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

Enacted on July 13, 1787, the Northwest Ordinance was a great achievement, and a document Americans should be proud to own.  Yet it emerged from a Congress that, under the Articles of Confederation, had not been able to achieve very much.  Circumstances in the territories, moreover, were very difficult, and the motives for passing the ordinance among many Members were less than honorable.  That shouldn’t change our positive view of the Ordinance, but might instead lead us to think about how petty motives can nonetheless, sometimes, lead to great things. Read more

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

Another Proposed Amendment: Women’s Equal Rights:

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

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

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

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

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

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

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

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

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

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

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

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

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

June 20, 2012 – Essay #88

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

Amendment VIII:

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

Excessive Fines Clause

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

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

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

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

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

I.      What is a fine?

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

II.     When is a fine “excessive?”

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

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

The Supreme Court has addressed this issue in a handful of cases.  It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.  As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34


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

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system.  It does not prosecute, but the power of a federal prosecutor depends on the grand jury.  It does not judge, but it can expose or shield defendants from judgment.  It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy.  The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members.  The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction.  It allows for free deliberations without threat or pressure from outside.   It also discourages witness tampering.   And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity.  At the same time, their proceedings are not adversarial.  The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism.  Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice.  While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run.  For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

March 14, 2012 

Essay #18 

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

Article 1, Section 9, Clause 4-6

4:  No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.7

5:  No Tax or Duty shall be laid on Articles exported from any State.

6:  No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another:  nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Benjamin Franklin is credited with observing that nothing is certain except death and taxes.  In clauses 4-6 of Article I, the Founders were attempting to assuage concerns Americans had over the ability of the national government to levy taxes.  The power to raise revenue was essential – the national government would be moribund without finances.  But the national government could come under the sway of parochial interests, and the taxing authority could unfairly burden certain regions.

With clause 4 “Congress might not have the power of imposing unequal burdens; that it might not be in their power to gratify one part of the Union by oppressing another” noted Hugh Williamson, a North Carolina delegate to the constitutional convention.  Delegates from Southern colonies were especially sensitive to this issue.

Thus in Clause 4, the Constitution requires that direct taxes only be assessed in proportion to population, as determined by the census that apportions members of Congress.  (Recall that the census apportioned representation according to the number of free persons and three/fifths of the slaves).  A capitation tax, or “poll” tax, was nothing more than a tax on individuals. Poll taxes were most commonly assessed at the local level, for goods like roads and schools.  Here, the Founders believed that commerce would ordinarily provide tax revenue, and that a direct tax would seldom be used at the national level.  But the Founders also knew that urgent situations, like war, might exceed the nation’s capacity to raise revenue through tariffs and excise taxes.

As an aside, the poll tax roll was also a means to evaluate who lived in a jurisdiction, and so were also used to identify eligible voters.  This is the context most people today think of when they hear the phrase “poll taxes” so the mistake is often made of thinking that “poll” means the place where votes are cast.  The Founders would have ben using “poll” on the older sense, that is, a tax on individuals.

Southern delegates were also sensitive to the potential harm arising from Congress’s taxation of exports.  in the debate over Clause 5, advocates argued that, were Congress given this power, it could unfairly burden the exports of some states and not others.  Different states had vastly different export profiles – think of how an export tax on cotton would have applied in practice.  Yet the solution incorporated in the Constitution remained controversial, given the economic advantages Northerners believed that the South derived from slavery.  Thus, even as anodyne as this clause may appear today, it passed by only a vote of 7-4, with New Hampshire, Pennsylvania and Delaware voting no, and Massachusetts abstaining.

In Clause 6 the constitution yet again limits congressional power to favor one region over another.  Under clause 6, Congress would lack the power to regulate a disfavored state’s maritime commerce out of existence.  This issue was of special concern in Maryland, because Maryland-bound shipping would pass ports in Virginia.  A few delegates believed this clause would impose inconveniences in some situations, but relented in favor of those states with strong interests in these limits.

The revenue profile of our nation today is quite different from what the Constitutional Convention anticipated.  Indirect taxes, like excise taxes and tariffs, account today for only about 3% of the federal government’s revenue, while about half comes from individual income taxes – a direct tax that could only come into existence by amendment to the Constitution, in Amendment XVI, ratified in 1913.  That change came quickly –  by 1930, 60% of the federal government’s receipts were from the income tax.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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

Article 1, Section 8, Clause 7-8

7:  To establish Post Offices and post Roads;

8:  To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clauses 7 and 8 of Article 1, section 8 demonstrate both the interest the Founders had in facilitating economic growth and prosperity, and the belief they shared that such power had to be made explicit in the Constitution.  The would not have been satisfied to hold, as we now do, that Congress’s regulatory power is presumed unless constrained by a specific provision.  Such a open-ended power would become tyrannical, they thought.

At the same time, they weren’t opposed to governmental intervention if appropriate to serve the general welfare.  The federal legislative power in particular could counterbalance provincialism in the states.  Having just been through the disaster that was the state of things under the Articles of Confederation, many Framers understood that greater federal power was necessary.

The debate was over how much would be too much power.

The “Post offices and post roads”in clause 7 sound quaint, but in fact were an enormously important piece of infrastructure.  Post roads were some of the first roadways built, and many former post roads remain today in our communities, whether we recognize them as such or not.  But whenever the government provides such infrastructure, there is also the danger of waste, fraud, and corruption between the members with control over the funding, and their constituencies.  Thomas Jefferson, for one, thought the power would prove “a source of boundless patronage in the Executive.” and “a bottomless abyss of public money.”

Jefferson wasn’t entirely incorrect.  Postmasters have been patronage appointments.  The location and accessibility of post offices is a critical constituent issue, and employment in the Post Office is valued as a safe, reliable and well-compensated career.  For shrinking communities, the potential they might lose “their” post office is a cruel final blow to civic pride.  The Post Office monopoly on “mail” delivery has eroded as the private package delivery industry – and email – have taken over tasks once done by the post office.  But these private communications are heavily dependent on a physical infrastructure that was build by government.  Had it been left to local communities and individuals, no doubt road would have been built, but with “local” priorities in mind, not national ones, with consequences for the nation’s westward expansion and domestic cohesion.

Clause 8 provides Congress with the power to legislate in the areas of patents and copyrights.  The founders believed the protection of intellectual property was important to the growth and prosperity of the nation.  Also, the author’s “copy right” was a right in English common law and was respected by the colonial America; and Parliament protected an investor’s right to his invention for 14 years.  Alexander Hamilton even advocated funding the emigration of “Artists and Manufacturers in particular branches of extraordinary importance.”  The Founders appreciated the good incentives these rights would create, by giving people with successful and popular ideas the ability to profit from them for a time.

The world of patents today is struggling with some extreme applications of these principles.  Because a person can “patent” an invention without actually bringing the invention into existence, subsequent inventors who do make commercially beneficial use of an idea can be compelled to “lease” the unused patent, or pay damages for infringement.  Rather than encourage industry and the useful arts, such patent litigation adds costs to the commercially active innovator, which are ultimately passed along to consumers.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics

Tuesday, May 18th, 2010

Federalist #15

Alexander Hamilton’s Federalist 15 is a gloomy counterweight to Madison’s optimistic Number 14. Madison ended No. 14 praising the noble course set by the founders of the new nation. Hamilton’s No. 15 is like a splash of cold water, reminding citizens of the moment’s terrible perils.

And the troubles are many. The nation’s present configuration is inadequate to the task. The central government cannot govern, and thus cannot honor its debts, defend its territory, engage in diplomacy, or unite its constituent state governments.

And therin lies the rub, not just for Hamilton and the founders, but for generations afterward. How should the central national government relate to the states? The states are the unit of government charged with the ratification of the constitution. But Hamilton knows that a “mere” confederation of states will not survive, not in the dangerous world of the late 18th century. The central government needs sufficient power to govern the nation as one unit, when solidarity is required. Recalcitrant states must be brought to heel to honor their obligations. That meant, in contrast to the Article of Confederation, extending the federal government’s power to impose obligations upon real citizens as individuals, not just intangible state governments.

This is a big step. Hamilton’s challenge is to appeal to his reader’s fear of irresponsible state governments. He can then position the national government as a solution to that problem, rather than as a tyrant to be feared itself. But among his readers are also the political leaders within New York, so he must argue carefully. He isn’t attempting to convince his New York readers they need to fear for irresponsibility in their own state government. He doesn’t need to accuse them of fecklessness. It is enough that other states will take advantage of a weak central government to pursue short term agendas to the ultimate detriment of all.

As we know, debate over the size and scope of the federal government persisted after the ratification, even to this day. From our vantage point, it may seem odd to entertain the notion that the central government could be too weak. Federal statutes and regulations reach deeply into American society, and into areas of governance traditionally left to state and local governments, such as criminal law, education and corporate governance. But in 1787, the prospect that the United States could become a “failed” state was real. However one feels about the size of government today, reading Hamilton should remind us that “ordered liberty” requires some authority to maintain the order.

Federalist 15 makes interesting reading in light of the financial crisis in Europe. Although the EU has an executive, the power of the central government is fragile and nothing like that established by the Constitution. Is the European Union sufficiently powerful to bring fiscal order to its constituent nations? Or will the lack of fiscal discipline in Greece, to name but one member, pull the EU down, destroy the Euro, and provoke domestic crisis throughout Europe? Can Europe impose a federal solution? I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.

Professor Allison Hayward teaches election law at George Mason School of Law and is also a fellow with the Center for Competitive Politics


16 Responses to “May 18 – Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics”

Susan Craig says:
May 18, 2010 at 10:01 am
Honor and restraint seem to be the necessary ingredient that both Madison and Hamilton imply. Especially in this quote from #15: “should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.” Unfortunately quite a few of the list seem to be rampant in today’s world. I think the most damaging is misrepresentation (aka lying). Presenting your self or your program in language that obfuscates the intent. Most recent example “Employee free choice Act”. How ironic the “Big Government” of 1787 is now looked on as the ideal of the “Small Government” people. As we traveled from 1787 to now it seems that we suffered from the belief that if this much is good maybe a little more will be better.

Susan Craig says:
May 18, 2010 at 10:37 am
Found an interesting chart defining the ‘factions’
The Parties as they were constituted at inception:
Republicans (aka Anti-Federalist)——————–Federalist
radical Whig—————————————-moderate Whig (can anyone define Whig belief)
localists——————————————–more centralist
less taxation—————————————-taxation
balanced budget————————————deficit (as a tool for credit)
egalitarian—————————————— enlightened paternalist
strict construction———————————–broad interpretation
expansionist—————————————–reluctant expansion
became modern Dems——————————–became the modern Reps
Does it strike you that there is coming another 180?

Charles Babb says:
May 18, 2010 at 11:21 am
Professor Hayward, your analysis of Federalist No. 15 is very enlightening.
However, Publius may have been short sighted in his view. The balance of power still seems to be a problem. In 1787, the States were “recalcitrant” of their fiduciary and other responsibilities to the Confederacy. The Constitution seems to have solved that problem, but will it solve today’s dilemma caused by a Federal governments bribing the States into prostituting away (using the citizens tax dollars) the liberties of their citizens, with it’s tentacles wrapped firmly around our throats in many areas. Especially in the area of education. They realize that a people made dumb as sheep, are easily led to slaughter.
Today we have a federal government that refuses to enforce the laws it has passed; but wants to bring legal action against a State which, in desperation for life, limb and property, tries to take upon itself that task of citizen security, for which the federal government is now recalcitrant. The federal legislature is so enthralled with a power grab that all they can talk about is creating “comprehensive legislation”, rather than insisting on the enforcement of the laws already on the books. K_I_S_S.
Friends, passion has caused me to exceed the bonds of strict adherence to the analysis of FEDERALIST No. 15, I beg your indulgence.

Ron Meier says:
May 18, 2010 at 12:24 pm
We are going through this exercise of reading the Federalist Papers @ a time in world history when we get see first hand what our founders were talking about in the first 20 or so papers. As Professor Hayward notes, we are watching a Confederation in Europe crumble before our very eyes, and we can refer back to the various FPs to understand why.
At the same time, we are seeing in our own country the very thing that the States and citizens were worried about with respect to our Federal government attempting to consolidate power by having complete control over two of the three branches of government and attempting to neutralize the ability of the states, particularly Arizona, from protecting their own interests.
It’s great that we are able to analyze what we see, hear, and read more rationally, rather than just passionately, as a consequence of reading the FP. The language of the authors of the FP makes reading and understanding somewhat arduous, but enlightening when the gist of each article comes through.

Carolyn Attaway says:
May 18, 2010 at 12:24 pm
I found Paper 15 to be very relevant to current events. I could not help but think of all the situations that are occurring in and around America today, as I read Hamilton’s debate for a Federal Government.
The third paragraph had excerpts that jumped from the page which served as reminders of why we need a sound and common sense Federal Government, and not one set on pushing its own agenda. Hamilton states “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience….Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?….We have neither troops, nor treasury, nor government….Is commerce of importance to national wealth?….Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us.”
These statements, though written at an earlier time to defend the need of a Federal Government, can be looked upon today as a defense to rid ourselves of the status quo in Congress. Hamilton tries to convince the people of New York of the need for a basic Federal Government whereas today it has become overbearing and oppressive. The Congress has allowed the United States to be humiliated, and has apologized for her standing as a Superpower to other countries. They have endangered our AAA rating in the financial markets by increasing our debt to foreign powers as well as to their own citizens.
We may have military power, but it is constantly being undermined by accusations and political correctness. We have no treasury, and our federal government is quickly becoming imbecilic. I believe Congress has forgotten the reason behind its creation.
Hamilton writes: “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I realize that this statement was intended for the States in trying to form a Union, but I cannot help but see the hypocrisy in this statement when in it is applied to the Federal Government in relation to the immigration laws and dealing with enemy combatants.
One of the main reasons for a Federal Government was, and is, National Security. Our Congress views the laws to these issues as recommendations, to be applied to their best advantage, when in fact, it should be their number priority.
I heard the following on the news yesterday, “Most of the illegals caught crossing are from Mexico or South America, but thousands are classified as OTMs, “other than Mexicans,” including hundreds from nations that sponsor terror. These are the records we obtained at this federal detention center near Phoenix, Arizona. We find illegals from Afghanistan, Egypt, Iran, Iraq, Pakistan, Sudan, and Yemen in custody. This congressional report on border threats confirms members of Hezbollah have crossed the southwest border. It also contains photos of military jackets found on the border. The Arab insignia reads: “Martyr: Way to eternal life.” The other depicts a plane crashing into the Twin Towers. The congressional report also reveals the route Middle Easterners take. They travel from Europe to South America to the tri border region where they learn to speak Spanish, then travel to Mexico and blend in with other illegals heading to this country. Former Arizona Governor Janet Napolitano is now secretary of Homeland Security. We wanted to ask her about the border threat, but our request for an interview was never answered.” (Link:
Instead of securing our borders, Congress is inviting illegal immigrants to the bounty produced by hardworking citizens, and admonishes those who question their actions.

Dave says:
May 18, 2010 at 1:15 pm
Thank you, Professor Hayward for your thoughts on Hamilton’s No. 15. I was struck by the tone of the paper, and more specifically, the words and phrases Hamilton used to describe the situation back in the early winter of 1787. The “troubles are many.” They probably were, but I couldn’t help picture Hamilton as Professor Harold Hill in the Music Man singing “We Got Trouble.” In writing about the “material imperfections” and “those defects in the scheme of our federal government” under the Articles of Confederation, Hamilton does seem to be a tad hyperbolic: “impending anarchy,” “national humiliation,” “imbecility of our government,” “mimic sovereignty,” “melancholy situation,” “brink of a precipice,” “plunge us into the abyss,” “destitute of energy,” “political monster,” “desperate extremity,” and “the frail and tottering edifice.” He sums it all up by basically saying that anything that could have gone wrong has gone wrong. Here is a master salesman at work.
Hamilton knows the stakes and is not shy in making the hard sell. America is in dire straits and anyone who opposes the plan of union can be characterized “by ambition or by avarice, by jealousy or by misrepresentation.” The negative aspects of our human nature never seem to be present in the supporters of the plan. They all have the Wisdom of Solomon, the calm patience of Job, and the self-sacrifice of Jesus. Let’s be honest, Hamilton knew his duly revered General Washington would most likely be chosen as the first president and that he, Hamilton, would be in the first administration. It is to be remembered that it was Hamilton’s plan at the Constitutional Convention that had a president for life with supreme veto power over any and all laws.
So, even if his Bill of Particulars, “enumeration of particulars,” presents a convincing indictment against the existing Confederation, Publius should still be tasked to justify his solution to “this desperate extremity.” Publius has 70 more papers to make his case. Will the new plan of union truly protect the governed so they may enjoy the prime object of government, ordered liberty?
One is tempted to ask, “Who decides what, and how much, order?” In the end, force or the threat of force must become a real possibility. Washington said, “Government is not reason, it is not eloquence—it is force! Like fire, it is a dangerous servant and a fearful master.”
Thank you Professor Hayward for bringing in the current EU troubles. This seems to be analogous to what Hamilton said about the law must have sanctions. How is the EU to act against Greece but by force (“military execution”) or the threat of force, if Greece decides not to honor her agreements.
In No. 15 there exists a rallying cry for our times: “[L]et us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm [of Statism of all kinds] which has too long seduced us from the paths of felicity and prosperity.”

Carolyn Attaway says:
May 18, 2010 at 1:44 pm
Thank you Dave for mentioning the statement in your last paragraph. I too feel this is a rallying cry for our times. I highlighted it in my reading of Paper 15 and drew an arrow to the last sentence six paragraphs down: “we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.” As citizens of the United States, I believe it is our task to keep our government in check, and be more active in our involvement than just voting.

Maggie says:
May 18, 2010 at 2:19 pm
Carolyn I couldn’t agree more. When I read “Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?”, I instantly thought of China and how much of our debt they hold. We are literally selling away our power. I was also struck by this statement: “We have neither troops, nor treasury, nor government”. Yes, we have a very strong military; but for how much longer when every democratic administration that comes into power further defunds the troops? I, too, immediately thought of the immigration issues with Hamilton’s writing “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I believe that this quote stands for many laws on our books that are simply NOT being enforced. Every time a politician brings up gun control and how “we need more laws” all I can do is think about the many laws we already have controlling the ownership of firearms….they just aren’t being enforced. Why is it that those in Washington just don’t seem to comprehend that criminals don’t care about laws? They have already broken laws…that is why they are CRIMINALS. Further revoking the rights of law abiding citizens will NEVER change that.

Lynne Newcomer says:
May 18, 2010 at 3:22 pm
Thank you Professor Hayward for your quidence on this paper.
I do so agree with so much that has been written by everyone that it would waste time to name everyone.
Simply… with regard to AZ, we are either a Nation of laws or we are not.The Gov of AZ.showed remarkable fortitude to stand up to Washington.She is no fool she knew she would meet with much hateful speech etc, but went on and is weathering the storm hip- hip- hurray.The fact that Washington is lowering the standards of civil, and acceptable dialogue is surely regretable but the sanctions are going to come their way,and they will come from the voting booth.We are a smart people and we know the Pres,and Congress ore failing to do their jobs.
I like the EU example, the officers of the EU,seem to be toothless and of a more ceremonial nature.I do hope that they find their way .

Dave says:
May 18, 2010 at 3:49 pm
Carolyn, what I think everyone can accept is that a sovereign implies some control over the individual. The sticking point for the Anti-federalists (and for me I’ve lately learned) seemed to be how justly and efficiently a distant, centralized power would govern. We’ve seen some elaboration and we’ll see a lot more of the compromise reached between the consolidators and confederals. The consolidators placed their trust in the State. Those advocating for more of a true federal system wanted a buffer between the national government and the individual. There would be two sovereigns over the individual, each with their own sphere of authority. General, national concerns would fall under the purview of the general government, and the local, private, every-day concerns would be handled by the state or local government. I think it’s quite workable in a republic of virtue, in spite of Hamilton’s slam of an imperium in imperio as a “political monster.”
The irony should not be lost on any of us reading No. 15–Hamilton was indicting the weak national system of the government under the Articles of Confederation and yet almost every malady he mentions could apply today in spite of a very strong leviathan, national government. Publius is constantly urging opponents of the plan to open their eyes to the light of reason and experience and see that an energetic, wide-ranging central power will cure all their ills. We’ve gone wrong somewhere. Would that there were a modern-day Publius to counsel us on how we’ve gotten off course and what we can do to get back on the right course.
I do know our state governments have let us down. Here’s a sampling of excerpts we will read in the next few weeks showing the buffer role of the states I mentioned:
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. (No. 85)
The executive and legislative bodies of each State will be so many sentinels (No. 84)
But ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm (No. 46)
schemes of usurpation will be easily defeated by the State governments (No. 46)
I should not have rambled on so. All I wanted to say is that I agree with you in the role of the individual, but the states have a responsibility and they seem to be shirking it.

Jimmy Green says:
May 18, 2010 at 4:32 pm
The theme of the States surrendering some power to the Federal Government via the Constitution to strengthen their security and prosperity through a Union of these same states is a continual
theme in the federalist papers.
While I generally agree with the adage of “united we stand divided we fall”
I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.
What are the states rights if the federal government abrogates or is lacking or deficient in its constitutional powers.
I’ve seen mentions of the Arizona law in some people’s writings. What would Hamilton think the proper response of a state to the Federal Governments lack of securing the borders? There are many such examples but as the federalist papers are to explain why the states should unite one is left to wonder what Hamilton’s view are on states rights as a consequence of the failures of the Fed.

Shannon Castleman says:
May 18, 2010 at 4:38 pm
Dave, indulge away. Great points. Those who have brought up the EU are right on. True, we have a front row seat , as though we went back in a time mchine, to watch the disintegration the former empire across the pond.
But the Professor’s statement brought it to a new light for mr when she said that the EU actually needs to be stronger (like hamilton wanted for the US). It was hard for m to grasp as I always viewed individually the nations of Europe to be too much beholden to central government.
But now I see the reasoning behind that.
I am learning so much.

Carolyn Attaway says:
May 18, 2010 at 5:26 pm
Maggie, I agree with you about being over regulated by our government. If I hear of one more law that strips away our right to make choices, I think I will scream. Oops! Sorry! I have already done that. This latest push to take away McDonalds right to put a toy in their happy meal because parents shouldn’t be burdened with having to tell their children NO, I think takes the cake. If I wanted a nanny, I would have hired one.
I agree as well that our 1st and 2nd amendment rights are under major attack, but the people in Congress who are suppose to care, just roll over and admit defeat. I am soooo ready for November.
Dave, you have me in your corner in the belief that States have been giving away their rights piecemeal by piecemeal. Many are starting to wakeup in lieu of all the costs that they will be burdened with, I just hope it is not to late. Regarding your wish for a modern-day Publius, Gov. Chris Christie is on the right track, and if he succeeds in lifting up New Jersey, we may have someone other Governors may try to imitate.

Carolyn Merritt says:
May 18, 2010 at 7:51 pm
Thank you Professor Hayward for your enlightening analysis of Federalist 15. Hamilton could have written this paper for what is happening to our Country today. We are heaviily in debt, our military is being undermined by Congress and this President; toll roads, power companies, oil companies owned by foreign countries; we print money just as fast as this government can spend it and worse of all – our respect around the World is diminishing because of all the apologists in the current admininstration.
I liked Hamilton statement “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Amen Charles: “May God Bless America.”

Constituting America says:
May 19, 2010 at 12:23 am
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot, which binds the people of America together, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner

May 18, 2010
Constituting America says:

May 19, 2010 at 12:55 am
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780’s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
May 18, 2010

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

Monday, May 31st, 2010

Federalist 24

Allison R. Hayward

Federalist 24 continues Hamilton’s argument in favor of strong national government for national security purposes.  Here, he addresses the explicit complaint that the Constitution would permit standing armies in peacetime.

Critics of the Constitution feared that standing armies would become either a tool for those in power to seize power in perpetuity, or a means to usurp elected government with a military one.  Colonists in America were not far removed from the days of Oliver Cromwell, who after prevailing in the English Civil War became Lord Protector of England, Ireland, Scotland and Wales.  Quite possibly the families of many of the colonists reading the Federalist Papers migrated to the New World to escape Cromwell’s Britain (or the Restoration aftermath, plague, fire, and general 17th century misery).  Certainly many were familiar with the fall of the Roman Republic at the hands of the Roman General, Julius Caesar.   In any case, popular opinion would have feared standing armies as a destabilizing force and a threat to democracy.  This is thus a powerful argument that the Federalists need to answer.

Hamilton responds to these critics in several ways.  First he implies that these critics misinterpret the constitutional separation of powers.  He reminds them that the Constitution places the responsibility for raising an army with Congress, not the President.  Moreover, any appropriation may be for no longer than two years.  Under this division of authority, the election branch – Congress – which is most responsive to the public, must consent to military mobilization.  Unlike the Roman and English examples, sole military authority is denied the American Executive.  Moreover, the existing regime under the Articles of Confederation contains no standing army limit.  This fact allows Hamilton to imply that the anti-Federalist criticisms are disingenuous.

Moreover, notes Hamilton, the world poses security dangers to America apart from “formal” war.  The nation is bordered by territories of Britain, Spain and France, and much of the frontier is inhabited by native Americans.  Any of these could threaten Americans (and America) if the nation relaxed its guard.  Frontier garrisons in particular require support even during “peace.”  Finally, for American to meet its potential as a commercial power, it needs to build a navy, which requires outlays for dockyards –even in peacetime.  Hamilton argues that the Constitution properly leaves these decisions to Congress, the people’s elected representatives.

Today, the Pentagon’s proposed budget for the coming fiscal year is $708 billion, including a $56 billion “black budget” for classified programs.  About 1.5 million individuals are in the active service, about 560,000  in the Army alone.  Notwithstanding concerns voiced through time about the size, expense, and “military industrial complex” the United States has, since World War II, maintained a large professional armed force.  Moreover, it has done so under the supervision of the Executive – not, as Hamilton contended, under Congress.

Further, military spending is seen by many Congressmen as an important part of their representative role – not simply to keep the country safe, but to keep constituent military contractors profitable.  One wonders what Hamilton might have made of the current political “war” over the military’s budget, in which the Defense Secretary has demanded the end to certain programs.  Yet Congress insists on keeping them.

Allison R. Hayward is the Vice President for Policy at the Center for Competitive Politics.

7 Responses to “May 31, 2010Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton) – Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics.”

  1. gianna cerullo says:

    Great Job Janine! I am impressed with your determination tho I am not at all surprised!

    I share your views : )

    Juliette is gorgeous !

  2. Susan Craig says:

    I have long felt that America has had a schizophrenic relationship with its military. Stemming from two factors: desire to be a most Christian nation living in peace, and a recognition of human nature. On one hand experience and faith (the insult of the British quartering of troops, desire to live in peace and threaten no man, and a belief that a military in the hands of a tyrant would threaten our liberty) inclined us to wish to do away with standing armies. On the other hand the recognition that the proven, visible ability to fend off invaders and threats allows for security and freedom (freedom requires vigilance). Out of these factors come our constant debate on things military. The Articles of Confederation left it in the hands of the States. In effect in today’s world it would be as if there were no regular army, navy or air force just the various guard units in each state. The opposing view was a standing force sole under Federal jurisdiction a permanent military such as was in existence at the time, uneducated and owing allegiance to the leader a separate ‘career’ path or class. What has developed is an amalgam of these two views a small voluntary standing military which depends in time of strife on a ready militia (national guard). The oath our military takes its oath from top to bottom “protect, preserve and defend the Constitution”. It, also, chooses from educated or those who wish to be educated not from those lacking knowledge or understanding. All of those in the military are instructed as to what is or is not a lawful order and are encouraged to resist any unlawful instruction. Yet to this day we still have the debate how much is sufficient and necessary. We continue to think that a “Peace Dividend” is to be had by the reduction and/or elimination of a standing military.

  3. Fred Mars says:

    I am a Philadelphia-born Constitutional Libertarian, which is to say that I am not talking about a political party, I am referring specific ideology and not a party platform.

    Above all, I feel that the Constitution as it was written, including the Bill of Rights, which is part of the Constitution, And the articled of Confederation from which this nation was born, are the only things that stand between freedom and tyranny. That being said, it is also as relevant today as it was in 18th Century America, that we still require the vigilance of citizens to protect the liberties granted to the people at this nation’s founding.

    Sometimes it seems that we are being attacked from many sides, and I do not doubt that it is accurate. We have always been loved and hated by other nations, but mostly we are resented for the very freedoms we enjoy.

    All Americans must stand together as one voice in demanding that our Congress repeal the damage caused by the 16th and 17th Amendments, charge Congress with it’s obligations to coin (and print) currency and set the value thereof (and use gold/silver to give it real value) and end the extortion of the Federal Reserve System and it’s collection agency the Internal Revenue Service.

    Return the selection of Senators to the State legislatures, who we have elected to represent us in our sovereign States, and remove the two party system from its monopoly on the electoral process.

    Instead of election day, each State may have an election week, and hand-written ballots used instead of electronic machines and mail-in ballots. Because of the importance of votes, it must be done in such a way as to insure the integrity of the system for all citizens.

    We must save our nation by restoring Constitutional integrity to the federal government, and control of the armed forces returned to Congress. The President only assumes status of Commander in Chief when a war is declared by Congress, and then power is voided after the war is over or two years unless Congress acts too extend the war and hence Presidential powers beyond two years. But not in perpetuity.

  4. It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

    Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

    Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

    I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring their control. The abuses that the anti-federalists feared have not come to pass.

    An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

    God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.

    Cathy Gillespie

  5. Susan Craig says:

    @Fred, welcome. I consider myself a fiscal and social conservative with libertarian leanings. As I continue to read the Federalist debate and early American History while watching the shenanigans of today, I must say I could inveigh against all factionalism along with the most vehement of our Founding Fathers. I see it in the stasis in Washington and it is part and parcel of the intellectually incurious who have voted the line since Methuselah was in diapers.

  6. Gary Tillery says:

    As a veteran, I stand with other Veterans who have served this nation with dignity, courage, and honor. In our time, which young people today see as antiquated, we saw the Constitution as a document representing the very heart of America. Even though we were divided by different beliefs in life the Constitution was the very umbrella that kept us united as one people. Different states (republics) but one nation. It was to be honored,cherished, and respected. Due to that belief, when we as veterans went to battle to serve our nation we did so with committment, dedication, pride. Unfortuinatley, people today do not talk this way anymore for they have so taken the Constitution and freedom for granted that they, as we speak, are in danger of losing their freedom.
    The Constitution is like the Ten Commandments – When we look at them both is reveals to us the goals we strive to reach. Yet, at the same time it shows us our weaknesses and vulnerablities. When we vote, we should look and ask each candidate their interpretations of the Constitution and how their campaign is based on the Constitution. Yes, They need to prove themselves from here on out. We can no longer take their word for anything. I would be interested in how many of our politicians today truly can tell you about the FEDERAL PAPERS and the CONSTITUTION. Because by the actions of our some current government officials they do not mind violating it.
    It is our obligation, as young and old Americans, to protect the Constutution and remove any politician that violates it. That is why we all, old and young, need to know the Constitution and keep it in the forefront of our minds when it comes to politics. For those of us who served, risked, and watched friends die, it is heart wrenching to see the real threat of Socialism creeping in the back door knowing that all the sacrifice could be for nothing if our children/grandchildren live under any other form of government than a Constitutional Democracy. For God and Country. God give the youth of today the courage to stand for Democracy.

  7. Maggie says:

    @ Gary….I agree with everything you said, with the exception of our children living under a Democracy. We are NOT a democracy…we are a Republic. This is one of the big problems we have today. People don’t even realize what form of government we are supposed to have. How, then, can they protect and keep it?

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

Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification.  Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32).  At this point, only  six states had ratified the document.

So we can forgive Hamilton for sounding just a tad defensive in this essay.

As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view.  He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch.  Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable.  There’s a tension between these two tasks that is evident from Hamilton’s first sentence:

“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

But is the power as commander-in-chief really “so evident in itself?”  The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive.  Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.

In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.”  To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass.  What powers should the President have in these limited engagements — today?  Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act?  When the President and Congress disagree, who decides which side wins?  Do we really want the Supreme Court involved?

Hamilton also raises and defends the Presidential power of the pardon.  Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so.  In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief           Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong.  I was reminded of this when looking over the ratification timeline in preparing this blog.  I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.

To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish.  But at the founding, tensions between states were no laughing matter.  The legacy of violence and mistrust was real.  In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”

The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them.  President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.

Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich.  Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers.  Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.

But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.

Monday, August 9th, 2010

Allison Hayward is the Vice President of Policy at the Center for Competitive Politics