Guest Essayist: Will Morrisey


Essay Read By Constituting America Founder, Actress Janine Turner


Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.

At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible which had taught them that corruption began with the human heart, that sin persisted in each of them, and that they might succeed in suppressing it. Each man at the Constitutional Convention was wary of the American people, their colleagues, and himself.

They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.

George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the United States Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”

In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.

When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and view of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.

These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on the Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law”—federal law—and “paid out of the Treasury of the United States.”

George Mason expressed no concern about corruption in the form of salaries, but the corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depends.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial posts as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”

Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”

Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.

For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.

The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which he is elected,” be appointed to any such office (emphasis added).

But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justices, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointments might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.

The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and dilution. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an online book review publication.


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Guest Essayist: Will Morrisey

Good government produces good administration, Publius has written. Good administration is what we need from the executive branch, charged as it is with carrying out the laws enacted by the legislature within the framework of the supreme law of the land, the United States Constitution. A good executive must act with energy. To enable executives so to act, the offices they occupy must have unity, duration, adequate provision in terms of money and personnel, and competent powers. Publius therefore defends the Framers of the Constitution in their establishment of a presidency unlike the consular system of Rome, which assigned domestic policy to one consul, foreign (and especially military) policy to another. The American president serves as chief administrative officer for domestic policy as well as Commander-in-Chief of the armed forces. Congress may not manipulate his salary and the president can exercise the power to veto Congressional legislation, thereby maintaining his independence of judgment. He is, then, neither a monarch nor a legislator but a republican executive.

In Federalist 71, Publius presents the reasons for and the institutional means to enable duration in office, “the second requisite to the energy of the executive authority.” There can be no substitute for character, for “the personal firmness of the executive in the employment of his constitutional powers.” Nor can there be any substitute for “the stability of the system of administration which may have been adopted under his auspices” as a consequence of that firmness of character. But no person can exercise such character or carry out such a system without an institutional framework which permits him to do so.

As always, Publius shows the link between the Constitution’s institutional arrangements and human nature. “It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title.” The firmness of the man must be reinforced by the firmness of the office. In regimes whose executives serve at the whim of the legislature, as in many parliamentary systems, why would any person of character take the executive office seriously? Better to be a power broker in the parliament than the hapless holder of fly-by-night executive powers, powers that will not last if you exhibit the slightest hint of independence. And if you accepted such an office, why risk anything to defend powers which are not truly yours to wield? Such an institutional arrangement undermines civic courage, inclining the one who suffers under it, “too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body.”

This defect had already been on display under the Articles of Confederation, which did not separate executive power from the legislative branch. The Americans who wanted to retain the Articles regime against the proposed Constitution were “inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation.” They want representative government to mirror Athenian-style direct democracy as much as possible, to have it register the opinions and even the passions of the people and their elected legislators. Publius considers such notions as “very crude,” with regard both to the ends and especially the means of government.

The Declaration of Independence set down the just purpose of American government as securing the safety and happiness of the American people, a purpose justified by their natural right to life, liberty, and the pursuit of happiness under the Laws of Nature and of Nature’s God. Much of that is “self-evident,” the Declaration says. Publius agrees: “It is a just observation that the people commonly intend the PUBLIC GOOD.” But as those same people themselves acknowledge, having learned it from experience under the Articles regime, they do not “always reason right about the means of promoting” the public good, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.”

If self-government is therefore dangerous, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “intrust the management of their affairs.” Characteristically, Publius attempts to firm up the chance that the distinctively human characteristic, reason, will have the greatest possible authority in government while acknowledging the impassion—Christian would say ‘fallen’–character of human beings.

There will, then, be circumstances “in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have anointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.” Thus to serve the people “at the peril of their displeasure” takes “courage and magnanimity.”

It is important to pause and appreciate the moral structure of Publius’ argument, here. He wants to see the rule of reason in the United States—to the extent possible, given human frailty. The Constitution generally, and a four-year, renewable presidential term in particular, provides an institutional framework for such rule. But neither the rule of reason nor the defense of the Constitution can survive without two other virtues that array themselves against popular passion. Civic courage is easy to understand and to appreciate, if not commonplace. We have all seen examples of men and women, even children, who have refused to buckle under ‘peer pressure.’ Magnanimity is less well understood.

Magnanimity literally means greatness of soul: in Latin, magnus means great, large; anima means soul. The classic description of the great-souled individual comes from Aristotle’s Nicomachean Ethics IV.3. The great-souled man, Aristotle writes, “deems himself worthy of great things and is worthy of them.” This means that he possesses all the cardinal virtues—courage, moderation, justice, and prudence—to a very high degree. Accordingly, he stands ready to withstand the demands of others, however intensely they may clamor, when he sees that those demands are cowardly, immoderate, unjust, or imprudent. He can take the heat, and he can do it without resentment.

A republican regime undergirded by a democratic civil society will test him. He can pass that test, but without a firm institutional foundation on which to stand he will be physically overwhelmed by the majority tide, helpless to resist “the humors of the legislature.” The Articles of Confederation government had folded executive and judicial power into the legislature, giving inadequate support for reason, courage, or magnanimity—the finest human characteristics. “To what purpose separate the executive or the judiciary from the legislature,” as the new Constitution had done, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative” branch? The powers would then be separated in name only, with the legislature “exert[ing] an imperious control over the other departments,” unbalancing the apparently balanced powers of the federal government as framed by the Constitution.

This is exactly what has been happening under the Articles. The same thing will happen again unless the president enjoys a stable tenure in office. In view of this, “it may be asked whether a duration of four years would answer to the end proposed,” whether such a duration of a presidential term will suffice to resist attempts by legislators to dominate the system. Publius does not pretend that he knows the answer, since a four-year term was untried in previous American governments and the lifelong term of a European monarch—in principle if not always in practice as stable a provision as can be had—was highly undesirable. It is nonetheless reasonable to think that a four-year presidential term “would have a material influence upon the spirit and character of the government.”

Why? Because any person “endowed with a tolerable portion of fortitude” should see that there is “time enough” before the current term expires, and the prospect of re-election draws near, for the people and their legislative representatives to have calmed down and to be ready to assess the president with equanimity. True enough, this would mean that he might not dare to resist popular disapproval so readily as his term drew to an end, but for most of the time he would be able to hold steadily to his constitutional duties and best judgment. At the same time, unlike a monarch, a president won’t stay in office long enough “to justify any alarm for the public liberty.” Which is not to say that his enemies won’t try to raise such alarms.

Publius’ understanding of the presidency not only departs from the conception of executive power which prevailed under the Articles, it also contradicts the new conception of the presidency advanced by the Progressives, more than a century later. President Woodrow Wilson rejected the United States Constitution as an antiquated and constricting product of a bygone era, and equally rejected its moral foundation in the laws of Nature and of Nature’s God. In place of natural right, he substituted historical right, claiming that the course of events, guided by divine Providence, provided the true moral light for humanity. In view of this continuing historical progress, the Constitution must be reconceived as an ‘elastic’ or ‘living’ document, to be reinterpreted by political leaders such as himself who placed themselves on the cutting edge of that progress. In place of magnanimity, Wilson substituted compassion, not so much a virtue as a sentiment, one intended to carry the people along on a tide of emotion with slogans like ‘I feel your pain.’ The president, then, should serve not so much as the executor of Congressional legislation within a stable constitutional framework but as the principal leader of the nation, the person who senses where public opinion should go next, appealing more to their passion than their prudence in the hope of induing the people to follow him to that ever-new, ever-higher destination.

As a result, the Progressives raised expectations to unfulfillable heights, grafting their own unusual brand of moving-target ‘constitutionalism’ onto the old Constitution, with predictably confusing and self-contradictory results that have persisted to this day.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, and Editor and Publisher of Will Morrisey Reviews.



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Plutarch writes of the life of Gaius Marius, the noted Roman general who seized power in the Roman Republic early in the first century B.C., that Marius was no patrician. He was born into the equestrian class—“poor smallholders,” as Plutarch describes them, a family living outside the great city. He rose to prominence on the strength of his own abilities and of his leading virtue, courage. As a young man, he had disdained the liberal arts education which had entered Rome from Greece. After all, were not the Greeks now the slaves of Rome, their education corruptive of the manliness that resists enslavement? A real man evidently needed no Aristotelian moderation, in Marius’ judgment: Plutarch cites Marius’ “harsh and better character,” his “inordinate love of power,” and “insatiable greed,” along with his inveterately superstitious mind, as markers of his rejection of everything urbane and civil. No gentleman he, and proud of it.

A great military strategist and tactician, Marius began his rise to prominence by crushing the Teutones and Ambrones at today’s Aix-en-Provence in 102 B.C. Using paupers and slaves as his soldiers, he next defeated and captured the formidable African monarch, Jugurtha. When the Teutones and the Cimbri joined forces to invade Italy, moving towards Rome, the Romans elected Marius consul, empowering him to repel the enemy. In this war, he proved a superb manipulator of the souls of his men, taking them to battle with appeal to their fear, their courage, their shame, their honor—all, sometimes, in the same speech.

“In a military context,” Plutarch writes, Marius’ “status and power were based on the fact that he was needed, but in political life his preeminence was curtailed, and he took refuge in the goodwill and favor of the masses”—not the patrician senators—and “abandoned any attempt to be the best man in Rome, so long as he could be the most powerful.” To do that, he needed to keep his soldiers satisfied and thereby to maintain his power base. This political necessity mirrored the character of his soul: “He was incapable of just quietly enjoying what he had.” Therefore, when he ran out of foreign wars, he could only turn to civil war. Forced into exile by his even more vicious rival, Lucius Cornelius Sulla, he regrouped his forces and came back, turning the city into a field of blood.

For centuries, Rome had been a proud republic, with elements of monarchy, aristocracy, and democracy mixed in rough balance, with the senate as the balance-wheel. Marius and Sulla overturned that regime temporarily, foreshadowing the end of the republican regime at the hands of the Caesars, several decades later. Military overthrow of republics had occurred many times in Greece as well, and modern history has seen such revolutions in England (Oliver Cromwell), France (Napoleon Bonaparte), Iraq (Saddam Hussein), and many other countries. If there is any truth to the claim of ‘American exceptionalism,’ the absence of any such coup d’état in our own history undoubtedly ranks among the most striking examples of it. The dogs of war have barked no less frequently for Americans than for other nations, but the wolf of military takeover has remained silent. And this, despite the fact that we have seen some twelve U.S. generals elevated to the presidency, beginning with George Washington. Unlike Marius, our military men have been able to become first in peace after having been first in war, without bringing a general’s command-and-control temperament with them. The framers of the Articles of Confederation and the ‘anti-federalist’ opponents of the proposed United States Constitution in the late 1780s had provided for no presidency at all, in large measure to avoid the possibility that an independent executive branch could be seized by a military man, using the equivalent of the Roman consulship as his vehicle.

As students of the Roman regimes, the Framers of the Constitution recognized the need of energy in the executive as much as the Romans did. They also wanted to make their chief executive a defender of republican liberty, not its subverter. Politically ambitious military officers might channel their vigor and courage into peaceful civilian life, including high office, but no more than that. With this intention, the Framers designed the ruling institutions of the new republic in ways that have kept tyrannical souls like those of Marius and Sulla out of the presidency.

Marius could not have risen to power in Rome except by exploiting Rome’s factionalism, the inveterate resentment of the many plebeians for the few patricians. In Federalist 10, Publius famously calls faction the characteristic vice of popular governments. Factions typically center on what he calls the various and unequal distribution of property. The regulation of property has become “the principal task of modern legislation,” since “neither moral nor religious motives” adequately moderate factitious passions. As Rome itself had repeatedly proven, “Enlightened statesmen will not always be at the helm.” One way to control faction and thereby to prevent the tyranny that may arise to eradicate it is by designing the republic’s ruling offices not so much along the lines of a mixed regime, as in Rome, but in accordance with the principle of representation. The people will have a voice, but not directly—only through their elected delegates to the bicameral legislature and, much more indirectly, through the Electoral College to the presidency. The most democratic part of the government, the House of Representatives, will consist of persons who know their constituents but do not need simply to register their desires. Representative government enables officials to deliberate, to “refine and enlarge the public views.” The kind of appeal Marius made to the Romans would find itself quickly diluted among the Americans.

If there is something resembling a ‘mixed-regime republican’ element in the Unites States government, it can be found in that bicameral legislature. Although, as a democratic republic, America doesn’t have a born-to-rule patrician class as in Rome (and indeed as in Europe at the time of the Founding), there is no question that Senate members tend to be wealthier than members of the House. In the thirty-fourth Federalist, Publius examines how this kind of legislature will govern military expenditures. Such expenditures, he writes cannot be limited constitutionally, as it’s impossible to estimate far in advance the cost of wars, “contingencies that must baffle all the efforts of political arithmetic.” As we are not “entirely out of [Europe’s] reach,” and would indeed become less so as naval technology advanced, “to model our political systems upon calculations of lasting tranquility would be to calculate on the weaker springs of the human character.”

Rome exemplified this dilemma, Publius observes. Its liberties “proved the final victory to her military triumphs.” As for modern Europe, its “liberties…as far as they have ever existed, have, with few exceptions, been the price of her military establishments” (Federalist 41). This being so, a standing army “is a dangerous, [and] at the same time that it may be a necessary, provision.” Therefore, “a wise nation will combine all these considerations.”

The federal union, however, “by itself, destroys every pretext for a military establishment which could be dangerous.” Although one or a few states might be easy prey to foreign invaders, “America united,” even without a standing army, “exhibits a more forbidding posture to foreign ambition than America disunited.” “The moment of [the Union’s] dissolution will be the date of a new order of things.” In that event, “the face of America will be but a copy of that of the continent of Europe,” its liberty “crushed between standing armies and perpetual taxes.” Worse still, a disunited America would see foreign powers playing divide and rule on this continent, even as they do in Europe. As I write these lines, this has been exactly the strategy followed by Russia in its several invasions of Ukraine, perhaps with more to come, beyond Ukraine.

The fact that all spending bills must originate in the House—again, the most democratic branch of the democratic republic—will limit such spending nonetheless, as the people have won the battle against taxation without representation. At the same time, the more nearly patrician, or at least richer, Senators, with their longer terms in office, will moderate any impassioned rush into war. Congress as a whole can check and balance ambitious presidents, if only by exercising the power of the purse. Further, Congress must limit its funding, as “the Constitution ties down the legislature to two years as the longest admissible term” for military appropriations.

The Framers built additional constraints into the office of the executive itself. Publius forthrightly observes that “energy in the executive is a leading character in the definition of good government”—a character the Articles of Confederation lacked. “A feeble executive implies a feeble execution of the government,” which is one way of having “a bad government.” This, he continues, is especially true in war, which is why the American president is commander-in-chief of the armed forces. In Federalist 70, Publius pays considerable attention to the executive offices of the Roman republic.

The “ingredients” of executive energy are unity, duration in office, financial support, and competent power.” Safety in the executive depends upon a due dependence upon the people and due responsibility for one’s conduct in office. How did Rome measure up to these standards?

In its frequent wars, Rome “was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well as against the intrigues of ambitious individuals who aspired to tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasion of external enemies who menaced the conquest and destruction of Rome.” The dictator had little or no dependence upon the patricians, let alone the people as a whole. And he made sure that he could not be prosecuted for anything he did while dictator.

When it did not suffer under dictatorship, however, Rome had not one but two co-equal executives, the consuls. That is, if something went wrong, each pointed the finger of blame at the other. Responsibility was lacking. This executive dualism might well have led to even more rivalry than it did, except that the patricians were so frequently in conflict with the plebeians at the same time they were faced with foreign wars and invasions. This led the Romans to give one consul authority over foreign policy, the other over domestic policy, keeping the two men distracted from one another. “This expedient must no doubt have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic.”

In the American republic, by contrast, the executive enjoys the unity of a Roman dictatorship along with the powers of commander-in-chief while at the same time being constrained by four-year terms in office and by dependency on Congress for financial support. Publius is well aware that an executive might be tempted to undertake a life of Marius. “Self- love” often causes “the great interests of society [to be] sacrificed to the vanity, to the conceit, to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind.” Against this, the Framers designed a regime that frustrates such passions, while recognizing that they will never be extirpated so long as human beings are what they are.

In addition to the institutional structures ordained in the Constitution, one must notice that the way of life in republican Rome differed from that of America. Rome had begun as a military monarchy, then became a military republic. Even in its founding legend, Romulus overpowered Remus and, as Roman historians from Livy to Tacitus testify, it fought its way through the centuries. Because it was so good at pursuing that way of life, its great generals became its principal heroes. More, as those men ranged farther afield in the republic’s extensive empire, their troops became more attached to their generals than to Rome and its republic. A military republic thus encourages not only habits of obedience to one commander but the geopolitical circumstances in which such a regime might easily threaten the civilian-ruled capital.

America’s commercial republic is as extensive as many of the ancient empires, but the American way of life inclines us to think of territory less in terms of military rule than of free trade. From the start, Americans have understood their political union as a vast free-trade zone. Ambitious citizens most often devote their lives and energies to peaceful commercial competition, not military rivalry. The best accounts of the distinction between military and commercial republics remain Montesquieu’s Considerations on the Greatness of the Romans and their Decline and his massive and authoritative The Spirit of the Laws both works well known to the American Founders.

Finally, the purpose of the American republic differs from that of the Romans. The Declaration of Independence maintains that government should aim at securing the safety and happiness of the people. Romans most assuredly sought their own safety, but it wasn’t happiness so much as glory that its leading men prized. War did not only seek them out; they sought it. And so have many rulers and many peoples, before and since—America (mostly) excepted. Our presidents have sometimes conquered for territory—invoking our ‘Manifest Destiny’ to rule from sea to shining sea on this continent—but seldom for fame, which Alexander Hamilton called “the ruling passion of the noblest minds.” Thanks to the Framers’ work, that ruling passion has stayed within the boundaries of reason, along with the men whose minds are ruled by it.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, and Editor and Publisher of Will Morrisey Reviews.



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Essay 12 - Guest Essayist: Will Morrisey

“…and to institute new Government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.”

In declaring their independence from the British empire, Americans did not merely assert themselves. They declared “the causes which impel them to the Separation” and submitted facts, evidence “to a candid World.” In doing so, they selected a way of arguing that can be understood not only by Americans and Englishmen but by human beings as such. Human beings are by their nature capable of reasoning, of thinking according to the principle of non-contradiction. If I say, ‘Think of a circle,’ you know what I mean, so long as you know the meaning of the words in that sentence. If I say, ‘Think of a square,’ you also know what I mean. But if I say, ‘Think of a square circle,’ you don’t know what I could possibly mean. I have contradicted myself.

A formal argument founded on the principle of non-contradiction is called a logical syllogism. That is exactly what the Declaration of Independence is. A logical syllogism consists of one or more ‘major premises’—the foundations of the argument—one or more ‘minor premises’—typically, specific facts—followed by a conclusion. To give the standard example: ‘All men are mortal. Socrates is a man. Therefore, Socrates is mortal.’ The major premise is a general or foundational statement; the minor premise is a factual statement; the conclusion follows from the two premises. You could disprove the argument by showing that either or both premises is false, or that the conclusion doesn’t follow from the premises, that it somehow violates the principle of non-contradiction. So, for example, if the ‘Socrates’ you are referring to is an angel, the conclusion is wrong, since angels may not be mortal.

In the Declaration of Independence, the clause we are considering is one of the several main premises of the argument; the minor premises are the specific, factual charges against the British king and parliament. The major premises stated before this are the famous ones: that all men are created equal respecting their unalienable rights to life, liberty, and the pursuit of happiness; that men institute government to secure those rights; that the governments they institute derive their just powers from the consent of the governed; and that, conversely, a people whose government violates their unalienable rights may rightly be abolished.

According to the logic of the argument, then, the “consent” of the governed cannot mean simply the assent of the governed. Consent can only mean assent to a government that really does secure the rights human beings have by nature, thanks to their Creator, before they form the government. Once they no longer consent to their government because it no longer serves the “end” or purpose a government ought to have, not only do we have the right to alter or abolish it, we also have the right, even the obligation, to frame a new government, one that does secure the rights they old government failed to secure.

How will we do that? By doing two things. First, we do it by “laying its foundations” on the foundations or major premises of the Declaration of Independence: the natural, unalienable rights of human beings. Second, we do it by founding a new regime, a regime which includes a government with a new “form,” a new structure, an architecture, which is logically consistent with those natural foundations. By so shaping the means to the end, the form of the government to the defense of natural rights, we can effect our safety and happiness—secure our natural rights in practice, not merely recognize them in theory.

This clause of the Declaration is the link between the Declaration and the preamble to the United States Constitution. Justice, domestic tranquility, common defense, the general welfare, and securing the blessings of liberty are all elements of our safety and happiness as an independent, self-governing people. The Constitution lays out exactly the form or structure of the government designed to achieve those purposes, replacing the Articles of Confederation, which had not achieved them, which in turn had replaced the regime of the British empire, which had violated them.

Thus the right of revolution follows logically from the purpose of government, just as the purpose of government follows logically from the existence of unalienable natural rights in all human beings. In presenting their Declaration of Independence in the form of a logical syllogism, the American Founders justified their action not only to themselves, not only to their “British brethren,” but to a “candid world”—to all human beings who think rationally, wherever and whenever they live.


Will Morrisey is Professor Emeritus of Politics, Hillsdale College; Editor and Publisher, Will Morrisey Reviews


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Guest Essayist: Will Morrisey

To secure the unalienable natural rights of the American people, the American Founders designed a republican regime. Republics had existed before: ancient Rome, modern Switzerland and Venice. By 1776, Great Britain itself could be described as a republic, with a strong legislature counterbalancing a strong monarchy—even if the rule of that legislature and that monarchy over the overseas colonies of the British Empire could hardly be considered republican. But the republicanism instituted after the War of Independence, especially as framed at the Philadelphia Convention in 1787, featured a combination of elements never seen before, and seldom thereafter.

The American definition of republicanism was itself unique. ‘Republic’ or res publica means simply, ‘public thing’—a decidedly vague notion that might apply to any regime other than a monarchy. In the tenth Federalist, James Madison defined republicanism as representative government, that is, by a specific way of constructing the country’s ruling institutions. The Founders gave republicanism a recognizable form beyond ‘not-monarchy.’ From the design of the Virginia House of Burgesses to the Articles of Confederation and finally to the Constitution itself, representation provided Americans with real exercise of self-rule, while at the same time avoiding the turbulence and folly of pure democracies, which had so disgraced themselves in ancient Greece that popular sovereignty itself had been dismissed by political thinkers ever since. Later on, Abraham Lincoln’s Lyceum Address shows how republicanism must defend the rule of law against mob violence; even the naming of Lincoln’s party as the Republican Party was intended to contrast it with the rule of slave-holding plantation oligarchs in the South.

The American republic had six additional characteristics, all of them clearly registered in this 90-Day Study. America was a natural-rights republic, limiting the legitimate exercise of popular rule to actions respecting the unalienable rights of its citizens; it was a democratic republic, with no formal ruling class of titled lords and ladies or hereditary monarchs; it was an extended republic, big enough to defend itself against the formidable empires that threatened it; it was a commercial republic, encouraging prosperity and innovation; it was a federal republic, leaving substantial political powers in the hands of state and local representatives; and it was a compound republic, dividing the powers of the national government into three branches, each with the means of defending itself against encroachments by the others.

Students of the American republic could consider each essay in this series as a reflection on one or more of these features of the American regime as designed by the Founders, or, in some cases, as deviations from that regime. Careful study of what the Declaration of Independence calls “the course of events” in America shows how profound and pervasive American republicanism has been, how it has shaped our lives throughout our history, and continues to do so today.

A Natural-Rights Republic

The Jamestown colony’s charter was written in part by the great English authority on the common law, Sir Edward Coke. Common law was an amalgam of natural law and English custom. The Massachusetts Bay Colony, founded shortly thereafter, was an attempt to establish the natural right of religious liberty. And of course the Declaration of Independence rests squarely on the foundation of the laws of Nature and of Nature’s God as the foundation of unalienable natural rights, several of which were given formal status in the Constitution’s Bill of Rights. As the articles on Nat Turner’s slave rebellion in 1831, the Dred Scott case in 1857, the Civil Rights amendments of the 1860s, and the attempt at replacing plantation oligarchy with republican regimes in the states after the Civil War all show, natural rights have been the pivot of struggles over the character of America. Dr. Martin Luther King, Jr. and the early civil rights leaders invoked the Declaration and natural rights to argue for civic equality, a century after the civil war. As a natural-rights republic, America rejects in principle race, class, and gender as bars to the protection of the rights to life, liberty, and the pursuit of happiness. In practice, Americans have often failed to live up to their principles—as human beings are wont to do—but the principles remain as their standard of right conduct.

A Democratic Republic

The Constitution itself begins with the phrase “We the People,” and the reason constitutional law governs all statutory laws is that the sovereign people ratified that Constitution. George Washington was elected as America’s first president, but he astonished the world by stepping down eight years later; he had no ambition to become another George III, or a Napoleon. The Democratic Party which began to be formed by Thomas Jefferson and James Madison when they went into opposition against the Adams administration named itself for this feature of the American regime. The Seventeenth Amendment to the Constitution, providing for popular election of U. S. Senators, the Nineteenth Amendment, guaranteeing voting rights for women, and the major civil rights laws of the 1960s all express the democratic theme in American public life.

An Extended Republic

Unlike the ancient democracies, which could only rule small territories, American republicanism gave citizens the chance of ruling themselves in a territory large enough to defend itself against the powerful states and empires that had arisen in modern times. All of this was contingent, however, on Jefferson’s idea that this extended republic would be an “empire of liberty,” by which he meant that new territories would be eligible to join the Union on an equal footing with the original thirteen states. Further, every state was to have a republican regime, as stipulated in the Constitution’s Article IV, section iv. In this series of Constituting America essays, the extension of the extended republic is very well documented, from the 1803 Louisiana Purchase and the Lewis and Clark expedition to the Indian Removal Act of 1830 and the Mexican War of 1848, to the purchase of Alaska and the Transcontinental Railroad of the 1960s, to the Interstate Highway Act of 1956. The construction of the Panama Canal, the two world wars, and the Cold War all followed from the need to defend this large republic from foreign regime enemies and to keep the sea lanes open for American commerce.

A Commercial Republic

Although it has proven itself eminently capable of defending itself militarily, America was not intended to be a military republic, like ancient Rome and the First Republic of France. The Constitution prohibits interstate tariffs, making the United States a vast free-trade zone—something Europe could not achieve for another two centuries. We have seen Alexander Hamilton’s brilliant plan to retire the national debt after the Revolutionary War and the founding of the New York Stock Exchange in 1792. Above all, we have seen how the spirit of commercial enterprise leads to innovation: Eli Morse’s telegraph; Alexander Graham Bell’s telephone; Thomas Edison’s phonography and light bulb; the Wright Brothers’ flying machine; and Philo Farnworth’s television. And we have seen how commerce in a free market can go wrong if the legislation and federal policies governing it are misconceived, as they often were before, during, and sometimes after the Great Depression.

A Federal Republic

A republic might be ‘unitary’—ruled by a single, centralized government. The American Founders saw that this would lead to an overbearing national government, one that would eventually undermine republican self-government itself. They gave the federal government enumerated powers, leaving the remaining governmental powers “to the States, or the People.” The Civil War was fought over this issue, as well as slavery, the question of whether the American Union could defend itself against its internal enemies. The substantial centralization of federal government power seen in the New Deal of the 1930s, the Great Society legislation of the 1960s, and the Affordable Care Act of 2010 have renewed the question of how far such power is entitled to reach.

A Compound Republic

A simple republic would elect one branch of government to exercise all three powers: legislative, executive, and judicial. This was the way the Articles of Confederation worked. The Constitution ended that, providing instead for the separation and balance of those three powers. As the essays here have demonstrated, the compound character of the American republic has been eroded by such notions as ‘executive leadership’—a principle first enunciated by Woodrow Wilson but firmly established by Franklin Roosevelt and practiced by all of his successors—and ‘broad construction’ of the Constitution by the Supreme Court. The most dramatic struggle between the several branches of government in recent decades was the Watergate controversy, wherein Congress attempted to set limits on presidential claims of ‘executive privilege.’ Recent controversies over the use of ‘executive orders’ have reminded Americans of all political stripes that government by decree can gore anyone’s prized ox.

The classical political philosophers classified the forms of political rule, giving names to the several ‘regimes’ they saw around them. They emphasized the importance of regimes because regimes, they knew, designate who rules us, the institutions by which the rulers rule, the purposes of that rule, and finally the way of life of citizens or subjects. In choosing a republican regime on a democratic foundation, governing a large territory for commercial purposes with a carefully calibrated set of governmental powers, all intended to secure the natural rights of citizens according to the laws of Nature and of Nature’s God, the Founders set the course of human events on a new and better direction. Each generation of Americans has needed to understand the American way of life and to defend it.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an on-line book review publication.

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On September 19, 1796 George Washington published his Farewell Address. Best remembered now for its warning against American embroilment in European wars, the Address centers on what Washington considered a far more important and urgent question: the need to maintain the American union.

That union, he wrote, provides “a main pillar in the edifice of your real independence.” Americans’ tranquility at home, peace abroad, safety, prosperity, and liberty all require the continued union of the American states. “This is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed.” In a world of powerful, militarized and centralized modern states, several in command of vast empires, “no alliances, however strict, between the parts” of America “can be an adequate substitute.” Internally, factionalism, the “party spirit”—“itself a frightful despotism,” likely fanned by “the insidious wiles of foreign influence”—can eventually lead to a regime of tyranny, the last resort of a republican people desperate for protection from both domestic and international threats. Therefore, “The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations.”

As both the leading general in the Revolutionary War against just such an empire and the first president under the United States Constitution, Washington had experienced what eighteenth-century writers termed the “inconveniences” of disunion for the past twenty years. From his difficulties in recruiting and paying the Continental Army to the machinations of French ambassador Edmond Genêt on behalf of the Jacobin regime, Washington had seen how selfish interests and mutual distrust could threaten his country’s still-fragile, controversial experiment in popular self-government.

In this, he had allied with his Treasury Secretary and former Army officer Alexander Hamilton, not only on the battlefield and in his administration, but in the crucial years 1787-91 when the United States Constitution was framed, debated, and ratified. Themes Washington succinctly invoked in the Farewell Address had already been elaborated by Hamilton in The Federalist.

Hamilton begins by alerting his readers to dangers Americans face from “dissensions between the states.” Among sovereign states, God’s command to ‘Love thy neighbor’ does not predominate. Quite the opposite: Hamilton considers it “a sort of axiom in politics that vicinity, or nearness of situation, constitutes nations’ natural enemies.” This is so because human nature isn’t divine. One must never “forget that men are ambitious, vindictive, and rapacious”; their unlovely passions direct themselves against those who are nearest to hand. Thus “the causes of hostility among nations are innumerable.” They include both “the love of power or the desire of pre-eminence and dominion” and “the jealousy of power, or the desire of equality and safety.” Trade wars often lead to shooting wars.

Nor do national passions limit themselves to public ambitions and grievances. Many national rivalries “take their origin entirely in private passions,” in the “attachments, enmities, interests, hopes and fears of leading individuals in the communities of which they are members”: love affairs, criminal activity, vanity, religious bigotry, even indebtedness.

More often, however, the causes of war are less petty. Sovereign states fight over territory; given America’s “vast tract of unsettled territory” in the west, this could easily become a source of conflict—as indeed it did, by the 1850s. With existing jealousies and fears of larger states by smaller states under the existing Articles, border disputes “would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited.” The public debt of the Union, like the private debt of Shays, “would be a further cause of collision between the separate States or confederacies,” as “foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion in internal contention.” Finally, “incompatible alliances between the different States, or confederacies, and different foreign nation,” would cause us to “be gradually entangled in all the pernicious labyrinths of European politics and wars”—Washington’s famous future argument—as “Divide and conquer must be the motto of every nation that either hates or fears us.”

Hamilton especially needs to argue against the argument made by Montesquieu and other writers that commercial republics won’t fight each other. Applied to the United States, this would mean that the American states don’t need a more perfect union to sustain peace amongst themselves because they are all commercial republic. Here, Hamilton engages in some adroit rhetorical sleight-of-hand, although for a good purpose. He first argues by counter-example.  Republics often make war, no less than monarchies. “Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?” No doubt they are. And “has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory?” Surely not, and assuredly so, respectively. He then observes that “Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies at the same times.” And in modern times, the “haughty republic” of Venice often made war on its neighboring states, and the commercial republics of Holland and Britain fought a series of wars against each other.

These arguments are easy to disprove. The two commercial republics of antiquity, Athens and Carthage, didn’t war against each other, except when Athens became a subordinate ally of a Syracusan tyrant. As for Holland and Britain, the Dutch Republic was a republic in name only—a federation, to be sure, but one ruled by kings and trading oligarchs; even Britain, during the time of the wars with the Dutch, was at best a mixed-regime republic, with monarchs not Parliament conducting its foreign policy. Why these sophistries? What justifies them?

What Hamilton knew, as did his political ally James Madison, was that many of the Southern states were not democratic republics at all. Both men had heard Gouverneur Morris chide the representatives of those states at the Constitutional Convention. You are slaveholding, plantation oligarchs, not real republicans, Morris said, and even Madison, himself a slaveholding, plantation oligarch, understood this, while hoping for gradual abolition of slavery and consequent political reform in Virginia and throughout the South. If not all the American states are commercial republics, the republic peace theory does not apply. This is the unspoken truth behind Hamilton’s verbal legerdemain.

Having established (directly or indirectly) the several causes of disunion, were the American Union to divide, Hamilton turns to the consequences, the effects those causes would bring down upon us. Whereas in Europe the disciplined armies and fortified borders of its many sovereign states have “been productive of the signal advantage of rendering sudden conquests impracticable,” in “this country the scene would be altogether reversed,” as wars would consist, first, of the “populous States” overrunning their “less populous neighbors,” followed by guerrilla warfare which will make such conquests “difficult to be retained.” Hamilton is thinking of the many instances of exactly such warfare, on both sides, during the recently concluded Revolutionary War. Even the Civil War, decades later, saw the conquest of the South by the more populous North, only to be followed by simmering hit-and-run resistance, including terrorism, by irregular forces led by Nathan Bedford Forrest, to take only the most prominent example.

Such chronic insecurity will lead to standing armies, and then to the undermining of republicanism throughout America. Armies, after all, require executive direction; American constitutions “would acquire a progressive direction towards monarchy,” “at the expense of the legislative authority.” Not only republicanism but commerce would thereby attenuate, as “the industrious habit of the people of the present day, absorbed in the pursuits of gain and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers,” as such circumstances would require Americans to become. To those who would cite Great Britain as a counterexample, as a nation that has fought many wars without succumbing to military rule (except for the brief reign of Oliver Cromwell, in the previous century), Hamilton reminds them that they are thinking of the British Isles–islands, moreover, protected by the most formidable navy on earth. America, too, has long coastlines, but is largely a continental power, and will become more so as it expands westward.

In sum, history teaches that small-scale republics, clustered together, spell calamity for the peoples so divided. “It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of evolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.” The “transient and fleeting brilliancy” of the Age of Pericles and of Renaissance Italy cannot compensate for “the vices of government” that “pervert[ed] the direction and tarnish[ed] the luster of those bright talents and exalted endowments” displayed there. Further, “From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty,” arguments enabling such advocates to condemn “all free government as inconsistent with the order of society.”

Confident that he has drawn his readers’ attention to the dangers, causes, and consequences of disunion, Hamilton defends the Framers’ solution: a republican regime and federal state with strong but limited powers. Respecting republicanism, “the science of politics… like most other sciences, has received great improvement” in modern times. Division of powers, checks and balances, judges holding office during good behavior, and perhaps above all “the representation of the people in the legislature by deputies of their own election” are “wholly new discoveries, or have made their principal progress towards perfection in modern times.” Respecting the modern state, it has replaced small, weak political communities with large and powerful ones, but more: With the invention of federalism, it has enabled Americans to combine the self-defense only possible in a large place that organizes numerous soldiers and sailors in a manner permitting coherent military operations, with sufficient revenues to keep them well-armed. Crucially, as Montesquieu argues in his magisterial work, The Spirit of the Laws, a “confederate republic” will enable Americans to extend “the sphere of popular government” at to “reconcile[e] the advantages of monarchy”—effective command of well-trained and organized troops—“with those of republicanism”—economic, political, and religious liberty. Such a state, and such a regime, will not only defend itself against foreign enemies but also against “popular insurrection” within, as a beleaguered governor of one state will be entitled to call in assistance from other states, all under the eye (and, more to the point, the authority) of the federal government.

Within that federal government itself, the states will retain representatives. The Senate, elected by the state legislators, will leave the states in possession of “certain exclusive and very important portions of sovereign power,” although not in possession of sovereign power tout court. Hamilton cites the example of the ancient Lycian confederacy, which successfully combined self-defense, representation of each of its constituent city-states, and enumerated and forceful authority within those city-states by the federal government.

Throughout this study, essayists have shown how the American federal republic has empowered its own constituent states to retain substantial self-government without sacrificing the general powers needed for national defense against enemies foreign and domestic, retaining the freedom of interstate commerce, communication, and travel that affords the American people one of the highest living standards in the world. In the past century, the centralization and bureaucratization of both the federal and state governments have weakened citizen self-government, but the words of the original Constitution as amended in the years immediately succeeding the Civil War, and the intentions of the Framers and those citizens who have remained loyal to their intentions, guided by their principles of equal, natural (and therefore unalienable rights remain as a standard for those who continue to hold certain truths to be self-evident.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.


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Guest Essayist: Will Morrisey


Having felt the pinch of rule within an empire by a would-be absolute monarch wielding the powers of a modern state, Americans needed to solve two problems at once. United, they could depict themselves as a rattlesnake telling the world, “Don’t tread on me.” Disunited, severed into thirteen pieces, as depicted in an equally famous illustration of the period, they would die, prey to one or more of the surrounding empires. Americans needed a modern state to defend themselves against other modern states. Divided, they would be conquered, even as the American Indian nations and tribes had been, and would continue to be conquered, whenever they attempted to resist ‘modernity.’

At the same time, they had won their independence in resistance to tyranny, in resistance to an overbearing modern state that denied them their rights not only as Englishmen but as human beings. The natural rights of life, liberty, and the pursuit of happiness require self-government, civil society. Civil or genuinely political life, the association of citizens who share rule with one another, requires small associations—families, towns, city-states. How can civil society exist in a large, centralized, modern state, the very thing needed for self-defense in a world dominated by such states—a ‘Eurocentric’ world in which men armed with the instruments of modern science, very much including the new, Machiavellian science of politics, of statism, was already extending its tentacles onto every continent? Europeans ruled not only with gunpowder-propelled projectiles but with a new form of ruling organization, one sufficient to divide, conquer, and perhaps most crucially rule even a vast empire like China, or a subcontinent of such staggering diversity as India.

Statism and self-government at the same time: that sounds very much like a circle never to be squared. They found their answer in another institutional device: federalism.

Writing only a few decades before the American founding, the political philosopher Montesquieu had written, “If a republic is small, it is destroyed by a foreign force; it is destroyed by an internal vice”—typically, corruption. What is needed is a “constitution that has all the internal advantages of republican government and the external force of a monarchy,” namely, “the federal republic.” Each element of this republic should itself be commercial-republican—peaceful and moderate, not a warrior-state like that of Alexander the Great. Each element should have liberty, which “in no way consists in doing what one wants” but rather in “having the power to do what one should want to do and in no way being constrained to do what one should not want to do.” What one should want to do is to observe “the law of nature, which makes everything tend toward the preservation of species,” the “law of natural enlightenment, which wants us to do to others what we would want to have done to us,” and “the law that forms political societies,” which aims at the perpetuation of those societies. Certain moral virtues inhere in liberty itself. Republicanism consists of citizens who rule one another reciprocally, doing to one another as they would have done to themselves; federation enables republics to follow the political law of self-perpetuation.

If one were to draw a diagram representing a modern state, it might look like a wagon wheel: a solid border or rim; a central government or hub; strong but limited lines of control or spokes extending from the center to the border, reinforcing the border but emanating from the rim. But if civil society consisting of local associations and institutions exists in the spaces between the spokes, how can this state be republican, an association of self-governing citizens, and not mere subjects?  A return to feudalism would solidify the spaces, widen the spokes at the expense of weakening the hub.  Federalism retains the integrity of both the central state and the constituent, smaller states. In the United States Constitution, the central government gains certain enumerated powers, including the power to raise revenues from within the territories of the states without the consent of the state legislatures and governors and the power to regulate interstate commerce. The states retain powers not enumerated, albeit limited by their republican regimes, guaranteed by Article IV, section IV. State governments were assured a voice in the councils of the central government by their power of electing two representatives each to the United States Senate. The peoples of those states had their voice in the House of Representatives, elected by popular vote within voting districts located within the boundaries of each state. Additionally, of course, the people of each state also elected their representatives to the legislatures which chose the U. S. Senators, making the entire system republican either directly or indirectly. Neither the state governments nor the central governments exercise sovereignty over the people; James Monroe titled his book, The People the Sovereigns.

To return to the image of the wheel, in a federal-republican state we see the powers of the central government as strong filaments running through the spokes, which are the constituent states of the federation. If one shifts the image from a wheel to the more dynamic example of a power grid, the powers of the sovereign people are energies that run through intertwined, mutually strengthening wires. One wire depicts the government of your state; the other depicts the government of your country as a whole—the central government. Both derive their energy from the same source, the people, united through the political union of their states, each itself a political union encompassing smaller ‘unions’ from families to civil associations to counties.

The sovereign people in a republican regime will rule and be ruled, therefore more likely to do as they would be done by. Their way of life will be genuinely political, civic, fostering habits of mind and heart that incline toward civility because each citizen knows he needs the others and wants to do harm to none of them. At the same time, such a people will have the strength to defend themselves against other states and empires, far more centralized and far more ambitious for conquest.

For more than a century, the constitutional republicanism established by the Founders increasingly has given way to administrative government at the national, state, county, and even the local levels. As a result, Americans have needed to deliberate together less. The decline of civility in what remains of American political conversation may well originate in the decline of genuine civic life, genuine self-government, as part of the American way of life.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.


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Guest Essayist: Will Morrisey


Why have ‘states’ in the Union, anyway? True, the colonies predated the United States, the colonies became states, and ratification of the Articles of Confederation and the United States Constitution proceeded on a state-by-state basis. But many municipalities preceded the states; some existed before the British wrestled control of them from the French. And, as Gary Porter explained in a recent essay here, courts in most states regard all or many of the municipalities to be creatures of the state for legal purposes, even if historians beg to differ. Why not treat states the same way? Whatever practical barriers to this there may be, what is wrong with it in principle? After all, many countries around the world have commercial-republican regimes while nonetheless treating the provinces as, well, provincial. Why shouldn’t we do the same?

If the distinctive human characteristic is the ability to speak and to reason, then what is good for such a being must not only allow but encourage it to exercise that ability, just as it must be good for a horse to have room to run. To live in societies ruled by tyrants terrorizing their subjects with brute force must be bad for human beings, somehow beneath their real nature—hence the adjective ‘brute.’ By nature, human beings belong in civil societies, societies in which they may speak and reason together, deliberate with one another on what they should do, how they should act. Old-fashioned mothers would tell unruly children to ‘be civil,’ to ‘keep a civil tongue in your head.’ A civil tongue is one indirectly but closely attached to a reasoning brain, a brain more fully developed in accordance with its nature than the brain of a madman or a dolt, to say nothing of a barking pit bull or a chorusing frog.

Civil society begins in the home. Parents command children, ‘for their own good.’ But father and mother themselves properly form a civil relationship, ruling one another by mutual consent, by shared responsibilities, authority, and obligations. Outside the home, what we call civil society works the same way, as fellow citizens form businesses, churches, clubs, and schools. Families and civil associations alike govern themselves deliberately, reasonably—insofar as they are genuinely civil, institutions fitted for mature human beings. Children learn to do the same thing, choosing up sides for games, ‘ganging up’ (for better or for worse), imitating the adults (also for better or for worse).

You learn to be civil in small groups. The earliest political societies were small, outgrowths of extended families or clans which united with one another for convenience and protection. The polis or city-state rules itself, perhaps as a democracy, more often as an oligarchy, sometimes as a monarchy. Whatever its regime, the city-state occupies a small territory and consists of a small population; in ancient Greece, they seldom consisted of more than 30,000 souls. Given this small size, political life mattered. There was nowhere to hide from whomever ruled; whether it was the one, the few, or the many, whether he or they were good or bad, the ruler(s) could and did reach out and in many respects determine your way of life. No adult could be indifferent to politics because everyone felt the effects of political rule.

City-states faced a serious, ultimately fatal threat. If children and adults like to ‘gang up,’ what is to prevent the most ambitious, if perhaps the less reasonable, among them from gathering together not merely to tyrannize the city-state but to conquer other city-states? If, say, a tyrant gains control of Macedonia, masters the nearby city-states, and sets sail for Greece, what is to prevent him from conquering it? In the event, nothing, as Alexander the Great proved not only in Greece but throughout the ancient Mediterranean world. As did many others: The Old Testament is full of Egyptians, Ethiopians, Assyrians, Babylonians, Persians, the New Testament full of Romans. A small people could retain its self-government among the empires only if God chose to protect it. It couldn’t go it alone.

What is more, small places foster political passions as much as they foster rational deliberation. If I care intensely about who rules me, because whoever that is he will make me feel his rule, I may gang up with others to make sure that we are the hammers, not the nails. In The Federalist, Publius remarks that small republics were as often as short in their lives as they were violent in their deaths. When not ruined by foreign conquerors, they succumbed to suicide-by-faction. Although human beings may be rational by nature, they often fail to live up to their nature. “Why has government been instituted at all?” Publius asks. “Because the passions of men will not conform to the dictates of reason and justice without constraint.”

The problem only intensified in the modern world, the world of Machiavelli. As an official of the Italian city-state of Florence, Machiavelli became impatient with smallness, with puny states which squabbled with one another, incapable of extending their power beyond their own small territories. He conceived not so much of another empire but of lo stato, a governing body extending over the whole of the Italian nation. Lo stato might be governed by one or many, be a principality or a republic, but whichever regime it had, it would be able to extract substantial numbers of soldiers and revenues from all parts of Italy.  Even the larger nations of Europe—the French, the Turks—did not have lo stato; they were feudal societies, in which monarchs reigned but found themselves constrained by ‘the few,’ by titled aristocrats, by churches or mosques—by elites of various descriptions, all bent on aggrandizing themselves at the expense of the central government. Machiavelli recommended what we would now call a strategy of ‘state-building’—of bring ‘the few’ to heel, extending the administrative apparatus of the central government into the provinces and subordinating those provinces to it. Once a few rulers took the advice he preserved in his books (he died powerless), once the Tudors in England and the Bourbons in France began to put an end to feudalism, all European nations needed their own states, if they were to avoid conquest. On that continent, the Hohenzollern-Bismarck-Prussian forging of the many small German states into one nation-state proved the most salient fact of the nineteenth century, and the most ominous fact of the first half of the twentieth century. Without states of their own, European nations would have fallen under German rule, as Germans aimed at reconstituted a new and much more malevolent form of the Holy Roman Empire, no more holy or Roman than the original, but very much more an empire.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.


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Guest Essayist: Will Morrisey


Such radically changed circumstances, which would lead to the world wars of the next century, presented American strategists with a set of problems noticeably different from those seen by Washington and his successors. Would the strengthening empires block American trade? Would they again threaten American shores, as they had not done since 1812? Further, having fought a devastating civil war, we were less likely than ever to invite the prospect of another war on our own territory—especially given the increasingly devastating power of modern weapon wielded by the well-organized and trained mass armies raised by modern states. We needed to re-think the question of strategic depth, a question we thought we’d answered by turning the middle part of North America into an empire of liberty. And we also needed to re-think our policies regarding international commerce. All without eradicating the constitutionally legitimate powers of the state governments.

American strategists proposed several policy choices. The first, advocated by German immigrant and old Republican Party ally of Abraham Lincoln, Carl Schurz, was simply to continue Washington’s policy: to eschew not only empire beyond our own continent (“overseas empire,” as he called it) but even to eschew any major strengthening of the military—this, on the traditional grounds that big military establishments threaten republican regimes. By far the most distinguished American statesman to advocate this policy in the next century was Herbert Hoover, whose “magnum opus” (as he called it), Freedom Betrayed, lays out an argument for staying out of the Second World War, and for what critics called ‘isolationism’ generally. Whatever one thinks of this as a realistic foreign policy for the modern world, it would surely have kept American federalism intact.

The second, opposite, policy was advocated by the young Indiana Republican Senator Albert J. Beveridge, who called for a vast imperial project based upon the alleged superiority of the white race, a notion itself based upon the ‘race science’ that formed part of early Progressivism. The most famous of Beveridge’s speeches remains “The March of the Flag,” delivered at a Republican Party convention in Indiana. In it, Beveridge called for American conquest of the rest of the Americas and their incorporation into the United States—not, to be sure, as equal states, but as colonial territories. At the time, theories of racial superiority were very much a part of the Progressive movement, and Beveridge might be described as the most vocal representative of the militarist wing of Progressivism, which ranged from the militarism of Beveridge to the pacifism of Jane Addams. This policy would have ended the American practice of considering newly-acquired territories as future states, instead turning the New World into a facsimile of European empires.

It took President Theodore Roosevelt to find a more realistic solution to the problem, the one that has prevailed for more than a century. Theodore Roosevelt advocated the use of a greatly-expanded navy, which he eventually succeeded in obtaining, and peacetime military conscription for the army, which he hinted at but never formally proposed. These forces, but especially the navy would be used not so much for imperial expansion but for obtaining naval bases throughout the world, usually but not always with the consent of foreign governments. These bases would counterbalance the much more expensive (and, as it turned out, untenable) imperialism of the Europeans. While happy to seize Cuba and the Philippines from the Spanish, he had no interest in retaining them, but he very much liked the idea of establishing naval bases at Guantanamo and Subic Bay. As for permanent acquisitions, he intended to hold on to Hawaii and Puerto Rico as outposts complicating foreign naval attack on the Pacific and Atlantic coasts.

To reinforce America’s opposition to European imperialism in the New World, and to answer Beveridge, Roosevelt also propounded his well-known “Corollary” to the Monroe Doctrine, stipulating an American right to intervene in Latin American countries if they fell down on their debt payments to European nations. Such refusal to repay loans, if it became “chronic” (as Theodore Roosevelt put it), would invite European military intervention into the Western Hemisphere—exactly the thing the original Monroe Doctrine was intended to discourage. This policy soon provoked anger from the people it was intended to protect, and President Franklin Roosevelt replaced it with his “Good Neighbor” policy in the 1930s.

From this perspective, Theodore Roosevelt’s foreign policy becomes quite coherent: Drive the weakened Spanish imperialists out of the Caribbean and the Philippines while blocking other empires (especially the Brits and the Germans) from seizing them; then spur the peoples of the newly-acquired countries to govern themselves. This meant recurring to the old American policy of regime change (first used by the Washington Administration in the southeastern states in its dealings with the Cherokee and other nations in that area), while obviating the need to (quite implausibly) make them into U.S. states and avoiding their (un-American) use as permanent colonies of our own. Add the Panama Canal, linking the Atlantic and Pacific oceans for both trading and military purposes, and you see that Theodore Roosevelt aimed at recovering America’s strategic depth under the circumstances caused by the new technologies of war.

Such a policy held out the prospect of retaining American federalism while avoiding ‘containment’ strategies Great Britain and other regimes, then and in the future, would deploy against us.  American federalism was compromised in any event, by Presidents Wilson, FDR, Lyndon Johnson and their allies, but this was done for domestic reasons, although sometimes under the cover of the quite different policy of liberal internationalism, which looks forward to the weakening not only of American federalism but of American sovereignty altogether.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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For one hundred years—roughly between the ratification of the United States Constitution and 1890—the “extended republic” James Madison described in The Federalist did indeed extend, from sea to shining sea. As Americans settled each new swath of territory they sought and received recognition as states of the Union, equal to all states that preceded them, including the original thirteen. This great period of American empire-building far exceeded anything done subsequently (for example, the acquisition of territories from Spain in the late 1890s) and proved far more lasting than the ‘scramble for empire’ undertaken by the European states during that time. America became what Jefferson wanted it to be: an “empire of liberty,” that is, a union of free and equal states, with republican regimes securing the natural rights of all its citizens in principle and of most if not all in practice.

The question of the exact terms and conditions of American federalism, especially the status of the states within it, was answered in principle by Abraham Lincoln in his speeches and in practice by the Union armies in the Civil War. The pseudo-republican oligarchies of the states that formed the Confederacy were defeated, although they reconstituted themselves to a substantial degree, in different form, after Reconstruction ended. States’ rights could no longer serve as a carapace for slavery, although it would so serve for legal racial segregation for much of the next century. But the Union had survived.

The year 1890 saw another, less stark but still unsettling crisis. For the past century, the migrations of Americans to the West had relieved the older states of the need to address the worst economic and social tensions modern industrial societies had faced. Now, however, the United States effectively had become an island, bordered by oceans on each side, the Caribbean in the south, and to some extent the Great Lakes in the north. It was a giant island, but an island nonetheless. With immigrants still coming in from Europe, with industrialism and urbanization intensifying in the East and Midwest, what would become of the country? Could the regime of commercial republicanism sustain itself against populist and socialist ideologues who sought to exploit these pressures? Could federalism withstand pressures to ‘nationalize’ everything—that is, bring it under the rule of the central government to the diminution of the state governments?

The historian Frederick Jackson Turner framed perhaps the most high-level expression of this anxiety. In his 1893 paper presented to the American Historical Association’s annual meeting in Chicago, “The Significance of the Frontier in American History,” Turner argued that it was the settlement of the frontier, fostering the character of Americans as independent, self-governing yeoman farmers, which had (to coin a phrase) made America great. Not so much Christianity, not the principles of the Declaration of Independence, not the Constitution, and surely not any biologically-based racial superiority over the American Indians, but the frontier itself, the virtues the cultivators cultivated along with their crops, gave Americans the moral fiber needed to make them a strong, free, and united people. With the closing of the frontier, the elimination of the conditions of this character-building way of life, would Americans not succumb to moral decline, and ultimately lose both their empire and their republicanism? The ‘Turner thesis,’ as it came to be called, galvanized academic and even journalistic discussion for decades thereafter.

Not only professors and pundits saw this problem, however. As it happened, an ambitious young politician named Theodore Roosevelt had already published two volumes of his book The Winning of the West, in the years immediately preceding Turner’s study. The young civil service reformer from New York City, who had ‘gone West’ himself, to the Dakotas, after his beloved wife’s death in 1884, also argued for the importance of the frontier in forming the American ethos through its rugged way of life. Roosevelt understood the West not so much as a land for peaceful if rugged farming as an arena for warfare pitting semi-civilized Americans against uncivilized Indians. The West built not only the steady, yeoman virtues of Jeffersonian agrarianism but also and above all the martial virtues of George Washington. Whereas Europeans (so long as they stayed in Europe) could only exercise those virtues against other civilized nations, with all the moral hazards attendant—most spectacularly—in Napoleonic despotism; and whereas if Europeans abandoned such ambitions, as proposed in projects for “perpetual peace” such as that proposed by the philosopher Immanuel Kant, only to risk a softening of spirit, moral decay, Americans had solved the problem by advancing civilization without colonization—that is, without keeping newly-won territories in political subservience to the ‘Mother Country.’

Whether one argued for Turner’s yeomanry or Roosevelt’s militias and posses, or some combination of them, as the inspiriting conditions of American courage and self-government, the dilemma of the 1890s remained the same: How will Americans perpetuate their republican regime and empire, now that the frontier has closed?

Roosevelt also saw another danger, outlined in the 1890s by the British naval strategist, Alfred Thayer Mahan. As far back as 1787, in The Federalist, Alexander Hamilton had argued that oceans are as much highways as they are barriers; as a Caribbean-born transplant to New York, he needed no book to teach him that. By 1890, technology had made this obvious to everyone, as steam-powered vessels having replaced the old sailing ships and telegraphs making ‘messaging’ nearly instantaneous. These improved means of transportation and of communications had strengthened European empires; by Queen Victoria’s Diamond Jubilee in 1897, Britannia not only ruled the waves but about one-fourth of the land on earth and about one-fifth of its population, while France, Germany, Russia, Austria-Hungary, Turkey, and even Belgium had substantial holdings as well.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?

Notoriously, Abraham Lincoln and Jefferson Davis later would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.

In 1828, Congress enacted a tariff law, one so sharply resented that South Carolinians, led by John C. Calhoun, called it the “Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.

Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. Nine months later, in his First Annual Message, he praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”

Nullification of duly enacted federal laws was another matter, however. As early as the Jefferson Day Dinner in April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.

In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws as unconstitutional, “coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”

Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, plays, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concern and all foreign relations.”

The Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one People,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit that consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, domestic legislation, and government by law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.

After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of their Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determinations of Congress on all questions which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision of the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “’a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?

“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—“is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates directly on the people individually, not upon the States,” as it had under the Articles.

“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always as a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of a nation over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and the general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”

In a letter to Congress in January 1833, Jackson warned that “If these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.

By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in their Declaration of Independence from the British monarchy, the Founders remained vexed at the confederal form of the American state–the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Convention and one of the principal designers of the new Constitution itself, wrote the forty-third or central number of the collection, as well as the six preceding essays and the fifteen subsequent. The core of the book belongs to him, and his topic throughout the series is the character of American federalism as the Constitution would now constitute it.

Madison begins by identifying the need to balance government energy with stability, both in defense of liberty—a natural right—and “the republican form”—the regime which emanates from that right. Liberty and the regime of liberty require energy for self-defense and for execution of the laws enacted by the regime; liberty and republicanism also require stability in order establish the “national character” and to fortify the confidence of the people in their new regime. “The task of marking the proper line of partition between the authority of the general and that of the State governments” proved arduous, given the rightful jealousy of the citizens of each state as they guarded their right and power to govern themselves, a jealousy that nonetheless needed to be balanced by considerations of public safety and economic prosperity, threatened by factionalism within and among the states under the Articles of Confederation. Natural rights are one thing, but they can never be secured without due consideration of  “the infirmities and depravities of the human character,” evils that undermine popular governments no less than monarchies and oligarchies.

Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people” and not “from an inconsiderable proportion or a favored class of it.” Each of the three branches of the newly-designed federal government does indeed meet that criterion; they all pass the ‘regime’ test.

But what about the ‘state’ test? Does the federal government possess the needed energy, the requisite power, truly to govern? Without a strong federal union, America will become another Europe, full of small and medium-sized states armed against one another, their liberties “crushed between standing armies and perpetual taxes,” their prosperity shackled by high tariff walls. At the same time, does its structure limit but also focus that energy in a way that does not consolidate the states into one amorphous mass, compromising the rights of citizens to govern their own lives as they really live them—in towns and counties within states? Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control.

After reaffirming, in the central, forty-third Federalist, “the great principle of self preservation” and “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim,” Madison turns to the restrictions of the authorities of the American states enunciated in the new Constitution—restrictions imposed precisely because those states had failed adequately to secure the natural rights identified in the Declaration of Independence and vindicated in the war for independence and the revolution the war advanced. Among other things, the states shall not enter into treaties, coin money, impair the obligation of contracts, or grant the titles of nobility (changing themselves into aristocracies). But would these restrictions weaken the states too much. Of particular concern to critics were the Constitution’s clauses granting the federal government the power “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers to set foreign and domestic policies for the American government as a whole, and the designation of the laws enacted by those powers as “the supreme law of the land.”

There is no way of defining one’s way out of that concern. What are “necessary and proper” laws? And if the “supreme law of the land” isn’t lodged in the general government, where would it be lodged, if not in the states, which had misused their supremacy? In Federalist 45, Madison writes, “Were the plan of the [Constitutional] convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”

Madison then shows how the Framers solved the problem. Although the States were indeed stripped of their sovereign powers—treaty-making, coinage, regime change, and so on—unlike the general government they would form “constituent and essential parts” of that government. By establishing the Electoral College, the Framers required state-by-state election of presidents; each voting district for House of Representatives remained entirely within the boundaries of a state, with no interstate districts; and the United States senators would be elected by state legislatures, with each state sending two senators, regardless of its size.

Further, the administrative or bureaucratic side of government would favor the states. There would be far more state employees than federal employees. This remains true even to this day, with the vastly expanded federal bureaucracy now in place, although of course it is much less true than it was in the first 150 years of American constitutional government. The causes of that shift of power have everything to do with the partial abandonment of our constitutional scruples, beginning in the twentieth century, rather than to the Constitution itself.

Fundamentally, “the powers delegated by the proposed Constitution to the federal government are few and defined,” whereas “those which are to remain in the State governments are numerous and indefinite.” Moreover, the federal government’s powers largely concern external matters; the day-to-day concerns of most citizens—their “lives, liberties, and properties”—will continue to find redress from the local, county, and state governments.

As Madison tough-mindedly remarks in a subsequent paper, the new Constitution puts the states to the test. If the sovereign American people “should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The stronger federal government set down in the new Constitution will inaugurate a kind of competition in good government, breaking the states’ monopolies.

In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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Guest Essayist: William Morrisey


If the writers contributing to this year’s 90-Day Study have identified a main theme for their essays, it is the difference between the way Congressional representatives understood their Constitutional duties in the first century-and-a-quarter of our Union and the ways Congressmen have come to act since Progressivism came to dominate American opinion. From a lawmaking institution whose members consulted the Constitution and, behind it, the natural rights enunciated in the Declaration of Independence, Congress has become a constituent-service institution which attempts to oversee and negotiate with the bureaucratic apparatus of a massive national state. To be sure, it still debates and enacts laws, but very often leaves the details of those laws to the administrative agencies which enforce them, agencies which collectively amount to a fourth branch of government, and an unelected one at that. Given the re-conception of the Constitution as a ‘living’ or ‘elastic’ document, those laws may have only a remote connection to the plain meaning of the (formerly) supreme law of the land.

It has become difficult for us even to conceive of the way Congress once operated, and indeed how American politics and government generally once operated. For this, we need to turn to an eyewitness, and as luck would have it, we have one.

At the age of twenty-four, a future newspaper reporter and editor, recently a schoolteacher in the Erie Canal town of Lockport, New York, met and took the measure of the most distinguished cohort of United States senators in our history as those men attempted to navigate the American Union around the most dangerous regime crisis since the American Revolution itself. Thomas Jefferson had predicted that the presence of slaves in the land of the free was “the rock upon which the old Union would split,” and that rock sat just beneath the surface when Oliver Dyer arrived for work at the Senate for the session of 1848-49.

The Mexican War had just concluded, and new territories wrested from Mexico, including California, had been annexed. The plantation oligarchs who controlled the governments of the Southern states had seen that only the acquisition of new territories and ultimately the addition of new states in which slavery was legal, would protect their ‘peculiar institution’ (and thereby their political power) from the solidly anti-slavery Northern states, which were outpacing the South in population and industrial wealth. With popularly-based House of Representatives firmly in Northern hands, and likely to remain so, the Senate, its membership unaffected by population shifts, stood as the oligarchs’ best power base for defending their regimes and even extending their influence in the federal government. As Dyer writes, “It was the fixed policy of the South to keep the free States from outnumbering the slave states.”

With the sympathetic James K. Polk in the White House, “the war was forced on for the purpose of acquiring territory into which slavery could be extended.” But the bill appropriating funds for fighting the war had a rider attached by Pennsylvania Democratic House member David Wilmot of Pennsylvania, stipulating that no territories acquired from Mexico would allow slavery. This “greatly embittered and exasperated the South,” “for it struck at the very life of slavery, inasmuch as to limit slavery was to strangle it.” The Wilmot Proviso eventually “was killed in Congress,” but “it survived in the country,” and Dyer now knew as he wrote his memoir in 1889, the regime struggle between Southern oligarchic regimes and Northern republican regimes would end only at Appomattox or, more accurately, only with the post-Civil War attempt at ‘Reconstruction’ or regime change in the South by the triumphant republicans.

As early as the 1830s, genuinely factional political parties had begun to arise in the United States. The Founders had hoped to avoid the formation of such parties, parties organized not merely around various local interests and divergent national policies, but the fundamental issue of what kind of political regime the United States should have. The Founders had hoped that they had settled this matter: The United States was to be a democratic and commercial federal republic. But as the invention of the cotton gin made slaveholding more profitable, Southern plantation owners consolidated oligarchic instead of republican regimes in their states. The struggle between democratically-based republicanism and slaveholder-based oligarchy commenced.

The struggle began within the Democratic Party. Although a slaveholder, Andrew Jackson based his electoral successes in 1828 and 1832 squarely on a popular base; the Democratic Party he established, with the help of his Northern ally, the brilliant political organizer Martin Van Buren, was indeed a democratic party. Opposing him, however, was an even greater organizer and far superior political theoretician, South Carolina Senator John C. Calhoun. Explicitly rejecting the moral foundation of American republicanism as enunciated in the Declaration of Independence—the equal, unalienable rights to life, liberty, and the pursuit of happiness held by all human beings as such—Calhoun instead maintained that the laws of nature and of nature’s God ordained a racial hierarchy entitling plantation oligarchs to rule African slaves without their consent.

Opposing both Jacksonian mass democracy and Calhounian oligarchy, the Whig Party formed in the 1830s out of the remnants of the old, long-defunct Federalist Party, John Quincy Adams’s anti-slavery National Republican Party, and even the short-lived Anti-Masonic Party, which had suspected the secretive Freemasons of conspiring against republicanism. The Whigs wanted to maintain Constitutional safeguards on undiluted majority rule, opposed the extension of slavery into the territories, supported a national banking system as well as interstate railroads and canals, to be funded by protective tariffs which would also defend newly-founded American industries against foreign competition. Whereas the Democrats, still the majority of American voters, found themselves split between Jacksonian republicans and Calhounian oligarchs or ‘aristocratic republicans,’ the Whig coalition had stayed sufficiently unified to elect William Henry Harrison to the presidency in 1840.

The party system had a function that we today might easily overlook. Today, we are accustomed to seeing the administrative tasks of government performed by university-trained professional administrators. But throughout the nineteenth century there was no such class in the United States; professional bureaucracies were a European phenomenon. Who, then, did the administrative work of government in those days? None other than the political parties. Each newly-elected president would appoint ‘his’ partisan supporters to the government, from Cabinet officers down to local postmasters. With so many jobs at stake, interest in election ran very high. With the dangerous and impassioned debate over the character of the American regime on one hand, and the material interest in who would find comfortable work on the other, no one complained of political apathy in the America of that time.

This is where Oliver Dyer’s story begins. Son of a shoemaker, Dyer learned a more promising trade, studying shorthand stenography—what its inventor, the Englishman Isaac Pitman, called “Sound-Hand” in a widely-distributed 1837 pamphlet. (You listen to a “sound”—a speaker’s voice—then hand-write what he says in an abbreviated code which allows you to keep up with even a fast-talking Congressman). Adding some improvements of his own, Dyer marketed the Pitman System to schools and quickly caught the attention of upstate New York politicians, who arranged for him to serve as a recorder for both the Whig Party’s and the anti-slavery Free Soil Party’s conventions of 1848.

There young Dyer learned the ‘low’ side of politics, the politics of party insiders and wire-pullers. He begins his memoir, Great Senators of the United States of Forty Years Ago, with an account of how the Albany-based Whig boss—the marvelously-named Thurlow Weed—teamed with his protégé William Seward to manipulate delegates into nominating Mexican War general Zachary Scott over the celebrated Kentucky Senator Henry Clay—adding, in the bargain, another Weed man, Millard Fillmore, to the ticket. For good measure, Weed then extended a tentacle into the Free Soil Party convention (held on his home turf in upstate New York), arranging the nomination of former president Martin Van Buren. With the erstwhile Democrat Van Buren drawing votes away from Democratic Party nominee Lewis Cass (a “dull, phlegmatic, lymphatic, lazy” Michigan senator “without an atom of magnetism in his nature,” allied with the Calhoun Democrats), Weed’s beneficiary Taylor carried New York and with it the nation. Poor Clay never knew what hit him, but Oliver Dyer did.

Dyer explains “the secret of [Thurlow Weed’s] political power” under the old party-based system of American politics. Newspapers at that time were owned and operated by political parties, and Weed controlled the Albany Evening Journal. Albany was more important than New York City, not only because it was the state capital but because Manhattan Island was icebound in winter; astonishingly to us today, there were no railroad lines running out of Manhattan, whereas politically-connected Albany had them. Weed wrote a regular column in his newspaper, making strategic mention of his political friends and foes alike as he kept the lines of communications open between himself and New York Whigs. “There was seldom a young man, in any part of the State, who gave promise of becoming a person of influence, that was not kindly and flatteringly mentioned in that column, no matter to what party he belonged. And does any one suppose that young men thus mentioned would not feel friendly to Thurlow Wed, and be ready to do him a personal favor?” Indeed so: “Mr. Weed’s kindness, shown at a time when the young man feels the need of a friend, sinks into the depths of his heart and brings forth fruit abundantly.” This beneficence toward the young, who “are perpetually coming on” the stage as “the old are constantly passing off,” extended not only to his fellow Whigs but to young Democrats, as well.  But much more than this, Weed proved a supremely artful political boss, ruling not by command but by influence. After all, he controlled the elected officials who controlled the distribution of jobs. As another young man, Henry Adams, had occasion to observe some years later, Mr. Weed was an entirely unselfish man in one way: he gave but he never took, arranging employment and expecting not mere lucre but only political gratitude in return.

His reportorial credentials and political alliances thus established, it is no wonder that Oliver Dyer found himself on the floor of the United States Senator in December 1848, recording the speeches of John C. Calhoun, Thomas Hart Benton of Missouri, Daniel Webster of Massachusetts, and of Henry Clay himself—the man Abraham Lincoln would call “my beau ideal of a statesman.” From well-played ‘low’ politics to the very high: For the next year Dyer received the best political education of any future journalist of his generation, and maybe of any generation in America. He sketches portraits of all these men, and of several other Senate eminences besides.

He begins with Sam Houston from the newly-admitted state of Texas, “about whose name more romance clustered at that time than encircled the name of any other citizen,” formerly the governor of Tennessee at the age of 34, then self-exiled to Cherokee territory where he “liv[ed] in barbaric dignity” for a short time before capturing Mexican general Santa Anna during the Texas War of Independence, rising to the presidency of the Republic of Texas, and then to election as senator in 1845. Houston had been Dyer’s hero as a boy in Lockport. “As we children on the Niagara frontier were brought up to hate the British, wild beasts, Indians, and foes of every kind whatsoever, and were taught to believe in the good old-fashioned fire and brimstone hell, and in cognate Scripture tenets, undiluted with any revisionary Sheol or Hades, I suppose that our militant religion had a robustness and an edge which are impossible to the faith of boys brought up on the humanitarianism and the diluted theology of the present day. At any rate, we all prayed fervently to God to avenge Travis, Crockett and Bowie on the Mexicans.” So much so, that “Twenty-four boys, of which I was one, formed a company to march down and ravage Mexico; but news of Houston’s defeat and capture of Santa Anna at San Jacinto came in time to save that ill-fated republic from the impending invasion.” “We were simple people who believe in God, and loved heroes who won battles in accordance with our prayers; and from that time General Sam Houston was set in our hearts alongside Jackson and Washington.” Nor did Senator Houston disappoint his admirer. Although his experience with Whig and Free Soil Party politicians “had rather chilled my expectations as to all sorts of heroes,” Houston proved “a magnificent barbarian, somewhat tempered by civilization.” True, his “wild life” had “unfitted him for civilization,” so that he “was not a man to shine in a deliberative assembly,” but Dyer found him “a sincere lover of his country,” “indomitably patriotic,” standing “firm by the Union to the day of his death” in 1863.

An anti-slavery Union man himself, Dyer first found Calhoun “to be a perfect image and embodiment of the devil,” with an inner complexion of a dark soul shining through the skin of his face.” But upon Calhoun speak, he reconsidered. In debate, Calhoun maintained “his dignified demeanor and exquisite courtesy to the end” under the slashing attacks of Senator Benton, the unbending foe of the Calhounite principle of states’ rights and even secession in the defense of slaveholding. As was his wont, Calhoun took the time to explain his political principles to the earnest young Yankee; prudent attentiveness to the young was not monopoly of Mr. Weed. Dyer faithfully recalls Calhoun’s argument, which hinged on his claim that each state within the United States is “a sovereign state,” inalienably so, with natural rights placed “in the hearts and minds of individual freemen.” Dyer does not call the reader’s attention to the distinction between “freemen” and the Declaration’s “all men,” as Senator Calhoun surely did not. “As I became better acquainted with Calhoun, I liked him better. At last, I had a genuine affection for him, and mourned over what seemed to me to have been his political decadence; and I have mourned over it to this hour.” Dyer learned from Calhoun—who had forgiven his bitter rival, Jackson—“to distinguish between a man’s principles and his personal character, and there developed in me a disposition to extend to the convictions and conduct of others the same forbearance and charity which every man likes to have accorded to his own conduct and convictions.” But this does not cause him to omit quoting a speech Calhoun had made years earlier, in which he averred that although “many in the South once believed that [slavery] was a moral and political evil,” “we [now] see it in its true light, and regard it as the most safe and stable basis for free institutions in the world.” The regime issue had been joined, with men of outstanding character and ability on both sides.

In Thomas Hart Benton of Missouri, Calhoun had “a bitter and relentless foe,” as well as a formidable one. “It would be difficult to find two other contemporary Americans, of equal distinction, so absolutely contrasted in body, mind, principles, tastes and manners as were Benton and Calhoun.” “To rub Calhoun’s nature”—physically slender, theorizing, gentlemanly—“against Benton’s”—physically massive, practical, tough to the point of ruthlessness—“was like rubbing the tender skin of an infant against the corrugated hide of a rhinocerous.” Indeed, this “Roman gladiator who somehow had become embedded in the nineteenth century,” this “robust and ferocious Christian,” had a servant scrape his body daily with “the roughest kind of horsehair brush,” callousing his skin and toughening his mind for political combat. (“The Roman gladiators did it, sir”—the word “sir being a formidable missile on his tongue.” Benton’s “egoism was so vast, so towering, so part and parcel of the man, that it was not at all offensive and never excited disgust,” being “as proper to him as its apex is to a pyramid.” The “old ironclad” loved the things that were his own: his country (hence his hatred of Calhoun, who wouldn’t have minded breaking it up) and his family above all. Her mind broken by a stroke, Mrs. Benton once appeared unexpectedly at a reception held in their home for a French prince; Benton took her by the hand, seated her beside him, and carried on the conversation “with that impressive dignity in which it is doubtful if he had an equal.” When asked if he would obey protocol and kneel before the Czar, he stood on his republican dignity: “No sir! No sir! An American kneels only to God and woman, sir.” Unlike Calhoun, “he was a staunch friend of the poor—of poor blacks, as well as poor whites,” and when in the Tennessee legislature he introduced a bill providing jury trials for slaves.

The aristocratic Calhoun and the democratic warrior Benton found their complement in Henry Clay, a man of “good nature” and “inborn democratic republicanism.” With his photographic memory for persons, names, and places, Clay made any stranger—“however humble in station”—feel “at once at home with the affable and cordial Kentuckian.” In floor debate, Calhoun drew his listeners to him with his high-mindedness; Benton drew them into an ego so capaciously American as to make them want to join with it. Clay “spoke to an audience very much as an ardent lover speaks to his sweetheart when pleading for her hand.” As Clay’s recorder, Dyer saw that “the more successful a lover’s speech is on such an occasion, the less readable it is when it gets into cold print,” but Clay carried his fellow senators along with “his hearty and sympathetic spirit of fellowship”—the sort that, he hoped, might pervade his beloved Union. Clay loved commerce, industry, and hard work not out of love of profit but love of country. “Clay was poor—poor notwithstanding his thirty-five years of public service; for he was not one of those statesmen who, on a five-thousand-dollar salary, manage to lay up two hundred fifty thousand dollars per annum.”

If his peers were remarkable for their character, Daniel Webster outshone them in intellect. “Webster was somewhat lacking in character”; having won a point in principle, “he would lapse into indifference and suffer the fruits of his victory to be snatched from him by men of inferior intellect.” But in intellect he had no equal among the public men of that day—not even Calhoun. “The perfection of common sense,” his mind in debate kept together the details of the bill he argued for or against; the rules of the Senate; the character of each senator he engaged; the fundamental principles of the Union. “If it had not been for Webster, Calhoun would have carried everything before him.” In his published speeches in defense of natural-rights republicanism “he taught the country what the true nature of its government is,” out of the teachings of the Founders. “He logically, powerfully, clearly and popularly demonstrated the baneful character of the disunion and secession heresy,” and in so doing set in motion the resolve of those people who finally preserved it.

Dyer among them. After his year in the Senate he studied and practiced law, in Washington, but soon moved to journalism in New York, where he wrote for and edited several major newspapers. Having learned politics, low and high, before he began to write about them, he campaigned courageously against the city’s underworld, siding with embattled religious and civic reformers. In 1852 he promoted the career of Sarah Willis, who became the first regularly-featured woman newspaper columnist in America after Dyer hired the divorced mother of two boys, doubling her previous salary. Like his heroes of ’48, he wasn’t afraid to take risks for the right as he saw it. And like his old benefactor, Mr. Weed, he’d pull a string or two for a young talent.

By 1889, when Dyer published his reminiscences, the Civil War had been won but the political reconstruction of the Southern states along republican lines had in many respects failed. Now allied with poor whites against the freedmen, the oligarchs had recovered much of their power. Northerners had decided to move on, hoping for a gradual amelioration of race relations. Dyer concludes with a benediction for all the great senators “of forty years ago,” including Calhoun, despite “his unfortunate political aberration.” Dyer couldn’t know, and would not live to see the new political aberrations of the century to come, at home and abroad. We who have seen them will also see why Congress again finds itself sharply factionalized: Congress members and many voters sense that the regime issue once more is at stake, as it was in the decades leading to the Civil War. Because Progressivism altered the structure and therefore the character of American government and education, we no longer have senators capable of stating the principles beneath today’s conflict. This leaves it for citizens themselves to recover the meaning of the American Constitution as understood by its framers.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.


The careful design of the United States federal government, as seen in our Constitution, has been admired and imitated throughout the world. Yet few Americans today think of their government as very much limited to matters of commerce, military defense, and constitutional law. Nor do we think of Congressmen as citizen-legislators, serving a few years in the nation’s capital and then returning home to the applause of grateful, armed, and vigilant fellow-citizens.

What has happened, since 1787?

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Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.

Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it. Read more

In defending the establishment of the United States Supreme Court, Alexander Hamilton maintained that the absence of an independent judicial power had handicapped the government established by the Articles of Confederation. The way the Articles government had been structured made the rule of law–even the modest legislation enacted by Congress–more or less impossible.

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Guest Essayist: William Morrisey

United States v. Carolene Products Co. 304 U. S. 144 (1938)

If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim(some might say pretend) that the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case–specifically, in the fourth footnote to the majority opinion, written by Justice Harlan Stone. It has been described as the most famous footnote in the history of the Court.

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Guest Essayist: William Morrisey

“The Great Chief Justice,” John Marshall (1755-1835)

The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” He deserves honor also as a great man.

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Guest Essayist: William Morrisey

Introduction: Why Study the Landmark Decisions?

What does it mean to “constitute” America?

How would anyone do that? And why?

And what is “America,” anyway?

“America can mean simply the “New World”—the two American continents, “new to the late-Renaissance Europeans who stumbled upon them en route to China, if not to the Asian settlers who’d lived here for centuries. In that sense, hundreds of millions of Americans now live in dozens of countries, under several distinctive forms of government.

Given the prominent display of the Stars-and-Stripes flag on the Constituting America website, no one reading these words will imagine “America” to mean that, here. We mean the United States of America, a particular country in America, which declared its independence, its self-government, from an empire ruled from Europe. To assert self-government requires one to establish the terms and conditions by which that government will proceed. By leaving home, a young man or woman declares independence from parents: Very well then, but how will you live, under your newfound self-rule? You say you want to live at liberty, pursuing happiness, but what’s your plan? Read more

Guest Essayist: Professor William Morrisey

Faithful readers of Constituting America’s 90-Day Study have followed the story of our constitution through each of our presidential elections. We have seen that the moral foundations of both of our constitutions—the Articles of Confederation and the United States Constitution that replaced it—find their most cogent expression in the Declaration of Independence. There, the Founders held the self-evident truth that all men are created equal, endowed by their Creator with unalienable rights including life, liberty, and the pursuit of happiness. Governments must therefore be framed to secure those unalienable rights. Our God-endowed, or natural, rights—regulated by the laws of Nature and of Nature’s God—find security in our legal or civil rights, defended by a system of government so structured as to channel the ambitions of political men and women toward the guardianship of those rights. This requires a regime designed to empower the government so our rights can be defended effectively against those who threaten them, at home or abroad. At the same time, the powers of that government will check and balance one another, so that no single individual or group of individuals will likely usurp all those powers, setting us on the road to tyranny. America’s early Constitutional conflicts centered on the question of how much power should be placed in the hands of the national government vis-à-vis the states’ governments. But whether Federalists or Anti-Federalists, Hamiltonians or Jeffersonians, all of the principal founders aimed at securing the natural rights of Americans by the means of well-designed constitutional forms.

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Guest Essayist: Professor William Morrisey


1948: The Dixiecrats

The primary elections of 2016 have invited comparisons to political factions in American politics that haven’t appeared in such clear focus for nearly seventy years. Although the Republican Party of 1948 had papered over its divisions between moderate-to-liberal business interests on the East Coast—represented by New York Governor Thomas Dewey—and Middle-Western conservatives—represented by Robert Taft and, behind him, Herbert Hoover—Democrats split bitterly into three groups. The mainstream of the party nominated President Harry Truman; the left wing (which included democratic socialists and some communists) ran Henry Wallace on the ticket of the Progressive Party; and the segregationist, southern Democrats ran South Carolina Governor Strom Thurmond on the ticket of the States’ Rights Democratic Party or “Dixiecrats.” In one of the most famous upsets in American political history, Truman overcame his party’s fracturing and defeated Dewey, although the Dixiecrats won the combined 38 electoral votes of Louisiana, Mississippi, Alabama, and South Carolina. The Progressives failed to win a single electoral vote.

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Guest Essayist: Professor William Morrisey


By August 1910, Theodore Roosevelt had been out of office for a year and a half. He was unhappy with President William Howard Taft’s performance. Although Roosevelt had effectively designated Taft as his successor and continued to esteem him personally, Taft wanted no part of the rising Progressive movement in American politics. By 1910, Roosevelt did, for reasons that remain controversial.

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Guest Essayist: Professor William Morrisey


1828: The General and the Presidency

Americans remember Andrew Jackson’s victory over John Quincy Adams in 1828 as the General’s revenge for his narrow loss to Adams four years earlier, when no candidate received a majority in the Electoral College, the election devolved to Congress, and Henry Clay threw his support to the man most likely to endorse his “American System”—the network of public works or “internal improvements” Clay fought for throughout his career. In accepting the grateful president-elect’s offer of the Secretary of State, Clay opened himself and his ally to the charge of a  “corrupt bargain”—a charge Andrew Jackson fervently believed true, and one he and his political allies kept alive for the next four years.

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Guest Essayist: Will Morrisey

Contributors to this series of articles have shown that executive branch of the United States government, cheered on by Congress and the Supreme Court and abetted by what has become a fourth branch of government—the federal bureaucracy or administrative state—has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights.  In The Federalist, Publius had argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives to resist such encroachment.

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Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a law and the president signs it, the president undertakes a Constitutional obligation to execute the law.  In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it. Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

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In late January 1904 the president of Princeton University stepped to the podium of The Outlook Club in Montclair, New Jersey. Today, university presidents get into the news when some scandal erupts, but at the beginning of the last century they often enjoyed the status of what we now call “public intellectuals”—frequently quoted in the newspapers on the issues of the day, looked to for solutions to economic and social problems. Nicholas Murray Butler at Columbia, Charles William Elliot at Harvard, and Arthur Twining Hadley at Yale were well-respected national figures. The Outlook Club was exactly the platform for such a person; possibly named after The Outlook, a prominent magazine featuring literary and political commentary associated with the several “reform” movements of the day, the Club afforded its speakers an audience of university-educated civic leaders who used their influence to promote “good government”—by which they first intended government free of corruption and of the party “bosses” associated with it, but which would soon coalesce into something still more ambitious: Progressivism.

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

Liberty and the Administrative State: Goodnow’s Gambit

Hillsdale’s Reader on the U. S. Constitution begins with Thomas Jefferson and ends with Ronald Reagan. Of the many `contributors’ to the anthology, none is less-remembered today than Frank Goodnow, who never won an election for public office, having spent his career almost entirely in academia.  Unlike John Dewey, another professor, Goodnow wrote no books that have been widely read beyond his own generation. Yet he stands as an important figure in the Progressive movement, particularly with respect to his championing of Progressivism’s most distinctive institutional feature, the administrative state. Read more

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

What Is the “New Birth of Freedom”?

 Lincoln came to the Gettysburg field of the dead and spoke of “a new birth of freedom.”  What did he mean by it?

A lot of men killed a lot of other men at Gettysburg during those three days in July of 1863. But that happened more than once in the Civil War: at Antietam, in the Wilderness, at Cold Harbor, and many other places.  People remember those places and those battles, too, but not the way they remember Gettysburg.

Maybe because this was the battle? The one in which the Confederate States of America lost not just a battle but began to lose the war?  But why did they lose this battle and that war? Read more

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

Abraham Lincoln won the presidency in the election of 1860, defeating three other candidates, including two Democrats, with nearly forty percent of the popular vote and an absolute majority in the Electoral College.  Democrats had split into two factions. Northern Democrats, headed by Illinois Senator Stephen Douglas (who had defeated Lincoln in the Senate election two years earlier) held that the question of admitting slavery into the western territories should be answered by referendum in each territory. Southern Democrats, headed by Senator John J. Breckinridge of Kentucky, upheld the claim most famously enunciated decades earlier by Senator John C. Calhoun of South Carolina–namely, that property in slaves is an unalienable right, that slavery was “a positive good” for both white masters and black slaves, and that slave owners therefore could keep their slaves wherever in the territories they pleased.  Popular sovereignty might not protect, and surely did not posit a natural or absolute legal right to slave property, and could never satisfy the slave owners. Although Douglas won the nomination of the regular Democratic organization, he won only a single state in the national election: Missouri. The southern Democrats (who had `seceded’ from the party’s convention before the final vote was taken) won ten states, all of them by overwhelming margins. Read more

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

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

What Is “Due Process of Law”?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 27, 2012 

Essay #50 

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

Amendment III

“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.”  So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes.  They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders.  And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry.  By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?”  Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.”  By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes.  Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.”  Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight.  After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments.  One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia.  Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.”  With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat.  Times of extreme emergency may require the risk and burden of quartering troops in private homes.  Accordingly, Congress provided that the practice might be renewed by legislative act.  The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them.  Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense.  It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained.  It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures.  The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

March 7, 2012 

Essay #13 

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

The Right to Effective Citizenship

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution.  These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others.  Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?

The right to assemble in public did not prevail in most places, in most times.  Public assemblies endanger rulers.  They can endanger the peace.  During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion?  In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent.  In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so.   After all, he argued, do men not meet peaceably every day in local markets?  Do they not circulate freely on the streets of cities?  Why then do rulers fear religious assemblies?  “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous….  Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.”  Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution.  The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison.  In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done.  “If people converse together, they must assemble together,” one Member quite sensibly remarked.  But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.”  That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others  I will begin to see things I had overlooked.  This is the advantage of deliberation in common over mulling things over by oneself.  Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.”  We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved.  The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens.  Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government.  Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England.  But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining.  Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people.  Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw.  There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments.  Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary.  To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’  In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do.  Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less.  Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

February 29, 2012 

Essay #8 

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 27 on DFW’s KLIF.

Read Professor Morrisey’s essay here:

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 20 on DFW’s KLIF.

Read Professor Morrisey’s essay here:

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


Article IV, Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Here the Framers speak the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God.  One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Queen Anne, a Henry IV) might have appeased them. Indeed she, or he, might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists.  Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown—replaced with a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address?  The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview.  “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.”  Why so?  Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original).  What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican.  Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues.  What power within the United States can safely prevent an anti-republican faction from seizing control of a state?  “What better umpires could be desired by two violent factions, flying to arms and tearing a State to pieces, than the representatives of confederate States not heated by the local flame?  To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.”  This would require that republican regimes achieve a sort of `critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States.  If republicanism failed here, when and where would it revive?  When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations to the west—but also by other states of the Union.  Although (as Montesquieu had remarked) commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic.  Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state government before intervening in such disputes.  On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or domestic.  An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.”  The presence of slaves in the United States raised the harshest questions about both the American regime and the American federal union.  By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property.  Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791.  “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared.  Would a slave revolt be an attack on republicanism or a vindication of it?  Madison and the other founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for evils of slaveholding republicanism.

Put in a somewhat different way, the dilemma was as simple as it was stark.  As Madison wrote in Federalist 43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.”  That is, the basis of the federal union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state.  Each state entered the union acknowledged as a republic by all of the others. But how `republican’ were those states in which slaves “abounded”?  Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact.  The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies.  The majority were slaves…. The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding whites and black slaves amounted to three-quarters of the population (Papers of James Madison, vol. xiii, p. 163).

Such regimes were republics in Montesquieu’s sense—“aristocratic” rather than “democratic” republics.  For Montesquieu, “republic” meant simply that the regime did not amount to the `private’ possession of one person—a despotism.  This definition derived from the Latin root of the word: res publica or “public thing.” But to Madison and rest of the founders “republic” meant the “democratic” republic, only; in the words of Federalist 39,  “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people—i. e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence: “Where slavery exists the republican theory [namely, that right and power are co-extensive because the majority rules] becomes still more fallacious” than it does under conditions whereby there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal union—the unity of the United States—began its life on a knife edge.  The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of popular self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist—and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” within the states themselves.   They inserted the republican guarantee clause as one way of strengthening that framework.  In a way, it did—but its enforcement came at horrible cost, decades later.


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

Article 2, Section 2, Clause 2

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is a law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the president alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate case arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: as James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption” as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination thus addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive `say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

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

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

Article 1, Section 2, Clause 5

“The House of Representatives shall chuse the Speaker and other Officers; and shall have the sole Power of Impeachment.”

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress.  This proved unwieldy and ineffectual.  In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny.  The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize.  The primary guard against Congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derived not from the incapacity of its members but from the structure of the institution itself.  At Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use.  Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House.  This seems obvious to us now, but consider the other possibilities.  The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives.  This quite obviously would have compromised the independence of the House from the Executive branch.  In the most recent Congressional election (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies.  Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i. e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House.  But this would elevate them to same status as the president and vice-president; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it.  Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues.  Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself.  In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states.  On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”  The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial.  However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office.  To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House.  That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence.  The House alone can impeach an officer of the federal government.  Impeachment means accusation or indictment, parallel to the power of a grand or petit jury.  Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch, the one most frequently elected, the United States `house of commons’ indicts officers in the name of the sovereign—namely, the American people, unencumbered by any dynasty or aristocracy.  This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States.  This illustrates and provides for the interdependence of the three branches.  Without interdependence, the American government would feature branches not merely separated but isolated from one another.  Each branch would go its own way, leading to governmental incoherence—to what Publius calls, in another connection, a hydra or many-headed monster.  The incompetence of the Articles of Confederation Congress would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance.  Removal from office has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Article 1, Section 3, Clause 1

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Publius famously asserted that “the science of politics” had “received great improvement” in modern times.  (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “a new politics for a world altogether new”). The newness of American politics and of American political scientists consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized government of Europe.  The “New World” that Europeans had `discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes.  It was new to the Europeans.  The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule.  For example, although most states required property ownership of voters and of office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow.  The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the Declaration of Independence, vindicating in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes.  They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures.  The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because it had to.  In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings, and defend imperial borders.

The modern state changed this.  Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the Tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with the centralization of the polis or `city-state.’  With their standing, professional armies funded by revenues collected by state employees or `bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful polities ever seen.

The American founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state.  But could a centralized, modern state have a republican regime (and keep it, as Franklin pointedly remarked)?  Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few?  European statesmen thought so; for the next century, they expected the new republic to implode.  On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

In the Philadelphia Convention, the framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States.  Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a `mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor.  The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen.  The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers.  “The two forces will controul each other,” providing “a mutual check and a mutual security,” Morris asserted.  The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy.  John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly.  The Senators would represent no particular class or caste; they would represent the constituent states of the United States.  Without titles of nobility (banned in the Constitution) or any set level of wealth, the Senators as such would have no interests separate from those of the people.  The Senate therefore would fit easily into a pure or unmixed republic.  At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that that likely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism.  Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangerous of excessive decentralization.  At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states.  The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population.  Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population.  Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state.  All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item.  How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other.  If the Senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen.  The Compromise established that state legislators choose the senators.  The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it.  For his part, Sherman and George Mason of Virginia argued that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes.  As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics.  This comported with the `aristocratic’ character of the Senate.  At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness; two senators voting individually and not as a bloc precluded the possibility of a deadlocked (1-1) vote, which also would effectively disenfranchise a state on those occasions when senators from the same state disagreed.  Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the `regime’ question and the `polity’ question.  The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack.  The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

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

Posted in Analyzing the Constitution Essay Archives | 7 Comments »

7 Responses to “February 28, 2011 – Article 1, Section 2, Clause 5 and Section 3, Clause 1 – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

  1. Ron Meier says:

February 27, 2011 at 10:31 pm

Thanks Professor Morrisey; I found the discussion on the Senate to be especially enlightening.

I wonder how different things might be today if the original intent of the method of choosing Senators were adhered to instead of changing that method to election by the same method as Representatives are elected? For example, would the extensive use of Federal mandates (education, highway construction, etc.) have passed the Senate if the states, rather than the people, were represented in the Senate?

  1. Ralph T. Howarth, Jr. says:

February 28, 2011 at 12:26 am

@Ron Meier, not to mention the all-around carrot and stick methods of regulation over areas Congress is not granted power to do by the states. Our statesmen go to Washington D.C. to have to endure a system of inducements, bribes, and compromise in order to get money that left their state to come back and fund what are local affairs within their state. If money leaves the state to only come back for municipal affairs then something is out of whack. All taxes used to be collected by the states themselves and then paid out of the state’s office to the US Treasury. We ought to go back to that to where people just file one income tax form with their state that pays the federal income tax in some percentage out of the state tax. That way the states pay the taxes to the federal like they used to and it will be the states the hold the purse strings. With such an arrangement then much of the current carrot and stick methods of the federal government would subside; that, and restoring the election of Senators by state legislatures.

Prof. Morrisey’s expository essay reminds me of how the terms “confederal” and “federal” were used so interchangeably. I sought to find a difference and picked up on two characterstics that differentiate the two:

1) A confederacy tended to not have delegated legislative powers in a central government,
2) and likewise tended to have a legislature convened on an as needed basis.

Otherwise the two terms were rather interchangeable in political science.

  1. Janine Turner says:

February 28, 2011 at 1:40 pm

I thank you Professor Morrisey, for your wonderful essay today! I personally feel so lucky to have the opportunity, as the co-chair of Constituting America, to not only be hosting this forum but to be learning from it, as well!! I never knew that in the Articles of the Confederation the legislative, executive and judicial branch all operated under one body – the congress. It is equally fascinating to concretely understand the amazing forethought of our founding fathers regarding the impeachment process – the independence of the people’s house yet the interdependence of the subsequent actions once an impeachment was initiated. The house initiates it, the senate holds the proceedings and the Chief Justice of the Supreme Court presides over it. Amazing! Once again, this process regarding impeachment reiterates the importance of three independent branches that must yet integrate to govern. Re: Article 1, Section 3, Clause 1 – I find the process of how they came to a compromise compelling. I’ve always known of the “great
compromise,” I now know it was the “Connecticut Compromise” due to Roger Sherman of Connecticut. It is interesting to understand the interpretations of Gouverneur Morris’ insights, then Madison’s and finally Sherman’s, not to mention John Adam’s inspiration of the bicameral
legislature! Divine providence, mixed with the talents of brilliant, learned men, both saved and lead the struggling country through it’s infancy. A republic was nurtured through it’s adolescence – now in adulthood – can we the people keep it? At this point, we can only keep it, through knowledge and sacrifice that parallels the passions of our founding fathers. Thank you Professor Morrisey and to all of you who are joining us! Spread the word about this forum!

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”

  1. ThreeDogs says:

February 28, 2011 at 2:35 pm

I have to echo the sentiments of both Ralph and Ron in wondering what things would be like today without the 17th amendment. Looking forward to that discussion down the line.

Thanks Mr. Morrisey!

  1. Cutler says:

February 28, 2011 at 6:49 pm

The essay was interesting and enlightening, but I love the comments by Mr. Meier and Mr. Howarth. But no, that would be too close to the intentions of the Founding Fathers for the present Regime to tolerate. So for now we must use the present method to slowly take back the Senate with strong conservative leaders who, along with the public will take back America from those who would tear away its foundations.

  1. zac allen says:

February 28, 2011 at 7:58 pm

Well… The senators to this day should be sent there by our legistlature. Its what kept Federalism intact. That way they would be sent there representing the states an its best interest… if they didn’t they could be recalled. i.e… The bank bailout TARP resolution. Anyway…the 1930′s took a grat leap away from what our founders intended. As a side note…. Every time the media or politicians call us a democracy, they should be corrected, and remind them we are federal republic, with representive democracy….. Not mob rule

  1. Anglo says:

March 1, 2011 at 9:22 am

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” in comparison to-Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

Such is the folly of the two party system when at any time it can hold dominance over any two of the three branches of government. Such as has and is being experienced today as there are sufficient grounds for impeachment to be exercised as concerning the executive branch.

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, May 14th, 2010

Federalist 13: Why Union?

Always, Americans face two questions: the question of regime; the question of the modern state.

By “regime” I mean three things: who rules; by what forms or institutions the rulers rule; and what way of life rulers and ruled will lead.  These three dimensions of the regime intertwine.  If, for example, a tyrant rules, he will require such institutions as a large standing army controlled exclusively by himself for internal policing as well as for conquest, a judiciary dependent on his will alone, and a legislature without independent powers.  If a tyrant rules, the way of life will encourage a moral atmosphere of mutual distrust and self-protective secrecy among neighbors, habits of fear punctuated by moments of terror.

If the people rule, the same thing might happen.  The popular majority might tyrannize as well as—maybe worse than—a `majority of one.’  Hence republicanism or representative government, a republic of extensive territory and population wherein no one faction may obtain a ruling majority.

The first fourteen numbers of The Federalist address the crucial question of regime—whether a people can truly govern themselves non-tyrannically, by reflection and choice, not accident and force. But they equally address the question of statism.

Modern political philosophers—in England, such men as Francis Bacon and Thomas Hobbes—sharply criticized feudalism.  A feudal society structures itself politically rather like a cinnamon roll: ruling authority organizes itself into swirls and morsels—an aristocrat here, a city there, with a king mixed in and a network of churches and common law courts throughout, each with more or less independent sources of power, sometimes overlapping one another but none simply superior to the others.

The statists did away with this.  Statesmen organize states along the lines of a wagon wheel, with a central hub of authority and spokes radiating out to the border.  Along these institutional spokes reside administrators or bureaucrats, beholden to the center for their appointments and salaries, exerting control over the population, now reconceived as the nation organized into the nation-state. From the center of the state commands and force flow out; to the center, recruits and revenues flow in, far more efficiently than under the feudal order.  Wherever a state appeared, neighboring political communities more or less needed to imitate it, lest the wheel roll over them.

For Bacon and Hobbes and their royal sponsors, the best regime for the modern state was monarchy, giving unity of command to the powerful state.  Having felt the pincers of monarchic statism, the Founders disagreed, with muskets.

But the defense of the natural rights enunciated in the Declaration of Independence via institutions of political liberty required the strength and unity that only a modern state could provide.  Only a state could muster the economic and military strength to defend itself against the surrounding European empires, with their contempt for republicanism.

Publius therefore puts the matter of federal union front and center in his introductory essays.   The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—states equally represented in one house of the national legislature.

In the thirteenth Federalist, Publius warns against disunion by appealing to Americans’ sense of economy.  Were we to divide into separate confederacies, the two or three new governments would nonetheless rule extensive territories, larger than those of the British Isles.  Instead of one federal government we would have at least two, with unnecessary duplication of ruling institutions and commensurately heavier expenses per capita.  If jealousies arose between these confederacies, commercial tariffs and larger militaries would further degrade prosperity.  North America would look more and more like the Europe from which Americans had declared their independence.  To those who look askance at a national government, Publius replies, one such thing is better than two or three.  To undertake to found thirteen such sovereignties would involve Americans in “a project too extravagant and too replete with danger to have many advocates.”

But can one government—even a carefully limited government—truly govern one such large territory?  Publius answers this question in his fourteenth essay, concluding his introduction to the new Constitution.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

31 Responses to “May 142010 – Federalist No13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

  1. Ron Meier says:

    Thanks for such an interesting discussion of the underlying reasoning to what our founders were proposing, Dr. Morrisey. You’ve put it in a way that seems so simple, yet we and our representatives seem to prefer to make it complex. Who rules, by what form, and leading to what way of life; if only we could focus on that, instead of arguing about some of the minutia we hear every day in the media, perhaps our conclusions on the issues would become more clear, more quickly.

  2. Susan Craig says:

    The more I read, the more I’m struck with the truism that “What goes around comes around”. We are again arguing the size and structure of the best form of governance. The irony of the situation is that ‘strict constructionists’ in the late 1700′s were called Anti-Federalists and now they’re called Constitutionalists.

  3. Will Morrisey says:

    Thank you, sir. I deserve no credit, really. I’m only repeating what I learned from Aristotle’s “Politics” about forty years ago in Harry Clor’s class at Kenyon College, supplemented by what the late Robert Horwitz taught in his class on Machiavelli, Hobbes, Locke, and Rousseau.

  4. Shannon Castleman says:

    Dr. Morrisey, you said, “The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—..”

    Thanks for writing it like that. It makes it clear in my mind how the Founders thought, as well as their intentions for the new government.

    The notion that the federal government is basically responsible for protecxting the US while leaving the states to basically handle domestic idea—-I guess the 10th Amendment may apply here?

    Thanks!! Good thought on your part.

  5. Marc W. Stauffer says:

    Incredible explanation Doctor! Thank you for the insight. I think it was prudent of Publis to remind his fellow Americans what is was they were separated from as when a little time passes we tend to forget. The continued use of economic consequences to disunion is, as always the best “attention getter”. Economic, rather than moral consequences to actions, have, unfortunately, always received the quickest attentions and reactions from the populous. Explaining the economic disadvantages of disunion most likely stirred the senses of the people to see the folly of disunion…much like people today. We tend to look at our government in terms of economic remedies/gain and less at its moral implications. According to statistics we choose our elected officials most commonly by their economic views and less on their moral character/stances…something I believe that is causing a lot of the trouble we are experiencing today.

  6. Chuck Plano, Tx says:

    Now that we have learned through the first 14 Federalist Papers how our Founders envisioned the benefits of a Union of States formed into one national government with limited enumerated powers vested in the Federal Government and the powers not granted to the Federal System to remain with the People and the States. We now see how that system has been perverted and usurped by the Federal System in it’s grasp for uncontrolled power over the States and the People the question is how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government.

  7. Will Morrisey says:

    Mr. Stauffer, I think that you make a good point about the contemporary attempt to emphasize economics at the expense of moral character. The Founders understood the relation between morality and economics in a much more careful way than we do. Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest. The best example of this may be seen not in The Federalist but in George Washington’s Farewell Address, which is also a defense of federal union.
    For example, here in #13 Publius defends union on economic grounds; however, as previous papers have already made clear, the purpose of union is American prosperity in the comprehensive sense–ultimately, the defense of activities that conduce to human flourishing in a regime that defends the natural rights of its citizens. The later habit of looking to our government for economic remedies, which you remark, tends toward passivity and attitudes of dependence, not self-government.

  8. Maggie says:

    @ chuck…..You asked the question, “how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government?” I do believe there are ways….the question is will people be willing to make the sacrifices necessary to get us back to our Founders’ original intent? Many of us HERE are, I am quite certain…..but most of us have already made many sacrifices trying to survive the government largess. Those that still NEED to make the sacrifices are least likely to be willing to make ANY.

    Thank you so much for your wonderful essay Dr. Morrisey and for your willingness to come back and give further insight throughout the day.

  9. Chuck Plano, Tx says:

    Maggie you have made my point, the fact that so many of our citizens today have “no” investment in our government today. What i mean by that is they pay nothing or very little for the cost of the government we have that they do not see any need to change it. Those who are willing will do those who are unwilling will not and i am afraid that we have way too many who are unwilling today.

  10. Dave says:

    Thank you Professor Morrisey for sharing your thoughts on Federalist No13 and jump-starting my brain this morning. Hamilton seemed to know which buttons to push to get the citizens of New York to go along with the plan of union–their security and their pocket-book. Could it be the case that Hamilton was right in November of 1787, but might be wrong in the long run? Or to put it another way, is there a limit to the size of a republic such as ours; and are their certain characteristics of the governed which will either foster or inhibit the expansion–did he really think that virtue would remain the defining characteristic of the populace as the “celebrated Montesquieu” said it must? I agree with the Federalists that the circumstances at the time pointed towards union as the only means of survival. The Articles of Confederation were deficient in a number of respects and enemies were ravaging America’s trade on the high seas.

    Based on experience, which Hamilton will call “that best oracle of wisdom” (No. 15) and Madison will call “the oracle of truth” (No. 20), can we not infer that any particular structure made by man, according to any applicable natural laws, will have a necessary limit? Can the integrity and composition of the parts be maintained to continue to support the whole?–Will the wheel simply collapse at some point? Hamilton’s focus was mainly external; and rightly so. But even Madison (No. 10 & 51) didn’t foresee any problems (as long as virtue was predominant.) He thought that an extended republic, composed of many different interests and where the combining of interests was difficult, would be a sufficient guard of the people’s liberty.

    As our attitude and outlook become more and more national as opposed to federal, and as more and more power, control, and money coalesce in Washington D. C., I see more and more waste, fraud, and oppression. We may not have a national plebiscite but through modern media a national consensus is “reached” to determine national policies on any number of topics–healthcare, immigration, energy use. Modern communication seems to vitiate Madison’s argument for extended republics. Today, small, vocal, well-placed factions can combine quite easily and gain power. There does seem to be a tendency for political power to follow some sort exponential growth curve (maybe it’s “Power tends to coalesce, and absolute power coalesces absolutely.) Is there a vicious cycle with the increasing public sector depending on a decreasing private sector?

    For external concerns, a centralized government is probably the answer. But for local, private concerns, local government is best. The best government is that government which governs closest to the people. As John Adams wrote to Jefferson, “Human nature, know thyself.” A republic composed of citizens lacking virtue is not long for this world.

  11. Marc W. Stauffer says:

    Mr. Morrisey;
    I agree with your thought, “Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest.”
    Exclusive self interest is the blinded path to a Unions destruction. Mutual interest must be taught in the formative years of life lest self interest take firm root.
    Many generations have been taught economic based history rather than history with its eye on the motives and morality and as such we have lost touch with the original intents of our Founders or great leaders. President Woodrow Wilson said; “A Nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we don’t know where we have come from, or what we have been about”.
    Many history books, my High School history text (1977) included, are going as far as to expunge any morality or mutual interest from their text. This, unfortunately, leads our youthful generations to the self-serve trough without care as to how personal success is accomplished, only looking at the economic gains/losses of a situation. It also leads to an unhealthy reliance on “nanny state” governance to control those economic factors. Things which we are now seeing blossom forth.

  12. Shannon Castleman says:

    Chuck and Maggie, I do not know either. But I think the best vehicle for getting back to the intent of our Founders would be to have a few Governors (look at Chris Christie of NJ, maybe Rick Perry of TX, maybe Jan Brewer of AZ) stand together and say “NO MORE MANDATES.”

    If we could find just 4-5 men and women Governors of integrity who will stand up to the federal government-even if that meant a stand off with federal police authorities- and proclaim the 10th Amendment alive again, then PUR movement will gain some traction. It will gain credibility.

    Remember the movie “Braveheart” when William Wallace pursuaded Bruce the Earl to lead his people? I am paraphrasing but he says something like, “People don’t follow titles, they follow leadership. They will follow you if you will just lead them. I see it in you.”

    That is what need today, because no one is going to take “normal” citizens like us seriously. We need people with some credibility in the government sector-Governors. 90% of Congress can’t provide that leadership, but I believe 4-5 Governors could start a snowball, mixed with the Tea Party movement.

    Any thoughts?

  13. Mrs. Stone says:

    It’s interesting to see how knowledgeable our founders are about the world around them. Although people like Newt Gingrich speak in ways that convince me that they have an informed historical perspective, it is hard to see that in a lot of our countries leaders.

    Hamilton gives a very interesting insight into why the nations of Europe were constantly fighting one another and what we should do to avoid it. Without minimizing our nation’s civil war it is telling that the actual conflicts on our own nation’s soil have been limited over the year that our nation has been in existence and that proves that Hamilton really understood the importance of us having one nation here in America instead of 3 or 4.

  14. Chuck Plano, Tx says:

    Shannon you are right but we must motivate the people to stand with those Governors and let them know that we will be there to support their efforts. That is why it is so important to let Arizona know that we support their efforts in the immigration fight. It is not about profiling or any thing else but protecting the citizens where the Federal Government has refused to do so. If “We” The People let the Federal Government run over Arizona then what is left for the rest of us but the same.

  15. Ron Meier says:

    Good point Shannon. It doesn’t take a majority of Governors to make something happen; it takes just a few strong willed Governors willing to stand up and say no. The Governors have failed, over many decades, to stand up to the Congress and say no to mandates that come with almost any money the feds distribute, for example, for highway construction, education, etc. As originally constructed, as I read these papers, the States made sure the Constitution protected their rights as States. Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights on the larger local issues, such as education. We’re fortunate to have some strong leaders at schools like Hillsdale College say no to federal money so they were not forced to do things they felt were contrary to their own values. If only we can get some of our Governors to do the same thing. The ones you’ve named are a great start; let’s hope more come along with them, especially after the November elections, when we are more likely to have change at the State houses.

  16. Jeff Hill says:

    Susan, you have made clear some feeling I have had while reading along, that the Anti-Federalists often had arguments equally as compelling as the Federalists. And issues that dominated the Constitutional Convention are still, or once again, being debated today.

  17. Will Morrisey says:

    Dave, thanks for that excellent post. My own view is that it’s impossible to posit a natural limit to a commercial republic, but in practical terms every such republic will find such a limit, depending upon its neighbors. The oceans pretty much set such a limit, east and west, with the eventual exception of Hawaii and other smaller holdings in the Pacific. No sensible person supposed that we would actually integrate the Philippines permanently into the United States, for example. British Canada set such a limit on the United States to the north. Mexico turned out to be the complicated case; we solved the problem for more than a century by seizing its underpopulated, northern sections and effecting a regime change in the capital.
    Another way of putting it is to say that an extended, commercial republic must eventually find some limit; the question will then be whether it can secure its borders militarily but in the final analysis politically. It can do so politically if the neighboring regimes are also commercial republics. It helps if they are also weaker.
    In my opinion, the statism that you and I worry about derives not from the size of the territory but from the change in the regime effected by the Progressives in the last century. The Progressives managed to legitimate a much more extensive, bureaucratic state than anything seen here before, taking their cues from German political thought and practice. Germany had unified the 37 or so German states under the Kaiser; Bismarck organized a substantial welfare state along with a formidable army. Many of the American intellectuals who founded `political science’ as an academic discipline in the 1880s (the young Woodrow Wilson among them) studied in Germany, so they picked these ideas up right at the source.

  18. What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!

    I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.

    There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.

    Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.

    Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.

    Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.

    The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?

    Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pong together yet maintain our different stripes.

    God Bless,

    Janine Turner

    May 142010

  19. Andy Sparks says:

    Im going to say something controversial in answer to the implied question of Ron’s statement “Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights”: The the issue is slavery. If slavery had not been defended to the point of secession by the Confederate states, I don’t believe we would now have as bloated and powerful a federal government as we have today.

    While the Federalist papers do not touch on the subject of slavery, it is the proverbial elephant in the middle of the room throughout U.S. history up until 1861 when shots were fired and the union was torn asunder. Without that peculiar institution, it is my belief that we would have a more balanced power between the federal government and the state governments. Without the Civil War, there would be no 14th ammendment which once and for all declared the federal government as supreme.

    A lot of Lost Causers will scream “Hallelujah”, but I approach the subject from a different viewpoint. Unlike their belief that Abe Lincoln was a tyrant; I say that the southern states that promoted and defended their institution to the tune of 600,000 dead were more to blame for the current situation of states playing second fiddle to the central government. How we can transfer back the power of the federal government back to the states, I don’t know; but I do know how we got here, and it started when the founding fathers refused to deal with the issue of slavery that quite possibly would have prevented the union from forming in the first place.

  20. SUPER stuff !I think the first thing I want to say is about the “disunion” that pleges us today. We are divided and it seems that Obama is not given to putting things back together,but into factions serving what he believes will promote his idology. He is displaying an arrogance a times which concerns me a lot. I wonder if he realizes that a man is diminished to the degree that he indulges his arrogance?AZ is a perfect example of this, he makes a joke about the PEOPLE of that state while his failure to deal with immigration while a 900 lb gorillia standing at his shoulder as his jokes cleverly distort .His Attorney General threatens to sue AZ,but never read the bill he is objecting to. Obama addresses a graduation class and implies that too much tech, may be harmful??????What on earth????Is he afraid of too much information that may encourage deeper thought about matters facing us today????I think most people are feeling concerned about the deficite,and the spending at the hands this Administration ,and there seems to be no end to the billions and now trillions that are now weighing us down, and making us vunerable .
    We have much to do and I suppose the first thing is to engage in places like this. Thank you so much for all your hard work and creating this site. November may serve as a bell weather and surly information will underpin our sucess.
    I think our founders would be going cross eyed if they were to see things today.Their beautiful carfully constructed thoughts/principles were a gift to the ages and I do hope we can blow off the dust of the times,we allowed to settle in on them and revitalize them.

  21. Maggie says:

    Shannon you are so right and I am glad to see that a few Governors are starting to take a stand. Even Arnold S. is talking about cutting entitlements in Calif. It remains to be seen if he is all talk and no action or if he’ll actually do what needs to be done. If he actually goes through with it, it will be interesting to see how many other states follow suit.

  22. Roger Jett says:

    Shannon Castleman, I especially enjoyed your earlier comments on what it will take to get us turned back toward what the Founders intended. I’d like to point out though that before Robert the Bruce became “the lion in the north”, it was the acts, deeds and exploits of the “normal citizen” William Wallace that united the diverse clans and rallied them to resist tyranny. Before Stirling Bridge and Falkirk and long before Bannockburn there were the skirmishes and battles of Lanark ,Loudoun Hill, Ayr, Scone, Aberdeen and Perth. Before the nobles resolved that they would lead the fight, the common people determined and declared that they would be free and be independent. It was a long road, not a short one. I’m reminded of what Paul S. Gillespie said a few days ago, in reference to Federalist No. 11, “We are quickly loosing our ability to remain free and independent, because unlike Hamilton who obviously took the long view, we have concerned ourselves with the expediency of the moment and see only the quick fix from the short view”.

  23. Susan Craig says:

    Andy, in the battle to return to the founding principles you are half way there. There is a principle that says in order to fix a problem one first has to correctly identify it and how it came to be. It is only then that effective strategies can be formulated.

  24. Dale Pettit says:

    We are all on this boat together and just maybe this study is the flick of the wrist that changes our direction. We are seeing signs that a new atmosphere of attitude is rising. The recent ousting of incumbents or life long politicians is a sign. I pray that our simple response to a long over ignored actions of our politicians is not too late.

    The national debt, promises of future entitlements, and actions to devalue our currency to zero is bankrupting our nation and it’s citizens. Our position and strength to be a major world power has tanked significantly because over the last 100 years our selected leaders forgot to defend our constitution. Or……our citizens did not know enough to be more selective. They did not know what they had or did not know that we have to take an active part in our government actions.

    Yes we have to have leadership because many will follow. Getting traction and attention for these ideas is a real challenge.

    Thanks to all of you for this study.

  25. Dave says:

    Roger, I liked what you seemed to suggest about the common people, the individual, being a key to solving our current crisis of liberty. Many Americans (myself included) have not been paying attention as a century-long, ever-so-subtle incremental drift away from our founding principles has put our liberty in some jeopardy. Dr. Morrisey mentioned the Progressives and how they view the governing of our country. In my limited reading of the Progressives (mostly selections from American Progressivism by another Hillsdale educator, Ronald J. Pestritto), they seem to have a firm belief in the perfectibility of man brought about by just the right social and political control. And there are academic, legal, political, and artistic elites who have the “wisdom” and good intentions to “improve” upon our founding principles so that we can attain the perfection they so ardently desire for us.

    I know the modern elites are really, really smart and everything, but I think I’ll stick with the Founders. Informed not only by their religious sentiments, but also by their study of human history and man’s various attempts to form civil societies; they accepted man as an imperfect being, and the structure of any suitable government would take into account man as he truly is not as he might be imagined in some utopian, fantasy world. How smart were the Founders? I recently heard a scholar say that President Kennedy’s quip about Jefferson dining alone was probably literally true–”I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” (Remarks at a dinner honoring Nobel Prize winners of the Western Hemisphere. 4/29/62)

    The increasing centralization of power and tax dollars in Washington would horrify the Founders. They did not fight a revolution against the centralized power of the King and Parliament only to have it brought 4000 miles here to Washington to exercise tyrannical power over the individual American. Our founding document the Declaration of Independence tells us where the Founders put their political faith and trust, and it wasn’t in the State. It was in the certain unalienable rights of the individual. We possess those rights independent of any government. We establish government to secure our rights. Ours is a protector government not a provider government.

    We have lost that necessary faith in the enlightened self-determination of the autonomous individual exerting his free will in a material world governed by natural laws. If Ludwig von Mises is right that “government is essentially the negation of liberty,” individuals who innately yearn to be free, will always come to be frustrated by looking to a bigger and bigger government to make their life choices for them. One of the greatest gifts God has given us is free will; without it life would cease to have any meaning.

  26. Paul S. Gillespie says:

    Thanks for quoting me Roger. Its nice to be remembered. I was otherwise occupied yesterday, but am catching up this morning. Great comments by everyone following a thoughtful essay by Dr. Will Morrisey. I do however take great exception to Andy Spark’s idea that slavery was the chief cause of the War for Southern Independence. (Civil War is used incorrectly in this type of conflict)
    States Rights, much a concern today, was the key issue to the South. On this subject, the South was entirely right as we see the present subjugation of the States to the actions of an all powerful federal government. The main issue to the North was not slavery but revenue. Over 60% of Federal income, distributed unevenly to Northern States came from Southern States. Most Northerners had no strong feelings about Southern succession until the Northern newspapers and banks started pointing out the need of the North for the continued wealth of the South. (Before the war, Mississippi was actually the richest State in the Union) When asked why he was against the South leaving the Union, Abe Lincoln replied: “Where would we get our income?”
    It was only when the “greenbacks”,through rapid inflation from printed money had caused more financial problems than lost revenue did the North need another reason the shore up faltering support for conquering the South.
    A quick look at the laws most of the Northern States restricting the rights, freedoms and movements of the non slave black population, makes it very evident that no Northern State was willing to start a war with the South to free a black person. But since the Union was already knee deep in blood and debt…why the hell not try to put a moral face on their actions.
    I agree that the resulting 14th Amendment has its flaws and should be repealed, but lets not throw out the baby with the bathwater. It does restrict the States from passing laws that infringe on our Bill of Rights.

  27. Andy Sparks says:

    If you don’t think slavery was a chief cause of the Civil War, then you look at history with a jaundiced eye. True, economics was an underlying cause of conflict, but you have to look deeper than the surface; something lost causers and slave state sympathizers refuse to do.

    I don’t disagree that the northern states are without culpability in the livelihood of the peculiar institution, but to point to the non-slave holding states as the ignoble precipitators of the war is disingenuous. If the cotton-growing states had been willing to confine their slave holding status to those within which they currently existed, there might not have been an issue. Likewise, and more to my point, if the institution had been irradicated at the outset of the Constitution, then the likelihood exists that a war would have been avoided entirely.

    Unfortunately, with help from the 3/5′s clause, the Southern states dominated the presidency, Congress, and even the Judiciary (Andrew Jackson alone appointed 7 of 9 supreme court justices including Chief Justice Roger B. Taney). Only when immigration and westward expansion from 1815 onwards precipitated a transition of power from congress to the northern states did congressmen like Jefferson Davis worry that the government would shift power towards the rapidly industrializing north.

    It wasn’t northern financial improprieties that led to a war; it was the south trying to hold on to its power based on an already antedated institution that led to war. Try as you might to blame something other than slavery on the war, if you know your history and the underlying causes to straw man excuses like the tariff and states’ right, then you know that slavery was the principal cause of the Civil War.

  28. Kay Tournay says:

    How fortunate you were to have Harry Clor for a teacher – would that all our kids in government schools could, too. That’s not possible, so, we all must become Harry Clors (read, read, read) and find opportunities to re-educate America’s children on the exceptionalism of America!

  29. Christopher says:

    It is truly exciting to see how interested people like Hamilton were in promoting industry and business. When I look at essay #14 I see a much more robust concept — government should facilitate commerce not restrict it. The limited powers of the federal government look much more logical when I see that encouraging commerce through the post office, highways and interstate trade were explicit powers. I guess I’m now wondering what happened that caused us to get off track today? It often seems that rather than facilitating commerce, many in government see it as they job to try to stop business in its tracks.

  30. Mark Dixon says:

    This is an amazing site and Janine and Cathy have really made the essays relevant. The contributors you guys have found as guest bloggers are awesome. I want to say thank you so much for doing this!

  31. Will says:

    “When asked why he was against the South leaving the Union, Abe Lincoln replied: ‘Where would we get our income?’ ”

    Do you have a link for that or a text for attribution? I’m curious to see the remaining context of that Lincoln quote.


Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15.  To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics?  This seems an odd question.  There seems to be no shortage of politics in the modern world.  And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics.  In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life.  Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it.  An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child.  Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule.  In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts.  Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes.  Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise.  At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical.  They solved the problem in principle by adopting and refining the idea of federalism.  A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to?  Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning.  Your character as a human being suffers.  In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation.  But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.  As Publius has argued in this series, however, the Articles constitution contradicted itself.  The general or federal government could only raise revenues and soldiers with the consent of the member states.  But there can be no “sovereignty over sovereigns.”  Disunion threatened.  Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect.  As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral.  Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another.  Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it?  Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system.  Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.”  Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress.  The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states.  But this caused another problem.  Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime.  This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble.  Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches.  This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Shannon Castleman says:

    There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

    In my opinion, these groups of Federalist essays proves those naysayers wrong.

    The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

    Hamilton would in no way support “bigger” government if he awakened in 2010 America.

  2. Susan Craig says:

    Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
    American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.

  3. Charles Babb says:

    Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

    Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

    If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

    Few of them today, would acknowledge that “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

  4. Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22 :)

    Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

    As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

    If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

    Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
    The answers are in the United States Constitution.
    Spread the word.

    God Bless,

    Janine Turner
    P.S. I thank you Horace Cooper for joining us today and for your brilliant insights

  5. Susan Craig says:

    Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.

  6. marjay says:

    The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.

  7. Roger Jett says:

    Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
    “empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.

  8. Charles Babb says:

    @Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.

  9. Carolyn Attaway says:

    I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

    To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
    What are you going to do?
    What are you going to do?
    What are you going to do?

    Have we come to that place in history again?

    One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

    “US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link:

  10. Jimmy Green says:

    Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

    I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

    On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

    Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

    Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.

  11. Roger Jett says:

    Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.

  12. Kay says:

    Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

    The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

    “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

    One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

    If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

    Good night and God Bless!

    Cathy Gillespie

  13. Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

    1. Though the genius of the people of this country..

    2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

    3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

    Are these words being honored in our American government today?

    God Bless,

    Janine Turner
    May 27, 2010
    I thank our guest scholar, Dr. Will Morrisey, for joining us today!

  14. Jesse Stewart says:

    Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

    What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.


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

Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense.  In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions.  He argued that union finds its primary bulwark in peaceful habits of cooperation.  Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force.  The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union.  Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract.  This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament.  The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel.  Indispensable to good government, rule by law will not always suffice.  Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like.  Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny.  The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.”  The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority.  This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles.  Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states.  The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia.  A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights.  The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation.  “The people, by throwing themselves into either scale, will infallibly make it preponderate.”  By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears.  There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole.  Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America.  States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states?  Could the federal government suppress the rebellion?  Publius cannot predict the outcome of such a struggle.  If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.

Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

13 Responses to “June 4th, 2010Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Susan Craig says:

    This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?

  2. Will Morrisey says:

    Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.

    Or am I missing the point of your question?

  3. Billie says:

    This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.

  4. Jimmy Green says:

    Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
    The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.

    Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
    His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.

    It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
    The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.

    You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.

  5. Susan Craig says:

    Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.

  6. Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

    I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

    Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

    “The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
    Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

    However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

    Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”

    “Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
    The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

    God Bless you for your willingness and courage,

    Janine Turner
    June 4, 2010

  7. yguy says:

    “in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”

    I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.

  8. Will Morrisey says:

    Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.

  9. Susan Craig says:

    Thank you Professor Morrisey, you have given me food for thought.

  10. Greg Zorbach says:

    Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
    In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
    As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
    During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
    It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
    Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
    As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
    As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.

  11. yguy says:

    ‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’

    I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.

    IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.

  12. Susan Craig says:

    I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.

  13. Roger Jett says:

    The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
    “Where once we had spoken of government aid programs, we began speaking of entitle-
    ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
    ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
    We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”


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

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will?  If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government?  Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it.  He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three.  His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.

The qualifications of senators (#62, paragraph 2).

The appointment of senators by the state legislatures (#62, paragraph 3).

The equality of representation of the states in the Senate (#62, paragraphs 4-6).

The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.

The powers invested in the Senate (#64, #65, #66).

With this outline in hand, consider Federalist #62.

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least.  Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member.  This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse.  We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent such consolidation, the Framers had the senators appointed by the state legislatures.  This assured the state governments a means of defending themselves from within the federal government itself.  In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election.  The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures.  This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses.  Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze.  This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate.  Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states.  But he also fits the Senate into his larger conception of the regime.  As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory.  American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome.  With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.”  Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate?  Can republics think?  Can they act faithfully, steadily?  Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures.  Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies.  Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens.  “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment.  Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself.  “Anything goes,” indeed.

If anything goes, then respect for the regime will go, too.  Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

Thursday, July 22nd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.


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

Federalist 63: Responsibility and the Rule of Reason

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government.  In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations.  He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states.  Despite this, Publius argues, America has lacked “a due sense of national character” in the world.  He means “character” in both senses: moral soundness, but also a well-defined identity.  If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know what how to `play off him,’ so to speak.  With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns.  Such notable American statesmen as George Washington and Benjamin Franklin deliberately cultivated their public faces.  In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could do—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character.  He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility.

Although Publius did not invent this word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map.  If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government.  By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires.  “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?”  Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.”  It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis.  In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely `trifecta.’  Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax.  Even so, it remains quite far removed from a genuine hereditary aristocracy.

Friday, July 23rd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.


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

Publius now begins his fifth and final topic respecting the Senate: its powers.  In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress.  Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”).  State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government.  One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work?  The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time.  Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889.  One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties.  The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers.  The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review.  The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land.  This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous.  Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.”  Treaties are contracts between nations not under one another’s sovereignty.  They are harder to enforce than ordinary laws.  Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances.  This does not mean that the United States cannot withdraw from a treaty—break the contract.  But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force.  The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law?  This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war.  Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.”  Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law.  If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states.  The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states.  The most `locally’-centered branch of the national government will hold the most `international’ power.  Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments.  This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s.  Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles.  It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Monday, July 26th, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.