Constitution Framers, the American Civil War, and Preserving the Union Through Compromise, Virtue and Statesmanship

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Guest Essayist: Samuel Postell
First Confederate imprint defining moment the first southern state, SC, formally seceded from the U.S. Charleston Mercury, Dec. 20, 1860https://en.wikipedia.org/wiki/American_Civil_War#/media/File:Charleston_Mercury_Secession_Broadside,_1860.jpg


The United States Constitution created many precautions against disunion and faction, but did not provide a failsafe solution; throughout the antebellum period statesmanship, compromise, and institutional development secured union until slavery and secession shattered the union.

As was argued in the last essay, the framers embraced the principle of union and framed a representative system to combat faction and disunion. As the Anti-federalists became increasingly weak after the ratification of the Constitution, Washington’s administration pursued policies to bolster union.

The Constitution created institutions meant to draw the country together and to prevent factions from controlling governmental power as was done under the Articles of Confederation. Publius argued that the Constitution embraced a number of improvements from modern political science to perfect republican government and cement union. The tools from modern political science were enumerated in Federalist 9:

a. The regular distribution of power into distinct departments.

b. the introduction of legislative balances and checks.

c. the institution of courts composed of judges holding their offices during good behavior.

d. the representation of the people in the legislature by deputies of their own election.

e. the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.

However, Publius argued that there were further Constitutional precautions to retain the “excellencies of republican government” and “lessen or avoid” its imperfections. Throughout The Federalist, Publius explains additional precautions woven into the constitutional structure. He points to “auxiliary precautions” to act as a sort of safety net to ensure that the violence of faction is limited if it penetrates any branch of the federal government. The term “auxiliary precautions” echoes an earlier formulation in James Madison’s essay Vices of our Political System written at the behest of George Washington before the Federal Convention. In that essay, Madison argues that the Articles allowed minority factions to overrun the state governments. The essay made the distinction between the great desideratum[1] (creating a sovereign neutral and powerful enough to stop injustice without becoming tyrannical) and the auxiliary desideratum (getting the noblest characters to be elected, rule, and act according to proper motives). Thus, the most important object of the Constitution is the creation of an impartial and limited federal government to secure rights, and a secondary object is to ensure that the system is administered by virtuous citizens. Although Madison argued that creating a limited impartial government was fundamental, the framers believed that no free government could be maintained without proper administration from good rulers. The auxiliary precautions of the Constitution attempt to mitigate the harm that a faction might inflict if it gains power.

As was argued in the last essay, an important aspect of securing an impartial government is distributing and maintaining the partitions of power, which requires that weak branches be fortified and strong branches be weakened. When Publius considers the branch that most needs fortified against, he settles upon the legislative because it was often the legislatures that dominated the state governments under the Articles. In Federalist 48, he arrives at the conclusion that “in a representative republic, where the executive magistracy is carefully limited both in the extent and duration of its power; and 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 jealousy and exhaust all their precautions.” Notice the similarity between Publius’ description of a legislature in Federalist 48 and a faction in Federalist 10. A legislature has a “supposed influence over the people,” it is a joint assembly which gives it the convenience of “concert,” it is numerous and can become impassioned through proceedings, yet it is small enough to make plans to “approach its passion.” In other words, the legislature gives a faction the power to exact its designs if it can properly organize itself. Publius therefore sought to limit it with auxiliary precautions such as a bicameral house with short terms, staggered elections, and two relatively large bodies. Note that Publius’ assessment is almost the opposite of Alexis de Tocqueville’s, who fears a soft despot seizing executive power and capitalizing from the lack of civic virtue among the people.

Despite Publius’ fears about the legislature, throughout Washington’s first term it became clear that the legislature was too weak to organize itself and pursue an agenda; instead of driving legislation, it looked to the president. For instance, in 1791 Congress called upon Secretary of Treasury Alexander Hamilton to help frame economic legislation. The House spent several days debating the propriety of considering Hamilton’s economic plans but did not bother drafting or proposing any of its own. The numerous House of Representatives was so unorganized and heterogeneous that it was not capable of creating any bills to put on the floor for a vote. Perhaps Publius underestimated the natural strength of the legislature in large republics. Did he not understand the distinction between this federal legislature set over a large sphere and encompassing a variety of interests and the state legislatures encompassing small territories with homogenous interests under the Articles?

By Thomas Jefferson’s presidency the congress was no less dysfunctional. It was consensus that Congress was weak and it looked to the presidency or the cabinet to drive federal policy. How different was this arrangement from the oligarchies in the state legislatures Madison criticized under the Articles? How much safer were minority rights from factions under this Constitution where the executive wielded such power?

Why was the Congress so weak? President Jefferson noted that representatives “are not yet sufficiently aware of the necessity of accommodation and mutual sacrifice of opinion for conducting a numerous assembly.” An anecdote puts Jefferson’s criticism a bit more sharply: after Jefferson’s message in December of 1805 was referred to the committee of the whole, it took almost a full session to determine a single resolution. After the message was referred to the Committee of the Whole, a section on harbor defense was approved and turned to committee. The Committee on Defense determined measures, and then on January 23 the report was taken up by the Committee of the Whole. The Committee on Defense decided on a sum for harbor defense, the Committee of the Whole disagreed, then appointed a committee of two to call upon the president for more information. In February the discussion was resumed. The House passed two resolutions: one sum for harbors and one sum for gunboats. A committee was then appointed to draft a bill in accord with these resolutions. On April 15, the committee began its debate on the bill to appropriate the money for harbor defense. The process in 1805 led four different committees to discuss two resolutions for defense over the course of five months: and that was just one plank of a bill, considering one part of the president’s annual message, in just the House of Representatives! James Sterling Young notes that the biggest problem was that “Any legislator had the privilege of bringing forward, at any moment, such measures as suit his fancy; and any other legislator could postpone action on them indefinitely by the simple expedient of talking.”

In addition to institutional problems, the representatives lacked the revolutionary unity common at the time of the Founding. One representative noted, “The more I know of [two senators] the more I am impressed with the idea how unsuited they are ever to co-operate, never were two substances more completely adapted to make each other explode.” On one hand a New England representative claimed of his Southern colleagues that they were “accustomed to speak in the tone of masters” and that the Westerners had “a license of tongue incident to a wild and uncultivated state of society. With men of such states of mind and temperament, men educated in New England could have little pleasure in intercourse, less in controversy, and of course no sympathy.” A Southern representative remarked of his New England colleagues that “not one possesses the slightest tie of common interest or of common feeling with us.” In addition to feelings of discord, there were physical altercations brought about by the pains of living in common boarding houses. An incident is recorded in Miss Shields’ house when John Randolph, “pouring out a glass of wine, dashed it in [Rep. Willis] Alston’s face. Alston sent a decanter at his head in return, and these and similar missiles continued to fly to and fro, until there was much destruction of glassware.”

How were we to call ourselves a republic if the representative branch could not govern themselves at their own tables, let alone within the chambers of Congress? In Publius’ lifetime as in our own, Congress needed to develop institutional tools to overcome its weakness and become a functional branch of government. This was necessary if the ambition of the legislature was to become sufficient to check the ambition of the executive branch and preserve our republican form of government.

Throughout the Antebellum Period, Congress developed institutional tools which allowed it to enact legislation without relying solely on the executive branch for direction. The most important institutional changes from the American Revolution through the Antebellum Period were rules, committees, coalitions, compromise, and statesmanship through oratory. Although I will not have the length to discuss each development in depth, I will cover some of the most important developments in Congress throughout the Antebellum period.

Henry Clay was the most seminal figure in developing the institutional reforms which allowed Congress to assume the role of legislative leader. On November 4, 1811, Clay was elected Speaker of the House on his first day as a member and on the first ballot. He won seventy-five votes, while William Bibb won thirty-eight, and Nathaniel Macon won three. Mary Parker Follett remarks that “Clay was elected more than any other Speaker as leader of the House. Never before and only once since has a member been distinguished with the honor of an election to the chair upon his first appearance in the House.” The caucus that met before electing Clay Speaker was clear about its intentions. One of Clay’s partisans asserted that the House was in need of a Speaker who would “bridle” John Randolph. Another member said that “he (Randolph) disregards all rules.” Another man asserted that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both.” Clay would eventually do both. One of Randolph’s favorite tactics was to bring his hunting dogs to the chamber where he would use them to intimidate other members and cause disruptions when proceedings were not to his liking. One of Clay’s very first acts as Speaker was to institute a rule barring animals from the chamber during business. In 1826 the two men dueled after Randolph insulted Clay, but both missed their marks, and unhurt met each other halfway to shake hands (something that the two could never manage to do politically).

Clay’s early rules were a sign of his prerogative as legislative leader: he believed that the majority in Congress, elected by a majority of the people, should be equipped with the tools to govern. This principle animated him throughout his congressional career, but also required that he attain more power as Speaker to silence the minority. Mary Parker Follett claims that Clay’s leadership aimed at producing order. She writes, “The new principles set forth during Clay’s long service were: first, the increase of the Speaker’s parliamentary power; secondly, the strengthening of his personal influence; and thirdly, the establishment of his position as a legislative leader.” Clay drew criticism as he increased his power but it was also clear that he was capable of passing policies that advanced the country into the boom of the industrial revolution.

The most radical change in the House of Representatives during the antebellum period was a change that still characterizes it today: the creation of standing committees to expedite business and develop policy expertise. Between the War of 1812 and the Civil War, the House increasingly relied on standing committees to debate and amend measures. As this reliance on standing committees steadily expanded, the House’s relationship with standing committees changed: measures were first referred to committee for consideration and only after being reported by committee were they debated by the full House. This expedited the law-making process because the Committee of the Whole allowed any member to debate on any bill and delay the majority; a liberty that the minority would slowly lose through the Clay Speakership. But how much did the committee structure grow during the Antebellum period? At the time of the Founding the House of Representatives had only one standing committee and relied on ad-hoc committees. By 1810 the House had 10 standing Committees. In 1816 the Senate established 12 permanent committees. By the Civil War the House had 39 standing committees and the Senate had 22.

The new developments in Congress ensured that independents like John Randolph would play an increasingly smaller role in policy-making and that coalitions would play an increasingly greater role. Henry Clay believed in a system animated by coalitions because he believed that such a system provided the opportunity for compromise and energy within the legislature. According to Clay, a coalition-led process of deliberation and choice, as opposed to a member-centered process, meant that creating consensus and collapsing distinctions about factious issues would be more common, and policies of pressing concern would be passed expeditiously. However, in organizing the Congress Henry Clay empowered it to act more efficiently. Did this new energetic Congress exceed the limitations Publius intended for the Federal Government?

In the early 1830s John Calhoun argued that the policies enacted by the energetic Congress harmed the interests of the minority; further, he argued that the people of a state should be able to nullify a federal law if its people deemed it oppressive. He argued that the energetic Congress, passing tariffs that harmed southerners and using federal funds for roads that empowered manufacturers at the expense of farmers, had wielded unchecked power to favor Northern interests. He wrote, “The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.” He argued that the state of South Carolina should be able to nullify and ignore the Federal Tariff laws on imports. However, South Carolina never nullified the federal tariff; Andrew Jackson threatened to use the army to collect tariffs and congress passed a Force Bill allowing him to do so, and Henry Clay passed a Compromise Tariff which would reduce the tariff over time to appease the state of South Carolina.

The Southerners deemed tariff laws oppressive, but nothing stoked the flames of disunion more than Congressional action upon slavery in the territories. Although South Carolina never effectively nullified the federal tariff, over the next thirty years the Southern states developed a constitutional theory of secession to combat the power of Congress which they deemed oppressive of their property rights and economic interests. In 1850, Jefferson Davis declared in the Senate, “every breeze will bring to the marauding destroyers of southern rights the warning ‘Woe, woe to the riders who trample them down!’” He argued that Congress had used its power to the detriment of Southern interests, and that they deserved extra protection for slavery or they may secede from the union. Of slavery, he argued, “This is the most delicate species of property that is held: it is the property that is ambulative; property which must be held under special laws and police regulations to render it useful and profitable to the owner.” When Abraham Lincoln was elected, Jefferson Davis argued that Lincoln’s hostility toward the expansion of slavery allowed the Southern states to secede from the union. He argued “Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it.”

As Dr. Eric Sands articulated for this study, in his essay on the Civil War and consequences of secession, Lincoln argued that secession was unconstitutional and threatened the principle of self-government. He argued that there could be no form of republican government if the losers of an election were free to secede in order to avoid the consequences of unpopular political beliefs. He said that the union was Perpetual; he argued that the Constitution intended that the union endure forever, and that the doctrine of secession was contrary to the most fundamental premise of the Constitution.

However, Davis and others argued that over the course of the Antebellum Period, the federal government had expanded its Constitutional power and used those powers oppressively toward the interests of the slave states. Lincoln argued that Davis was wrong; States were not sovereigns under the Constitution, and the common interests of union superseded their individual interest in the expansion of slavery and the protection of slaves as property.

Despite the philosophic differences, it is clear that as Congress lost the ability to collapse differences through virtue and statesmanship, and promote union through compromise, the union was destined to dissolve. The framers admitted that this was the case; that representative self-government relied upon a functional representative branch of government that protected and advanced the interests of citizens. Is our Congress capable of compromise, statesmanship, and advancing our common interests today? Perhaps the tools that quelled disunion throughout the Antebellum period could help solve our congressional crisis today.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

[1] Desideratum is Latin, meaning “thing desired.”

 

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Key to Subverting the Violence of Faction: America’s Founding Design of the United States Constitution Against Disunion

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Guest Essayist: Samuel Postell
Abraham Lincoln, portrait, November 8, 1863 by Alexander Gardnerhttps://en.wikipedia.org/wiki/Abraham_Lincoln#/media/File:Abraham_Lincoln_O-77_matte_collodion_print.jpg


In his First Inaugural Address, Abraham Lincoln argued that “the Union is much older than the Constitution.” What did Lincoln mean when he spoke of the Union? The Declaration of Independence explains that the Americans were “one people” because they were providentially, philosophically, and hence politically united. In addition to referring to the Americans as one people, it also references the American people using the collective “We.” Furthermore, the document calls itself a “unanimous” declaration of the “united” States of America. The authors saw the separate colonies as previously united, and unanimity implied that they were “of one mind.” In short, the Declaration expressed that the Americans were one people capable of governing themselves. Because the Americans were united as one people and were arbitrarily ruled by another, the Declaration asserts that they have a duty to assert their independence by appealing to their Creator and natural laws of justice. Therefore, the principle of union, the rallying cry of Abraham Lincoln, Daniel Webster, Henry Clay, and George Washington, is one of the bedrock principles of the American founding.

Whereas the Declaration expresses the existence of unity at the time of the founding, many of the Federalist Papers contemplate the importance of a strong or firm union. For example, Federalist 9 asserts in its first line that “A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” Additionally, Federalist 10 asserts that “Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” In other words, at the time of ratification, one of the most salutary effects of the United States Constitution was that it bolstered the existing unity between the American people and thereby combated faction and disunion. As discussed in previous essays, in Federalist 9 and 10, Publius argued that the particular kind of union created by the Constitution was the key to subverting the violence of faction, the primary vice of the political system under the Articles of Confederation.

But union was not only an important principle at the time of the signing of the Declaration and the ratification of the Constitution. The Declaration sets forth “self-evident truths” that are meant to guide the American people through time. The principles explicitly enumerated are “life, liberty, and the pursuit of happiness.” However, in Washington’s Farewell Address he emphasized the principle of “union” as that which secured the principles of the Declaration. In the Farewell Address, Washington counseled the American people: “The unity of government which constitutes you one people is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.” He told the people that “it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.” In other words, Washington argued that union was the principle that secured the self-evident truths for which the Americans had fought in the Revolutionary War. According to Washington, the principle of union was necessary to secure the rights to life and liberty as well as the freedom to pursue happiness. Washington believed that if union failed, then the American experiment failed, and if the American experiment failed, then the prospect of liberty and self-government everywhere was in danger. Therefore, he urged the people to cherish the principle of union.

But why cherish union? Washington believed that patriotism and a dedication to union were necessary to preserve the blessings of the Revolution. For example, when he wrote to a society of Quakers who refused to defend the country in war, he told them that religious liberty was contingent upon the maintenance of the union. He wrote, “We have Reason to rejoice in the prospect that the present National Government, which by the favor of Divine Providence, was formed by the common Counsels, and peaceably established with the common consent of the People, will prove a blessing to every denomination of them. To render it such, my best endeavours shall not be wanting.” In the Farewell Address, Washington argued that the people ought to remain dedicated to the principle of union because “Citizens by birth or choice of a common country, that country has a right to concentrate your affections.” In other words, Washington argued that America was the common country of North, South, East coast, and unsettled West. Patriotism was a necessary virtue for men of all sections and all religious sects. Washington worried the rights for which men fought and died in the Revolution may be short lived without the virtue of patriotism and self-sacrifice for the principle of union.

Furthermore, Publius argued that the Americans were destined to become united. In Federalist 2, Publius argued that “Nothing is more certain than the indispensable necessity of Government.” But what kind of government was necessary? Publius argued that “It is well worthy of consideration therefore, whether it would conduce more to the interests of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies, and give to each the head of each, the same kind of powers which they are advised to place in one national Government.” Publius believed that if the Constitution and the principle of union was rejected, then they would become like the “petty republics of Greece and Italy… kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” Publius foresaw that unless the Constitution be ratified and the principle of union secured, the country would become a loose confederacy like the European Union instead of a firm band of friends. Instead of creating a system of petty republics on the basis of confederacy, Publius argued that the Constitution would create a great republic on the basis of union. The Federalists argued that the constitutional union was fitting because the Americans had a common destiny, a common philosophy, and a common goal.

But why should the sections, which had different and contradictory economic interests, agree to subject themselves to a common government which would wield power? Isn’t it true that one section would, upon election, sometimes be given the opportunity to abuse their fellow country-men in different quarters, comprising different interests? Publius dealt with this problem in two ways. First, he argued that the American people were more similar than different. Second, the principle of federalism allowed the states to embrace their particular interests through state law, while allowing the federal government to legislate according to the “great and aggregate interests” of the country.

Publius argued that among the sections, the people were homogenous in their principles and character, even if they embraced different economic interests across the sections. He argued that Providence had prepared the American people for union. He wrote, “It has often given me pleasure to observe that Independent America was not composed of detached and distant territories, but that one connected, fertile, wide, spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a wide variety of soils and productions, and watered it with innumerable streams for the delight and accommodation of its inhabitants.” Publius also remarked 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 who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general Liberty and Independence.” In short, Publius argued that “This country and this people seem to have been made for each other.” In Federalist 2, Publius admitted that among the sections there were “slight shades of difference.” However, he argued that the common character and principles of the Americans trumped the consequential differences of economic interest across the sections. Furthermore, Publius and the Federalists believed that the American people would triumph over their differences through their common councils, given enough time.

However, Publius argued that the principle of federalism allowed for harmony in cases where the diversity of state interests clashed; by limiting the federal government to specific and enumerated purposes, the Constitution embraces the “slight shades of difference” among the states. For example, in Federalist 10, Publius makes a distinction between “local circumstances” and “national objects.” He argued that the representative must balance his attention to the local concerns of constituents and the “permanent and aggregate interests of the community.” He remarked that “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and the particular, to the state legislatures.” In other words, Publius believed that a limited government, embracing the principle of federalism, could unite American citizens in common matters while allowing the citizens of states to legislate according to their particular circumstances, habits, and interests.

But what was the alternative to union? One unpopular alternative among the Anti-federalists was the creation of a confederacy consisting of equal powers for each section of the union. In Federalist 5, Publius argued that the creation of a sectional confederacy was both impracticable and unwise. He predicted that the different sections would become jealous of the most powerful, and would scheme against their neighbors. Rather than cooperation, there would be competition between the sections. Rather than trust, there would be skepticism. Publius writes, “Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed, than by invidious jealousies and uncandid imputations.”

So, what was Publius’ solution to the different passions and interests that tended toward disunion? Publius’ most famous solution is the creation of the extended republic wherein the factions are multiplied, dispersed, and allowed to drown one another out. But also important is the way in which power is divided. The division of power is best explained in Federalist 51, where Publius explains that in the Constitutional system “ambition must be made to counteract ambition.” Publius first sought to quell factious differences by diminishing them through the extended sphere, but then sought to vent factious passions through the system of representation. The Constitution controls the violence of faction in a number of ways (the most important of which is the creation of an enlarged sphere, or a large republic), but here are four general ways the Constitutional system intended to deal with the difficulty of sectional faction by allowing “ambition to counteract ambition”:

  • First, the Constitution divides power between the state and federal government which allows local interests to pursue their ends without interfering with the self-government of other localities. The federal government and local government, each jealous of their powers, will compete for sovereignty through the courts and public forums.
  • Second, when federal legislative power is exercised, it is divided. This means majority factions cannot easily exact their designs because a bill must pass both houses.
  • Third, the Senate’s mode of election and representation are meant to balance the power of more populous states in the House.
  • Fourth, Publius imagined that representatives would “enlarge and refine public opinion” meaning that the representative would be less susceptible to the passions of local or sectional factions.

The Constitutional system successfully combated sectional faction under the pressures of the slavery question and Congress proved capable of balancing factious interests until states from the south rejected the Constitutional system and seceded from the union. In the next essay, I will consider how the Constitution and the Congress successfully combated the tendency toward disunion throughout the Antebellum period.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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The Five Principles That Render the American Republic More Stable

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Guest Essayist: Samuel Postell


 
In the last essay, I attempted to show how the framers rejected ancient political thought. In this essay, I will try to show what guided the framers of our Constitution. In Federalist 1, Publius made the bold claim 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.”

Publius implied that no past regime had created the circumstances for reasonable lawmaking or political stability. Past regimes lacked liberty, but they also lacked institutional arrangements to foster reflection and cooperation in law making, and thus were ruled by the force of one or the accidents of the many. Publius envisioned that America would create the opportunity for freedom and stability because of the regime’s dedication to liberty and natural rights, reliance on the people, and structure to combat the abuse of power.

In Federalist 9, Publius revealed what regimes governed by “accident and force” look like in practice: he claimed that “The petty republics of Greece and Italy… were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.” Because no regime had provided a stable foundation for “reflection and choice,” the ancient regimes were led by the force of tyrants, or the anarchy typical of pure democracies. But what did the past regimes lack that made them unstable? Publius argued that they lacked a proper constitution that assured a “firm union.”

Publius argued that various principles unavailable to the ancients allowed the framers of our Constitution to check tyranny and prohibit anarchy. In Federalist 9, he argued that the vibration between the extremes of anarchy and tyranny might give the opponents of liberty just cause to “abandon that species of government as indefensible.” However, Publius argued that “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” He argued that five principles rendered the American republic more stable than ancient constitutions. According to Publius, the following improvements are “means… by which the excellences of republican government may be retained and its imperfections lessened or avoided”:

  1. “The regular distribution of power into distinct departments.”
  2. “The introduction of legislative checks and balances.”
  3. “The institution of courts composed of justices holding their offices during good behavior.”
  4. “The representation of the people in the legislature by deputies of their own election.”
  5. “The enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.”

The last of the five improvements was the most novel, but also the most criticized. For example, both Anti-Federalists, Cato and Brutus, argued that such an enlarged sphere made “consolidation” likely, and thus endangered liberty. Montesquieu, the thinker upon whom many of the founders’ relied, argued that free government could only exist in small republics. Additionally, the free regimes of the ancient world were much smaller than the United States, and when they expanded, they became corrupt and liberty was endangered.

In Federalist 10, Publius gave his most robust defense of the “enlarged sphere.” In that paper, he considered an enlarged sphere to be the means by which the union may “break and control the violence of faction.” He argued that there are two means for dealing with the problem of faction: you may either remove the causes, or control the effects. However, the former cure– removing the causes– is worse than the disease because it would require that one remove liberty because “liberty is to faction what air is to fire.” Publius argued that two things will follow from an enlarged sphere, both of which combat faction: first, enlarging the sphere multiplies the number of factions which makes it more difficult for one faction to become a majority, and second, if the country covers a larger tract of land, it will be more difficult for a faction to “concert and carry out its schemes of oppression.”

However, Publius did not explain the most prolific difference between the American Constitution and ancient constitutions until Federalist 51. In Federalist 51, Publius argued that the constitutional form makes possible an extensive republic while also providing checks upon the abuse of power. He argued that the Constitution created an “interior structure” which made the branches “by their mutual relations… the means of keeping each other in their proper places.” In Federalist 47, Publius established that the departments of power were “distributed and blended.” The distribution of powers into separate branches, he argued, is essential to ensure accountability and prohibit the abuse of power. In fact, he argued that the very definition of tyranny is “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.”

Even before the Constitutional Convention, Madison noted that giving the government sufficient power while ensuring that power was not used to abuse rights was the “great desideratum” (Latin, meaning “great thing desired”). Publius argued that the next and most important task after dividing power was to provide some “practical security” to combat consolidation over time. In Federalist 48-50, he sought the means whereby the distribution of power into separate branches could be maintained. In Federalist 51, he revealed the practical security: the “interior structure” of the Constitution creates ambitious branches which counteract one another, and thereby limit the exercise of federal power.

Ultimately, Publius argued that in order to preserve liberty, each department must have “a will of its own” and each department should have “as little agency as possible in the appointment of the members of others”; additionally, each officer, in each branch, must have the “necessary constitutional means” and the “personal motives to resist encroachments from the others.” In other words, not only must the branches be separate, but the members of each branch must defend the rightful power of the branch to which he belongs. Publius envisioned a system in which each officer identified his own power with that of his branch, and became jealous of usurpation. He argued that the result is that “ambition” will counteract “ambition,” and each branch will check the others in the use of power. The result is that tyranny, consolidation, and the abuse of power is less likely, and the preservation of natural rights is more likely.

But in order to make each branch ambitious, each officer must be ambitious, and that requires that “the interest of the man must be connected to the constitutional rights of the place.” In order for this to occur, the officer must understand that whatever good he may do, or whatever glory he may harvest, ultimately, he requires that the branch to which he belongs maintains its Constitutional strength. Publius argues that such a system reinforces the separation of power. Paradoxically, the solution to the abuse of power is to make each branch ambitiously use its Constitutional powers to limit the abuse of power by other branches.

In our Constitution, therefore, there are a variety of institutional checks that keep the branches in their proper places. I will list a few of those checks inherent in the interior structure of our government. Publius remarks that the legislature is the most powerful branch so it is in need of extensive checks. He remarks that the legislature is an “impetuous vortex” swallowing the power of other branches. Therefore, our Constitution weakens the legislature by dividing its power between two houses and rendering each house different in mode of election and principle of representation. Additionally, the executive department has veto power over legislation. On the other hand, the Senate has the authority to declare war, so the president cannot determine foreign policy alone. The legislature is mixed with the executive and judicial departments when it comes to appointing justices of the Supreme Court, as the Senate must approve the president’s appointments to the Supreme Court. Additionally, the Vice President casts a tie-breaking vote in the Senate. The judiciary checks the legislature by considering the constitutionality of its laws. And finally, the states check the federal government because sovereignty is divided between the states and the federal government. Publius argues that this creates a “dual security” for the rights of the people.

The idea of blending power to control power, and rendering each branch sufficiently ambitious in order to combat tyranny and centralization, was an entirely new theory about how to control power. Institutionalizing this new theory made our Constitution completely novel in political science. Although the framers rejected the popular theory that a strict division of power was necessary to ensure the separation of powers, they did so after careful consideration of ancient history. For example, In Federalist 47, Publius argues that no state embraced a strict separation of power in its constitution, nor did the British government. Although almost all other regimes were forced by necessity to blend power, the American Constitution was the first to utilize the principle of blending power to ensure that power remained limited.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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American Founders’ Reliance on Western Tradition: Correcting Failures of Plato, Aristotle, and Ancient Greek Thought

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Guest Essayist: Samuel Postell


 

 
In a letter to Henry Lee written in 1825, Thomas Jefferson counseled that the Declaration of Independence’s authority rested “on the harmonising sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, Etc.” George Washington had the play Cato performed before his troops at Valley Forge, presumably because he believed that ancient examples would inspire them. In what sense was America an experiment in self-government, and in what sense was it a continuation of the Roman or Athenian experiment in popular government? The American Founders relied on the Western tradition for their understanding of virtue, but they learned from the failures of the ancient regimes and sought to correct those failures when framing the Constitution.

The ancient constitutions presupposed a high degree of virtue, and ancient regimes would often stifle freedom in order to ensure that citizens cultivate virtue; the American Constitution, prioritizing liberty and individual rights, embraced a more sober understanding of human nature.

Plato’s Republic is considered his most comprehensive account of government, yet the imaginary republic constructed by Socrates stifled liberty to ensure order and harmony. The American founders rejected much of Plato’s thought because The Republic paints liberty as inconsistent with order and political unity. For example, in 1814 John Adams wrote to Thomas Jefferson,

“I amused myself with reading seriously Plato’s republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. while wading thro’ the whimsies, the puerilities, & unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this?”

In addition to stifling liberty, The Republic relies on one-man rule and proposes that a philosopher king should be vested with power; the founders found this suggestion unpalatable because they believed that one-man rule could quickly lead to abuses of power. One of The Republic’s central allegories is the image of the “ship of state.” In Book 6, Socrates argues that the “true pilot” of the ship will be overlooked by the multitude, and he will be called a “star-gazer” or a “good for nothing.” Nevertheless, Socrates argues that such a man deserves to rule because a good captain must “pay attention to the year and seasons and sky and stars and winds, and whatever else belongs to his art.” In Federalist 10, Publius rejects Plato’s prescription of an “enlightened statesman” to steer the ship of state. He writes,

“Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”

Not only did Publius believe that an enlightened statesman would likely be rejected, but he also believed that it would be unlikely that the statesman could “take into view indirect and remote considerations.” Whereas Plato believed that a high degree of knowledge was necessary for rule– however unlikely that knowledge may be– the founders believed that it was unlikely that rulers, even if enlightened, could properly consider and weigh all “indirect and remote considerations” having to do with politics in a popular regime. Additionally, the framers did not believe that enlightenment made men less self-interested; rather, they believed that even an enlightened statesman may have passions and interests that would tie him to a particular faction and corrupt his judgment.

If the framers did not follow Plato’s political prescriptions, did they also reject Aristotle? In The Politics, Aristotle identified six different kinds of regimes: monarchy, tyranny, aristocracy, oligarchy, polity, and democracy. He argued that what defines a regime as correct or deviant is whether the ruler rules for his own good, or the public good. He suggested a “mixed regime.” The mixture, he suggested, was an aristocratic republic. In Book 5, Aristotle argued that justice is the end of regimes, and that some degree of stability is necessary to promote peace and justice. Aristotle concluded that disputes among the few rich and the many poor result in instability and injustice. In Book 5, Chapter 7, he wrote that “Both polities and aristocracies are overturned above all through a deviation from justice in the regime itself.” Aristotle argued that such regimes are overturned because the parties attempt to rule for their own benefit at the expense of the common benefit. Aristotle argued that this results because the aristocratic and democratic elements of the regime have not been “finely mixed.”

While it does seem that our regime is mixed because we have aspects of each kind of regime, in Federalist 14 Publius argued that our republic is unmixed. He wrote, “America can claim the merit of making the discovery of the basis of unmixed and extensive republics.” In other words, he argued that the American founding presents a new kind of constitution, a true republic, and that no historical or philosophical examples can explain our Constitution. In Federalist 39, Publius argues that Holland, Venice, Britain, and Poland are all called republican governments, but argues that they are not truly republican in form.

There are many ways in which the U.S. Constitution is novel, but the most obvious novelty is a system of representation predicated on the consent of the people. In Federalist 39, when defining republicanism, Publius wrote that:

“It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people.”

In Federalist 51, Publius argued that what makes a republic– a reliance on the people– is also the “primary security” for liberty. He argued that “A dependence on the people is, no doubt, the primary control on the government.” Unlike Plato’s Republic, which relied on a philosopher king, the American Constitution relies on the virtue and wisdom of the people. Unlike Aristotle’s mixed regime, the idea of consent permeates all of our institutions. What makes the American regime unique is its firm reliance on the people as the source of political power, and the faith that the people are capable of justly wielding political power.

Did the American founders, therefore, reject ancient wisdom entirely? Although the framers rejected many of the ancients’ prescriptions for political constitutions and created a form of government which was unprecedented, they relied on ancient wisdom in order to do so. Although the framers rejected the totalitarian government of Plato’s Republic, and did not precisely follow Aristotle’s model for a mixed regime, what led them to create a novel form of government was an understanding of human nature and the failures of past experience. The framers were led by history and experience, and much of the history they considered was ancient, and they derived their critiques from the same foundation as the ancients did. In the next essay, I will consider the history and experiences that led the framers to create our Constitution, and I will highlight precisely what makes it different from past constitutions.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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Missouri Statehood and the First Sirens of Civil War

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Guest Essayist: Samuel Postell

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“The Show-Me State” of Missouri ratified the U.S. Constitution August 10, 1821 making it the twenty-fourth state to join the United States. The Missouri State Constitution currently in use was adopted in 1945.

Missouri’s application for U.S. statehood was not only an important event in the state’s history, but is among one of the most important events in our nation’s history. Before Missouri’s application for statehood, the abolitionist factions of the Union were relatively quiet and the Southern defense of slavery as a “positive good” had not yet begun. After Missouri’s application for statehood, it became clear that slavery would become a national issue that would divide the sections of the Union, perhaps to the point of civil war.

Missouri first applied for statehood in 1817, but Congress did not begin to consider enabling acts to allow the territory to create a state constitution until February of 1819. At the end of the day on February 18, 1819, James Tallmadge introduced his amendment which would spark the controversy between the Northern States and the slaveholding states. Tallmadge proposed an amendment that would free all children born of slaves after Missouri had become a state, as well as free all slaves in the state of Missouri once they had reached the age of 25. Various Northerners, particularly from New York and Pennsylvania, began to see such an amendment as a necessary condition for Missouri to become a state.

The Southerners responded with gusto. They feared that such amendments coming from the national congress infringed on the right of a state to determine its own laws, and they feared that such legislation would upset the balance between free and slave states in Congress. The consequence of this, they believed, would be the ultimate extinction of slavery in the Union. And perhaps they were correct: Representative Livermoore urged the House, just before it voted upon the Tallmadge Amendment, that “An opportunity is now presented, if not to diminish at least to prevent, the growth of a sin that sits heavy on the soul of every one of us.” The House voted to include the Tallmadge amendment in a vote of 79 to 67.

But that was not the last word on the Tallmadge Amendment. Although it had passed the House, it had to be accepted by the Senate which was composed of a majority that was principally opposed to the Federal government meddling with slavery in the territories. Thus, the Senate immediately rejected the Tallmadge amendment as part of the Missouri enabling act. Throughout the rest of the Congressional session, the two houses would deliberate upon the Missouri issue, but neither the Northerns in the House nor the Southerners in the Senate would give way. The Congressional session would end with Thomas Cobb’s admonition to Tallmadge that “the Union will be dissolved. You have kindled a fire which all the waters of the ocean cannot put out, which seas of blood only can extinguish.” Tallmadge merely responded “so be it.”

The deliberation over Missouri not only occupied the House for the months of February through May of 1819, but it took the Congress the remainder of that year and half of the next to sort out the Missouri question. While the Congress was out of session several petitions were generated in Northern states urging their representatives to deny Missouri’s statehood if that entailed the spread of slavery, and some Southern petitions were signed that threatened secession if Congress blocked Missouri. The nation was on the brink of civil war, the representatives of the people were threatening one another in the chamber, and the nation was facing the greatest economic recession that it had yet seen. What was to be done?

As the Speaker of the House, Henry Clay did something that seems counterintuitive: he delayed the Missouri question for the first half of the following Congressional session, and created a committee. He placed a New Yorker who had been involved in the debates over the Tallmadge Amendment at the head of that committee, and he placed a balance of Northerners and Southerners on that committee. Only in that committee could Missouri be spoken of. Clay attempted to stall while the Senate prepared its bill for the House. He wanted to quell the passions of the much larger body of representatives in order that they not evoke civil war throughout the debates that were to come.

Meanwhile, the House of Representatives began to speak of Maine’s admission to statehood. The first day of deliberation upon Maine, Henry Clay left the Speaker’s chair in order to set the stage for debate. He wanted to assure the Northerners that they had much to lose with the debates over Maine if they continued to give the Southerners ultimatums regarding Missouri. If Maine could not be accepted as a state, then the Northerners would lose any opportunity of equaling the Southern representation in the Senate, and this could have long term consequences.

Eventually, the Senate decided to tie Missouri and Maine together as an enabling act, and add an additional proviso excluding slavery from all remaining lands of the Louisiana Purchase north of the 36° 30′ parallel, thanks to Jesse B. Thomas of Illinois. What followed was much heated debate within the House over the bill, eventually leading Clay to organizing a joint committee of representatives in the House and the Senate to deliberate upon the bill. In order to finally pass the bill through the House, Clay had to separate the three bills and pass each individually. Each bill passed by a narrow margin, but what was most important was that the nation averted civil war in the process of accepting two new states.

Henry Clay would thenceforth be known as the “Great Pacificator” for his work in promoting compromise within the House of Representatives. At the end of that session, he would leave the house with a challenge to preserve Union and liberty. He told his colleagues,

“I shall regard (this House) as the great depository of the most important powers of our excellent constitution; as the watchful and faithful centinel of the freedom of the people; as the fairest and truest image of their deliberate will and wishes; and of that branch of government where, if our beloved country shall unhappily be destined to add another to the long list of melancholy examples of the loss of public liberty, we shall witness the last struggles and its expiring throes”

Although the Union had been threatened, and civil war had been evoked, the nation proved its fitness to brave the sirens of civil war through representative deliberation and choice led by selfless compromise.

Sam Postell is a current Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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How Ohio Crafted Its State Constitution to Uphold the Will of the People

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Guest Essayist: Samuel Postell

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The seventeenth state to enter the Union, known as “The Buckeye State,” Ohio ratified the U.S. Constitution on March 1, 1803. The current Ohio State Constitution in use was adopted in 1851.

The study of state constitutions is perhaps the most important study that Americans can undertake, yet the most neglected. Understanding the constitution of the state within which one holds residence is important for two reasons. First, because understanding the laws closest to oneself equips one to become a citizen in the truest sense, one who participates in the city with his fellow citizens and engages in the community. And second because the state constitutions, in preserving the past while being layered by amendments of the present, reveal the history and development of the American regime.

Ohio’s state constitution is paradigmatic in the latter sense. The Buckeye State was the 17th state to join the Union, and it was accepted to statehood in 1803. The year in which Ohio was accepted to statehood is important insofar as it forms the essential character of the Ohio Constitution: joining a mere 27 years after the nation declared independence, and a mere 14 years after the Federal Constitution’s ratification, it preserves much of what was original to the Union itself. However, the Ohio Constitution, being ratified after the election of 1800, just after the first major shift in party control, gives Ohio an important place in the new notions of politics that developed during Jefferson’s term as president. Jefferson himself referred to the election of 1800 as the “revolution of 1800”, and considered it in many respects more important than the revolution of 1776 because it marked a dedication to a more democratic mode of politics.

Nevertheless, Ohio’s Constitution was decidedly anti-revolutionary. For example, the original 1803 Ohio Constitution was a work of brevity; the entire 1803 Constitution is shorter than “Article VIII: Public Debt and Public Works” which was added in 1851 and amended various times throughout the 21st century. Further, the 1803 Ohio Bill of Rights mirrors the philosophy and form of the constitutions of the original 13 states. For example, the Bill of Rights begins by setting forth the ends of government, emulating the Declaration of Independence: “That all men born equally free and independent, and have certain natural, inherent and unalienable rights… every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence.” Like other state constitutions, point 3 of the Ohio Bill of Rights aims to protect the “natural and indefeasible right to worship Almighty God according to the dictates of conscience” and asserts

“But religion, morality and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instructions shall forever be encouraged by legislative provision not inconsistent with the rights of conscience.”

Thus, Ohio, like other States of the Union at the time, saw establishments such as religious schools absolutely necessary and conducive to free government. Like other states of the Union, the original Ohio Constitution saw religious establishments and public schools dedicated to advancing Christianity as perfectly consistent with separation of church and state. What the state did reject as inconsistent with separation of church and state was coercion, forced attendance to a certain church, and religious tests for office.

In addition, the original Ohio Constitution embraced the republican spirit of the entire country by adopting a structure which empowered the Congress and weakened the governor. The 1803 Ohio Constitution established a bicameral House consisting of a Senate and a House, called the “General Assembly.” Section 1, Article 16 reads “bills may originate in either house, but may be altered, amended or rejected by the other.” Article 2, however, gives the governor of the state no power to alter, amend, or reject legislation. Additionally, the Congress has the power of impeachment. The Governor, on the other hand, only has the power to propose general elections to fill vacancies in the Congress, and he may call a special session, on the condition that he openly declare before the members of Congress the reason for convening them. In other words, the Governor had little to do with the creation of the laws of the state, he merely wielded the power of enforcement.

However, over time the Ohio Constitution has departed drastically from its original form. The most clear departure from the original constitution was the 1912 Ohio Convention. The most striking contrast between the Constitutional Convention held in 1802, and the convention held in 1912, was the national attention that each convention garnered. At the time of Ohio’s original convention, it was widely held as a principle of federalism that the federal government ought to allow people of a territory to craft a constitution for their own governance. By 1912, the understanding of federalism had shifted and all eyes were on the Ohio Convention of 1912. For example, Teddy Roosevelt, William Jennings Bryant, William Howard Taft, and even California’s Governor Hiram Johnson addressed the convention in order to advise it.

The convention assembled to rewrite the constitution, but after much debate they settled on proposing several amendments. In the end 41 were proposed and 33 were accepted and added to the constitution after a special election that allowed the people to vote upon the proposed amendments. Most of these amendments aimed at fixing the constitution because it was believed by many to be “outdated” and “inefficient.” The most important of the amendments accepted were the “line item veto” and the “initiative and referendum.” These and similar reforms were grafted onto many of the original constitutions of the states throughout the progressive era and drastically changed the way in which the people in the states, and therefore the nation, governed itself. Unlike the original constitution which left little room for the enervated governor to operate, the line item veto greatly increased his power by giving him the authority to reject certain parts of a bill passed by the legislature without vetoing the entire bill. Similar amendments providing a line item veto were adopted by 43 of the states throughout the progressive era. However, the initiative and referendum is perhaps the most pronounced change from the original constitution. The initiative and referendum gives the people of the state the power to overturn or even pass laws by popular ballot, entirely circumventing the legislative process.

In short, the changes to the Ohio Constitution mirror the changes of the nation. As Ohio has weakened the legislature and expanded the executive power while affording the power to the people through the initiative and referendum, so has the nation chipped away at the federal legislature and empowered the executive. The progressive era fostered many reforms which sought to make the people more directly participate in their government, and strengthened the executive in order that he represent the will of the people. These changes first took place in states such as Ohio, but slowly began to penetrate the nation and become the new norm. All in all, the original Ohio Constitution differs drastically from the constitution which governs Ohio today, so much so that one may conclude that the state adopted an entirely new form of government in the year 1912.

Sam Postell is a Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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Role Of Congress As Representative Government & The Rise Of The Progressive Administrative State

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Guest Essayists: Joseph Postell & Samuel Postell

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

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

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

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

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

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

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

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

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

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

 

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

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Revolt Of 1910 Against House Speaker Joseph Cannon (1836-1926) (R-IL)

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Guest Essayists: Joseph Postell and Samuel Postell

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

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

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

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

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

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

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

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

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

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

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Committees – History & Purpose In The United States Congress

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Guest Essayists: Joseph Postell & Samuel Postell

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

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

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

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

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

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

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

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

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

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

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

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

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

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Thomas Brackett Reed (1839-1902) – House Speaker From Maine Known For “Reed’s Rules”

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Guest Essayists: Joseph Postell & Samuel Postell

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Henry Clay (1777-1852) – House Speaker, Whig Party Leader, Kentucky Senate Member

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Guest Essayist: Sam Postell

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Henry Clay: The Man for a Crisis

Henry Clay led a political career that spanned almost fifty years and was Speaker of the House for almost ten. According to some, Clay was a hero, and to others, he was a villain. For example Abraham Lincoln described Clay as his “Beaux ideal of a statesman”, while Andrew Jackson described him as “the basest, meanest, scoundrel that ever disgraced the image of his god”, and “void of good morals… ambitious and regardless of truth when it comes in the way of his ambition”. Although opinions regarding his character are conflicted, all understood that he shaped Congress in fundamental ways. He was the first to understand that Congress was in need of leadership and order to be considered an important power rather than a mere servant of the president.

Before Clay became speaker he was nominated to fill a vacancy in the Senate. After his second term he decided to leave the Senate and run for election to the U.S. House of Representatives. As he announced his candidacy all other candidates withdrew their names from the ballot.

Before Clay had attended a single session as a Representative in the House, he was elected Speaker on the first ballot. Many representatives in the House were intimated by John Randolph, a Representative from Virginia who “ran roughshod” over the proceedings of the House. He would often bring his hunting dogs into the House, and he would filibuster in order to derail its proceedings. It was said that Randolph “disregards all rules” and Clay’s supporters decided that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both” (Sargent, Public men and Events, I,130).

Henry Clay fulfilled the wishes of the members of the 12th Congress and was reelected Speaker for the next ten years. The clearest demonstration of his promise to enforce, and even manipulate, the rules of the House is his role in the passage of the Missouri Compromise. There were three separate bills to be considered: first, Missouri’s application for statehood as a slave state, second, Maine’s application for statehood as a free state, and third was an amendment prohibiting slavery north of the 36’30’ parallel with the exception of Missouri.

The House at first rejected the bill that tied the three together. Clay decided that he would separate the three bills and attempt to pass each individually. On February 8, 1820, Clay gave an unrecorded speech that lasted over four hours attempting to persuade the Northern abolitionists to pass the compromise in order to quell Southern threats of secession. Although deliberation upon the three bills lasted the entire month of February, on March 2nd each bill was passed individually.

However, Clay’s work was not yet done. John Randolph rose in the House and asked that the vote be reconsidered. Henry Clay announced that it was late and that the motion would be postponed until the following day. The next day Randolph again rose to have the vote reconsidered. Clay ruled him out of order until the routine business had concluded. Meanwhile, Clay signed the Missouri Bill and had the clerk deliver it to the Senate for a vote. When Randolph rose once more Clay announced that the bill could not be retrieved- the vote was final. On March 6th President Monroe signed the Missouri bill. Clay’s role in the passage of the Missouri bill demonstrates a principle that survives to this day: the principle of majority rule and the Speaker’s role in ensuring that the majority cannot be undermined by the actions of a single representative or a faction.

Later in the Senate, Clay endeavored to advance the same principle but with less success. Not only was Henry Clay an actor in the questions of the Missouri Compromise and the War of 1812, but he also played a role in the debate regarding the rechartering of the Bank of the United States. Early in his career he argued that the National Bank was unconstitutional, but after experiencing the difficulties of financing the War of 1812 he began to view it as a necessity. Andrew Jackson claimed that Clay was inconsistent, to which Clay responded in an impassioned speech claiming that “the constitution has not changed… I was at first wrong.”

When the Senate came to vote on the Bank Bill in June of 1841, Clay became upset to see many representatives dragging their heels. Rather than discuss and vote upon the bill, many members of the minority filibustered, speaking on issues not pertaining to the bill. This led Henry Clay to introduce a motion to amend the rules to prevent the minority from delaying the proceedings of the Senate. Many members of the minority party, included John Calhoun and president pro-tempore William King, argued that the minority had the Constitutional right to speak in session, and that any attempt to “gag” members of the minority was unconstitutional. Clay eventually buckled under the pressure of the other members and relented on his motion to change the Senate rules; however, the Bank Bill was finally voted upon and passed the Senate on July 28th.

Not only was Henry Clay the man for a crisis and a controversial figure in his day, but he left his mark on the way that Congress deliberates upon and passes legislation. Clay was the first to understand that Congress was in need of leadership if it were to be understood as an important power of the government rather than a mere servant of the president. Although he was a man of action, his speeches bequeath a rich knowledge of constitutional theory that allow us to appreciate the importance of the rules and orders of the legislature.

Sam Postell is a doctoral candidate in Politics at the University of Dallas.

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