistake to begin the practice of taking owed taxes out of paychecks. Americans should all have to pay their taxes at the end of the year by writing a check to the government. I think that would be a major wake up call.

The second statement is “The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require.”

Again, I find this logic to have grown out of hand and explode our national debt to a point where recent polls show the same number of citizens that worry about our national debt equals that of those who worry about our national security. Whereas Hamilton was concerned about our national security, and the need to have funds to supply a defense against invasion; today Congress has taxed companies and citizens to such a high degree that is has become a national security problem.

@ W.B. Neate – It was alarming to read the statistics earlier this year that the number of those receiving government entitlements was larger than those paying taxes. And to top it off, over the past 1 ½ years the number in government jobs grew at a larger pace than private sector jobs.

There is a great article in the National Review today by Senator DeMint entitled “Constitution of No”. It is a great read! I highly recommend it.
Mary says:

June 8, 2010 at 4:43 pm

I understand what Hamilton is saying, and totally agree that the federal government has need of the right for taxation in order to fund the defense and other things that are for “the benefit of the Union.” However, it is everything in that latter category that muddies the waters. “For the benefit of the Union” is totally subjective and takes us into the chaos that we are experiencing now. According to one side, the benefit of the Union is served if the government levies taxes and then spends tax money to feed and house people with low-paying jobs. The other side argues that the good of the Union is served by using that tax money to give credits to companies who can then create jobs for those same people. The elephant in the room is that neither option is the job of the government and has nothing to do with the benefit of the Union as a whole. It only directly benefits certain members of the Union with the hope that it will somehow benefit all. In other words, the tax money is neither needed nor used correctly.

I had to laugh at Hamilton’s rhetorical question: “But who would lend to a government that prefaced its overtures for borrowing, by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying?” Can we say, “CHINA!!?” We have demonstrated all of the above and still the money comes flowing in as we spend, spend, spend.

Finally, Hamilton states: “But two considerations will serve to quiet all apprehension on this head; one is that we are sure the resources of the community in their full extent, will be brought into activity for the benefit of the Union (addressed above); the other is, that whatever deficiencies there may be, can without difficulty be supplied by loans.” The ease of borrowing ALWAYS gets individuals, corporations and countries in trouble. If borrowing is difficult, spending is kept down. To me, Hamilton’s argument lacks the establishment of any kind of boundaries on either taxation or procurement of loans. If there is no boundary on the latter, then there can be no boundary on the former.

It is rather ironic that this man, so supportive of a strong federal government that could borrow money whenever deemed necessary, had to resign from his position as Secretary of the Treasury because of financial problems of his own. According to World Book, it is because of his views that totally clashed with those of Jefferson and Madison, that the definition of two separate political parties formed and Hamilton led the Federalist Party that favored big government. He was the original liberal progressive!!
Barb Zakszewski says:

June 8, 2010 at 7:28 pm

It is very obvious from this next section of the Federalist, dealing with taxation, how much Hamilton supported a very strong Federal government and how much he distrusts the States. He seems to dismiss the arguments from the “anti-federalists” that the Federal government, with almost unrestrained powers of taxation, could become abusive of its citizens…Fast forward 230 years, huh? Still, I do believe he had the best interests of the country at heart, and could not possibly foresee what would happen today…with the confiscatory nature of taxes both at the Federal, state and local levels. I’m not sure if he just did not want to believe that something like that could happen, of if he was just too naive in this particular matter. There was a post from earlier today where the person asked, how is the Federal government going to be restrained from taking too much from its citizens…I did not see an answer in the Federalist up to this point, and I believe we have already crossed that point, witness the TEA parties of today.
Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet « Janice Brenman says:

June 8, 2010 at 8:39 pm

[…] of Chancery Standard used in the Papers into modern English. Click here to access the post Constituting America Bookmark […]
Ray Decker says:

June 9, 2010 at 11:37 am

Until we repeal the 16th and 17th amendments and the Federal Reserve Act (which isn’t Federal and has no reserves) and abolish the Internal Revenue Service we will never get control back from the Federal leviathon. The income tax is what gives the Federal Government its massive power.
Kimi Lipsitz says:

June 10, 2010 at 2:34 am

It would seem to me personally that the majority of the ordinary citizen is not at all worse off in comparison with the genuine American federal government though the fed government can get to execute by some other laws. The governing administration can potentially manage their debt by publishing moolah and their debt deal techniques are helped by simply the number one military on the planet.
Susan Craig says:

June 10, 2010 at 8:55 am

@Kimi, yes the ordinary citizen will be harmed by the indiscriminate publishing of moolah! This is what the Weimar Republic did to try and manage Germany’s debt from World War I. Part of what brought the National Socialists to power was that ordinary citizens needed a wheelbarrow of ‘published moolah’ to purchase a loaf of bread and milk.
Maggie says:

June 10, 2010 at 11:47 am

Kimi….when money is just indiscriminently published it makes the value of said money (and that already in existence) worthless. Monetary value needs to be based on something tangible…ie…gold. If the government floods the market with “new” currency, the money you already have becomes devalued.
Darren Le Montree says:

June 10, 2010 at 10:47 pm

Nice piece. As expressed in the comments above, it seems well accepted that the federal government needs taxes in order to function. The rub lies in the questions of how much and from whom. The extreme liberals want to drove out innovation and turn the taxation system into a social engineering mechanism (basically the fine job done by Europe). Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. Neither way works which is why we have the modified system that we do—which swings from left and right of center like a pendulum with each election cycle. That being said, the current system is unsustainable fiscally because of internal and external forces—the aging of our population and the “flattening of the world” which means we are no longer a hegemic force able to continually grow our way out of the problem and the promises made decades ago are no longer feasible. In essence, the realities of the current state of affairs mean that we cannot have a “fair” taxation system under either model. When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly. While expecting our slower growing economy to afford continually increasing debt or tax burdens to fund the ballooning social program obligations is equally impractical. With the system going broke as it is things can only get worse from the perspective of both the left and the right and will continue to get worse until there is some genuine problem solving versus the spin game that has overwhelmed politics in the modern era.
Doris Jean says:

June 15, 2010 at 2:02 pm

Taxing should be extremely limited and should never exceed ten percent. People should get together locally and pay for local parks, schools, police, etc. The politicians pay themselves too much money and their salaries are too high.
Debbie Bridges says:

June 27, 2010 at 5:13 pm

@Darren “When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly.
” Federalist Paper 20 addresses this issue through what can only be called a Fair Tax in today’s language. “…by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and in general, all duties upon articles of consumption may be compared to a fluid, which will in time find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his frugal: and private oppression may always be avoided by a judicious selection of objects proper for such impositions”.
As to your other assertion; “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. ”
I know of no conservatives who want the poor to “grind away in angst or die”. What I am my fellow conservatives would like is for the poor (and I was formally of their ranks, although I am hardly rich now) to as said by Benjamin Franklin, learn to fish as opposed to being given the fish time and time again. That is the biggest issue we have is that our government has made our citizens dependent on the government through entitlements. If someone is in need of assistance it should come from family, friends, church, and their local community. Government should be the absolute last resort used and only in times of true emergency.
Seth Richardson says:

June 27, 2010 at 7:08 pm

Darren writes: “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die.”

This is simply patent nonsense, and it’s a Progressive calumny without foundation. A conservative desire not to create or facilitate a welfare state cannot be seen to imply that conservatives, or Libertarians, want people to die in the streets from starvation and disease.

What Conservatives and Libertarians alike value is self-reliance and methods of public support of those truly in need that does not debilitate them and keep them in economic slavery, which is what the welfare state does.

Moreover, I have no objection to requiring people to save for their retirement, but the giant Ponzi scheme of Social Security today, where the current working generation is burdened with supporting all the retirees still living is simple insanity. Conservatives want Social Security REFORM, and my vision of it is to put one’s contribution into a PRIVATE savings account that the federal government has NO ACCESS to, rather than giving it to the government to skim and waste.

As for “1% controlling 90%” this is also nonsense. It’s what I call the Socialist Zero Sum Fallacy. This fallacy is based on the logical and rational error that Socialists make in assuming that in order for one person to acquire wealth, another person, or persons, must be oppressed and must give up wealth. It’s based on a deliberate misunderstanding of economics holding that there is a fixed supply of “wealth” and pouring it from one bucket into another advantages one person while depriving others.

But it’s a lie, and a deliberate one at that. It’s all part of the propaganda of Progressivism.

Any competent economist can tell you that the wealthiest people in the U.S. don’t keep their money under their mattresses, it’s constantly circulating and creating even more wealth for everyone, and for the nation. Wealth generates more wealth in nearly unlimited supply.

It must also be noted that the wealthiest 1/10 of 1 percent of taxpayers pay more than 40 percent of the government’s income tax revenues, so to say they don’t pay enough is preposterous.
Susan Craig says:

June 27, 2010 at 11:45 pm

I’m with Seth on this. If it was an across the board 10% not only would everybody (to quote our President) “have skin in the game” but also the so-called “evil rich” would still be paying a lions share of the revenue to the government. Just for arguments purpose say I earn $100 dollars a week and Darren earns $100,000 a week. I pay $10 and Darren pays $10,000 so the take is $10,010 government we each have a 10% stake in the game but Darren has provided over 99% of the revenue.
As to the Social Services currently provided by big nanny Fed, one of the biggest complaints is that it is a one-size fits all program. I believe that it is more properly handled at the State and preferably the local level where people are more inclined and conversant to local immediate conditions.
Seth Richardson says:

June 28, 2010 at 2:12 pm

I believe I recall a guest on Beck who was explaining the Laffer Curve, sorry I can’t recall his name, saying that a flat tax of about 14 percent on every transaction would replace all other necessary government revenues. Not positive about this however. Perhaps there’s an economic expert out there who can comment.

And you are absolutely correct that all social services should be dealt with at the state level, and that there is absolutely no need for the federal government to be involved except in the rare case where a particular state cannot meet it’s social services needs.

But to have every bit of tax revenue sent to Washington, have 20 percent or more skimmed off the top to do nothing more than pay for federal bureaucrats who turn around and send it BACK to the very states they took it from in the first place is pure economic idiocy.

It sometimes seems as if no one recognizes the fact that the vast majority of our tax money sent to Washington is not sent there to fund the legitimate functions of the federal government, it’s sent there to fund the political redistribution of that very same wealth back to the states, who have become dependent upon that federal largess to pay for all the unfunded mandates that the federal government imposes upon them using the carrot-and-stick method.

If the states would simply say “no thanks” to the federal handouts, as Colorado Springs did recently, not only would the federal government lose legitimacy for it’s bureaucratic burdens, but the states would be freed from federal intervention. Much of the interference we suffer under from the Feds is caused by our own state legislatures knuckling under to conditional grants from the Feds. The biggest carrot they have is the federal highway system, which they use to coerce states into, for example, setting DUI standards and mandating seat belts.

It’s all about politics, of course, because even state politicians have to bring home the federal pork, or so they believe, to get elected. They think (and probably correctly) that if they don’t do what the feds want and take the federal grants (extracted from us in the first place), state voters will be mad because some other state got a grant and they didn’t.

Which makes it our fault for not ourselves demanding austerity and flight from the federal teat by our state legislatures. Weaning ourselves away from federal largess is the beginning of restoring our liberty from oppressive federal taxation.
Susan Craig says:

June 28, 2010 at 5:58 pm

Seth, right again.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 9, 2010 – Federalist No. 31 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 31, Horace Cooper, The Articles of Confederation

Guest Blogger: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist #31 continues on the topic of the taxing power of the new central government. Contrasting his significant math and science knowledge with his considered skepticism about humankind generally, Hamilton suggests basic maxims ought to apply as a principle for government’s effective operation. Just as the maxims in geometry, that “the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other, Hamilton asserts that in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. In other words instead of putting the focus on the means of a particular government activity, greater attention should be paid to whether the purpose is a legitimate one or not.

Rather than merely scrutinizing the technique by which the central government carries out it task say, bailing out automobile manufacturers, Hamilton suggests greater consideration be given to whether it is a legitimate function of the federal government to concern itself with the success or failure of car manufacturers. A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

Unless one is particularly scrupulous as to what responsibilities are assigned to the federal government, Hamilton’s view of seemingly unlimited powers of the federal government particularly in the area of taxing authority comes across as audacious and perhaps even dangerous. However, it is clear upon review that the real danger lies in not carefully assigning duties and responsibilities of the central government.

One key charge of the new government was and remains today, national defense. In the context of taxation, Hamilton asks how national security can really be put in the hands of the central government if it does not have the ability to call upon the resources, as it needs to carry out its duties. This is no spurious charge. One serious problem with the Articles of Confederation is that ostensibly the National Congress had responsibility for national defense, in practice it could not pay for or mandate the carrying out of many of its foreign policy priorities. Over time this reality could prove quite provocative to the enemies of the new country in America.

Hamilton sees that taxing authority is critical to carrying out national security responsibilities. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

In the military context, this argument is perhaps most powerful. Nevertheless, even outside of that arena one can contemplate areas of responsibility (such as the administration of justice) in which it is necessary to focus on the importance of the objective and therefore loosening the limits on methods. If the area of responsibility is appropriate, Hamilton argued that the central government needed the taxing authority to carry out the responsibility.

Critics charged that a general taxing authority for the federal government would make it difficult for states to raise the resources they need for their responsibilities, as the taxes of the federal government would tend to crowd out the resources needed by the states. It is true that excessive taxation would have that effect, but not necessarily taxation generally. Hamilton recognizes that there will be legitimate responsibilities that government should carryout. If those are excessively funded or there are duties undertaken greater than the legitimate responsibilities that government should have, the flaw is not with taxing authority but instead with the government’s makeup or its design. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers.

Powers split among a bicameral legislature along with an executive and judicial branch each with unique and overlapping authorities providing a check and balance against each other resulting in a greater protection of liberty for all the citizens will do more than a limit on the type of taxation policy.

Hamilton closes essay #31 with an observation that reveals a great amount of prescience for such a young man. He says that the same risks that could lead to a national government over-reaching in its power and authority over the people existed just as well with the state government. While at the time it was nearly universally assumed that state governments — being close to the people — would never overstep their bounds, it appears today that composition and structure matter just as much as the state level as it does at the local level. Modern state governments have taken on most if not more of the duties of the central government’s welfare state with far fewer organizational or structural restrictions on doing so than exist at the federal level. Taking the opposite view of Hamilton, many states have balanced budget requirements but no formal limits on the types of duties that it may assume. Often as a result the residents in these “ambitious” states are extremely overtaxed. States like Texas and to a lesser degree Florida have far more limits on the accepted tasks of the state government and their residents are taxed less. Nevertheless, regardless of one’s concerns about the lack of formal limits on taxation in the constitution, Hamilton concludes it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.

Horace Cooper is the Director of the Center for Law and Regulation at the Institute for Liberty

Wednesday, June 9th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 32 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Federalist No. 32, Joerg W. Knipprath

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

In various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.

From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.

Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.

Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.

Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.

The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.

While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.

The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.

Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.

Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.

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

Thursday, June 10th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 33 – The Same Subject Continued: Concerning the General Power of Taxation, From the Daily Advertiser (Hamilton)

Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 33, Federalist No. 44, Joerg W. Knipprath

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

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

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

Friday, June 11th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 34 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Brion McClanahan, Ph.D., Federalist Paper 34, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Federalist No. 34

Guest Blogger: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

By the time Alexander Hamilton wrote Federalist No. 34 on 4 January 1788, he had been publishing essays on the topic of taxation at a blistering pace. He penned two the day before, and he authored seven essays, each around two thousand words, in the span of twelve days. No. 34 directly addressed portions of essay No. 7 by the Antifederalist Brutus, presumably Robert Yates, which appeared the day before in the New York press. Read in tandem, the two provide a window through which readers can clearly view the competing positions of the Antifederalists and Federalists.

Brutus charged that the unlimited taxing power for the general government under the Constitution would result in two scenarios: “Either the new constitution will become a mere nudum pactum [naked promise], and all the authority of the rulers under it be cried down, as has happened to the present confederation—or the authority of the individual states will be totally supplanted, and they will retain the mere form without any of the powers of government.” He additionally argued that coequal taxing authority as designed in the constitution was impractical in a confederated republic. In his estimation, taxes should be “divided” between the States and the general government “and so apportioned to each, as to answer their respective exigencies….” Thus, Brutus advocated a true federal republic that maintained State sovereignty, and in particular the expressed and limited taxing power of the general government. Simply stated, Brutus feared the destructive effects of a “national” government on State and local authority.

Hamilton retorted that history had proven this position incorrect. The Romans had two equal and often hostile legislative bodies with the power to repeal and annul the acts of the other, “yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.” But, Hamilton argued, the Constitution did not allow either the States or the general government to “annul the acts of the other,” and he also contended that the “wants of the States will naturally reduce themselves within A VERY NARROW COMPASS…” Hamilton countered that if the Framers had adopted Brutus’ line of reasoning, then the States would also be limited in their respective areas of taxation, either exclusively or proportionally, and the end result would be State subordination to the general government, the very thing Brutus argued against. Hamilton was admitting, however, through his statement that States would have “a very narrow compass,” that the Constitution created a “national” and not a “federal” republic.

States, Hamilton opined, would need little to support their domestic affairs while potential “contingencies” may require the vast and unlimited resources of the central authority. Limit the taxing power of the general government, and you limit the ability of the common defense. In his mind, history had proven that foreign and domestic dangers would arise and as such the “national” government should have the means to preserve the “tranquility” of the republic. “To judge from the history of mankind,” Hamilton stated, “we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiment of peace; and to model our political systems upon speculations of lasting tranquility, is to calculate on the weaker springs of the human character.”

Brutus agreed with Hamilton’s assessment of human nature, but he also believed that the States had a primary role in resisting foreign or domestic disruption. States ensured domestic peace by “administrating justice among its citizens,” and through “the management of other internal concerns.” This was the basis of the “happiness of the people,” and if the States did not have the resources to maintain peace—if they could not raise enough revenue—then they would be easily “subdued by foreign invaders.” Like Hamilton, Brutus believed history had proven his point, and if the States were robbed of adequate taxing power, then the “peace and good order of society,” what Brutus called the “province of state governments,” would suffer. After all, Brutus argued that the object of government was to, “save men’s lives, not to destroy them,” and as such the “united states” should be an “example of a great people, who in their civil institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves.” Central authority and excessive taxation were not required to do so and could potentially result in internal discord.

Here are the two competing visions of the American order: Hamilton the nationalist; Brutus the champion of a federal republic. While Brutus incorrectly thought that the States would disappear if the Constitution were ratified, they have certainly been reduced to little more than administrative provinces for the federal government, and he was correct that revenue would be a consistent problem for State and local governments. Surely, State efforts to combat illegal immigration—“foreign invaders”—could be better augmented by revenues destined for federal coffers, and internal discord caused in part by excessive centralization and taxation has been a problem in American history. For his part, Hamilton never envisioned this happening. He firmly believed in 1788 that the States were an essential component of the new government, though not to the same extent as Brutus. As he later said, “The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.”

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers, and has written for townhall.com, humanevents.com, lewrockwell.com, and thetenthamendmentcenter.com. He currently teaches history at Chattahoochee Valley Community College in Phenix City, Alabama.

Monday, June 14th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 35 – The Same Subject Continued: Concerning the General Power of Taxation, For the Independent Journal (Hamilton)

Federalist Paper 35, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 35, Joseph Postell PhD

Guest Blogger: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

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 21^st 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 15th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 36 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 36, Janice R. Brenman

Guest Essayist: Attorney Janice R. Brenman

Federalist 36: A Final Word on Taxes

The Federalist Papers contains seven entries specifically addressing how our fledgling nation was to handle the delicate and potentially volatile issue of taxation. Having touched upon Essay #30 dealing with taxation previously, let’s bookend the topic with a brief synopsis of #36 it is focusing specifically with the central government’s power of taxation: “The Same Subject Continued: Concerning the General Power of Taxation.”

The challenge of taxing a wide number of people fairly lies in the ability to ascertain who and how much to tax. Hamilton stressed the need for a non-oppressive tax code; one which reflects the interests of diverse individuals, ranging from merchants to carpenters to blacksmiths to lawyers. It was his hope that each individual would see the need to contribute a portion of their resources to insure continued economic growth, keeping safe a nation poised to give them the privilege of practicing trades as they saw fit and that they would be therefore more willing to comply with the taxing authority.

As Hamilton has observed, a government can be potentially be too efficient when it comes to preserving the power it has by attempting to take more power. A heavy handed taxing authority would be an example of this. Therefore, it would be preferred to collect monies from a wide swath of workers, while simultaneously shielding the “least wealthy part of the community from oppression.” As the nation was deemed to be a representative republic, congressional representatives selected locally should represent each district to the national government. Ideally areas with more residents would contribute a bigger share of taxes than those which were more rural.

Hamilton vehemently opposed poll taxes whereby a “head tax” was equally levied on every adult in the community. Though poll taxes can raise large sums of money, Hamilton criticized them as unfair burdens and would “lament to see them introduced into practice under the national government.” Poll taxes survived in the Deep South many years until deemed unconstitutional by the Supreme Court when they were used to limit the franchise.

The taxation issue and related debates have been around for a while. Disputes involving taxation upon the populace have existed between democratic governments as well as despotic ones. It is Hamilton’s view that a central taxing authority was necessary for economic growth of the Nation as a whole and for the new government to be able to effectively carry out its duties.

For a country that has gone through so many economic cycles, through boom and bust, one can only wonder how Hamilton would have kept our budgets balanced today, since our government has taken on so many more responsibilities and duties than he ever would have imagined. The size and scope of government today not only contributes to the present recession, it approaches a near crisis level of debt. Maybe it seems simplistic, but limited government focusing on specific tasks specially authorized in the Constitution would put our nation in a much stronger financial position and ensure individual liberty for all American.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

Wednesday, June 16th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 37 – Concerning the Difficulties of the Convention in Devising a Proper Form of Government, From the Daily Advertiser (Madison)

Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Joerg W. Knipprath

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

Federalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.

His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their righteous certitude.

Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”

Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.

Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:

The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time the same. A frequent change of men will result from a frequent return of electors; and a frequent change of measures, from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.

This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.

Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.

Good advice through the ages.

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

Thursday, June 17th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 38 – The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed, From the New York Packet (Madison)

Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 68, Joerg W. Knipprath

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

While Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.

After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.

Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”

His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.

Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.

The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.

Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.

George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.

“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.

Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.

Friday, June 18th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 39 – The Conformity of the Plan to Republican Principles, For the Independent Journal (Hamilton)

Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, John S. Baker Jr. PhD, The Articles of Confederation

Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Federalist 39 answers attacks that the proposed Constitution is not “republican” and not “federal.” In his response, Publius effectively redefines both terms.

Claiming the proposed government is not “strictly republican” is a serious charge. Publius recognizes this, saying “no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or the honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”

The term “republican” ( Latin “res publica,” or “public thing”) had an uncertain meaning. Common to its various understandings would have been an opposition to an hereditary monarchy and aristocracy. Republicanism referred to self-government, but proponents and opponents of the new Constitution had very different ideas about what that meant.

On the one hand, Publius acknowledged that “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” On the other hand, the vision of republicanism offered by The Federalist was quite different from that of the opponents.

Those opposing the Constitution, the Anti-federalists, generally believed that a republic could exist only within a small territory where citizens were able to know one another, live a communal life, and directly govern themselves. Their reading of the French political writer Montesquieu and the example of the ancient republics convinced them that liberty was possible only in such republics. Thus, the Anti-federalists argued that the government to be created by the Constitution would deprive the people of their liberty.

Publius had already argued in Federalist 9 that “the petty republics of Greece and Italy” leave one “feeling sensations of horror and disgust” because “they were perpetually vibrating between the extremes of tyranny and anarchy.” He also observed that opponents to the Constitution apparently were unaware that the states were already larger than the republics discussed by Montesquieu and that he praised the benefits of a larger “confederate republic.” Indeed, The Federalist contributes to political theory the idea that liberty is better protected in a large republic, as fully explained in Federalist 10.

Federalist 39 asks “What then are the distinctive characters of the republican form?” Publius finds that political writers have wrongly applied the term to states that do not deserve to be called republics. Consulting principles of government, Publius says “we may define a republic to be, or at least may bestow that name on, a government which…” (emphasis added). In other words, he is giving his own definition of the term republic, one which corresponds to principles embodied in the new Constitution. Thus, Publius says a republic may be defined as “a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure [presidential appointees], for a limited period [members of Congress and the President], or during good behavior [federal judges].”

Finally, Federalist 39 contends that the language in the Constitution explicitly prohibiting titles of nobility and guaranteeing the states will have a republican form of government proves the republicanism of the proposed government.

This large republic was also to be a (con)federal republic. But the Anti-federalists also charged that the Constitution violated the federal form. Publius did not actually deny this particular charge. Rather, he contended that “a just estimate of [the argument’s] force” requires first ascertaining “the real character of the government.” Before explaining that the real character is only “partly federal,” he added that the argument’s force also depended on the authority and duty of the Convention. In the following essay, Publius will argue that the authority of the Convention, as well as its duty to the people, justified creating the form of government proposed by the Constitution.

Given the common understanding of “federal” at the time, the Constitution did violate the federal form. Prior to adoption of the Constitution, the words “federal” and ‘confederal” meant the same thing, just as “flammable” and “inflammable” currently have the same meaning. The Federalist, itself at times, used these terms interchangeably. Clearly, however, the Constitution proposed to create something different from the existing confederacy.

Federalist 15 had identified the great vice of a confederacy as the attempt by a league of states to legislate for state governments, rather than for individuals. The Articles of Confederation did not directly govern individuals, but the Constitution would do so – within its limited list of powers. The new government’s ability to reach individuals and the “necessary and proper clause” prompted the Anti-federalist fear that the Constitution would completely consolidate power in a national government.

Publius had to explain that the Constitution would not create a consolidated national government. Federalist 39, therefore, explained the mixture of federal and national elements among five essential aspects of the Constitution: its ratification or foundation [national], the sources of its ordinary powers [partly federal –the Senate; partly national-the House], the operation of its powers on individuals [national], the extent of the powers, i.e., limited [federal], and the method of amendment [neither wholly federal nor national]. Based on this mixture of elements, Publius concluded: “The proposed constitution, therefore, …is, in strictness, neither a national nor a federal constitution; but a composition of both.”

This “compound republic” created by the federal Constitution came to be known as “federalism.” As a result, the “federal” form became distinguished from the “confederal” form existing under the Articles of Confederation. This new form of federalism involved a residual – rather than complete – sovereignty in the states. Indeed, as a limited Constitution, neither the federal nor the state governments were “sovereign” in the true sense of the word as a supreme power answerable to no other power. Rather, under the Constitution, “We the people of the United States” are the political sovereign and the Constitution is “the supreme Law of the Land.”

Some argue that the Anti-federalists correctly predicted the consolidation of power in the national government. Such an argument, however, overlooks the critical shift of power caused by the Seventeenth Amendment. That amendment took the election of US senators from state legislatures and gave it to the voters. As a result, the key federal, i.e. state, protection against the concentration of power was lost. That is to say, the Seventeenth Amendment deprived the states of their direct representation in the federal government. As long as the state legislatures elected senators, the states had the ability to pressure enough senators, even if only a minority, to prevent incursions on state power. State legislatures no longer have that ability.

John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University, regularly lectures for The Federalist Society and teaches courses on The Federalist for the Fund for American Studies.

Monday, June 21st, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 40 – The Powers of the Convention to Form a Mixed Government Examined and Sustained, from the New York Packet (Madison)

Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 40, Joseph Postell PhD

Guest Essayist: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation

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.

Tuesday, June 22nd, 2010

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.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 41 – General View of the Powers Conferred by the Constitution, For the Independent Journal (Madison)

Federalist Paper 41, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 41, Joerg W. Knipprath

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

In a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.

He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness, involves a discretion which may be misapplied and abused.”

This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good. As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.

After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.

Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.

The second passage is, “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.

The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.

As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.

Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.

However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.

Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.

Wednesday, June 23rd, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 42 – The Powers Conferred by the Constitution Further Considered, From the New York Packet (Madison)

Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 42, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

In Federalist #42, James Madison attempts to clarify the importance of national powers found in the Constitution that are essential to the successful operation of the government particularly in national and international affairs. Categorizing these powers as second and third class was a means of distinguishing them not to disparage them. Among them are: relations with foreign nations including the ability to make treaties, to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; and to regulate foreign commerce as well as interstate commerce between the states among others.

It is noteworthy that among the “second class of powers” he refers to is specifically the power to regulate and ban the importation of slaves. Rather than hide or downplay this provision, Madison like many of the founders understood that while the acceptance of the institution of slavery was part of the compromise that allowed them to go forward with the Constitution, they made sure the public understood their anti-slavery sentiment and their plans to exercise the powers at the federal level. Madison reminds his readers that “while it is to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation” within the space of 20 years “It ought to be considered as a great point gained in favor of humanity …. within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; …..it will receive a considerable discouragement from the federal government, and may be totally abolished..” As Madison predicted and although it is often unmentioned, Congress banned the importation of slaves in August of 1808 the same year that the Constitution gave them the authority to do so.

In any event, Madison explains that while several of the international powers existed within the Articles of Confederation, others did not. Treaty making and ambassadorial relations were among the powers of the first government. However, the Constitution made treaty making easier by requiring two-thirds of the Senate to ratify them and caused ratified treaties to be treated as the equivalent of federal law in terms of conflicts with state laws.

On the other hand, the Articles failed to adequately address the issue of defining and punishing piracies and other felonies committed on the “high seas.” Madison explains that the Constitution is far superior in this regard because although tribunals were authorized under the Articles, the actual definition of the violations as well as the scope of activity covered was not provided for in the Articles. Madison feared that such a scenario could mean that one of the States could have a law defining an offense as piracy that the other states do not recognize. When a breach of this law occurs, Madison laments that such a situation could result in the other states being obligated to submit manpower and related resources to defend claims that they do not even recognize or embrace.

Since the regulation of international or foreign commerce had been addressed in other contexts, Madison passes on it here.

Among the third class of powers that Madison references are those involving “the harmony and proper intercourse among the States and these include: “to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.”

It is difficult to look at this list of authorities without seeing the merchant class sympathies of Madison and the founders. While it may seem incredible today to consider, Madison and Hamilton were not neutral on the question of whether the new government should be pro-business or not. Explicitly empowering the federal government to coin money, establish standards for weights, prevent counterfeiting, enact bankruptcy laws as well as create a federal mailing system and construct federal highways make much more sense if one understands the founders’ sympathies for America being a mecca for entrepreneurship and related economic opportunity.

Madison makes clear that the power of interstate commerce was tied to international commerce and without interstate commerce power state and local governments would continue to have the authority to frustrate trade. “A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”

Madison recognizes commerce and business activity as crucial to the success of the American system. Madison makes clear that even in the context of Indian relations that commerce with the tribes was a key issue that warranted national government attention. “What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.” Madison argues that with this issue handed completely and explicitly to the federal government the nation would get the benefits without undue restraint interfering.

Next Madison turns to the question of rules of naturalization. Instead of the uniform system that we take for granted, Madison complained about the fact that each of the former colonies had adopted its own views for immigration policy which prevented the new government from deciding in a sophisticated way who it desired to become citizens and who it didn‘t. “The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. …. The result is that some states essentially had the ability to confer upon individuals rights that they could exercise all across the nation based solely on the happenstance of which area they entered.

Just as Madison argued that it was in our nation’s interest to have a uniform immigration policy established by the Federal government one would imagine his displeasure at the failure of today’s federal government to maintain control over its on rules with regard to immigration policy. Either because of complexity of compliance with immigration rules, a failure to construct adequate border barriers, limited personnel assigned to immigration enforcement etc, the federal government today is allowing a hodgepodge policy to form influenced more by where or how a person enters the United States instead of ascertaining in advance who should be allowed to enter.

Madison concludes the essay with a statement that reaffirms his view of the importance of business and commerce. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

Thursday, June 24th, 2010

Horace Cooper is a legal commentator and is the Director of the Institute for Liberty’s Center for Law and Regulation.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 43 – The Same Subject Continued: The Powers Conferred by the Constitution Further Considered, for the Independent Journal (Madison)

Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Declaration of Independence, Declaration of Independence, Federalist No. 40, Federalist No. 43, Joerg W. Knipprath, The Articles of Confederation

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

In Federalist 43, Madison continues his examination of Congress’s enumerated constitutional powers, presenting a miscellany of provisions. Tucked away at the end of this rather lengthy essay, as if Publius half hopes the reader will be too fatigued to notice, is a matter of signal importance, the provision that only nine states’ approval was necessary to establish the Constitution. Publius dismissed this matter as inconsequential in the extended discussion of the legitimacy of the Constitution in Federalist 40.

One problem for the Philadelphia Convention was that it ignored the requirement in the Articles that any amendment (and certainly a wholesale replacement) had to be by unanimous consent of the states. Madison could have justified the nine-state requirement by declaring that the Constitution was a new project entirely severed from the Articles, and that the old system was dissolved when the Framers met in convention. Dissolving the bonds and returning to a “state of nature” had been the basis for the revolutionary founding under the Declaration of Independence. If the states were once again in a state of nature towards each other, unbound from the prior rules, the approval of the nine states, binding them alone, was proper. Every state that wanted to join had to agree, thereby preserving the social contract fiction of individual and unanimous consent.

For solid reasons, Madison does not select that option. For one, to do so would implicitly endorse charges that the Convention was incompetent to act beyond its mandate because the Constitution would be “revolutionary.” For another, in Federalist 40, Publius emphasized the continuity between the Articles and the Constitution. Likewise, Madison in the current essay describes the change as one merely of political form of an existing civil society, not as the foundation of a new commonwealth. All require obeying the Articles’ unanimity provision for constitutional change.

He is left, then, with intellectually more meager rationalizations. One of these is such strained legalism mixed with a splash of late-18th century American constitutional theory about the deficiency of the legislative amendment process under the Articles that he introduces the concoction with a self-conscious “Perhaps.”

The other is one of unvarnished pragmatism, untethered to any constitutional support. He appeals to the “absolute necessity of the case” (Rhode Island, not having sent delegates, was unlikely to approve); the lesson of “our own experience” (Maryland’s four-year long failure to adopt the Articles during the crucial period of the Revolution); “the great principle of self-preservation”; and the “safety and happiness of society…at which all political institutions aim, and to which all such institutions must be sacrificed” (the ends justify the means, just as in Federalist 40). The lesson here is that necessity creates its own legitimacy, and matters of extreme national interest and safety cannot be burdened by constitutional technicalities. In political theory this is the doctrine of “reason of state,” something that executives long have understood.

A few brief points about some other provisions mentioned. Several involve the organic connection between the national and state governments. The sections regarding admission of new states and control over territory belonging to the United States were intended to give express authority to what the Confederation had done in regards to the western territories. They provide a constitutional basis for the acquisition and integration of the new lands that marked the westward expansion across the continent.

The guarantee to each state of a republican form of government assumes that each state will meet the minimum of avoiding monarchy or hereditary aristocracy. Beyond that, republics can take varied forms, and Publius pledges the federal government to avoid interfering with the states’ choices among them. There are many who have argued that the Supreme Court’s reapportionment decisions violate that pledge.

The protection against invasion commits the Union to a fundamental covenantal obligation. Though “invasion” usually suggests military force, it can mean any threat to the stability of the state from outside its borders, particularly an armed threat. Arizona, facing spill-over from the Mexican drug cartel violence, as well as a more general criminality from illegal entrants onto its territory, might plausibly argue that the federal government has breached that covenant and forced the state to act on “the great principle of self-preservation.”

There are provisions related to the capacity of the national government to exist as a practical sovereign, such as the creation of a federal district as the seat of government. It is noteworthy that this section draws a clear distinction between “district” and “states.” Recent statutory proposals to extend voting representation in Congress to the residents of the District of Columbia must founder on that distinction and on the Constitution’s textual requirement that voting and representation (beyond the “municipal” government of the district) rests on residing in a “state.” Perhaps a cession of most of D.C. (excepting the main government district) to Maryland would solve the problem.

Requiring approval of amendments by three-fourths of the states (and introduction by two-thirds of the states or of the members of each house of Congress) represents a confluence of experience and constitutional theory. Early state declarations of independence and constitutions, both of which altered the existing constitutional orders in those states, were commonly done by majority votes of the legislatures. Such practices reflected the constitutional theory inherited from Great Britain that the legislature virtually represented the general will of the commons expressed through the instruments of parliamentary sovereignty.

However, those practices conflicted with the developing American doctrine that constitutional changes were “explicit and authentic acts” of popular sovereignty superior to ordinary laws. Legislation was, after all, merely an act by the people’s agents in a body created under a constitution. In that view, constitutions were not only descriptions of how things were run, but commands of how they must be run. Constitutions were law, created by the ultimate earthly lawmakers, the people. Since direct participation of the entire people was unrealistic, constitutions were to be proposed by special assemblies and approved by popular vote or a supermajority of representatives. The Constitution relies almost entirely on the supermajority vote principle.

The requirements for amendment were also recommended by experience. Legislative majorities are transient and, therefore, likely to lead to considerable instability and flux in constitutional structure. The experience with continuous constitutional agitation in the states during the 1770s and 1780s alarmed the Framers. At least equally alarming, however, was the hurdle presented by the unanimity requirement of the Articles. While its conformance to emerging American constitutional theory was pristine, it was a practical disaster by frustrating needed reformation. The Framers, being nothing if not practical in their project, sought to craft a method for amendment that was neither prone to instability by too frequent amendment nor to paralysis through too-stringent requirements. Debate continues about whether their solution has worked well, given the relative infrequency of formal amendment, or is too constraining and has resulted in giving the unelected courts too great a role in altering constitutional norms.

Friday, June 25th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 44 – Restrictions on the Authority of the Several States, From the New York Packet (Madison)

Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 44, Joerg W. Knipprath

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

Federalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.

Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:

“The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states ….”

Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.

His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16^th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”

However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?

If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.

Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.

The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.

Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.

Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed.

Monday, June 28th, 2010

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

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 45 – The Alleged Danger From the Powers of the Union to the State Governments Considered, For the Independent Journal (Madison)

Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 45, Joerg W. Knipprath

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

Having examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.

Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.

As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.

When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.

Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.

Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.

Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.

Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.

Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.

Tuesday, June 29th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 46 – The Influence of the State and Federal Governments Compared, From the New York Packet (Madison)

David B. Kopel, Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel, Federalist No. 46

Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.

Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.

Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.

The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.

Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees. This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.

Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”

But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.

Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”

The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.

Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.

Absolutely true, to this very day.

Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.

Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.

This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.

But one major change upset the Madisonian balance. In the 1936 case United States v. Butler, the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.

The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.

So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.

What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.

But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.

Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.

Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:

To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.

In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.

Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.

Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.

Wednesday, June 30th, 2010

David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org

March 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison)

Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, Federalist No. 47, Federalist No. 48, Federalist No. 51, Federalist No. 84, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47. Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty. For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights. The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government. Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists. As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken. Montesquieu relied on his understanding of the British Constitution to explain separation of powers. Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists. That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary. Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.” (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original). He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions. He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.” Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies. (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and even an actual consolidation of the different powers; and in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

Thursday, July 1st, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other, From the New York Packet (Madison)

Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Federalist No. 48, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Jr. the Dale E. Bennett Professor of Law at Louisiana State University

The states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.” Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document. As Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”

The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”). Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.

Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.” In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches. Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

Then and today, there are those who view the President as the greatest danger to liberty. “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency. Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.

Publius tells us “where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jeolousy, and exhaust all their precaustions.. (emphasis added).

If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies. While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.

The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers. Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning. The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary. The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.

Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (emphasis added).

Publius’s indictment of legislative bodies drew “on our own experience.” The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”

Federalist 48 concluded “that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

Friday, July 2nd, 2010

John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 – Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention, From the New York Packet (Madison)

Colleen Sheehan, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Colleen Sheehan, Federalist No. 49, Federalist No. 57

Guest Essayist: Colleen Sheehan, Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good

James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.

Madison argued that this was a bad idea for five reasons: 1) the proposal doesn’t cover the case in which two departments combine against a third 2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity 3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility 4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place 5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.

In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.” But this is the exact opposite of how good popular government should work. According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.

It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay. He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution. Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions! He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.

It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions. This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government. In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty. In the 49^th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics. Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation. Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety. Let’s not be impetuous and race headlong at a dangerous pace. Slow and steady wins the republican race.

Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

The authorship of Federalist No. 50 is disputed. Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution. Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.” The key to the opening is the last capitalized phrase. The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.

The author used the State of Pennsylvania as an example to prove his premise. Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault. But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.” Their conclusions were often clouded by passion and their decisions ignored by the State government. The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.” States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”

The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself. The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system? That was the heart of the anti-federalist critique of the federal judiciary, for example. Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.

One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer. The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution. He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….” Perhaps the Old Whig was correct. Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11^th and the 22^nd, limited the power of the central government. Others such as the 14^th, 16^th, and 17^th, increased it exponentially.

Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified. Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law. The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked. The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority. If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work? The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.

Tuesday, July 6th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Guest Essayist: Professor John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose. Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.” Isn’t this just a cynical approach to government? Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test. Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch. Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government. With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

“the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
“The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
“Ambition must be made to counteract ambition.”
“The interest of the man, must be connected with the constitutional rights of the place.”
“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans. To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together. The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people. Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself. Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.” The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions. As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.” Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise. This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress. The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states. As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible. The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 52 – The House of Representatives, From the New York Packet (Madison or Hamilton)

Charles K. Rowley, Ph.D., Federalist Paper 52, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Article I Section 02 Clause 3, Article I Section 02 Clause 4, Article I Section 02 Clause 5 and Section 03 Clause 1, Charles K. Rowley PhD, Federalist No. 52

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

Let me commence this discussion with an important caveat. There are two ways in which to evaluate the contributions of the Founding Fathers in drafting and pursuing the ratification of the various Articles and Sections of the United States Constitution. The first way is by reference to the circumstances of the emerging nation and the knowledge available to the Founders. The second way is by reference to the circumstances of our time and the accumulated knowledge that is now available. I shall focus primarily on the first way, given the exigencies of space.

The Federalist, No. 52, written by Hamilton or Madison, explains and justifies Article I, Section 2 of the draft Constitution, with particular regard to the qualifications both of the electors and of those elected to the House of Representatives, and to the length of term for which the representatives were to be elected. These are centrally important considerations for any Constitution that seeks to establish a Federal Government of strictly enumerated powers, to ensure that elected representatives will faithfully reflect the preferences of a majority of their constituents and yet will not be overly tempted to discriminate against vulnerable minorities. If the People are to govern, then a suitable definition of the People, and how the People are to impact on government, is of crucial importance.

A key circumstance influencing the Convention was recognition that any shift from the existing Confederation to a new Federation inevitably constituted a fundamental challenge to States’ rights, and must be perceived as a threat to the less populous states. In order to ratify the Constitution, those issues must be addressed effectively by PUBLIUS.

Naturally, therefore, PUBLIUS emphasized the good sense in requiring that the qualifications of the electors would be the same as those required by each State’s own Constitution for the most numerous branch of that State’s legislature. Of course, this implied that electoral qualifications might vary across the several States. Yet, individual States could not manipulate the suffrage by simple legislation to gain advantage in the House of Representatives. If they engaged in high cost constitutional manipulation, they could do so only by imposing upon their own State legislature any inherent disadvantages of such a manipulation.

Inevitably, norms of the day governed the extent of the suffrage. For the most part, only propertied male citizens qualified. Non-citizens (which of course included slaves), male citizens without property, and women need not apply. This restricted the electorate to some twenty-five percent of the adult population. But remember that the United States was one of only two emerging democracies. And Britain, albeit without the taint of slavery, similarly limited the suffrage at that time to a suitably-propertied male minority.

The qualifications of the representatives were a different matter. They were much less clearly defined by the State Constitutions and more susceptible to uniformity. PUBLIUS defended the proposal by the Convention that a representative must be at least of the age of twenty-five years, must have been seven years a citizen of the United States, must, at the time of the election, be an inhabitant of the State he was to represent, and, during the time of his service, must be in no office under the United States. This left the door widely open to would-be candidates, including women and persons without property. Of course, slaves could not be citizens and, therefore, were excluded from candidacy.

The Convention had decided that the House of Representatives should be composed of Members chosen every second year by the electorate. This was a truly important judgment, defended by PUBLIUS. The Founders were well aware of a British history, where monarchs not infrequently had failed to call Parliament for several years when threatened by its fractiousness towards their objectives. So the regularity of the election would avoid any such deviance on the part of fractious States. They were also aware that some long-lived parliaments had lost significant contact with their electors, and had culminated in widespread corruption and inefficiencies.

A two-year term was deemed appropriate, in that it would maintain a close linkage between individual representatives and the People without imposing an excessive urgency on their deliberations. The Founders were not disposed to introduce direct democracy into the federal legislature, recognizing its high cost and limited effectiveness in a geographically dispersed country with a rapidly increasing population of potential voters.

With respect to the two-year term, my judgment is that the Founders were correct. The House of Representatives would become the engine of the legislature and the Senate, with its six-year staggered terms, would become the brake, especially when transient passions were running high. Sadly, the great expectations of the Founders regarding the linkage between the People and those that they elected to office would be disappointed.

The Founders failed to anticipate the emergence of powerful political parties that would demand loyalty from their members even when such loyalty conflicted with constituents’ interests. They failed to anticipate the gerrymandering of districts that would provide incumbent re-election probabilities as high as in many dictatorships. They failed to anticipate the growth of political action groups and other special interests that would flood political campaigns with funding designed to distort election results away from the interests of the People. They failed to anticipate the willingness of the United States federal courts to loosen the strictly enumerated powers of the Federal Government by inappropriately redefining key Articles of the Constitution designed to limit the range of collective actions that might impact adversely upon the People. These developments, however, were products of changing circumstances and advancing political acumen unavailable to the Founders in the dying years of the eighteenth century, and at the very beginning of a great experiment in constitutional republicanism.

Thursday, July 8th, 2010

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is the co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute He blogs at www.charlesrowley.wordpress.com.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 53 – The Same Subject Continued: The House of Representatives, From the New York Packet (Hamilton or Madison)

Federalist Paper 53, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 53, Marc S. Lampkin

Guest Essayist: Marc Lampkin, partner at Quinn Gillespie and graduate of Boston College Law School

In Federalist #53 James Madison continues a discussion about the description and operation of the United States House of Representatives. In particular his emphasis is targeted to the question of protecting liberty and ensuring electoral accountability through the use of the term for Members of the House of Representatives. Madison observes that there is a natural connection between electoral accountability and the liberty of the people. The question is how often should the elections occur? Madison mentions a prominent saying of the time which was “that where annual elections end, tyranny begins..” implying that regular election cycles particularly those that happen at least once a year were best to limit infringement of the liberty of the people. Madison attempts to explain why the Federal Constitution provides for a 2 year cycle in the House of Representatives and why that length didn’t threaten the freedom of the American people.

Ironically most states have adopted the Federal model of a 2 year cycle for their legislatures. But as Madison notes this ready embrace of the two year cycle was not always the case. When he writes the most popular election cycle for legislatures was every 6 months with a few states having annual elections. Notably Madison observes that South Carolina alone had 2 year cycles.

In any event it is Madison’s view that the specific timeline isn’t as important as the necessity of the elections themselves. But he argues that the single most important talisman for liberty is the immutability of the charter that authorizes government.

Unlike the British system, Madison explains the Federal Constitution does not bestow unlimited power on the legislature to change and make laws and thus liberty is advantaged. In contrast to the American model, governments that place nearly limitless power in their parliaments or legislatures like the British system must be on guard continuously for mechanisms whereby government tyranny can be checked. Madison points out, “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.”

Madison contends that the American system is predicated on the supremacy of the American citizens and not on the legislature or the executive. In America Congressmen and Senators can’t change their term of office, swap their positions or take on executive or judicial powers. But in Britain they can make these types of changes and according to Madison did. As a result many political scientists of the day had settled on the yearly election for legislatures as a ways to keep the government accountable. But with the US Constitution which places specific limits on the government and can only be changed with the consent of the citizens, liberty is much more readily protected.

Next Madison turns to the specific question of why a 2 year cycle. Perhaps surprisingly, Madison the practicing political scientist reveals himself. It is Madison’s considered view that the two year cycle allows for greater professionalism on the part of the federal official than a shorter cycle might. He comes to this conclusion by comparing the relative knowledge base that state legislators have assuming a one year election cycle. Madison argues that they are capable of learning and addressing the issues of their own individual states within the year time frame.

If state legislators learn about the regulation of ports and appropriate levels of taxation for the own states within a year, assuming the federal government’s issues might add additional complexity and more deliberation at least another year between elections would be useful to ensure that the federal elected officials developed the competence and knowledge necessary to be conversant about the relevant issues they are responsible for. In particular Madison singles out the critical issue of foreign affairs as an area that it would be useful for elected officials to address with some degree of skill. Madison notes: “In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation.”

Wrapping up Madison mentions that the relative distances that elected members of the House would travel also augurs for a longer term of office. And in another endorsement of the professionalization of Congress, Madison recognizes that over time members with superior talents will become members of long standing. Thus unlike the careerism incumbent upon a system that rubber stamps the election of state assemblymen “almost as a matter of course” the Constitution’s election system contemplates that talented and experienced legislators would be preferred so as to avoid “snares that may be laid for them.”

And finally in the event of election disputes a 2 year cycle will give Congress more time to adequately investigate and make an informed determination than might be possible with a shorter term. Madison concludes: “All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.”

Friday, July 9th, 2010

Marc Lampkin is a partner at Quinn Gillespie and is a graduate of Boston College Law School

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 54 – The Apportionment of Members Among the States, From the New York Packet (Madison or Hamilton)

Federalist Paper 54, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 54, Joerg W. Knipprath, The Articles of Confederation

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

Although the essay’s authorship has been disputed, I am following the broad consensus that Madison wrote it along with the rest of the papers about the organization of the House.

James Madison was a Southern slaveholder. But one might never have surmised that from the curiously detached tone that Publius affects in Federalist 54 in talking about what “our southern brethren [might] observe” and “the reasoning which an advocate for the southern interests might employ,” which argument nevertheless “reconciles me to the scale of representation” adopted. Madison is recorded as having ambivalent feelings about slavery, but, then, most of the Southern elite did, judging by the moral handwringing that runs through many speeches and writings on the issue at the time. One need only look at Jefferson’s thoughts expressed in his Notes on the State of Virginia. The language used on such occasions was so similar that it has led the historian Forrest McDonald to opine that slaveowners developed a nearly rote disclaimer to cleanse the conscience before proceeding to whatever topic was truly at hand.

That said, Madison at least mentions the distasteful “s-word” in Federalist 54, an appellation that the Convention tied itself into euphemistic knots to avoid writing into the Constitution, as he delves into the connections among taxation, representation, and slavery. The first two, taxation and representation, have a long and pronounced relationship in Anglo-American political history and constitutional theory. The movement for independence from the British crown is tied to them through the motto “No taxation without representation” and the events that gave rise to it.

Taxation was seen by Englishmen, as well as Americans, as particularly threatening to individuals’ liberty. By having the potential to reduce people to penury and dependence, and because taking other people’s money for one’s own benefit is an especially strong temptation that mere mortals (even more so, political actors) find difficult to resist, taxation must be done only by consent of those taxed. English constitutional theory stylized this consent into representing a “gift from the commons,” as no one could be forced to share his wealth with others. Note that this applied to direct taxes on one’s person and wealth, not necessarily to indirect levies on voluntary transactions, such as duties on imports or excises on sales of goods. This class-based constitutional theory, made concrete against the King over three centuries, allowed the House of Commons (the only practical repository of popular consent) to bind the commons to pay taxes. The theory reflected the idea that the commoners were represented in the House as a class.

The Americans agreed with the English theory that consent was needed for a constitutional tax. They disagreed with the English theory of virtual representation, which held that the Americans were represented in Parliament as part of the body of commoners. Americans subscribed to a more concrete theory of direct constituent representation, that one was represented by another for whom one had a chance to vote, or at least in whose designated geographic domain one lived.

Recall that “representation” is a crucial aspect of American republicanism. In Federalist 10, Madison exalts representation as the republican principle that ties together the large geographic polity that is the United States without turning it into a tyranny. At the same time, representation, activated by the other republican principle, the vote, protects the political majority from falling victim to an entrenched oligarchy, while also protecting political minorities to some extent from the passing passions of an aroused majority.

But some aspects of republican theory are in tension with slavery—though clearly not in practice through the ages. Tying direct taxes, which reflect wealth and are assessed on the basis of the states’ populations, to representation is easy. Adding slavery to the mix threatens the symbiosis. Slaves are property, that is, wealth. But they are also manifestly human beings.

Direct taxes were imposed on the basis of population, not assessed land values, facts that are not definitively causally related. That could distort the burdens between different states, as Madison recognizes. States with less or poorer land but higher population densities (mostly in the North) would bear a burden proportionately greater than their opposites (mostly in the South). True, most Northern states permitted slavery at the time. The “peculiar institution” (under developing Anglo-American jurisprudence, slavery was not “natural” and could only exist under the peculiar positive enactments of a polity) was much more entrenched and extensive in the South, however.

The political conundrum, as Madison explains, was that the slave interests wanted to include slaves for purposes of representation. Northerners, already fearful that their region would lose relative power to the South due to the greater fecundity of Southerners and the expected greater immigration to the South because of the longer growing season and the claims to larger western territories, objected. At the same time, economic analysis of Southern wealth (of which land was both the most plentiful and the easiest to tax), would likely include the value of slaves (who were taxed as personal property, however). To exclude slaves, which constituted a great part of the production of Southern wealth, from a wealth-tax census was particularly galling to Northerners. Southerners, on the other hand, argued that the truncated legal rights of slaves nevertheless did not deprive them of their status as “persons” for apportioning representation any more than the truncated rights of children and various others did.

The compromise was to assign to slaves a fractional value for both taxes and representation. That “3/5 clause” preserves the republican connection between representation and taxation, yet it also symbolizes the truncated pyramid of rights that composed the American system of slavery. That solution was not novel. It had been proposed as part of a failed amendment to the Articles of Confederation in 1783 and was part of the Pinckney and Paterson plans presented to the Convention. Nor was that the last time. The Convention was able to reach a compromise that eluded the 1829 Virginia state constitutional convention, at which the elderly Madison tried to push through a 3/5 compromise to settle a simmering conflict over apportionment between the non-slave holding western counties and the slave-holding eastern counties. The eastern planters wanted slaves fully counted, while the western yeomen wanted them excluded. The planters won. That was yet another grievance of powerlessness to be nursed by the residents of what would become West Virginia in 1862, after Virginia seceded from the Union.

Direct taxes have not been used by the federal government. They are difficult to process, as they are assessed against the states, which likely would have to collect them like requisitions under the Articles. Some, such as ancient head taxes, are deemed unfairly regressive. The recent health care law’s individual penalty has the whiff of such a tax and may, therefore, be apportioned unconstitutionally under that law. Federal land taxes are also politically impractical because they penalize population-rich, property-poor states. That said, the targets of wealth taxes are difficult to hide, which is why states and localities still use them.

Federal taxes are usually “indirect” (on conduct through excises and duties on sales or purchases of goods or services) or are income taxes. The last are difficult to assess accurately because income can be hidden. Sales cannot be hidden as easily, and such levies are easy to collect. That is also a feature of the much-discussed value-added tax. On the other hand, the final purchase price can mask the full amount of the VAT, making the tax’s opaqueness a troublesome consequence to the consumer.

The slave holders among the Founders have been accused rather too easily of hypocrisy and posturing for their public attachment to equality, as represented in the Declaration of Independence. The meaning of “equality” is much more complex. We, too, have different understandings of equality. Current conflicts between equality of opportunity versus equality of outcome versus equality of condition are an example. Hypocrisy requires a conscious rejection of principles of right behavior that one espouses. Falling short of one’s professed principles (when one still accepts their rightness) is not hypocrisy. Nor can we accuse the Founders of hypocrisy if their understanding of the principles differed from ours.

Only a few interpretations of equality, not generally so understood by the public at the time, might condemn slavery. Mostly, a general appeal to equality was not inconsistent with maintaining the institution of slavery. The Declaration is clearly rooted in modified Lockeanism. For Locke, basic political equality meant that all were created equal in the sense that none had the natural or divinely-created right of absolute rule over others. The Declaration, with its “consent of the governed” language in immediate proximity to the equality language, bears out this limited understanding of equality. Lack of a natural or divinely-ordained political right to rule does not necessarily foreclose an inequality imposed by peculiar laws (as Madison recognizes in his essay), or in non-political matters.

Equality in the religious society of the Founding meant theological equality before God and metaphysical equality in that all humans were moral actors (as Madison notes regarding slaves) who had to perform moral duties imposed by God and nature. God would judge personal failings in another life. This interpretation, as well, is not inconsistent with slavery on Earth.

Even a view of the term as meaning equality before the law was not incompatible with slavery. As Madison writes in Federalist 54, the slave codes provided a truncated set of legal protections for slaves. These codes became quite exhaustive over time. True, slaves lacked some of the rights of freemen (including, obviously, some crucial ones from our perspective). But so did women, children, indentured servants, criminals, the insane, and others. No one would have considered that this meant those groups were not “created equal” at a sufficiently high level of abstraction.

Americans as a group were not particularly outraged at that time about slavery because it was so common an institution in history and in their society. More immediately, the practice of the institution in the 1780s was comparatively mild, especially in contrast to the abject conditions from which many Americans had emigrated in the not-distant past. Some Americans professed concern. Thomas Jefferson wrote, musing about slavery, “I tremble for my country when I reflect that God is just.” Forrest McDonald responds, “But few of his countrymen trembled with him.”

Monday, July 12th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 56 – The Same Subject Continued—The Total Number of the House of Representatives, From the New York Packet (Hamilton or Madison)

Federalist Paper 56, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, James D. Best 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 55, Federalist No. 56, James D. Best

Guest Essayist: James D. Best, author of Tempest at Dawn

One of the criticisms raised against the Constitution was that there were too few members in the House of Representatives to adequately represent constituents.

The rule reads: “The Number of Representatives shall not exceed one for every thirty Thousand.”

Federalist 55 argued that a representative body ought to have enough members to mitigate the threat of corruption, but not so many so as to cause confusion. The initial number would be 65, but a census in three years would adjust this number. Federalist 55 basically argues that the number in the state legislatures varied, and if 65 members were too few, it would be increased in a short time after the first census.

Federalist 56 addresses the objection that a small House would not possess the collective knowledge necessary to make laws.

The first argument is one that we’ve heard before: The powers of the national legislature are limited, and state legislatures would have specific knowledge for the powers retained by the states. “In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.” Since the national government had only enumerated powers, the House did not need a broad breadth of knowledge.

This led easily into the second argument, which was that national law could rely on state laws. “The laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide … little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act.”

Both arguments show that Publius believed the states would handle the preponderance of legislation and act as a safeguard against the federal government.

For these reasons, Publius concludes “that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.”

This may seem like a minor issue, but in 1787 it grabbed the attention of the most powerful politician in the country. In the last days of the convention, George Washington verbally supported allowing a representative for every thirty thousand, rather than one for every forty thousand. In his convention notes, Madison wrote, This was the only occasion on which the President entered at all into the discussions of the Convention.

During the convention, James Madison also proposed doubling the initial number of congressmen, but as part of the Publius triumvirate, he ended up defending the smaller number.

What about today? Until 1911, the number of representatives was adjusted by population. Since that year, the population criterion has been adjusted to keep the number of representatives constant. The “shall not exceed” clause allowed the House of Representatives to restrict their membership to 435. Congress restricted their growth in number, but not their growth in power.

A quote from Federalist 55 shows that Publius never anticipated a dominating Congress. “I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents.”

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.” Citizen legislators must not be a privileged class.

Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us? As many have said in some variant about republican systems, “The people get the government they deserve.”

Wednesday, July 14th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 57 – The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation, From the New York Packet

Federalist Paper 57, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 51, Federalist No. 53, Federalist No. 57, Joerg W. Knipprath

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

Publius continues a lengthy examination of the election and composition of the House of Representatives with a response in Federalist 57 to the charge that the chamber will tend towards oligarchy. He finds this an absurdity in light of the short term of the representatives and the liberal and flexible qualifications for both those who will be elected and those who will elect them. But, in the harsh light of experience, is the objection entirely absurd?

Classic democratic and republican constitutions commonly relied on three formal devices connected with the selection of officials to prevent concentration of power in a few ambitious individuals. Those were selection by lot, short terms of office, and term limits. These mechanisms often were used for the selection of civil executive and administrative officers, the “upper house” of the legislature (such as the Venetian Senate), and—in Athens at least—the juries. The “lower house” of the legislature in each of them was not based on representation but on participation by the whole qualified class of citizens. In the House of Representatives, however, the representative principle applies, which makes that body more analogous to the first class of offices. Our system retains traditional democratic essentials in the selection of juries, intended to produce a cross-section of the community, to prevent corruption through jury tampering, and to keep “professional” jurors from accumulating power.

Classic republicanism saw election as “oligarchic,” unlike the “democratic” method of selection by lot. True, election can produce more qualified officials than the uncertainties from drawing lots. Done well, it elevates the most deserving, a point Madison hammers home in his discussion. If it works right, election can produce a true aristokratia, a government of the best. After all, the Athenians selected their strategoi, the military commanders, by vote and without term limits, because military skills are more specialized and crucial than ordinary bureaucratic talents. But the corrupt form of aristocracy is oligarchy, a government of the few for their gain. In that corruption lies the problem.

The classical distrust of elections was precisely what the Antifederalists feared, namely, that certain individuals would gain disproportionate personal power and begin to see their offices not as a public trust but as a personal estate. Inevitably, this would corrupt even the most virtuous newcomer. Moreover, once the official left office, the influence he gained in office likely would cause the office to be passed on to an ally or hand-picked successor, thereby creating a semi-hereditary sinecure. Looking at many members of Congress today (though not just them), one sees this political dynamic at work relentlessly. Short terms have not prevented the emergence of Congressional “barons,” those who spend decades in Congress tending to their fiefdoms. Nor is that entrenchment necessarily due to some great superiority of personal qualities rather than the inertia of party identification among voters and the gerrymandering of districts to protect party and incumbent advantage.

What forms might such corruption take, other than those already mentioned? Among them, Madison concedes the danger from laws that favor politicians, their friends, and particular interest groups, including ones that expressly exempt politicians from the coverage of those laws. Favoring the particular over the general interest is anathema to republican purists, but also a fact of political life that, as Publius has written frequently, must be channeled, as it cannot be cured.

Madison’s proposed solutions are by turns plausible, idealistic, resigned, and non-responsive. He mentions term limitation, by which he means frequency of election. Though many state offices at the time had annual terms, the two-year term for House members is sufficiently republican.

Second, the lack of property, religion, and status qualifications means that the net will be cast widely for suitable candidates. Could additional limits, other than those qualifications expressly written into the Constitution, be imposed by Congress or the states? As to the first, the Supreme Court emphatically rejected that proposition, concluding in Powell v. McCormack (1969) that the list of qualifications in the Constitution was exclusive. The Court also rejected that argument more circumspectly in regards to the very different issue of state regulation of the number of terms to be served in Congress, in Term Limits v. Thornton (1995). Madison’s reference in Federalist 53 to the lengthy terms some likely would serve, somewhat supports the Court’s conclusion. Third, the voters will have the same qualifications that the states themselves deem sufficiently republican.

Madison’s further reliance on politicians’ gratitude and sense of honor as restraining, at least for a while, the various corrupting tendencies is noble, but naive. Homo politicus is, unfortunately, too often characterized by a lack of these desirable natural sensibilities. The sentiment also conflicts with Publius’s admonition in Federalist 51 that, to limit government to its proper purposes, “ambition must be made to counteract ambition.” Madison is closer to the mark in suggesting that ambition for re-election works as a universal motivator for politicians’ behavior. Public choice theory has demonstrated just that.

The problem is that Madison connects that ambition with doing what benefits the voting majority. Leaving aside whether what is good for the immediate majority is collectively good for the people over the longer term, is Madison correct? Again, public choice theory, based on just watching what politicians do, shows that politicians’ self-interest and the rent-seeking by organized special interests better explains voting behavior than a strong attachment to collective good (if the latter can even be determined coherently) or even to the preferences of a weakly-organized majority. Then there is the matter of how that cozy connection between politicians and organized minorities seeking government favors affects the problem of faction that Publius has addressed repeatedly, if voting cannot cure that problem.

He grants that these internal and external controls may be “insufficient to control the caprice and wickedness of men,” but declares that this is all the mind and hand of man can devise, and that these controls reflect traditional republican practice. In Federalist 51, among others, Publius discussed the importance of constitutional structures as auxiliary precautions against the excesses of government. Here, he hedges those bets. Publius is right that the forms of government are important, but can only do so much to temper corrupt extravagances. The system’s success ultimately depends on the quality of people elected by voters possessed of the judgment and character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

Thursday, July 15th, 2010

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 58 – Objection that the Number of Members Will Not Be Augmented as the Progress of Population Demands Considered (Madison)

Brion McClanahan, Ph.D., Federalist Paper 58, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 58

Guest Essayist: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

James Madison wrote Federalist No. 58 to defend the construction of the House of Representatives, and in particular to refute the charge that “the number of members will not be augmented as the progress of population demands.” This is an interesting issue and one that demands both a retrospective and contemporary analysis.

He began by stating that the objections against the House on the aforementioned basis “can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld.” Madison simply pointed to the fact that the Constitution explicitly stated that the House will be reapportioned every ten years following a mandatory federal census and that the initial number of representatives was to be for “the short term of three years.” He illustrated that this design was based on several State constitutions, and the United States Constitution, in contrast to the State models, had more teeth. The United States Constitution stipulated that each State must have at least one representative in the lower House and that no member would represent more than thirty thousand inhabitants. States had gradually increased the numbers of representatives in their legislative bodies without such explicit language, and Madison argued that this would surely be the case under the United States Constitution.

Moreover, because the Congress was a bicameral legislature, it could check schemes by one house or the other to seize control of the government. The Senate was, in Madison’s words, the “representation…of the States,” while the House was “a representation of the citizens.” No house, he argued, would allow the other to compromise their specific constitutional authority, and no faction in either house would be able to garner enough support to destroy the other. Of course, Madison was restating his beliefs in the “checks and balances” of the federal government under the Constitution. And, if the Senate, controlled by the smaller States, tried to block reapportionment, the House could refuse to fund the government. As Madison stated, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Of course, Madison based his arguments on the premise that the United States Constitution maintained a federal republic and did not create a “national” government. The States still had equal representation in the Senate. He was negating objections that were born from the federal convention in Philadelphia, namely that the “small States” would be swallowed up by the “large States.” In many ways, “large State” and “small State” were code words for “national” and “State’s rights.” The “small States” enjoyed equal representation under the Articles of Confederation in a federal republic. The “large States” often believed they were under-represented and thwarted by “factions” of “small States;” thus, they wanted the greater control a “national” government offered. Madison tepidly argued (he wanted a much more powerful central government at the Philadelphia Convention), as did many Federalists who initially supported the Constitution, that the Constitution did not change the nature of the United States government, only the structure. As such, the House could add members without jeopardizing the equality of the States through the Senate.

Madison cut to the heart of the debate near the end of the essay. Some members of both the Philadelphia Convention and the State ratifying conventions believed that the House contained too few members to be a truly representative body of the “people.” A thirty thousand to one ratio did not allow for enough democratic control of the government. Madison answered by stating, “the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and weak capacities.” Madison said that history had proven that large legislative bodies were typically hijacked by “a single orator, or an artful statesman….Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.” He continued:

The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSE OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.

Madison’s arguments in Federalist No. 58 are contemporary for two reasons. First, his contention that the Constitution did not destroy the federal republic is true when coupled with the Tenth Amendment to the Constitution and the original election of the Senate by State legislatures. The Seventeenth Amendment, which allowed for the direct election of senators, destroyed one vestige of State control over the government. In essence, both houses are now “national” legislative bodies, something Madison argued against in Federalist No. 58 (but supported in his Virginia Plan). Second, Madison was correct when he asserted that large legislative bodies are unresponsive and doomed to failure.

But in 1790, the population of the United States stood at around four million, and the largest State, Virginia, had less than 800,000 people. That is one legislative district today. Twenty-six States have a greater population than the entire United States in 1790 with four States exceeding the 1840 population of the United States. If the Framers believed that a ratio of thirty thousand to one was sufficient for a representative legislative body and that a population of four million constituted a “country,” then would not the States today—forty three of which have a population greater than one million and many which have the approximate thirty thousand to one ratio in the original Constitution—be better handling the majority of legislative issues? The Founders would think so.

Friday, July 16th, 2010

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He teaches history at Chattahoochee Valley Community College in Phenix City, AL.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 59 – Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)

Federalist Paper 59, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Declaration of Independence, Declaration of Independence, Federalist No. 59, Kyle Scott PhD

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.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 60 – The Same Subject Continued – Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)

Federalist Paper 60, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, James D. Best 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 59, Federalist No. 60, Federalist No. 61, James D. Best

Guest Essayist: James D. Best, author of Tempest at Dawn

Federalist 59-61 address the federal power to regulate the election of senators and representatives. The clause being defended by Hamilton reads: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators.”

Vox Populi, in Anti-federalist 59, argued against the national congress regulating the election of senators and representatives. This was viewed as an infringement on state sovereignty and a possible tool of national tyranny.

In Federalist 59, Hamilton defended this clause by saying that every government must have the means to defend itself. The safety of the national government depended on its authority to override state rules that were harmful to the election of its own members.

In Federalist 60, Hamilton again argues against unfettered state authority over the election of members of the United States Congress. A national override of election laws is less pertinent than the arguments used by Hamilton. He defends the clause by stressing that safety from oppressive laws comes from the careful distribution of power and divergent methods of selecting each component of the national government.

He says, “the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

One is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, and the minutes of the ratification conventions. There can be no doubt that the Founders believed that liberty depended on one part of the government acting as an effective check on all other parts of the government, and that meant between the national branches and between the states and the national government. The Founders abhorred concentrated power. They believed that only through judiciously balanced power—constituted by dissimilar modes—could liberty survive the natural tendency of man to dictate the habits of other men.

Hamilton made another interesting argument. If elected officials violated the Constitution to usurp power, “Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

Tuesday, July 20th, 2010

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 61 – The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)

Federalist Paper 61, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Federalist No. 59, Federalist No. 60, Federalist No. 61, Kyle Scott PhD

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.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 62 – The Senate, For the Independent Journal (Hamilton or Madison)

Federalist Paper 62, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 62, Federalist No. 64, Federalist No. 65, Federalist No. 66, William Morrisey PhD

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will? If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government? Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it. He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three. His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.

The qualifications of senators (#62, paragraph 2).

The appointment of senators by the state legislatures (#62, paragraph 3).

The equality of representation of the states in the Senate (#62, paragraphs 4-6).

The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.

The powers invested in the Senate (#64, #65, #66).

With this outline in hand, consider Federalist #62.

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least. Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member. This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse. We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent such consolidation, the Framers had the senators appointed by the state legislatures. This assured the state governments a means of defending themselves from within the federal government itself. In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election. The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures. This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses. Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze. This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate. Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states. But he also fits the Senate into his larger conception of the regime. As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory. American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome. With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.” Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate? Can republics think? Can they act faithfully, steadily? Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures. Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies. Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens. “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment. Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself. “Anything goes,” indeed.

If anything goes, then respect for the regime will go, too. Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

Thursday, July 22nd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 63 – The Senate Continued, For the Independent Journal (Hamilton or Madison)

Federalist Paper 63, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 63, The Articles of Confederation, William Morrisey PhD

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Federalist 63: Responsibility and the Rule of Reason

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government. In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations. He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states. Despite this, Publius argues, America has lacked “a due sense of national character” in the world. He means “character” in both senses: moral soundness, but also a well-defined identity. If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know what how to `play off him,’ so to speak. With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns. Such notable American statesmen as George Washington and Benjamin Franklin deliberately cultivated their public faces. In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could do—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character. He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility.

Although Publius did not invent this word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map. If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government. By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires. “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?” Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.” It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis. In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely `trifecta.’ Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax. Even so, it remains quite far removed from a genuine hereditary aristocracy.

Friday, July 23rd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 64 – The Powers of the Senate, From the New York Packet (John Jay)

Federalist Paper 64, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 64, The Articles of Confederation, William Morrisey PhD

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius now begins his fifth and final topic respecting the Senate: its powers. In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress. Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”). State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government. One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work? The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time. Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889. One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties. The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers. The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review. The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land. This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous. Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.” Treaties are contracts between nations not under one another’s sovereignty. They are harder to enforce than ordinary laws. Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances. This does not mean that the United States cannot withdraw from a treaty—break the contract. But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force. The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law? This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war. Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.” Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law. If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states. The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states. The most `locally’-centered branch of the national government will hold the most `international’ power. Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments. This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s. Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles. It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Monday, July 26th, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 65 – The Powers of the Senate Continued, From the New York Packet (Hamilton)

Federalist Paper 65, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 64, Federalist No. 65, Federalist No. 66, Troy Kickler PhD

Guest Essayist: Troy Kickler, Ph.D., Founding Director of the North Carolina History Project

Alexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers. In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.

According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached. The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level. Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted. Congress can only remove the convicted from their current political office. The court system will hear any other trials and issue punishment for possible criminal acts.

For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.

Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined. Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case. Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes. In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials. Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.

Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.

One major question that Hamilton answered is why the Senate is given the power to try impeachment cases. Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials. It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.

Before the 17^th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote. Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.” Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).

Hamilton considered the Senate preferable to the Supreme Court, too. For one, impeachment was serious business: a conviction could doom an official’s honor. Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans. Moreover, the Court should not preside over two cases. After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial. Judges inevitably influenced juries, the New York lawyer also stressed. Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.

The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes. That option would increase government size and possibly require permanent positions; either way it would be too costly. It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth. Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.

Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good. The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.” The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.

Tuesday, July 27th, 2010

Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 66 – Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered, From the New York Packet (Hamilton)

Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 66, Horace Cooper

Guest Essayist: Horace Cooper, writer and director of the Center for Law and Regulation at the Institute for Liberty

In Federalist #66 Alexander Hamilton attempts to respond to objections about the new United States Senate acting as the Court in the event of impeachments of judges or executive branch officials.

The first complaint raised by critics of this set up was that “the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power.” It is noteworthy that Hamilton eagerly accepts the notion that liberty is protected by dividing duties among several branches of government. In the case of the Senate acting as the impeachment court Hamilton suggests that this “partial intermixture of those departments for special purposes” is acceptable because of the benefits which accrue and because the Constitution doesn’t really mix these as much as critics charge.

Hamilton notes that the House and the Senate play unique roles that are essential — the House acts as the accuser and the Senate acts as the jury or judge. The House requires a simple majority for the accusation, but the Senate requires a concurrence of two-thirds ensuring that a too hasty or contrived accusation isn’t carried out. He next points out that in the State of New York the Senate is the impeachment court and the highest judicial authority for civil and criminal cases. If having the United States play a role as jurors in impeachment is unwarranted, how much more so is it true with the Constitution of New York?

The second issue raised is that having the Senate act as the Court “contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.” Not only does the Senate in conjunction with the Executive have treaty-making power, critics charged that the impeachment role potentially made them the most influential division of government. Hamilton says that there is no objective measure of which part of the new government was the most influential. Instead Hamilton argues that we should recognize that the House of Representatives being the popularly elected branch is most likely to be the most powerful and influential branch of government. Hamilton explains that the House initiates impeachment (a strong power), and it is noteworthy that all revenue bills must originate in the House. The House also adjudicates disputes over the election of the Presidency. Weighed together the unique powers of the House demonstrate that there isn’t too much power being concentrated by the United States Senate.

The next objection was that the Senate would be ineffective in this role because “they would be too indulgent judges of the conduct of men, in whose official creation they had participated.” Here Hamilton explains that the criticism leveled against the Senate goes against the example in most of the state governments and almost all national governments that Hamilton has ever seen. All of them presume some role on the part of the parties that appointed individuals in policing those individuals’ misdeeds. Hamilton says that one byproduct of this dual function is that Senators may be more scrupulous about who they vote to confirm since they will ultimately be called to task in the removal of those individuals if they act corruptly. Additionally since they only vote to confirm and in fact the Constitution contemplates no role in the actual selection of the individuals ultimately nominated there is little reason to think that Senators would take casually their responsibilities to confirm or convict in an impeachment trial public officials.

The final complaint was that the Senate can’t objectively carryout this responsibility because “union with the Executive in the power of making treaties” may be the occasion for actual collaboration in misdeeds and corruption. Here Hamilton is responding to charges similar to those in objection number three. Instead of alleging lenience by the Senate, this objection is that perhaps the Senators would somehow be complicit in the misdeeds of the individual being impeached and therefore would fail to carryout their duties with regard to the impeached individual.

Hamilton argues that this complaint really is a complaint against the integrity of the President and the Senate generally. Whether they had impeachment power or not, their propensity for misdeeds would be distinct and separate from the issue of abusing the impeachment court process. There is no reason to think that their unique role as Senators would make them more likely to support corruption than would being a Member of the House of Representatives Hamilton explains. Nevertheless, Hamilton recognizes that even if individual members of the Senate were corrupt, the fact that they must all act in concert minimizes the likelihood that some corruption on the part of an executive branch official would be collaborated and harbored by two-thirds of Senators.

Finally, Hamilton closes with this prescient observation. Perhaps the greatest assurance that the Senators will carryout their responsibilities in impeachment impartially is that it would serve to “divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.” In other words, rather than suffer in the public’s eye, Senators will readily impeach corrupt officials.

Wednesday, July 28th, 2010

Horace Cooper is a writer and is the director of the Center for Law and Regulation at the Institute for Liberty

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 67 – The Executive Department, From the New York Packet (Hamilton)

Federalist Paper 67, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 03, Article II Section 2, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 67, Troy Kickler PhD

Guest Essayist: Troy Kickler, Founding Director of the North Carolina History Project.

Among the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67. A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task. He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.

He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2. In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.

Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”

After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies. Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate. This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators. He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate. (This was changed, however, with the passage of the 17^th Amendment–popular election of Senators).

Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2. Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections. In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine. Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.

But back to Hamilton’s points. Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991). This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations. As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92): “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.” Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.

It must be remembered that the President nominated, but Congress approved the nomination. Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision. Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution. Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.” History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.

Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty. The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power. We can be thankful for that.

Thursday, July 29th, 2010

Troy Kickler is Founding Director of the North Carolina History Project.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

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

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

Friday, July 30th, 2010

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

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 69

Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Federalist No. 69, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77, Joerg W. Knipprath

The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would find New York’s system more important than others’.

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.

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

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 70 – The Executive Department Further Considered, From the New York Packet (Hamilton)

Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 51, Federalist No. 70, Federalist No. 77, Joerg W. Knipprath

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

Federalist 70 is the heart of Hamilton’s investigation of the nature of executive power. Publius returns to “energy,” a theme that he has addressed frequently in his essays as a necessary attribute of government generally, and the Union in particular. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law and expeditiousness in response to necessity. Too much energy, however, can threaten republican government and personal liberty. The secret is to find the constitutional version of Aristotle’s golden mean.

The Antifederalists had a lavish panorama of historical examples to illustrate the dangers of energetic executives. They proposed a multiple executive, instead, examples of which were spread throughout history, while others were close at hand in the states. Multiple executives are of several types. One, such as the consuls and tribunes of Rome or the kings of Sparta, are of equal dignity and can veto each other’s acts. Another, more favored by the states and based on the republican variant of the old British model, involves a governor-and-council structure.

There are others, not mentioned in Federalist 70. One is the modern British cabinet model, where ministers hold their portfolio independent of the “prime” minister through election by the party. Formally, they are the monarch’s ministers, but today this is a quaint fiction, as the monarch reigns as head of state, but does not rule. An American version of this can be found in the governments of many states, where various executive officials are elected independent of the governor. Those officials, like the California Attorney General, Secretary of State, and others, derive their powers directly from the state constitution and election by the people, not from appointment by the chief executive.

As anyone who has worked on a committee or sat in a meeting knows, the more people there are, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton urges that multiplicity is welcome in the legislative department, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly-written legislation with unintended or—if the law is so long and complex that it has not even been read—unknown consequences, as well as in laws that may be against the people’s wishes.

In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive also courts the evils of faction, undermining stability. At the same time, a successful cabal among multiple executives can magnify their danger to liberty.

It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and without endangering the respect for law that haphazard and desultory administration brings. There are other benefits from a unitary executive, ones that, at the same time, provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.” The best protection against abuse by an overly-energetic executive is, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions, such as “deficit commissions,” whose “recommendations” are treated as binding.

Another limit on the executive comes through formal restraints. Some are institutional, such as fixed terms and removal through impeachment. Others are more in line with the “auxiliary precautions” Publius defends in Federalist 51 in connection with separation and balancing of powers. Examples are the qualified nature of the veto and the Senate’s role in approving treaties, in both of which the President is engaged in making law. With the exception of the appointment power, however, there are no formal limits on his explicit executive functions.

The objectives of executive government that Hamilton cites are instructive: Protecting against foreign attacks, securing liberty against domestic subversion, protecting property against riots and insurrection, and administering the law in an impartial and constant manner. In this classic political minimalism, one notes the absence of the trappings of the modern administrative Leviathan that has taken over functions best left to other institutions.

Despite the assertions in Federalist 70, the nature of the executive branch was ambiguous when the government convened. Hamilton, a fan of the British political system, contributed to that uncertainty. As Treasury Secretary, he envisioned the cabinet as an approximation of the British system, with the President as chief of state and as someone who presided over the administration of policies determined by rather willful cabinet officials exercising independent authority. Due to his close connection as Treasury Secretary to Congressional policy-making (and his long personal relationship with George Washington), Hamilton envisioned himself as the prime minister in this arrangement. There was some constitutional plausibility to this conception of a moderate multiple executive, as the Constitution provides that Congress can create a limited appointment power in “heads of departments” and sets up the Senate in some ways like the governor-and-council system. The Senate not only votes to approve appointments and treaties, it technically has an “advice and consent” role that could be read as requiring formal Senate participation before the president nominates an officer or makes a treaty.

Several developments arrested any significant movement in that direction. Textually, the Constitution vests the executive power entirely in the President, subject only to specified limitations, a point Hamilton himself urged further in his 1793 Pacificus essays during the debates over the Neutrality Proclamation. Politically, Hamilton left the Cabinet in 1795, reducing his influence, a trend that was accelerated when his patron, President Washington, left two years later. Even while Hamilton was in the Cabinet, Washington was not the type of person content to play a passive role. He favored a vigorous presidency, and it was clear that, while he listened carefully to his officials, he made the decisions. The Senate-as-council role was buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Washington’s presidency was intended to help define the ambiguous contours of the president’s powers, and he set the office firmly on the course of the unitary executive.

As a functional constitutional matter, the issue was settled over the course of the debate over the president’s power to fire executive officials at will. A presidential removal power is not specified in the Constitution, so it has to be implied from other powers. Though Hamilton wanted a strong executive, he appears to have favored the view that the president’s power to remove officials can only come from his power to appoint. As the latter requires Senatorial consent, so must the former, a position Hamilton endorses in Federalist 77. The reason for his support of what at first blush appears to be a dilution of executive unity is that he liked the British style of government. Presidents could come and go, but, if a new president could not unilaterally remove members of the Cabinet, those members gained political independence. Effectively, that made them the policy-makers and administrators as long as they maintained the confidence of the Senate. With that qualification, Hamilton favored a strong, independent executive branch.

The removal power occupied the first Congress’s attention. The matter was resolved by artful language in a statute that implied that the President had the inherent executive power to remove the secretary of state. While this was a victory for the unitary executive argument, there remained ambiguities. President Andrew Jackson won a clear political victory in favor of the unitary executive doctrine by removing the secretary of the treasury when the latter disobeyed a presidential order, even though Congress had given the secretary the discretion to act as he did. Analogous to Hamilton’s implied executive powers theory of the Pacificus letters, Jackson argued that the appointment and removal powers were both executive powers that, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.

As the removal controversy demonstrates, the unitary executive broadly implicates separation of powers that finds concrete expression in provisions of the Constitution. If those provisions are elastic, such as the executive power clause, the “take care” clause, or the commander-in-chief clause, the line between execution of policy and legislation of policy can become blurred. The need to find limits is matched by the difficulty of doing so. Much depends in specific cases on formal precedent (legislative, executive, and judicial) and customary constitutional practice shaped by broad popular acceptance. For example, the unitary executive theory underlies doctrines of executive immunity and executive privilege. Those concepts are not expressly addressed in the Constitution but are obviously connected to an energetic executive branch and the unitary executive that animates it. Though the Supreme Court did not address executive privilege until 1974, it arose early in the Washington administration, when the President set a precedent followed by almost all his successors. In implied powers cases, the need for action often determines the outcome, and foreign relations, military affairs, national security, and emergencies define their own scope of action.

Despite Jackson’s victory and a long history in support of the unitary executive, controversy still flares occasionally. A recent challenge to the unitary executive theory has involved presidential “signing statements.” These have long been used as expressions of reservation about the constitutionality of a proposed law. Critics argue that the president can veto the bill, if he believes it to be unconstitutional. If the Congress overrides the veto, is the president then bound to enforce the bill? He is obligated to take care that the laws be faithfully executed, but there is also the long tradition of executive discretion in the enforcement of laws. Moreover, if the law invades a presidential power or is otherwise unconstitutional, the president can refuse to enforce this statute.

Laws, however, are often many-layered creations. Why should the president have to veto the whole effort just to avoid enforcing one objectionable part? A signing statement can help. In fact, the signing statement puts everyone on notice about the president’s intentions. They are constitutional because the president as head of the executive branch is independently responsible under the Constitution for the actions of the whole branch in the enforcement of laws.

The unitary nature of the executive also has been challenged by some who cite to the existence of a vast array of “independent” administrative agencies as contrary evidence. Since the 1930s, the Supreme Court has upheld Congress’s power to limit the President’s removal power in regards to officers of independent agencies. Using the unitary executive theory, presidents since Franklin Roosevelt have formally rejected the assertion these agencies are beyond the President’s removal power. Such agencies are performing executive functions and are not otherwise recognized under the Constitution as a fourth branch of government. One may wonder, though, whether any dilution of the unitary executive paradigm is really the problem. The sheer growth of government (of which administrative agencies are the most significant part) is probably more responsible for the dearth of transparency and accountability citizens endure.

Critics of the administrative state see this exception from the application of the general rules for separation and balance of powers as more evidence that these agencies are unconstitutional. The still-growing reach of the regulatory state assures that the issue will not go away. As the matter involves fundamental and shifting boundaries between the legislative and executive domains, it is thoroughly political and admits of no definitive settlement. But the broad theory of the Constitution has been settled in favor of the unitary executive that Hamilton defends in Federalist 70 and his later writings.

Tuesday, August 3rd, 2010

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

March 6, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 71 – The Duration in Office of the Executive, From the New York Packet (Hamilton)

Federalist Paper 71, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 01, Federalist No. 71, Kyle Scott PhD

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.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 72 – The Same Subject Continued, and Re-Eligibility of the Executive Considered, From the New York Packet (Hamilton)

Federalist Paper 72, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kelly Shackelford 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 71, Federalist No. 72, Kelly Shackelford

Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist No. 71 and 72 deal with the Office of the Executive, specifically how long the President remains in office and his re-eligibility to continue to serve in the same capacity. While Federalist 71 takes an in-depth look at the four-year duration of the Presidential term, Federalist 72 addresses the question of a sitting President’s re-eligibility, or ability to be re-elected to subsequent terms.

In Federalist 72, Publius, in this case Alexander Hamilton, cites the two factors that the Framers of the Constitution believed should determine whether a President is eligible for re-election, and defends the Framers’ rejection of either temporary or perpetual term limits for a President.

According to Hamilton, the only two factors that should be weighed in considering the ability of a President to be re-elected are the quality of his performance as President and the approval of the voters. The four years of a President’s term should give the voters enough time to judge the abilities of a President, and the prospect of being re-elected should give the President the motivation to do a good job. In other words, Hamilton argued that the voters themselves should be the only judges of a President’s eligibility by refusing to re-elect him when his performance is no longer satisfactory.

In arguing that the voters should be the only limits on the extension of a man’s Presidency, Hamilton cites five disadvantages of excluding a sitting President from re-eligibility. The first disadvantage is that a President who is excluded from seeking office again is hampered not only in his ability to work but also in his desire to act in such a way that the voters would re-elect him given the opportunity, described by Publius as “dimunition of the inducements to good behavior.” The “lame-duck” President’s motivations to act uprightly and for the benefit of the people are severely diminished.

The second disadvantage of imposing term limits in the Executive that Hamilton pointed out in Federalist 72 is that a President with no chance of being re-elected may be tempted to usurp his office for personal gain, with an eye to the day when he will no longer serve as President. Worse, an ambitious man, forbidden to seek re-election, could resort to violence in an attempt to prolong his time in the Presidency.

Hamilton’s third and fourth disadvantages of term limits both relate to the experience that a person gains while serving as President. In short, good experience in serving as President is valuable and should not be lightly thrown aside. The good of the country demands that the people capitalize on the leadership of those who already have the experience gained from years of leading the nation. Additionally, during times of war or crisis, continuity of leadership in the Executive may be particularly important to the safety of the nation.

Finally, Hamilton’s fifth argument against term limits is that they create constitutionally-sanctioned instability. When a new President is elected, the change in administrations creates transitional instability as the new administration must gain the experience already possessed by the outgoing administration. Moreover, the new President, seeing his election as the people’s endorsement of his ideas over his predecessors, takes responsibility for nominating many of those in charge of day-to-day operations, naturally generating instability during the transition of leadership. Consequently, Hamilton argued that one key factor in the stability of our government is the length of time that the President serves; instead of being viewed as a threat to liberty, a voter-approved extension of a President’s service is a benefit because of the increased experience of the administration.

While arguing against term limits, Hamilton points out two possible advantages to having Presidential term limits: “greater independence in the magistrate” (executive office) and “greater security to the people.” The greater independence of the executive office turns out to be easily manipulated, as a President, excluded from re-eligibility, could choose to relinquish the office to a hand-picked successor, effectively remaining a powerful voice in the administration. Additionally, a President who anticipates leaving his office of President may be less interested in fighting over important issues and making political enemies than preserving friendships and allies.

As to the people’s security, while Hamilton recognizes that the influence of a overly-charismatic President can be lessened by term limits, Hamilton points out that forcing a truly good leader out of office may be regarded as a hindrance to security and a “danger to liberty.” Taken to an extreme, it could even cause the people to reject the Constitution in favor of the leader, removing all constitutional protections granted to the people.

Since George Washington, the first President under the Constitution, stepped down after two terms in office, Americans have commonly accepted two terms as a sufficient amount of time in office for any President. Only a few Presidents have sought a third term, and only one has been successful: Franklin D. Roosevelt, our thirty-second President. Serving throughout the Great Depression and most of World War II, President Roosevelt was elected four times to the office of the President, but passed away in 1945, months after beginning his fourth term. His Presidency was unique in that the people sought the continuity of his leadership through two disasters, and supported him as President for what would have totaled sixteen years.

Following President Roosevelt’s four terms in office, the American people decided that the advantages of term limits in limiting the power of any one President outweighs the five disadvantages that Alexander Hamilton laid out in Federalist 72. In 1947, Congress passed the Twenty-second Amendment to the U.S. Constitution, limiting a President to two terms in office. The Amendment was ratified in 1951, and only two states, Oklahoma and Massachusetts, opposed the Amendment.

Today, very little debate exists over the Twenty-second Amendment and executive term limits, though various members of Congress occasionally propose legislation to repeal the Amendment. Even now, two hundred years after President Washington stepped down after his second term, Americans generally accept the two-term limit as an adequate amount of time for a President to serve.

Thursday, August 5th, 2010

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress. Jennifer Grisham is director of media at Liberty Institute. The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case. For more, visit www.Libertyinstitute.org

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 73 – The Provision for the Support of the Executive, and the Veto Power, From the New York Packet (Hamilton)

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

Federalist # 73 continues with a discussion of the President, dealing particularly with the independence of the executive branch of government and the relevance of the veto power. As readers will know, Hamilton, more than any other Founding Father, believes in the importance of centralized authority within the federal system, even to the extent of flirting with monarchy. Although he is writing as PUBLIUS, and reflects to a certain degree, the views of his colleagues, John Jay and James Madison, let me forewarn readers of concerns that most particularly should exercise our minds when reviewing the powers of any centralized presidential authority.

“In constraining any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no better end in all his actions, than private interest” (David Hume, 1752). “It is better to keep the wolf out the fold, than to trust to drawing his teeth and claws after he shall have entered” (Thomas Jefferson 1782). “The very principle of constitutional government requires it to be assumed that political power will be abused to promote the particular purposes of the holder; not because it always is so, but because such is the natural tendency of things, to guard against which is the especial use of free institutions” (John Stuart Mill 1861). So we have been warned!

Now let us review Hamilton’s reasoning in Federalist # 73 in the light of subsequent experience. As to the issue of support, I have no problem. Hamilton correctly defends Article II, Section 1, clause 7 of the proposed constitution confirming that the President’s compensation for his services shall neither be increased nor diminished during the period for which he has been elected, and shall constitute his sole emolument from the United States or any individual state. This protection and constraint is essential to avoid excessive pressure being placed on the President by Congress to pursue goals that others are determined to achieve. What could not be foreseen, in the late eighteenth-century, is the degree to which the promise of high post-presidential monetary returns may influence the behavior in office of any sitting president. Presidential libraries, for example, play a significant role in determining the evaluated legacy of any president. Such libraries are exorbitantly expensive to establish and to maintain. And no United States president, in recent times, has died in relative poverty – this in sharp contrast to many prime ministers in parliamentary systems of government.

Hamilton’s discussion of Article 1, Section 7 of the proposed constitution is much more interesting. For here Hamilton balances the strengths and weaknesses of the proposed qualified negative (or veto) power of the President with respect to acts or resolutions of the two houses of the legislature. In defending this power, Hamilton walks a tight-rope between his belief in strong central authority and his recognition that all political power must be checked and balanced if a republic is long to survive.

In rejecting outright any notion that the president should serve devoid of veto power, Hamilton displays – not without considerable justice in the light of subsequent events – his grave misgivings about the potential for bad behavior of any legislative branch of government. Instinctively, he recognizes that a largely self-serving legislature would succumb to the temptation to impose its will upon a defenseless president in the absence of presidential armor. The question, for Hamilton, is only whether that armor should be absolute or qualified.

At this point, in my judgment, Hamilton blinks when confronting the likely true nature of a president’s political role. Surely he acknowledges some force in the argument that it is ‘not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this perception should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.’ However, he dismisses this concern on the ground that the more significant danger emanates from the predatory ambitions of the legislature. At the time, the Founders had in mind the name of George Washington, as their most preferred first president. And few would deny that George Washington was a man of wisdom, impeccable personal integrity, and high honor. But would one feel as comfortable in making those suppositions about a Ulysses S. Grant, an Andrew Jackson, a Franklin Roosevelt, or a Richard Nixon? I do not think so.

In any event, thankfully, Hamilton comes down in favor of a qualified-over an absolute-veto, albeit by faulty analysis, and almost certainly because he is writing as PUBLIUS and not as Hamilton. Hamilton’s concern is not at all over the prospect that an absolute-veto power would be sorely abused – which surely would have proved to be the case – but rather that such a power might be under-utilized by presidents whose scruples might hold them back from exercising powers of such a magnitude. History advises us that homo politicus pervades the executive branch of government just as much as he pervades the legislative branch. Presidents would have deployed absolute-veto power quite unscrupulously, as if to the manner born.

The central issue in Federalist # 73 thus centers on the degree to which the veto power is to be qualified. Hamilton defends the requirement of a two-third majority in each house of the legislature to override a presidential veto and to pass a vetoed-bill into law. This super-majority, of course, is arbitrary, but, in principle can be justified.

In viewing the legislative process from an economic perspective, it is useful to reflect upon two expected costs of any kind of collective choice. On the one side, are aggregated expected external costs that collective actions may impose on individual electors. Expected external costs decline as the requisite vote super-majority increases. On the other side, are the expected costs of reaching legislative decisions. These costs increase as the requisite vote-majority increases. A rational vote-mechanism will try to minimize the joint expected external and decision-making costs. Evidently, as the salience of an issue rises, so the super-majority vote-requirement should increase. If, in general, presidents contemplate the veto more with respect to major than to minor bills, then the qualified majority rule is economically justified, because expected external costs are higher in such a situation.

The debate over Hamilton’s defense of the qualified-negative naturally focused on analogies with the British monarchy, with many commentators noting that the unjustifiable rights and privileges of the British monarch should vehemently be denied to any United States president. For the most part, Hamilton claimed that the veto power was defensive in nature, allowing the president to defend the People against excessive legislative zeal, not to allow the president to impose his own will on the People. Such arguments prevailed in the ratification process.

With hindsight, however, Hamilton was wrong in this assessment. The qualified-veto power has provided presidents with considerable opportunities to exercise a third-chamber role in the legislature. The knowledge, ex ante, that a president will veto an unacceptable bill, forces the legislature to logroll with the president when formulating major bills, in order to anticipate and to frustrate the application of a veto. Increasingly, unscrupulous presidents have taken advantage of this recognition to shift from defense into aggression in the legislative process not always, by any means, to the advantage of the People.

As the regulatory authority of the executive branch increased – most notably since the Civil War – so the legislative powers of the presidency have advanced, to the extent that, arguably, they now exceed those enjoyed by any British monarch even at the peak of the Divine Right principle. Health care reform, fiscal stimulus, cap and trade, card-check, and immigration policies have been driven and fashioned, since January 2009, much less by the Democrat-controlled Congress, than by the administration of President Obama. These policy initiatives, in many respects, may turn out to be inimical to the underlying interests of the People.

Predictably, public officials imbued with power constantly ask for more. That is the true nature of homo politicus. Instinctively, therefore, the People – who by nature cherish their lives, liberties and properties – should recoil instinctively from any attempt to extend such power. The line-item veto is just such an example.

The line-item veto, or partial veto, is the power of an executive authority to nullify or cancel specific provisions of a bill – usually a budget appropriations bill – without vetoing the entire legislative package. Such line-item vetoes are usually qualified by legislative override provisions. In 1986, President Ronald Reagan, in his State of the Union Address, asked the Congress for such an authority: “Give me the authority to veto waste, and I’ll take the responsibility, I’ll make the cuts, I’ll take the heat.” The Congress refused this overture, not least because the Democrat-majority in the House of Representatives sensibly anticipated that much more than waste would be vetoed by this president on the social side of the budget.

In 1995, President Bill Clinton repeated this request in his State of the Union address. An unwise Congress granted his request in the Line Item Veto Act of 1996. President Clinton deployed this power 82 times in 11 budget bills, until the United States Supreme Court correctly determined, in 1998, that unilateral amendment or repeal of only parts of a statute violate the Presentment Clause of the Constitution. Ambitious presidents ceaselessly search for such additional authority. President George W. Bush once again requested a line-item veto power in 2006, this time setting out a complex process designed to avoid the Supreme Court ruling. Fortunately, the loss of any Republican-majority in Congress intervened to deny him this dangerous privilege.

The executive branch currently enjoys excessive power in the United States political process, threatening the replacement of the separation of powers by the imposition of an Imperial Presidency. The People will be wise indeed to constrain, rather than to extend, the powers of the executive branch – not least by revisiting the expansive interpretations of the General Welfare and the Commerce clauses by the Supreme Court – if our precious constitutional republic is long to survive repeated attempts to subvert its original design.

Friday, August 6th, 2010

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute (#). He blog s- at #.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 74 – The Command of the Military and Naval Forces, and the Pardoning Power of the Executive, from the New York Packet (Hamilton)

Allison Hayward, Federalist Paper 74, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 74

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification. Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32). At this point, only six states had ratified the document.

So we can forgive Hamilton for sounding just a tad defensive in this essay.

As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view. He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch. Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable. There’s a tension between these two tasks that is evident from Hamilton’s first sentence:

“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

But is the power as commander-in-chief really “so evident in itself?” The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive. Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.

In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.” To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass. What powers should the President have in these limited engagements — today? Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act? When the President and Congress disagree, who decides which side wins? Do we really want the Supreme Court involved?

Hamilton also raises and defends the Presidential power of the pardon. Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so. In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong. I was reminded of this when looking over the ratification timeline in preparing this blog. I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.

To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish. But at the founding, tensions between states were no laughing matter. The legacy of violence and mistrust was real. In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”

The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them. President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.

Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich. Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers. Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.

But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.

Monday, August 9th, 2010

Allison Hayward is the Vice President of Policy at the Center for Competitive Politics

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 75 – The Treaty Making Power of the Executive, For the Independent Journal (Hamilton)

Federalist Paper 75, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Nathaniel Stewart 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2, Federalist No. 75, Nathaniel Stewart

Guest Essayist: Nathaniel Stewart, attorney and fellow at the Ashbrook Center for Public Affairs

In Federalist #75, Alexander Hamilton explains and defends the power of the President to make treaties with foreign nations “by and with the Advice and Consent of the Senate.” The treaty-making power granted in Article II section 2 involves, as Hamilton observes, another example of an “intermixture of powers,” a power shared by the President and the smaller house of Congress.

Hamilton acknowledges four arguments levied against this particular arrangement and addresses them each in turn. First, there are those who would vest the power in the President alone. Second, there are some who called for the power to reside only in the Senate. Still others called for the House of Representatives to hold a share of the treaty power. And finally, having answered these objections, Hamilton explains why treaties may be approved by only “two-thirds of the Senators present,” rather than two-thirds of the whole body.

Hamilton begins with the initial explanation that the power to make treaties does not readily fit within either the legislative or administrative functions of government. Here, Hamilton reminds his audience of the precise functions of these two branches of government, and distills them neatly: “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”

But the power to negotiate a treaty, Hamilton argues, does not involve enacting a new law or enforcing an old one. Treaties are not laws, they are contracts. They enjoy “the force of law” derived from “the obligation of good faith,” but they are not laws as between a sovereign and its subject, or rules which must be obeyed. Rather, a treaty is a contract between two sovereigns, and thus, the treaty-making power is a distinct and peculiar function, neither purely legislative nor wholly administrative. This provides the foundation for Hamilton’s contention that the treaty power be shared between the branches, rather than vested in only one.

Turning then to the contention that the President alone should wield this power, Hamilton repeats the common refrain that history proves power to be all too tempting for men to resist. The hereditary monarch, he notes, has too much at stake – given the length of his lifelong reign – to risk being corrupted by a foreign nation. But such is not the case with a man elected for a mere four years; a man who may have risen to the rank of President from a more modest station, and for whom a foreign allegiance might then prove quite valuable when his term of office has expired. To entrust this great authority in such an elected official would be “utterly unsafe and improper,” lest he be “tempted to betray the interests of the state to the acquisition of wealth.”

But this does not mean that the power should rest with only the Senate, for this would deprive the President of too much authority in foreign relations and negotiations. The President is to enjoy “the confidence and respect” of other nations, and the Senate, as a legislative body, is unlikely to command such foreign confidence. Thus, the country would lose the benefit of the President’s unique position among the nations were he to be excluded from the treaty process. For Hamilton it is then clear that the “greater prospect of security” for the country lies in the joint sharing of the treaty-making power.

Despite the prudence of this “intermixture” between the Senate and the President, Hamilton resists the call to include the House of Representatives in the treaty power. Treaties, he argues, require a set of qualities which cannot be expected from such a large and “fluctuating” body of representatives. Treaties require “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy, and dispatch.” The design of the House of Representatives is not conducive to these qualities and would only muddy the waters at potentially critical and inopportune moments of decision. While we might wonder today whether even the Senate possesses the requisite “uniform sensibility” that Hamilton envisioned, one would be hard pressed to quibble with his foresight in resisting the call to extend the treaty-power to the ever-ephemeral House of Representatives.

Finally, the author takes up the challenge that treaties ought to be ratified by two-thirds of the whole Senate, rather than merely “two-thirds of those present.” Anytime a super-majority, like two-thirds, is required for an approval, the matter is increasingly beholden to the will of a select minority, rather than that of the majority. Hamilton rightly recognized that the treaty-making power would be no exception. Requiring two-thirds majority of the entire body to affirm a treaty risked the possibility that a minority of Senators could defeat the measure simply by not appearing to vote on it. On the other hand, such gamesmanship would be discouraged and unrewarded by allowing the treaty to pass with the support of only a super-majority of those present.

The treaty-making power is a shared power. Not a legislative function, nor an executive’s role, a treaty represents a bond between two sovereign powers, likely the culmination of a negotiation, a settling of terms. It is for this reason that Presidents must enjoy enough power to broker the terms of the agreement, while a discrete and noble body of another branch ensures that such power is only invoked in the best interests of the nation and its security.

Tuesday, August 10th, 2010

Nathaniel Stewart is an attorney in Washington, DC, and a fellow at the Ashbrook Center for Public Affairs

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 76 – The Appointing Power of the Executive, From the New York Packet (Hamilton)

Federalist Paper 76, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Gary McCaleb 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 76, Gary McCaleb

Guest Essayist: Gary McCaleb, Senior Counsel with the Alliance Defense Fund

As a constitutional attorney asked to chat a bit about Federalist No. 76, I certainly did not expect to use knowledge gained as a U.S. Navy sailor in the 1970s from a book published in 1890 about history from the 1660s to help me explain a constitutional commentary drafted in 1788—but I will.

Federalist No. 76 recognizes that every government needs a stable of civil servants, who in turn must be secured for service with reasonable dispatch and with some assurance of quality. The paper plays off a consistent theme of our founding era—to balance each grant of authority (and concomitant power) with some restraint on the authority.

In a nutshell, Hamilton takes the familiar balancing of powers among the executive, judicial, and legislative branches down a notch as he considers how to expeditiously staff the government with high quality persons, while restraining the appointment power lest it be used by the President to untoward ends.

Hamilton broadly considers the benefits and risks of vesting the appointment power in a single person; or in a larger group of representatives, or in some mix of the two. The idea of a purely democratic appointment system he rejected out of hand—the distances and slow communications of the time precluded that option. And while there is great efficiency in granting one person the power to appoint, that vests too great a power to shape the government in the image of one man.

The Constitution, Hamilton notes, splits the difference—the President has complete discretion to nominate, subject only to the “advice and consent” of the Senate. This secures the efficiency of centralizing these key selections, while providing a modicum of restraint via the Senate’s review.

As Hamilton predicted—and subsequent practice confirms—the Senate seldom shoots down a Presidential nominee, for many reasons: Most nominations are simply uncontroversial, so review is superfluous. And often, nominees intended to advance an agenda don’t always do so once in office; uncertainty about future performance complicates the review. Worse, for the controversial nominations, the Senate cannot be sure that refusing consent won’t lead to an even less palatable nominee the next time around.

Thus, Hamilton must answer the question: “To what purpose then require the co-operation of the Senate?” His answer: “[T]hat the necessity of their concurrence would have a powerful, though, in general, a silent operation.” In short, Hamilton sees the potential for Senatorial brouhaha, or even denial of consent, as a political risk that by its very presence tempers the discretion of the Chief Executive.

What Hamilton propounds in political terms sounds like a peaceful application of classic concept of naval warfare—an idea called the “fleet in being.”

That concept was popularized in a seminal work on global military strategy, Alfred Thayer Mahan’s The Influence of Sea Power upon History, 1660-1783, published in 1890. In assessing how sea power impacted the matters of man, Mahan found that political and military decisions could be profoundly impacted by the mere presence of a small but competent naval force.

The classic example arose in World War I, when the small German High Sea Fleet did little but sit in port—yet the constant threat that it may sally forth and salvo forced the British to commit significant combat resources to contain the German fleet in its harbor. As warfare modernized and combined arms became the norm, the “fleet in being” was renamed “force in being,” and the principle applied more widely.

Thus, the mere fact that the Senate must review the nominations serves as some check to the President’s fearsomely strong nomination power—even if the votes against the President “never leave port,” so to speak.

Senate review means that with each nomination that proves dubious, contentious, or both, the President must spend his political capital. When the highest profile nominations come, he must weigh the risk of pushing his agenda with the risk of having his ambitions die in the fire of a dissenting Senate, or expending the last of his capital in the fight. Given the politicization and profile of the most important nominations (so much so that a new verb—“borking”—came into the American lexicon), the wise President will pull back from fringe politics.

The balance is imperfect, but that was likely intentional—to grant greater review power would have frustrated every administration’s efforts to staff the government. While this undoubtedly permits a degree of undue partisanship in the process, the ultimate impact is mitigated by the higher level separation of powers. In sum, the system performed very much as predicted, which affirms the wisdom of our Founders in drafting the Constitution.

Wednesday, August 11th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 77 – The Appointing Power Continued and Other Powers of the Executive Considered, From the New York Packet (Hamilton)

Federalist Paper 77, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Steven H. Aden 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 77, Federalist No. 78, Steven H. Aden

Guest Essayist: Steven H. Aden, Senior Legal Counsel with the Alliance Defense Fund

Federalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office. Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?” Not to worry, Hamilton soothed: “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention. The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.

The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:

The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.

The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so. Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.

Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary. As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.” As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77. One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations. The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views. Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.

As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch. That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.

Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973. Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee. When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him. After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration. Richardson refused to fire Cox, though, and resigned in protest. Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned. Nixon turned to next-in-line Robert Bork, then Solicitor General. Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him. In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.

On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions. Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.” A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee. Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law). Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority. Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise. One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.

Thursday, August 12th, 2010

Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 78 – The Judiciary Department, From McLEAN’S Edition, New York (Hamilton)

Brian Faughnan, Federalist Paper 78, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Brian Faughnan, Federalist No. 78

Guest Essayist: Brian Faughnan, Managing Editor of LibertyCentral.org

In Federalist No. 78, Alexander Hamilton explores the proper role of the American judiciary, as laid out in the proposed Constitution. At the time, it was widely recognized that a major defect in the Articles of Confederation was the lack of a federal judiciary. And as Hamilton points out, the only real dispute is about the “manner of constituting” this proposed judiciary and “to its extent.”

Hamilton then lays out a recipe for an independent judiciary to which we should all pay particular attention today. In light of recent Supreme Court nominations, as well as the different states’ battles over methods of judicial selection, it is critical to understand the key elements our Founders considered necessary for creating and maintaining a judiciary that respects its independent, yet limited, role.

Hamilton supports the lifetime appointment of federal judges, subject, of course, to “good behavior,” because he understands that a properly-functioning and independent judiciary “will always be the least dangerous to the political rights of the Constitution.” To Hamilton, lifetime appointment was a critical component of an independent federal judiciary:

Alexander Hamilton, in Federalist No. 78, argued that a judiciary appointed for life constituted the citadel of the public justice and public security because to subject the judiciary to periodic appointments or elections might lead judges to decide cases to curry popular favor, instead of objectively applying the law.

John L. Dodd et al., The Case for Judicial Appointments, The Federalist Society, Judicial Appointments White Paper Task Force (2003), available at http://www.fed-soc.org/publications/pubid.89/pub_detail.asp.

Placing even more faith in the restraint of an independent judiciary, Hamilton also writes that “the judiciary is beyond comparison the weakest of the three departments of power.” To support this, he points out that judges can’t control spending or decisions relating to war; these are better left to the Executive. He also highlights that judges can’t direct “the strength or…wealth of the society,” another example of why the judiciary couldn’t possibly be “dangerous.” One key part of Hamilton’s analysis is that, while courts have a duty to declare unconstitutional pieces of legislation void, their power is never to be interpreted as great than that of the legislature.

So, if judges are supposed to be so innocuous, what accounts for the long-standing debate about judicial activism?

The reason for this is fairly complex, but it can be boiled down to one particularly important observation. As Attorney General Ed Meese recognized, “the Constitution enabled the government to control the governed, but also obliged it to control itself.” Meese recognized that the judiciary’s departure from interpreting the original intent of the Constitution has fundamentally disabled that branch from controlling itself. In Meese’s words, “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.” In other words, original intent leads to controlled judges.

The American Left has almost uniformly adopted Justice Powell’s view that “the judiciary may be the most important instrument for social, economic and political change.” To them, the judiciary’s “independence” hinges on creating affirmative rights when it sees fit, rather than defending those negative liberties that our Constitution recognizes. No longer do we follow Hamilton’s model of a constrained, independent judiciary. Instead, we see a judiciary that bows to the goals of special interested groups and creates its own rules of the game. For liberals, the Constitution is no longer a rigid boundary around a judge’s decision-making; it is merely a tool that can be warped and bended to reach a desired social, economic, or political goal.

It was this departure from Hamilton’s recipe that left Americans with the legacy of a radical out-of-control judiciary. The branch that should be the weakest of the three now too often attempts to overpower the political branches whenever it wants to do so.

The good news is that Hamilton and his fellow Federalist Paper authors, James Madison and John Jay, left us with a guide for having a judiciary that is, truly, the “least dangerous branch.” The answer is self-constrained judges with respect for the parameters of the Constitution.

Friday, August 13th, 2010

Brian Faughnan is the Managing Editor of LibertyCentral.org

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 79 – The Judiciary Department Continued, From McLEAN’S Edition, New York (Hamilton)

Federalist Paper 79, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kevin Theriot 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 78, Federalist No. 79, Kevin Theriot

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

A crucial aspect of our republican form of government is an independent judicial branch that cannot be cowed by either of the two other branches. Lifetime tenure – addressed in Federalist #78 – prohibits the president from revoking a judicial appointment should he later come to regret it. And a set salary, which cannot be diminished, keeps the legislature from starving a judge off the bench. This is the topic of Federalist #79.

For the most part, this Paper is relatively straightforward and unremarkable. The subject matter is not particularly complicated. If judges are to be as unbiased as possible, they cannot be tempted to adjust their decisions to conform with the views of the current majority in Congress – lest they have their salary cut.

But at least one remarkable aspect of #79 is the evidence it provides of the foresight of the Founding Fathers. In explaining why the amount of judicial compensation is left to the discretion of Congress, Hamilton notes that the value of money changes over time, and “[w]hat might be extravagant to-day, might in half a century become penurious and inadequate.” Quite an obvious consideration, but it demonstrates that the authors of the Constitution knew the policies they were establishing had ramifications for years to come and acted accordingly.

This important principle was reiterated about 30 years later by Justice Marshall in M’Culloch v. State of Maryland, 17 U.S. 316 (1819), which determined that Congress has the right to charter a national bank, even though the power to do so is not specifically enumerated in the Constitution. Justice Marshall reasoned that, so long as it is not prohibited by the Constitution, Congress has the discretion to use such means as needed to further the powers they do have, such as collecting taxes and regulating commerce.

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Id. at 41 (emphasis added).

Perhaps this willingness to think in terms of decades, centuries, and ages, instead of just the next year or two, is why our form of government has survived relatively unchanged for over 200 years. The Founders’ foresight is in marked contrast to recent acts of our legislature that are more concerned about appeasing the current constituency rather than doing what’s best for the nation. Our leaders would do well to heed the Founders’ example and do what is right – long term, as well as short term – instead of what is expedient.

Monday, August 16th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 80 – The Powers of the Judiciary, From McLean’s Edition, New York (Hamilton)

Federalist Paper 80, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, Federalist No. 80, Horace Cooper

Guest Essayist: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist Paper 80 was printed in the Independent Journal in New York on June 21, 1788. Hamilton sets out to outline the jurisdiction of the Federal judiciary as outlined in the new Constitution. He explains that federal jurisdiction involves “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”

In his view in order to best evaluate the “the proper extent of the federal judicature” it is necessary to understand the appropriate role of federal judges. Hamilton outlines five instances which constitute “appropriate” areas of responsibility for federal judges: first, litigation that arise as a result of conflict over the laws passed by Congress or the United States Constitution, second litigation resulting from disputes with the President and his administration while carrying out Congressional statutes, third any disputes in which the United States government is a party, fourth disputes between states and/or foreign nationals, fifth litigation involving the high seas which are of maritime origin, and lastly any disputes which state judges might be thought to be partial or biased.

Hamilton rightly observes that a key ingredient in the operation of a federal system is a judicial system with the authority to oversee disputes arising from the federal power. He cites the obvious example of 13 different courts assessing the same set of facts and reaching different outcomes as a key reason that the states should not have this power. Hamilton calls such an outcome a “hydra in government, from which nothing but contradiction and confusion can proceed.”

One area that Hamilton mentions that should receive further explanation for federal jurisdiction are instances involving disputes between two states, between one state and citizens of another and between citizens of different states. Suggesting that there are disputes that lead to war and insurrection, Hamilton cites the Imperial Chamber the High Court in Germany created in the latter part of the 15^th century by the Holy Roman Empire for the “vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.” It is perhaps a curious choice as an example by Hamilton because the Imperial Chamber was notoriously slow in carrying out its deliberations. Lawsuits involving territories often took more than 100 years before rulings were issued. In fact, when the Court was finally dissolved in 1806 there were cases pending that were over 300 years in age. Compared to the Imperial Chamber, the American judicial system travels at the speed of light.

This seemingly simple exposition of the appropriate jurisdiction masks a sophisticated understanding that exists in the United States — we are a system of dual jurisdictions. Thus there are significant areas of litigation that — not only would Hamilton not have mentioned — is primarily left to state courts to address.

One of the earliest examples of the dispute between Federal and state authority arose in 1818 in a case called United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). The case involved a federal prosecution of a murder that took place on board a military combat ship the Independence that was anchored in the Boston harbor in Massachusetts. In this case, the defense successfully argued that this case should not be tried in Federal Court under admiralty law because the ship was docked in the state of Massachusetts. In its ruling for the defense the Supreme Court explained, “The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction… It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction.” The Supreme Court notably upheld the very distinctions that Hamilton outlined in Federalist #80.

Tuesday, August 17th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 81 – The Judiciary Continued, and the Distribution of the Judicial Authority, From McLean’s Edition, New York

Federalist Paper 81, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Jeffrey Reed 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Federalist No. 81, Jeffrey Reed

Guest Essayist: Jeffrey Reed is a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

It’s easy to think that the Federalist Papers, written 222 years ago, are dusty, outdated ramblings of men in wigs. The truth is, its issues still arise today. In his fourth of five essays on the judiciary, Hamilton addressed concerns that the proposed Supreme Court might become the supreme branch of government because it had the power to interpret laws passed by Congress in any way it thought proper. Opponents feared that the court’s decisions would not be subject to revision by Congress.

Hamilton pointed out that nothing in the Constitution empowered the federal courts to “construe the laws according to the Constitution.” He said that “the general theory of a limited Constitution” meant the courts must overturn a law if it violated the Constitution. Hamilton called it a “phantom” to expect that the Supreme Court would become the supreme power. True, the Court may get it wrong from time to time, but it could never rise to an alarming level of judicial activism. And, anyway, the legislative branch could overrule an objectionable court decision through subsequent legislative acts.

Unfortunately, history has proved Hamilton at least partially wrong. The Supreme Court has done quite a bit more than strike down unconstitutional laws or misinterpret others. Take segregated schools, as an example. In Brown v. Board of Education (1954), the Supreme Court held that separate but equal public schools violated the Fourteenth Amendment Equal Protection Clause. No one but a racist would argue that Brown’s public policy outcome was not the right one. Students should not be assigned to a school because of race. The question, however, is whether the Supreme Court’s decision was a proper exercise of its powers, or a case of judges making law.

Authors Woods and Gutzman in Who Killed the Constitution?, point out that Justices Frankfurter and Jackson conceded that they could not find anything in the original purpose of the Fourteenth Amendment that warranted the Court’s decision in Brown. Jackson said that the Court should just admit that it was “declaring new law for a new day.” At least according to these jurists, Brown was definitely not a case of simply declaring a law unconstitutional.

In Brown II (1955), the Court decided how to solve the problem of segregated schools declared unconstitutional in the first Brown case. The Court ruled that segregated state schools should be ended “with all deliberate speed.” But how?

North Carolina’s answer was to make school assignments based on residence, not race. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court held that racially identifiable schools could not exist. Students must be bussed according to race to achieve integration in the schools. In other words, if a school was clearly black, white children would be bussed to that school to balance the racial inequity, even if the school’s neighborhood was identifiably black.

Unfortunately, the Swann court ignored the plain language of the 1964 Civil Rights Act, where Congress defined “desegregation” as “the assignment of students to public schools…without regard to their race [and] shall not mean the assignment of students to public schools in order to overcome racial imbalance.” [Italics mine]

To be clear, integrated schools are desirable. But was it within the Supreme Court’s constitutional power to achieve that end through racially-based bussing? If Hamilton was right, and we need not fear the Court construing laws according to its own whim, then the Court acted unconstitutionally. Congress clearly acted to prevent bussing according to race when it passed the Civil Rights Act. Hamilton warned us that Congress could always overcome an objectionable court opinion by passing laws. But that’s exactly what Congress seemed to be doing. The Court ignored Congress’ definition of desegregation, preferring instead its own definition.

Isn’t this much ado about nothing? After all, the Court arguably accomplished the right result, only faster than Congress could do. It does matter. The issue goes to the heart of our republican form of government. The United States is not an oligarchy, where power is vested in a small group—in this case, the United States Supreme Court. Such forms of government are dangerous and have resulted in disastrous consequences. In fact, author George Orwell warned of such danger in his novel 1984. No, the United States is a republic, where officials are representatives of the people, who must govern according to the limits of the Constitution. That includes the United States Supreme Court.

Wednesday, August 18th, 2010

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 83 – The Judiciary Continued in Relation to Trial by Jury, From McLEAN’S Edition, New York (Hamilton)

Federalist Paper 83, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kelly Shackelford 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2, Constitutional Amendment VII, Constitutional Amendment VII, Federalist No. 83, Kelly Shackelford, The Articles of Confederation

Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases. At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83. In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.

From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases. There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”

However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases. One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’” Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon. This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.

Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments. The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury. Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court). While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government. This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers.

Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution. The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’” However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.

The proposition from the Massachusetts convention says, “’In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.’” According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial. Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.

Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval. Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt. If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”

Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental. In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law. Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly. And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time. While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”

All citizens now have the right to a jury trial, though they can waive the jury. Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute. The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.

Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides. Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings. The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption. The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.

Friday, August 20th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 84 – Certain General and Miscellaneous Objections to the Constitution Considered and Answered, From McLean’s Edition, New York (Hamilton)

Federalist Paper 84, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Matthew Spalding, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 84, Matthew Spalding PhD

Guest Essayist: Dr. Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

Today, many speak of the Bill of Rights as if it is the whole Constitution, but that is not correct. The first ten amendments to the Constitution have taken on a very different meaning than what was envisioned. In fact, the Constitutional Convention considered and unanimously rejected a motion to draw up such a bill of rights for the constitution its delegates were framing.

In Federalist 84, Alexander Hamilton answers the objection that the proposed Constitution did not include a Bill of Rights. But in this penultimate essay, we learn a key principle of the Constitution and realize why the framers’ intentions and the original meaning of the Bill of Rights is perfectly consistent with the Constitution as a document that limits government in order to secure the rights proclaimed in the Declaration of Independence.

Hamilton begins by pointing out that the Constitution itself contained several related provisions protecting rights, such as the clauses against ex post facto laws, religious tests, and the impairment of contracts. In creating a limited government by which rights were to be secured and the people free to govern themselves, the Constitution, as Hamilton insisted, is itself a bill of rights.

The more important reason for not including a bill of rights at the national level of government had to do with the difference between the state and federal constitutions. Since states had broader reserved powers, bills of rights in state constitutions made sense: They were necessary to guard individual rights against very powerful state governments. But the federal government only possessed those limited powers that were delegated to it in the Constitution. As such, the federal government did not possess the power to address basic individual rights, so there was no need for a federal bill of rights—indeed, one might be dangerous. Such a bill of rights, Hamilton argued, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Put another way, why state in a bill of rights that Congress shall make no law abridging free speech if Congress in the Constitution has no power to do so in the first place? And does a bill of rights that forbids the federal government from acting in certain areas imply that the government has the power to act in other areas? If that were the case, as Madison earlier warned, then the government was “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Nevertheless, the lack of a bill of rights similar to those found in most state constitutions became an important rallying cry for the Anti- Federalists during the ratification debate, compelling the advocates of the Constitution to agree to add one in the first session of Congress. So Madison, who along with Hamilton had opposed a bill of rights, drafted the language himself to make sure these early amendments did not impair the Constitution’s original design.

The twofold theory of the Constitution can be seen especially in the Ninth and Tenth Amendments: The purpose of the Constitution is to protect rights that stem not from the government but from the people themselves, and the powers of the national government are limited to those delegated to it by the people in the Constitution. They also address the confusion that might arise in misreading the other amendments to imply unlimited federal powers (Hamilton and Madison’s chief concern). While the Ninth Amendment notes that the listing of rights in the Constitution does not deny or disparage others retained by the people, the Tenth Amendment states explicitly that all government powers except for those specific powers that are granted by the Constitution to the federal government belong to the states or the people.

The original purpose of the Bill of Rights—stated by both the Federalists and the Anti-Federalists—was to limit the federal government. Today, the Bill of Rights mainly serves to secure rights against the state governments—the exact reverse of the role these amendments were intended to play in our constitutional system.

The Bill of Rights is indeed a distinctive and impressive mark of our liberty. Unlike the citizens of many other countries, Americans are protected from their government in the exercise of fundamental equal rights. But there should be no mistake that it is first and foremost the constitutional structure of limited government—the great theme of The Federalist and the point of Federalist 84—that secures our unalienable rights and the blessings of liberty.

Matthew Spalding is the Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 85 – Some Final Thoughts, From McLean’s Edition, New York (Hamilton)

Charles K. Rowley, Ph.D., Federalist Paper 85, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Charles K. Rowley PhD, Declaration of Independence, Declaration of Independence, Federalist No. 85

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In writing about Federalist No. 85 – the final paper in a lengthy series of defenses of the proposed Constitution for the United States of America – it is entirely appropriate that I have just returned from a several day visit to Colonial Williamsburg. For that historic site epitomizes better perhaps than any other location in America – even perhaps than Philadelphia – the Spirit of Revolution and Reform that swept through the 13 colonies immediately prior to July 4, 1776, and that governed the constitutional discourse, both immediately following victory over the British Empire, and in the wake of the evident failure of those Articles of Confederation that had led the former colonies on their first nervous lap on the road to a full Union.

To hear once again those now-treasured words of Patrick Henry, Thomas Jefferson, and George Washington, in the very location where they were heard for the very first time, within the context of torn loyalties and divided families, is to recognize that a rare constitutional moment occurred during those immediate pre-revolution years between the passage of the Stamp Act and the military engagements to the North at Lexington and Concord. To watch as dedicated 21^st century young American visitors reenact key events, eagerly volunteering to serve in General Washington’s miniscule, rag-tag army, in the face of almost certain death and, as bravely defiant Williamsburg citizens, jeering at the Traitor, Benedict Arnold, following his military investment of the capital city of independent Virginia, is to feel pride, even as an Englishman, in the Spirit that will take George Washington’s army to its key victory over the British army of General Cornwallis at Yorktown, on October 19, 1781, and that eventually will make the United States exceptional in the eyes of the world.

So now it is May 28, 1788, almost 12 years since the Declaration of Independence, and 7 years since Yorktown. Alexander Hamilton, on this, day accepts the honor, and the enormous responsibility, of firing up that Constitutional Spirit in one concluding paper, in what has proved to be a lengthy, and occasionally rancorous, debate between the Federalists and the Anti-Federalists that he had formally initiated in Federalist No. 1, almost one full-year earlier, on October 27, 1787. Evidently, this is a moment that demands statesmanship of the highest order.

Will Alexander Hamilton fulfill that awesome destiny that he has shouldered so willingly? His task is delicately balanced between firing up the spirit of his readers by soaring rhetoric, while yet holding their feet to the glowing embers of political reality that evidently confront the emerging nation. For, this is not a fairy-tale, where everyone may expect to live happily ever after. On the other side of the fateful constitutional decision, there will be losers as well as winners, though not every one will yet know on which side of that divide he will eventually fall, or for how long he will so remain.

Hamilton rises brilliantly to his task, blending persuasive rhetoric with common-sense realism in a masterly contribution full of insights for those who would lead their state governments to a final judgment, yet written with a clarity that would be greatly appreciated by the People. His opening words focus succinctly on the two remaining issues under serious contention:

“According to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion, two points, ‘the analogy of the proposed government to your own state constitution,’ and ‘the additional security, which its adoption will afford to republican government, to liberty and to property.”

Even these issues, Hamilton recognizes, have been fully anticipated and discussed in the progress of the debate. He dispenses with these remaining concerns in two paragraphs that you can quickly embrace and which I shall here bypass.

The remainder of Federalist No. 85 focuses attention on what I shall call the ‘constitutional spirit’ that ought to govern the People and their state representatives in deciding whether or not to endorse the draft constitution. At a time well before the emergence of public choice, and extrapolating from a history of failed constitutions, Hamilton asks each individual to appeal to his better angels in approaching the constitutional decision, to raise himself above the level of politics as it is, to a meta-level of rules that will delineate the very nature of the politics that must play out within its limitations:

“Let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether or not it has been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty, from which nothing can give him a dispensation. ‘Tis one that he is called upon, nay constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his posterity, an improper election of the part he is to act.”

These are powerful words of persuasion. But Hamilton does not rely on rhetoric alone. He knows instinctively, well before a relevant public choice literature has emerged, that individuals require little prodding so to behave. If the constitution is adopted, together with the amendment process that it prescribes, it will be of long duration, it will survive, indeed, well beyond the life-span of any individual. Even though each individual may be well aware of where he stands at this time, what he expects to lose and to gain by his actions, he cannot foresee the future. He cannot know what will transpire for his offspring, and for their offspring, into an indefinite future. As such, the edge of narrow self-interest is naturally blunted, and a nudge rather than a shove is all that is required for man to rely upon his better angels in the constitutional moment that he immediately confronts.

So what now is left? The proposed constitution, as Hamilton well understands, is a compromise carefully constructed by a dedicated convention at Philadelphia. It will not be perceived as perfect, perhaps, by any man, surely not by many. The urge to make perfect in a naturally imperfect world must be contained, because unattainable perfection must always prove to be the deadly enemy of the feasible best. Hamilton addresses this issue transparently and to powerful effect, distinguishing between the writing of an entirely new proposed constitution and the amending of a constitution that has been agreed-upon. Writing again well in advance of public choice insights, Hamilton seizes on the essence of this difference:

“We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act.”Hamilton does not have to remind his readers of the great fortune of the convention in Philadelphia in meeting in a building carefully protected from all external interference – the streets themselves were covered with straw to deaden the sound of passers-by – in meeting under the magisterial leadership of George Washington, in meeting under the brilliant intellectual guidance of James Madison, the Father of the Constitution, with the energetic presence of the First American, Benjamin Franklin. Such favorable circumstances surely would not be replicated in any second attempt. In their absence, chaos might well be expected to ensue.

So, Hamilton reminds his readers of how much simpler the Article V amendment process is designed to be, focusing as he anticipates, on one issue at a time, with qualified majority, rather than unanimity, its prescribed mechanism, and with the convention route available to bypass any danger of Congressional resistance to state initiatives. Hamilton is aware that 7 out of the 13 states are already committed to the great enterprise. His final paper is a brilliant and ultimately successful exercise to bag the remaining 6. The threat of anarchy, should the venture fail, proves to be sufficient to mollify dissent and to complete the Union.

Because this is the final Federalist Paper, and I have the advantage over Alexander Hamilton of being able to look back on the constitutional achievement of the Founders, let me close with some brief thoughts on what has transpired over the two centuries and more of its existence.

The Constitution itself is a triumph, a remarkable document forged by brilliant political philosophers. Foremost among the Founders was James Madison, who, prior to the Philadelphia convention, studied what was wrong with republics, old ones and new ones, how they failed and why they were failing. He studied what was wrong, and why they failed, so that he could create a republic that would not fail. For the most part, he was successful. The parchment of the constitution is as good as it could be.

It is now badly tattered, not because the Founders failed, but because their successors too often have twisted its meaning. The Founders for the most part were devout Christians who understood that man’s creation operated under Divine guidance. The United States prospered and grew in freedom under Divine Providence. It has fallen on darker days as secular notions of Manifest Destiny have replaced those of the Divine.

The United States prospered and grew in freedom when the checks and balances of the Constitution each played their designated role in preserving a strictly limited government of enumerated powers, and when states rights were honored according to the Constitution. It has fallen on darker days as Congress has relinquished many of its powers to create an Imperial Presidency; and has stretched across the constitutional divide to seize powers that do not exist; and as the Congress and the Presidency, acting in concert, have crushed states’ independence.

The United States prospered and grew in freedom when the Judiciary honored the words of the Constitution and construed the words of the parchment in accordance with original intent. It has fallen on darker days since the Judiciary has rendered the words of the parchment meaningless in an attempt to pursue social and economic agendas never contemplated for the federal government by the Founders.

That is why this project on Constituting America is so important at this time of grave uncertainty for the future of this nation. It is for the youth of America to reaffirm the Spirit of America that has been so sadly disregarded by its elders, and to return the United States to the Divine Providence that is the life-spring of its People’s greatest achievements.

August 24, 2010/0 Comments/by Janine Turner and Cathy Gillespie

The Amendments to the United States Constitution

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Michael Krauss 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIV, Constitutional Amendment XIV, Michael Krauss

Guest Essayist: Michael Krauss, Professor of Law, George Mason University School of Law

The very first part of the First Amendment to our Constitution reads as follows: “Congress shall make no law respecting an establishment of religion…” What does this text (commonly known as the Establishment Clause) mean? Does it mean the same thing today as it did when it was enacted? Today’s post will focus on this topic.

The first ten Amendments to the United States Constitution were adopted because many of the Founders feared that the new federal government they were setting up would become tyrannical. Other Founders did not share that fear, because the federal government was to have only enumerated powers and not general powers to do anything it deemed to be in the general welfare. [Today many in Congress seem to believe that the federal government has just this plenary power – perhaps this is a tribute to the prescience of the “anti-Federalists” who insisted on inserting these amendments.] As regards the establishment clause, it is clear that at the very least it was meant to prevent the federal government from creating a new Church, on the model of the Church of England – let’s call it the “Church of the United States.” The fear was that this church would be “established” and funded with taxpayer dollars throughout the land. The creation of a compulsory, or even a subsidized, American church was precisely the kind of British model that the founders all wished to avoid, and so James Madison (who was one of those who felt there was no real risk of federal expansion anyway) was quite content to accede to the requests of his more nervous colleagues and write this prohibition into the Constitution. No federal church was established, of course, but the same people who adopted the Establishment Clause also created a national day of prayer, named Chaplains for the military academies and allocated moneys for the evangelization of Indian tribes. A few (notably Thomas Jefferson) wrote that government should be totally divorced from any religious actions, but even Jefferson as President allocated money to pay for priests and churches on Indian reservations, if the Indians so requested. Again, support for religion in general, without preference for any specific sect, was the order of the day.

But if an established federal church was to be prohibited by the clause, it is clear that established state churches were not to be touched (one early version of the clause also affected the states, but it was quickly abandoned). All the New England states (from Connecticut north), and all the Southern States (from Maryland south) had established churches at the time the First Amendment was adopted – different Protestant denominations in each state. Jews and Catholics suffered under various legal disabilities in different states until all were removed in the mid-nineteenth century. The states were quite clearly to be free to continue in this path – recall that the Clause states only that “CONGRESS shall make no laws…” After the Civil War, other amendments were adopted to ensure that the new American citizens (the freed slaves and their descendants) would have full citizenship rights in every state, and one of these Amendments, the Fourteenth Amendment (about which someone else will be blogging) was interpreted by the Supreme Court as incorporating most (likely all) of the limitations of the first ten Amendments against all the states. As the “incorporation” doctrine became entrenched, the case law concerning the Establishment Clause increased.

This case law slowly veered Establishment Clause jurisprudence away from non-preferentialism and toward antipathy to religion. In the 1879 Reynolds case (in which a Mormon unsuccessfully claimed a religious right to practice polygamy), the Supreme Court opined (though it did not have to decide this question to resolve the case at hand) that Jefferson’s declared view (that the federal government should not even acknowledge religious activity) was the authoritative meaning of the Establishment Clause. American legal history was replete with examples to the contrary (not only most Founders’ declarations, the national prayer day, the chaplaincies and the Indian missions, but also the declaration of Christmas as a national holiday and the mentions of God on our money and on our Supreme Court building). In 1947, the Everson case allowed states to pay for school busses for all students (even those who frequented religious schools) but signaled that governments’ recognition of citizens’ religious choices could go little further. Since then cases have denied the right of public school boards to have ecumenical invocations before solemn events. Last week a federal judge struck down National Prayer Day – though this had been an institution since the time of the Founding!

In God We Trust is a maxim many of us hold dear. Most of our Presidents finish their speeches by asking God to bless our people. Our Supreme Court itself is adorned with multiple sculptures depicting the Ten Commandments, and the Justices begin each and every session with the intonement, “”God save the United States and this honorable court.” Will these reminders of the ultimate authority of the values upon which America was built be one day banned? The answer to these questions and more ultimately will be resolved by the Supreme Court’s interpretation of the U.S. Constitution and the Bill of Rights.

April 27, 2010

Michael Krauss

Professor of Law

George Mason University School of Law

Arlington, Virginia 22201

Classweb.gmu.edu/mkrauss/

April 27, 2010/0 Comments/by Janine Turner and Cathy Gillespie

Articles IV – VII of the U.S. Constitution

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Article III, Article IV, Article V, Article VI, Article VII, Joerg W. Knipprath, The Articles of Confederation

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

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.” They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010

Southwestern Law School

Los Angeles, California

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor ofLaw at Southwestern Law School”

Daniel Smith says:

April 26, 2010 at 12:45 am

Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.
Shannon C. says:

April 26, 2010 at 6:28 am

The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?
Shannon C. says:

April 26, 2010 at 6:28 am

Do states have the right to secede from the Union?
Susan Craig says:

April 26, 2010 at 7:13 am

The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.
Reed W says:

April 26, 2010 at 8:00 am

Thanks for clarifying and bringing it all into current events.
Carolyn Attaway says:

April 26, 2010 at 9:06 am

@Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.
Susan says:

April 26, 2010 at 9:13 am

This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.
Robert Shanbaum says:

April 26, 2010 at 9:15 am

Shannon C. wrote, “Do states have the right to secede from the Union?”

Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.
Robert Shanbaum says:

April 26, 2010 at 9:34 am

Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .
Robert Shanbaum says:

April 26, 2010 at 9:50 am

By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

http://avalon.law.yale.edu/19th_century/jack01.asp

Jackson could run on; here’s the most apposite passage:

But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.
Susan Craig says:

April 26, 2010 at 10:15 am

State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.
Mike Lowry says:

April 26, 2010 at 10:17 am

Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
1. Impose lifetime term limits of 12 years on Congress
2. Impose a requirement for a Balanced Budget
3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.
Ron Meier says:

April 26, 2010 at 10:52 am

Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.
Susan Craig says:

April 26, 2010 at 11:15 am

There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?
Lillian Harvey says:

April 26, 2010 at 11:23 am

I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.
ERL says:

April 26, 2010 at 11:49 am

Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.
Shannon C. says:

April 26, 2010 at 1:57 pm

Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

1. Balanced Budget
2. Term Limits-one term each, as I am so anti Congress:)
3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!
Susan Craig says:

April 26, 2010 at 2:16 pm

I feel the relevant portion is as follows; on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.
Thomas Soyars says:

April 26, 2010 at 3:00 pm

@Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

@Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

@Joerg Knipprath — the best blog yet (in my humble opinion).
Joe Rech says:

April 26, 2010 at 3:13 pm

-Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
-Balanced budget – except in times of national emergency (disaster or war)
-Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
-VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
-limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
-reiterate oath – support and defend the constitution – not interpret the constitution.
Donna Hardeman says:

April 26, 2010 at 4:04 pm

Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.
Shannon C. says:

April 26, 2010 at 4:33 pm

Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

Great site!!!
Donna Hardeman says:

April 26, 2010 at 4:46 pm

Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?
Carolyn Attaway says:

April 26, 2010 at 5:01 pm

Hello Shannon C. from a fellow Georgian!

Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.
ERL says:

April 26, 2010 at 5:38 pm

Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.
Debbie Beardsley says:

April 26, 2010 at 5:46 pm

“Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.
Chuck Plano, Tx says:

April 26, 2010 at 5:57 pm

In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.
Andy Sparks says:

April 26, 2010 at 6:53 pm

@Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.
Donna Hardeman says:

April 26, 2010 at 6:55 pm

Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.
Susan Craig says:

April 26, 2010 at 7:50 pm

States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.
WeThePeople says:

April 26, 2010 at 8:07 pm

Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…
Lynne Newcomer says:

April 26, 2010 at 8:27 pm

Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.
Constituting America says:

April 26, 2010 at 8:32 pm

hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?
Shannon C. says:

April 26, 2010 at 8:58 pm

Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

Any thoughts?
J.D. Wiggins says:

April 26, 2010 at 9:12 pm

Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?
Joerg Knipprath says:

April 26, 2010 at 9:51 pm

There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.
Joerg Knipprath says:

April 26, 2010 at 10:13 pm

Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.
Robyn says:

April 27, 2010 at 12:19 am

ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!
Lillian Harvey says:

April 27, 2010 at 4:19 am

Hi Georgians and others… Virginian here ). These are my thoughts on the Constitutional Convention.
First fix some problematic fixes: Repeal the 16th and 17th Amendments.
-Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
-Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
-I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?
Shannon C. says:

April 27, 2010 at 6:32 am

Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.
Gitel says:

April 27, 2010 at 7:16 am

@WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.
Robert Shanbaum says:

April 27, 2010 at 9:58 am

@Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.
Chuck Plano, Tx says:

April 27, 2010 at 10:33 am

So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.
Mary Lou Leddy says:

April 27, 2010 at 10:40 am

I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
Special thanks to Janine & Cathy
Brenda Wilson says:

April 27, 2010 at 10:45 pm

In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.
Andy Sparks says:

April 27, 2010 at 11:05 pm

Robert,

Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.
yguy says:

May 13, 2010 at 11:07 pm

“Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.

April 26, 2010/1 Comment/by Janine Turner and Cathy Gillespie

Article III of the U.S. Constitution

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Lawrence J. Spiwak 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Lawrence J. Spiwak

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Article III of the Constitution provides the parameters for the third and coequal branch of the federal government: the Federal Judiciary. Today’s posting will focus on the importance of judicial independence as contemplated by the framers.

In Article III Section 1, the Constitution sets up the Supreme Court and “inferior” courts (i.e. Federal district courts and federal appeals courts), and provides that federal judges shall “hold their offices for good behavior” (i.e., life terms). Article III Section 2 then defines what type of disputes fall within the Federal Judiciary’s jurisdiction. (Article III Section 3 also sets forth the specific provisions for trying a case of treason, but discussion of this specialized topic is better left to a dedicated post.)

The Founding Fathers understood that a strong and independent judiciary was an integral part of the brilliant system of “checks and balances” they developed: the Legislative Branch would pass a bill; the Executive Branch (i.e., the President) would sign the bill into law, and then the Judicial Branch would evaluate whether the law passed Constitutional muster. If the courts found that a particular piece of legislation failed this test, then the Legislative Branch remains free to take another bite at the apple, and so the virtuous cycle of our Constitutional Democracy continues.

Perhaps one of the most often asked questions by non-lawyers about the Judicial Branch is why are members of the Federal Judiciary appointed for life (the aforementioned “good behavior” language mentioned above), while members of Legislative and Executive Branches have Constitutionally defined terms of office? The answer is straightforward: the Founding Fathers clearly understood that the judiciary must be impartial, dispassionate and, most importantly, free from political pressures that face the Executive and Legislative Branches. By not having to constantly fear political reprisal, judges may administer the law fairly without regard to public reaction.

But what if a member of the Judiciary is guilty of malfeasance? Certainly, for conduct unbecoming the office (malpractice, corruption, etc.), the Constitution provides for an impeachment process.

But what if you just don’t like a judge’s approach to a case? Stated another way, you are convinced that the judge has engaged in some sort of “judicial activism” whereby the judge has “made” law rather than “interpreted” the law. Is this ground for impeachment? While technically the Constitution’s definition of impeachable offenses might be considered broad enough to cover “egregious“ judicial activism on the part of a judge, a more considered view is that the elected branches exercise restraint in their use of this tool perhaps for no other reason than that “judicial activism” often lies in the eyes of the beholder. (See, for example, President Obama’s recent public chastisement of the Supreme Court for its Opinion in Citizen’s United before the full Congress at this year’s State of the Union Address.)

Instead, the appropriate mechanism for change in the Judicial Branch is to let the electoral process play out (which, by definition, reflects the will of the people) and allow these elected officials to appoint and confirm new judges as vacancies open. As former Chief Justice William Rehnquist recognized before he died:

In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials. It is not a perfect system—vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated. But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.

In sum, although our legal system may not be perfect, our Founding Fathers set forth a legal framework that remarkably still holds up nearly 225 years later. To this end, I leave you with a small prayer by Chief Justice Rehnquist:

Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.

Wise words indeed.

Friday, April 23rd, 2010

40 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Guest Blogger: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies”

Don Barton says:

April 23, 2010 at 4:49 am

Judicial activism is a scourge on our country. In no way did the Founding Fathers provide for or envision a scenario where the Judiciary would make law. That is clearly within the realm of the legislative branch, to be aided by and enforced by the executive branch, and interpreted by the judicial branch.

Those of us who hold this view are seen as Constitutional “purists”, with the word “purist” being a pejorative term. The implication is that we are stuck in 1787 and can’t quite adapt our views to the realities of the Modern Era. But since when is someone who loves and values the Constitution a regressive, backward-looking idealist?

Though we have not read or studied yet the Amendments, the Founders allowed for–through an extremely rigorous process–the Constitution to be changed so that it would NOT become a tired and irrelevant document in the coming centuries. The mechanism, therefore, is already there to keep the Constitution relevant and fresh. The mechanism is the drafting of an amendment, which must be passed by super-majorities in Congress and then by three-quarters of the states.

The mechanism is NOT for judges to make law from the bench.
Jeff Parker says:

April 23, 2010 at 4:51 am

I see two degrees of judicial activism.

One that tends to make new law from the bench. The resulting case law can be consistent with proper court function when it corrects vague statutes or reconciles law to the constitution. Or it can simply presume to take over the function of the legislative branch, not good.

The most worrisome activism is when the court so severely overreaches that it effectively amends the constitution, circumventing the correct process for such change.
Susan Craig says:

April 23, 2010 at 11:43 am

I wish just once that something dealing with the legal system would be written in common English not legalese. Even the Constitution sends me to the dictionary to try and understand what in God’s name are they talking about.
Carolyn Attaway says:

April 23, 2010 at 12:45 pm

As I read Article III, images of the Supreme Court being reprimanded by our President during the State of the Union Address kept being played over in my mind. I am still embarrassed for our country every time I think about it. As I understand it, the Judicial Branch is an equal part of the U.S. Government, and should not be beholden to the other 2 branches; the Legislative and the Executive. At the State of the Union, the Supreme Court judges were guests, and should not have been held up for ridicule.

In his book, ‘The 5000 Year Leap’, Cleon Skousen gives a great illustration of the Balance of Power using a Three-Headed Eagle. In his explanation, Mr. Skousen labels the third head as judiciary which was assigned the task of acting as a guardian of the Constitution and the interpretation of its principles as it was originally designed.

That is why I am troubled when I hear our President say he wants to find judges that will take in account certain rights of special interest groups and interpret the law that takes in account the struggle of the individual. For example, in his comments to find a replacement for Judge Stevens he said he will choose a nominee who pays heed to the rights of women and the privacy of their bodies. Yet he said he won’t enforce any abortion rights “litmus tests.”

Obama said it is “very important to me” that his court choice take women’s rights into account in interpreting the Constitution, his most expansive comments yet about how a woman’s right to choose will factor into his decision.

The President’s last judicial pick of Judge Sotomayor was filled with controversy when she was noted of stating at a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where “policy is made.”
“I know that this is on tape,” she then immediately said. “I should never say that. Because we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.

I guess with everything, if you have a complete majority in two of the branches of government, the safeguards for the Balance of Power get distorted.
Shannon C. says:

April 23, 2010 at 12:47 pm

I agree with the idea that it is OK to amend the Constitution to better be able to get judges out who make law. How about giving them a 10 year term? Stagger it for a certain number of years where a President could only make one appointment per term assuming he or she served two terms?

Just as they did with the original Senate where they did a lottery to stagger it where both Senators from a state would not be up for reelection at the same time, make it where down the road a new nominee comes up every 10 years.
Donna Hardeman says:

April 23, 2010 at 12:54 pm

@Susan Craig – don’t feel like the long ranger. The problem is not legalese – rather it’s “olde” English. My husband and I are both attorneys and, in reading the last paragraph of Article III last night, we were slightly bewildered. Extrapolating from the “olde” language, we came to the conclusion that the words simply mean that the family of the treasonous person won’t be stoned or cast out into the wilderness, etc. Treason is linked only to the person committing the treason.
Donna Hardeman says:

April 23, 2010 at 12:58 pm

@Thomas – since you insist on bringing PTA rules into the discussion, I have e-mailed our Florida Republican senator (Lemieux) and provided him with my insight as to why the recess appointment of Craig Becker was outside Constitutional parameters. Am I now free to challenge the rest of you to do the same in your respective states?
Carolyn Attaway says:

April 23, 2010 at 1:11 pm

@Donna – I took my complaint about the recess appointment of Craig Becker, along with several other issues, to my representative at his townhall meeting. I have expressed my concern about these appointments to my Senators as well in person, and in phone calls. I guess when you are in the minority, it is easy to have your objections overridden.
Susan Craig says:

April 23, 2010 at 1:12 pm

Shannon, I don’t think term limits for SCOTUS would work, however, a review/oversight (a confirmation light) every 15 years from confirmation answering to usurpation of legislative prerogative might constrain the inclinations to legislate from the bench. I think this could be done in committee with up or down acceptance on the legislative floor.
Susan Craig says:

April 23, 2010 at 1:14 pm

Thank you Donna, for your explanation.
Carolyn Attaway says:

April 23, 2010 at 1:54 pm

If you haven’t listened to Judge Napolitano’s 5 Part Series of the Constitution and Freedom, you can access the link here: http://www.thefoxnation.com/judge-andrew-napolitano/2010/01/11/judge-andrew-napolitanos-constitution-and-freedom-part-1

On the fifth video on this link, Judge Napolitano explains the Supreme Court and the Federal Court System in America. It’s brief, but very informative. It compliments Mr. Spiwak’s Blog very nicely.
Will says:

April 23, 2010 at 1:59 pm

A fine couple of examples of the USSC exhibiting the separation of powers is in the cases of Hamdan v. Rumsfeld and United States v. Nixon. In both cases the Court reined in the Executive branch.
Richard says:

April 23, 2010 at 2:32 pm

I don’t remember what I was reading but one of the founding fathers made the statement SCOTUS are to serve a term and then go back home and live among their people.
That way they remain government of the people of the people. Maybe it was Thomas Paine?
Susan says:

April 23, 2010 at 3:12 pm

@DonnaHardemon- After reading that section and a bit of Googling, my husband and I came to the same conclusion. We believe it was due to the English Common Law in which a person convicted of treason forfeited their property to the crown.
Karla Blum says:

April 23, 2010 at 11:44 am

The Judicial Branch is equal to the other two branches of government. My concern is why does the Supreme Court give deference to Congress when ruling whether legislation is constitutional or unconstitutional? The court is to be objective upholding the Constitution, not giving deference to the Legislative or Executive Branches.

Also, our court system may be a great system, however, through history they have been very “schizophrenic” in considering legislation such as slavery and segregation. They did rule correctly in regard to President Jackson forcing Native Americans to reservations, however, Jackson thumbed his nose at the Judiciary.
Chuck Plano, Tx says:

April 23, 2010 at 12:14 pm

The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.
Spider says:

April 23, 2010 at 1:25 pm

@Chuck Plano, Tx: Your statement is only one side of the argument. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it. I’ll leave my statement at that, and let the smarter and more informed than I work it out.

This subject is more thoroughly explored by Alexander Hamilton in Federalist No. 78, the first of six essays by Hamilton on this issue. Stick around till then, and we can discuss it further.
Donna Hardeman says:

April 23, 2010 at 1:46 pm

Thanks for the additional research Susan – makes perfect sense.

Matt – how do you know it’s the end of the term of Congress? In re-reading the section, it makes sense since Session is the term used and the previous paragraph refers to Senate authorization. I tried to do some case law research and didn’t come up with anything. So, when is the end of the next Senate session – next time they go on a break – like July 4th or does the “Session” literally start once a year? What does that mean for Craig Becker? Is he supposed to be out? Will he be out? Will the Senate be given the chance to confirm somebody else? Even if the answer to all those questions is supposed to be “yes” what are the chances of it actually happening?
Maggie says:

April 23, 2010 at 2:00 pm

I realize that all of these conversations are most likely being archived somewhere, but is someone making a hard copy of any of this? This could potentially be history in the making. We wouldn’t have many of the great resources that we do today to look back upon if someone didn’t write it all down and keep copies.
Morgan Rockhill says:

April 23, 2010 at 2:22 pm

While the founders may never have imagined the world we live in today since it has changes in so many ways, they clearly understood human nature, which has changed very little in the last several hundred years. The constitution is just fine the way it was written and amended. If you want to change it follow the rules and make an amendment.
Teddy Howard says:

April 23, 2010 at 2:24 pm

The founding fathers said that the judges of the supreme court are apointed for life. Unless of course he/she resigns or commits treason. I like this because onces he/she is in, it’s for good. That means to me that if the judges in the supreme court do something that the president or someone in the government doesn’t like, it’s not like they can fire them.
Lillian Harvey says:

April 23, 2010 at 2:59 pm

Wonderful discussion going on here! I am learning so much just reading your ideas and insights. This whole question of judicial activism has concerned me for some time. In considering Associate Justice Sotomayor’s comment during her confirmation hearings, “…we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.”, I can see where things get messy. A judge with a certain mind set is weighing politics, community issues, previous cases and the rights of the accused in a decision. One can only hope that common sense and right action are in integrity in these instances. Politics and resulting “activism” can insinuate into those decisions very easily. So, although I understand what she is saying, it is not a great comfort to me.
Is this where the case law becomes the standard by which future cases are judged, at the appeals level? AJ Sotomayor also said often that she would have to review past case law in her rulings. I am only using her statements during the confirmation because they are fresh, not as a criticism of her per se. Still, is it the Supreme Court’s mandate to hold those case decisions against the original intent of the Constitution to assure that these “precedents” don’t get too far off the track? Thoughts?
Jim Sykes says:

April 23, 2010 at 5:22 pm

It would be very beneficial if we could have someone discuss if, and when, circumstances would allow State Courts to refuse to enforce U.S. Supreme Court opinions. It is my understanding that the “Supremacy Clause” only results when the law passed by Congress is Constitutional. The reference to the Supreme Court’s decision regarding the Indians in Georgia being correct and that President Jackson elected to disregard that opinion indicates to me that the three divisions of the Federal government are EQUAL and should not be able to overrule each other when each are acting within the power granted by the Constitution. Since the Federal government derived it’s power from the States and the States derived it’s power from the governed (people), how is it possible for the Federal government to pass legislation that it doesn’t have the authority to pass. My understanding of our Republican form of government is that the Federal government was not to interfere with the States and the States were not to interfere with the local governments. All problems were to be resolved at the lowest level of government possible. Only when the lower level required the assistance of the higher level and requested help were they to become involved in solving the problems.
Donna Hardeman says:

April 23, 2010 at 5:25 pm

Lillian. When my children were young, I was explaining to them why precedent alone (which is all I learned in law school) was insufficient. I gave them the example of a household where junk food is not allowed. Mommy gives in the first week and says – just sodas on the weekend. The kids push her into every day – since the precedent has been established. Then it’s pushed to allowing candy – but only after dinner. Well, lunch is a meal too so why not after lunch? Now that we have cokes and candy allowed, what’s wrong with McDonalds? It’s not nearly as bad as candy and we’ve already established that precedent. At some point Mommy needs to step back and say – “Remember the original rule, guys? We’re going back to that.” Yes, there will be screaming and yelling, but the original rule was a good one. I was gratified years later when my son was working on his legal badge in Boy Scouts and used this example to explain the judicial case law system to his fellow Scouts. It’s never too early to educate the kids. (The Progressives already know this so it’s time the strict Constructionists got the same message.) Good blogging girl.
Bill says:

April 23, 2010 at 9:29 pm

Contrary to Mr. Spiwak’s post, Article III section 1 does not infer a lifetime appointment for federal judges. The duration of their appointment is limited to good behavior.
Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.
Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.
John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
The judiciary is not ment to be independent or co-equal branch of government.
Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.
Bill says:

April 23, 2010 at 9:40 pm

Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.
The sword in the above text refers to the executive branch, and the purse refers to the legislative branch.
Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.
The Supreme Court can only give opinion(that is why in all of their decision say” it is the opinion of this court) and have no ability to enforce their decision other than what the executive branch supplies.
Lynne Newcomer says:

April 23, 2010 at 9:47 pm

Great discussion!!!I have taken to reading the comments before I start writing,because I find it all so informative and thought provoking, thanks all.
The conition of man was clearly taken into account when our founders hammered out our Constitution.I only wish that our Representatives (all branches) would work as hard as they did.
I have a nagging reaction everytime there is need to appoint a new Supreme Court Justice, the conversations always without fail talks about the balance, Liberal /Conservative. This bothers me a lot, it surely seems to imply that there are at least two interpertations of our Constitution !!The casual way this is collasped into the various particulars that are considered seems to in some way pave the path for the things that bother me about some of the deciions the Court makes. (Emenant Domain to name one).
The party that is in the majority can stop the appointment because the cadidate is not enough this way or that way idelogically speaking…. is that the way we keep the promises of our Constitution? Perhaps I am a hick but I am most interested in their character, their academic, qualifications and their experience that has made them stand out as special and good.
One more comment, I was oh so embarassed of our President when he rallied his cronies to clap over the heads Justices during the last State of the Union. He was devisive through out the whole address . Casting himself and the Dems as THE ones. There were three equal branches presedent but he cut the Justices, the Republicans out.Shame on him.
Carolyn Merritt says:

April 23, 2010 at 10:07 pm

Thank you Donna for explaining the last paragraph of Article III.
Richard says:

April 24, 2010 at 12:33 am

I would submit that our problem is the Senate does not “advise and consent” they merely vote for thier party ideology which is clearly not “advise and consent” What we need to do is have a block of Senators that have sworn to uphold thier oath in a contract with the Nation/people that they will not consent to approve any Federal Judge, at any level, that does not uphold the constitution as written. Any judge with documented activist views based on thier teachings, writings, speeches or involvement in legal cases will not be consented to. This group of senators can cut across party lines but are people with proven honesty and integrity with a track record of “non-flip-flopping”.
Presently Senators bring up just such documentation of activism and the nominee softens thier prior tone or trys to explain away thier true intentions or words based by saying they also agrued the other side. They do this even though no Senator or citizen believes them and knows exactly what they will do. In my humble opinion there is no other side to the constitution. If the law needs to be changed the Legislature can amend using the constitutional process. Judicial activism has eliminated Christian values from our educational system and our public squares (clearly never the intent of the religious founders) which has hurt our culture in both government and the private sector. In additon, small human infants are legally murdered by thier own mothers (many who are scared, confused and under pressure from abortion activists) These are just two examples of activism in the last century. Now we may have forced government healthcare and a double taxation situation with a new Value added tax. Not to mention the existing double taxation on wages and then on investments made after taxes are already paid on the principal. No one has allowed these thing to occur but our elected officials. About 535 elected congressional members voluntarily choose to erode our constutional rights for what? Power? Money? A liberty and freedom restricting socialist form of goverment? It seems to me to be treason to do such a thing but sadly the founders never envisioned the moral breakdown of our society to this extent or they would have allowed for the people to impeach via a majority ballot vote instead of congress. I know we can turn this around if we have a firm strong backbone and dedicated sites like this one to educate our citizens and future citizens to take back our liberties.
Lillian Harvey says:

April 24, 2010 at 2:03 am

Hi all!
Donna, the example you used to clarify the dangers of relying on precedents over first principles is wonderful. It has really made me uneasy to hear some of the decisions that have been made based on case precedent rather than constitutional understanding. Thank you!
Bill, the words “good behavior” got my attention when I read them as well. If applied by today’s definition, President Obama could have fired the Justices who ruled “badly” right in the middle of the State of the Union address. Frankly, it made me a bit nervous to think this after reading your blog.
Thanks for all of these great blogs. Really, really wonderful.
Spider says:

April 24, 2010 at 2:46 am

@Bill: Brilliant argument. Bravo.
Susanne says:

April 24, 2010 at 3:11 am

Lynne N,

I agree with what you said about being bothered by the way Supreme Court Justices are selected. It’s sad that congressmen can’t agree if a judge has ruled in the past according to the constitution. Before the presidential election Obama said he would choose justices that used empathy to interpret the law. That sent up red flags at the time! Eminent domain rulings have been especially troubling in recent years, as you said.
Harry Stumpf says:

April 24, 2010 at 6:40 am

I see two things that keep legislation from the bench going. One is the somewhat twisted interpretation of certain passages in the Constitution, particularly the Commerce Clause. The second is the dependence on Legal Precedent (a concept from Common Law), rather than Original Intention of the Founders.

Maybe what we need is an amendment, not to change what the Constitution says, but to make a little less ambiguous a few key passages. And I would like it also to put Original Intention above Legal Precedent.
Susan Craig says:

April 24, 2010 at 8:57 am

Part of this problem is exacerbated by the fact that sometime (I think in the 20th century) Law schools stopped teaching Constitutional Law and switched to Case Law. Now I think it is a rare law school that places an emphasis on Constitutional law.
Robert Shanbaum says:

April 25, 2010 at 12:07 pm

@Richard, regarding your question about (what amounted to) term limits, I suspect from your description that you read The Virginia Declaration of Rights, an important predecessor to the federal Constitution, in which the following appears:

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

You may notice that the judiciary is explicitly excluded from the requirement.

I also note the use of the precatory “should” in the cited section. Was it poor drafting, or intentional? The author (George Mason) seemed to have a tendency to write in that manner.

Inasmuch as some of the Constitution’s language was borrowed from The Virginia Declaration (some of it verbatim), it is required reading:

http://www.archives.gov/exhibits/charters/virginia_declaration_of_rights.html
Gene Corno says:

April 26, 2010 at 9:40 am

Don Barton is right on target. Jefferson wanted us to be ‘bound by the chains of the constitution’… There is a mechanism to change the constitution as Don Barton said so succinctly. To treat the constitution as a “living document” as some would have you believe it is…is to have no constitution at all. What you wind up with are politicians making rules as they go…a rule of man instead of the rule of law. Do not allow anyone to tell you the constitution is a LIVING DOCUMENT…if followed and adhered to it works just fine. It just doesnt suit the politicians mad dash to get all their bills through. I personally think that congress writes too many bills anyway. Which means they spend way to much. They should rather be more concerned with the perfection of a their bills, quality not quantity.
Susan Craig says:

April 27, 2010 at 4:58 pm

One of the things that sparked the Revolution was that the King of England determined that the Magna Carta and the other documents governing England could mean whatever he wanted them to at the time (aka a living document).
Linda LaFonte says:

April 30, 2010 at 3:30 pm

Your contributors are so knowledgeable — thanks for having them. I have been so curious about the origins of the judiciary and its independence. I now far better understand.
Frieda says:

May 12, 2010 at 7:21 pm

It’s interesting to me that most of the comments focus on the role of the judiciary branch of government. What about treason? Have we commited treason against ourselves by giving to governments or organizations that use those resources to harm us? Are we giving, or have we given too generously as to commit treason against ourselves?
yguy says:

May 17, 2010 at 12:15 pm

Chuck Plano, Tx says:

“The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.”

Actually Marshall made a good case for judicial review as a general principle in Marbury, though in the same opinion it seems he misapplied it to the exceptions clause so as to avoid a confrontation with the sitting President.

April 23, 2010/0 Comments/by Janine Turner and Cathy Gillespie

Article II of the U.S. Constitution

Andrew Langer, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Article I, Article II

Guest Essayist: Andrew Langer, President of the Institute for Liberty

While much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate), and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.

In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.

As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution. In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.

Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa). The President is Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war. On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”. In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.

Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law. While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.

Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state. However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.

Now let us turn to the electoral college.

When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise). Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.

One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities. Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores. But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.

The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field. It is akin to how the World Series is played: it isn’t decided in one single game, or which team scored the most runs in a series of different games. It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.

As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators. That way, even the states with the smallest population have a minimum of three votes, and are thus equalized. Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones. Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.

Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring. The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »

April 22, 2010/0 Comments/by Janine Turner and Cathy Gillespie

Article I of the U.S. Constitution

David J. Bobb, Ph.D., Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I, Constitutional Amendment VII, Constitutional Amendment VII, David J. Bobb PhD, Declaration of Independence, Declaration of Independence, The Articles of Confederation

Guest Essayist: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

This complaint, however current it might sound, was lodged not against any occupant of the White House. Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.

Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed. Thus they declared that the “prince” (King George III) had become a “tyrant.” And a tyrant “is unfit to be the ruler of a free people.”

To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence. The Declaration indicts the King for aggrandizing his power at the expense of the people. It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.

The Constitution, then, gives structure to our liberties—and to limited government. Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles. Its length should not confuse us, however, for its meaning is clear if we read it carefully.

Article I, Section 1 says that the law-making authority in the national government resides in Congress. Not in the Crown, and not directly with the people. We the people should not vote directly on every issue, the Founding Fathers held. That strictly democratic form of government can too easily lead to tyranny. Instead, we the people will elect representatives. This is republican rule, and conduces more to liberty than any other form of government.

The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures. The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20^th century, required direct election of senators, a significant departure from the Founders’ Constitution. Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).

Article I, Section 8 gives an enumeration, or list, of the powers of Congress. When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive. Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.

“That’s all we get to do? That’s it?” One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution. Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.” Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1) Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).

I hope that we can discuss and debate the constitutional status of the health care law as part of this blog. Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution. Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.

It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.” The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.” We’d be stupid not to.

Wednesday, April 21st, 2010

Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »

140 Responses to “April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College”

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Richard says:

April 22, 2010 at 6:03 am

This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.
Richard says:

April 22, 2010 at 6:32 am

This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
I look forward to tomorrows comments….
Lillian Harvey says:

April 22, 2010 at 6:37 am

Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.

Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.
Tammy Beard says:

April 22, 2010 at 6:44 am

Maggie,
Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.

This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.
Richard says:

April 22, 2010 at 7:18 am

I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.
Gitel says:

April 22, 2010 at 11:42 am

@Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.
Gitel says:

April 22, 2010 at 11:43 am

Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.
Kristine says:

April 22, 2010 at 12:45 pm

Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?
Will says:

April 22, 2010 at 1:59 pm

Anna Marie says:
April 22, 2010 at 12:56 am
“… in the end we will become a stronger nation, a nation UNDER GOD!!!”
——–

Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
Thomas Soyars says:

April 22, 2010 at 3:27 pm

I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?

Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.

I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and
Thomas Soyars says:

April 22, 2010 at 3:34 pm

Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.
Ann says:

April 22, 2010 at 5:13 pm

How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?
Susan J. Smith says:

April 22, 2010 at 5:17 pm

I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.
Thomas Soyars says:

April 22, 2010 at 5:32 pm

One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”
Robert Shanbaum says:

April 22, 2010 at 5:37 pm

The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.

The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”

But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”
Debbie Beardsley says:

April 22, 2010 at 6:04 pm

Thomas,
It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.
Spider says:

April 22, 2010 at 7:00 pm

I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.

James Madison explained States representation in the Federal Government as such:

“Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.

U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”

The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.

There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.

One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.

Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.

Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!
Robert Shanbaum says:

April 22, 2010 at 9:19 pm

@Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).
Sharon Pharr says:

April 23, 2010 at 12:17 am

It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.

I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?
Philip Thorrez says:

April 23, 2010 at 1:20 pm

I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
I realize I’m a bit late to this reading but have to ask:
@Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”

This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.
Spider says:

April 23, 2010 at 12:54 pm

@Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.

As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.

It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.

I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?
Anthony Viola says:

April 23, 2010 at 5:40 pm

Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”

You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”
AllisonW says:

April 24, 2010 at 2:20 am

Interesting fact I thought to share:

According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.
Constituting America | Be John Galt says:

April 24, 2010 at 2:32 pm

[…] April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Le… […]
Taylor Michael says:

April 24, 2010 at 5:49 pm

A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
It says ;

“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”

What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.
Kristine says:

April 24, 2010 at 5:54 pm

I would like to understand the electoral college better from Article 1, section 2.

I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .

If anybody has insights and links, please reply.

Thanks.

Kristine
Kristine says:

April 24, 2010 at 9:30 pm

I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.
Bob Greenslade says:

April 24, 2010 at 11:10 pm

Kristine-hope this helps.

What are the constitutional provisions for the electoral system?

The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.

Do the American people vote directly for a President and Vice President when they cast their ballot?

No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”

Who are the electors?

The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.

How are the electors chosen?

The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.

How are the electors in each State chosen to vote?

The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.

In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.
Lillian Harvey says:

April 25, 2010 at 4:56 am

Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.

I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.

Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.

Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?
Bob Greenslade says:

April 25, 2010 at 6:01 pm

Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.

In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:

“It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.

Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.

The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.
Robert Shanbaum says:

April 27, 2010 at 12:13 pm

@Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.

Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.

Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.

As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.
Robert Shanbaum says:

April 27, 2010 at 3:45 pm

@Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.

He bowed.
Debbie Beardsley says:

April 27, 2010 at 5:06 pm

Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
yguy says:

May 12, 2010 at 9:47 pm

‘…the 10th Amendment is a truism…’

‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’

Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.
JoeSwiss says:

May 24, 2010 at 2:22 pm

Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …

This was a point I had missed.

First, it seems a state may engage in war with the consent of Congress.

Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.

Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.
al williams says:

June 25, 2010 at 12:46 pm

Can anyone explain article 1 sec 9 para 4
“No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”
Susan Craig says:

June 25, 2010 at 4:00 pm

Yes they did not want to tax incomes (head tax).
al williams says:

June 27, 2010 at 12:56 pm

So,was this section repealed by the 16th amendment?
Ralph T. Howarth, Jr. says:

January 2, 2011 at 5:18 am

Will says:
April 22, 2010 at 1:59 pm

Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
————
True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.

They are:

1) The Unanimous Declaration (of Independence)
2) US Articles of Confederation
3) The Northwest Ordinance
4) US Constitution

Such can be found reproduced here and is at the very beginning of the US Code 1.
http://uscode.house.gov/download/pls/organiclaws.txt

The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.

Inspection of the Organic Laws finds the following words concerning religion and morality:

Year of our Lord (Constitution, Articles, Ordinance)
Divine Providence (Declaration)
Creator (Declaration)
Nature’s God (Declaration)
Appealing to the Supreme Judge of the world (Declaration)
the Great Governor of the world (Articles)
Religion (Bill of Rights, Articles, Ordinance)
Establishment of Religion (Bill of Rights) [aka: state run church]
Morality (Ordinance)
Mode of worship (Ordinance)
Religious sentiments (Ordinance)
Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
Good Behavior (Constitution, Ordinance) [syn. “morality”]
Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.

So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.
Ralph T. Howarth, Jr. says:

January 2, 2011 at 5:46 am

@yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.

@al williams says: so,was this section repealed by the 16th amendment?
–Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.

April 21, 2010/0 Comments/by Janine Turner and Cathy Gillespie

90 in 90 = 180: History Holds the Key to Our Future

Janine Turner 14. Essays by Janine Turner, Janine Turner

Please join us in reading the United States Constitution and Federalist Papers in 90 Days!

Beginning April 20, we will be launching a 90 day project to read the U.S. Constitution and 85 Federalist Papers in 90 Days, and we will be blogging about them at www.constitutingamerica.org/blog with you, and with Constitutional Experts! We want to know your thoughts on how the United States Constitution and Federalist Papers are relevant today!

Get your copy of the Federalist Papers, join us daily on www.constitutingamerica.org, and get ready to read, learn and blog!

For more more details, read Janine Turner’s op-ed below:

90 in 90 = 180:
History Holds the Key to Our Future
By Janine Turner

I was driving my mother’s car the other day and I commented on how small her rearview mirrors were. My rear view mirrors are rather big because, as a Texan, I drive a large SUV I use to work my ranch. As I was looking out of her rearview mirrors, I pondered, as a Constitutionalist, my new self-definition, about whether Americans have something in common with rear view mirrors. Is the traditional American view – the basis of our country, our thesis, our founding principles, our United States Constitution – diminishing in our rearview mirrors? Are we, as a country, driving away from these founding principles?

In order to be a more perfect union in today’s environment we need to be more aware. Without awareness there can be no subsequent resulting action as citizens. Trying to evaluate legislation and governmental action without knowledge of the Constitution is rather similar to being in the passenger seat as the driver drives ahead in the dark – without headlights. An enlightened people were the hope and the engine of our new Republic in the 18th century. It is no different today.

Or maybe it is better represented as driving forward toward the results of a horrendous earthquake – an earthquake that has left a deep, uneven division. Thrust upon the divide are the clumps of dry parched land left to bake and parch in the sun – the American Republic, the America loved and cherished by many patriots of yesterday and today.

As we look into the future with an angst and a thirst for righteousness we realize we must look back in our rearview mirrors. The proper nourishment is available to cultivate the soil, to fertilize the great land of America and her people. In the rear view lays the vitamins and minerals. They are in the United States Constitution and its companion piece, The Federalist, or the Federalist Papers.

In these documents are all the answers – but solving the riddle requires reading it! We must join together in a unifying mission to become aware of what is in these great documents and to understand them. We should no longer let Washington, D.C., our representatives, the bureaucracy, or administrative officials do our thinking for us. Ignorance enables them to get away with all of the things we do not understand.

If we are to protest or approve, we must do so with a foundation of knowledge. We must educate ourselves and we must educate our children. It is like preparing for the great debate. We are either, as a nation, moving away from our Constitution, watching it minimalize in the rear view mirror, or we are turning around and driving toward it.

If we do not take action and Constitute America then we will watch as it is slowly, inch by inch, as has been done since the 20th century, diminish in view. Like a thief in the night our Constitutional ideals are being usurped from us, politically and culturally.

But if we do a 180 and turn around, shining the headlights of our car on the Constitution, then we may set off a momentum that will shift our country back to its founding principles. A government envisioned by our forefathers – a small government with checks and balances and accountability to its people.

“If we see it, we will come.” As a nation we must turn around and turn on the headlights.

The darkness will call out to us, “But wait, the Constitution isn’t relevant today!” Is the Constitution relevant today? Well, how about Federalist paper #62 dealing with the rules of the Senate, written by James Madison,

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;
if they be repealed or revised before

they are promulgated, or undergo such incessant changes, that no man who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known or less fixed.
How about words in Federalist Paper #1 written by Alexander Hamilton,

An enlightened zeal for the energy and efficiency
of government, will be stigmatized as the offspring
of a temper fond of power, and hostile to the
principles of liberty.

Timely are the warnings in Federalist Paper #10 by Alexander Hamilton,

Men of factious tempers, of local prejudices, or
of sinister designs, may by intrigue, by corruption,
or by other means, first obtain the suffrages, and
then betray the interests of the people.

Relevant today? Yes!

Like a candle lighted in the window, our founding fathers words in the Constitution and the Federalist Papers are illuminating the way. They call out from their arduously designed documents and copious papers to guide us toward the safe keeping of our republic. They echo forth the call of wisdom, the ways to confining tyranny and the despotism that precedes the loss of liberty.

We the People in order to PRESERVE our union must unite in not only standing up but standing firm in our principles and our resolve to be educated patriots. Let us not let the genius of our forefathers who mutually pledged to each other, “our Lives, our Fortunes and our Sacred Honor” or our Revolutionary soldiers who crossed the Delaware walking barefoot on the ice, leaving a bloodstained path, turn over in their graves.

Let us do 90 readings in 90 days – as 90 plus 90 equals 180! Let us turn around, do a 180, and seek the history that holds the key to our future. Let us read the United States Constitution and the Federalist Papers in 90 days, 5 days for the Constitution and 85 days for the 85 Federalist Papers. Read it with your children at the dinner table or before bed. It will only be about three pages a night. Let us have a national discussion one day at a time, one paper at a time, for 90 days at www.constitutingamerica.org Let’s start on April 20th. Let’s do 90 in 90 and do a 180 – back to the history that yields our future.

Janine Turner is an actress and the founder and co-chairman of “Constituting America.”

A version of this op-ed was published on FOXNews.com on April 7, 2010
http://www.foxnews.com/opinion/2010/04/07/janine-turner-constitution-federalist-papers-read-founding-fathers/

April 7, 2010/0 Comments/by Janine Turner and Cathy Gillespie

A Call to Arms for America’s Parents

Janine Turner 14. Essays by Janine Turner

by Janine Turner

We are in charge of our children’s futures and it’s time for a revolution.
In 1775 Israel Putnam was farming in Brooklyn, Connecticut when he heard the British had fired on the American Militia in Lexington, Massachusetts. He immediately dropped his plow and rode 100 miles in 18 hours to Cambridge, Massachusetts to join the colonial soldiers.
On the way he spread the call for “every man who is fit and willing” to come to his countrymen’s aid.

Israel was resolute when revolution beckoned. He was fit and willing. Are we? Are our children? Or is it time for a 2010 resolution for a revolution?

Revolution conjures thoughts of guns and soldiers, passions and pageants. The revolution that currently beckons is an awakening – not an awakening of political parties or partisan politics but of our youth’s minds.

America’s future lies with them.

What is happening to Americas promise? Their intellectual stimulation is benumbed with mindless text messaging, Xbox and reality television. There is an extraordinary, seemingly boundless amount of information available at their fingertips but the question begs: will it be used benignly or brilliantly? Will our children become hypnotized or revitalized? Unfortunately, I see signs of complacency. Recently, I stumbled upon the following words:

The average age of the world’s greatest civilization has been two hundred years. These nations have progressed through this sequence:

From bondage to spiritual faith;

From spiritual faith to great courage;

From courage to liberty;

From liberty to abundance;

From abundance to selfishness;

From selfishness to complacency;

From complacency to apathy;

From apathy to dependency;

From dependency back to bondage.

December 16, 2009/0 Comments/by Janine Turner and Cathy Gillespie

What Would Our Forefathers Think of America Today?

Blog, Janine Turner 14. Essays by Janine Turner, Janine Turner

by Janine Turner

I have a fantasy. It’s fascinating. It’s futuristic. It’s foretelling.

My fantasy is that our country’s forefathers would miraculously appear today in America. I see them walking among us, dressed in velvet coats and knee pants, hair in a pony tails, hats in hand. Thomas Jefferson in Virginia. Alexander Hamilton on Wall Street. John Adams in Boston. Benjamin Franklin in Philadelphia. And, George Washington in Washington.

I envision it theatrically, of course, with cameras. A panoramic sweep as they turn full circle in awe. What would they think? Would they be proud? Would they be shocked? I, for one, want them desperately to be pleased.

This is an idea that has fascinated me for decades. I can remember asking my father about it when I was nine: “Dad, what would our forefathers think of America if they returned today? About what would they be most disappointed?”

My father, who is a graduate of the United States Military Academy at West Point and a man of few words, thought for a moment and simply said, “taxes.”

What would our forefathers think of us today? I yearn for their wisdom. I believe, if they roamed the halls of Congress together and eavesdropped on the conversations, heard the rancor, felt the division,they would say, or at least Thomas Jefferson would say, “Ah, democracy at work.” However, upon further investigation their impressions would sour. They would accurately perceive that the tenor has changed.

During their day, they too differed and fought. They were, at times, wickedly vicious — but it was for Americans. They believed that God wove an innate promise in human beings and they envisioned the infinite possibilities of the mind and soul if freed from tyrannical government. They ardently loved America. Their purpose was for America to be born, to blossom and to be the hope of mankind. They took pride in their remarkable achievements. They believed that their victory over the British and the success in uniting their fledgling country’s passionate diversities as they constructed and ratified the Constitution, were the works of “Divine Providence.”

Brilliant and well read as they were, they would quickly surmise the threats to America. Alarmed by the bitter greed, they would stand at the pulpit of Congress and pound the gavel and say, “Awaken Patriots. Awaken your sense of unity! A Congress divided, for the sake of pride, will most certainly fall. A Congress that betrays its constituents, for the sake of party line, will most assuredly falter. A Congress that bloats bills to the point of obscene obscurity will be condemned.” They would be astounded by a Congress that does not read its own works and warn, “A Congress that cannot or will not read the bills before they vote, before they represent the American people, will, without fail, lead their country and its people to doom.”

When they realize C-SPAN is there, and they would adeptly figure this out, they would look into the camera and warn the American people. They would warn parents that by neglecting to teach their children their rights as embodied in the Constitution as well as the inherent responsibilities of citizenship, they will let America simply slip away. Thomas Jefferson would recount his own words, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” They would warn, “It won’t be sudden. It will be insidious. Those who devalue freedom, who underestimate human

genius, integrity and industriousness, will cunningly dominate the debate.”
Benjamin Franklin would recount his own words, “Think what you do when you run in debt; you give to another power over your liberty.” They would say, “By letting Congress bankrupt your country, you most assuredly will lose your freedom, your free will. By letting Congress take away your right to own a gun, you will let a dictator seize your country and your home, because he will encounter no resistance.” They would quote Samuel Adams’ wisdom, “Be forewarned, the pooling of property and the redistributing of wealth are despotic and unconstitutional.”

They would close with biting truths saying, “Without moral values, which should begin in Congress, America will lose her roots, her basis, her thesis.” They would echo Paul Revere and cry out, “Stand up, Americans. The challenge is coming! The challenge is coming! Let freedom continue to ring!” They would exit Congress and they would not be downtrodden. A smile would emanate from their faces, for they know the heart of Americans.

Janine Turner is an actress and writer.

July 16, 2009/0 Comments/by Janine Turner and Cathy Gillespie