Guest Essayist: Tony Williams, Program Director of the Washington-Jefferson-Madison Institute in Charlottesville, VA

Progressivism was a movement in the late nineteenth and early twentieth centuries.  Whatever its different iterations, progressivism was rooted in the belief that the natural rights principles of the American founding were fine for an earlier age but no longer relevant in a mass, industrial society.  The modern age, as the Progressives saw it, was characterized by great inequality and concentrations of wealth.  The “interests” controlled the masses for their own self-interest rather than the public good. Read more

Guest Essayist: Julie Silverbrook, Executive Director of The Constitutional Sources Project

George Washington, John Adams, Benjamin Franklin, Alexander Hamilton and James Madison on Slavery

Historian William Freehling has famously said, “[i[f men were evaluated in terms of dreams rather than deeds everyone would concede the antislavery credentials of the Founding Fathers.”[i] While the Founding generation unquestionably aspired to create a nation founded on universal freedom, the challenges of creating a nation, maintaining a profitable economy — both personally and nationally, and overcoming personal prejudices made that dream a distant reality. Read more

Guest Essayist: Julia Shaw, Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article 1, Section 10, Clause 3

3:  No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Founders understood that the federal government can threaten individual liberty, but so can the state governments.  The Constitution recognizes threats from both actors and, therefore, contains specific limitations on both.  Article 1, Section 9 limits the federal government; Article 1, Section 10 limits state governments.

Section 10 consists of absolute prohibitions on the states (e.g., prohibitions relating to military and monetary powers) and qualified prohibitions on the states (i.e., prohibitions that Congress may suspend).

Section 10, Clause 3 contains qualified prohibitions on a variety of activities. The prohibition on states charging duties of tonnage prevents state-specific protectionism and protects Congress’s commerce power.  Because standing armies were a grave threat to the new republic, the constitution prohibits them at the state level.  States may maintain militias, but not standing armies. But, the most significant portion of the clause concerns the ability of states to enter into agreements with foreign nations or other states. As Michael S. Greve notes in Compacts, Cartels and Congressional Consent, “For a federal republic, and especially for a nascent federal republic, the prospect of separate, unsupervised agreements among its member-states and between a member-state and a foreign nation must constitute a cause for alarm.”[1]

The Articles of Confederation forbade the states from entering into an agreement with foreign powers. Additionally, any “treaty, confederation, or alliance whatever” among the states required congressional consent, and Congress would settle any disputes arising between the states. But the Articles of Confederation proved ineffective. The Constitution supplied a remedy. The Constitution created a new apparatus for the federal government to engage foreign nations: the president would be the chief actor in foreign affairs. He would negotiate treaties and, in turn, the Senate had to ratify treaties before they went into effect.   Individual states could not enter into agreements or treaties with foreign nations. But, in the event of foreign invasion, an individual state could respond.

Agreements between the states pose threats to federal powers, to states not party to the agreement, and even to individual rights. By requiring such agreements to have the consent of Congress, other states would be informed of the agreement and able to protect their interests and the rights of their citizens. In many ways, congressional approval on state compacts was a compromise. James Madison wanted to give the federal government a much broader power over the state governments: specifically, he advocated a congressional negative on state laws. Delegates at the Convention compacts clause rejected Madison’s proposal—three times—as overly nationalist and unnecessarily broad. The Convention instead opted for federal supremacy over certain categories of activity, blanket prohibition of some activity, and congressional approval for any agreement between the states. Together these prohibitions mollified Madison’s concerns and protected against state governments’ encroachments on liberty.

Though the Compacts Clause makes clear that forming compacts is prohibited without the consent of Congress, it is not clear what form that consent must take.  Does it require a law be passed and signed by the president?  Or can Congress accomplish it without presentment? Nor does the clause specify whether Congress must consent prior to the formation of the compact. There is also debate about the scope of these compacts. Compacts prior to 1921 primarily concerned boundary disputes. Compacts in the later 20th century include complex regulatory schemes that may present separate constitutional problems. These ambiguities will likely be tested as states become more creative with the scope and substance of their agreements.

Julia Shaw is the Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation.

[1] Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 M.L.Rev. 285, 296 (2003).

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

Article 1, Section 10, Clause 1

1:  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

What if a state, laboring under a significant budget deficit, decided to repudiate its general obligation bonds?  What if that state, further, enacted an increase in the income tax, retroactive to the beginning of the year?  Would Article I, Section 10, clause 1 permit such actions?

The first part of that clause, along with clause 3 of the section, restricts the states to only a very limited capacity at international law, and states may exercise even that residue only with permission of Congress.  The Articles of Confederation restricted these powers already, as the exercise of them by the states would undermine national sovereignty.  The new Constitution simply tightened them and made them more concise, in recognition of the fact that these restrictions were an integral part of the establishment of a stronger Union.

The second part of that clause, dealing with money, bills of credit, and gold and silver as legal tender, addressed the pestilence of paper money issued by the states.  Many of the Framers saw this as a particular problem that contributed to the insecurity of property in various states and the economic turbulence that, in turn, produced political turbulence and threatened the republican experiment.  It had been the practice even of colonial assemblies to fund the costs of military campaigns by quasi-confiscatory practices of issuing bills of credit (paper money on the credit of the colony) to merchants and suppliers of war materiel.  After the war, those bills of credit rapidly depreciated, as the colonists declined to vote the taxes necessary to pay them.  Once the bills reached a sufficiently low level, they could be taxed out of existence relatively painlessly.

It was hardly surprising, then, that the states (and the Continental Congress) would resort to that same hoary practice on declaring independence.  By war’s end, Congress had issued $226 million in bills of credit, for which it had received $45 million in goods and services, as Americans increasingly took into account this species of public finance fraud.  However, the paper currency itself had depreciated essentially to nothing, a massive (and conscious) expropriation of private property by inflation, engineered by a body that lacked the formal constitutional powers to do so.  “Not worth a Continental” was not a metaphor.  Benjamin Franklin defended this confiscatory practice as an equitable form of taxation as these bills were held more by the upper-middle and upper segments of society than by the poor.  John Adams dismissed critics of the devaluation with a curt, “The public has its rights as well as individuals.”  In the end, Congress never redeemed the paper currency.

If the Congress was bad, in some ways the states were worse.  Not only were there problems with the emission of bills of credit (though that was less significant than for Congress), but with other, broader confiscatory and debt cancellation laws.  To the extent that such laws injured the interests of Loyalists and British creditors, they violated the peace treaty with Great Britain and threatened to reignite the war.  To the extent they hit their own citizens, the states were flirting with class warfare.  At best, even in the absence of a specter of violence, state politics circled around the vortex of the depreciated bills, as holders, speculators, and debtors (who were not always different persons) jockeyed for political and economic advantage.  This contributed to the instability of state politics and prevented establishing a basis for long-term social peace and material prosperity.

Historians, including conservatives such as Forrest McDonald, indict this period after independence for making Americans less secure in their property rights than they had been under King George.  To an increasing number of Americans, especially younger figures such as Hamilton and Madison who were not as tied to the “revolutionary spirit,” the reason was that “governments were now committing unprecedented excesses, even though–or precisely because–governments now derived their powers from compacts amongst the people.”  The period was a vivid illustration that democratic self-rule does not, without more, set a society on the path to the security of property and long-term well-being.  Even more alarming was the fact that those same state governments were acting under constitutions that nominally protected individuals’ liberty and property from just such majoritarian muggings.

It is no wonder then, that many of those who gathered at the convention in Philadelphia, viewed the levelling tendencies of such fiscal and redistributionist laws with consternation and as evidence of the irresponsibility of popular majorities.  There was no opposition to the portions of Article I, Section 10, that negated the states’ abilities to coin money, issue paper currency, or make anything but gold and silver legal tender.  Some delegates wanted that prohibition extended to Congress, but the majority demurred.  The need for paper money during emergencies, combined with the Madisonian faith that a more effective balance between debtor and creditor interests would produce better political checks against excesses at the national level than within the states, gave the majority pause about tying the hands of Congress.

In hindsight, both sides can claim vindication.  Certainly, the issuance of fiat money during the Civil War helped the Union’s war effort.  On the other hand, the flood of trillions of dollars sloshing around today during peacetime can easily become a tsunami that destroys the economic well-being of large numbers of Americans.  And, contrary to Franklin, devaluation and inflation typically hit the lower and middle classes more than it does the wealthy.  Inflation is a brutally regressive tax.

One tool of the Framers was to ban retrospective laws.  The first was the prohibition on ex post facto laws, one that also applied to the national government under Article I, Section 9.  Apparently many of the Convention (including Madison) thought that ex post facto laws covered all retrospective laws.  This produced a moment that demonstrates that the Framers were ordinary humans, finding their way through the constitutional fog, not infallible divine creators.  The day after the vote, John Dickinson sheepishly announced that he had looked up “ex post facto” in Blackstone and found (correctly) that this only prohibited retroactive criminal laws.

Similarly, bills of attainder (legislative decrees of punishment of individuals used expansively during the English Civil War, but not unknown even in the newly-independent states) were prohibited for the states and the national government, primarily because of their retroactive application to acts already committed.  Bills of attainder and ex post facto laws were viewed as such outrageous infringements of liberty that they were denounced as contrary to the protections of the social contract and the very nature of a republican government of free men.

But that still left the issue of retrospective civil laws.  The contract clause of Article I apparently was the vehicle to deal with the vexatious laws that, in tandem with the paper currency policies, cancelled debts or otherwise interfered with existing contracts.  Although the origin of the clause is obscure, it is similar to one found in the Northwest Ordinance of 1787, passed by the Confederation Congress.  The author at the Convention probably was Hamilton, who, after his personal experience with Pennsylvania’s capricious revocation of the charter of the Bank of North America, also saw the potential of the clause to protect banks and other corporations from state harassment.

The contracts clause was an early vehicle for the Supreme Court to promote the rule of law and the stability of rights in property.  Chief Justice Marshall, in particular, read the clause broadly to protect individual rights in contracts.  Indeed, his interpretation went so far as to prevent the states from interfering with the obligations of contracts even prospectively, a view that was probably beyond that envisioned by the Framers and which led to Marshall’s only dissent in a constitutional case in 34 years on the Court.

Much has changed since then.  Today, the Supreme Court has reinterpreted the categorical language of the clause to prohibit only laws “unreasonably” impairing the obligation of contracts.  This has effectively eviscerated the clause’s protections against most state laws that interfere with purely private contractual relations, even those that are retrospective.  States, and the federal government (to which the contracts clause does not apply directly), are relatively free to force creditors to revise terms of existing debt instruments, such as mortgages) when debtor interests gain enough political traction.

Neither of our hypothetical state laws would be unconstitutional under the ex post facto clause, as they do not deal with crimes.  There being no “contract,” the only limitation on the retroactive tax increase would be vague notions of “notice” to the taxpayers under the due process clause of the 14th Amendment.  The repudiation of state bonds would be a closer case, and states well may run into difficulties under the contracts clause if they were to try to repudiate their bonds (or to curtail vested public employee pensions).

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

In Federalist No. 44 Madison completes his list of and defense of powers delegated to the federal government.  In this essay he discusses restrictions on the authority of the States in Article I, Section 10 of the Constitution.  Most of these restrictions make sense, even today, such as the restriction on States entering into treaties, coining money, producing paper money, granting any title of nobility etc.

In Article 1, Section 10, States are also prohibited from passing bills of attainder and ex post facto laws.  I wanted to know more about this, and did a little research in the  Heritage Guide to the Constitution .  On page 170 essayist David Forte writes, “The framers regarded bills of attainder and ex post facto laws as so offensive to liberty that they prohibited their use by both Congress (Article 1, Section 9, Clause 3) and the states.”  Essayist Daniel Troy points out “these are the only two individual liberties that the original Constitution protects from both state and federal intrusion.”

It quickly came back to me that ex post facto laws are retroactive laws, punishing an act that was lawful when it took place.

I had to look up bill of attainder, though.  Webster defines bill of attainder (also known as an act or writ of attainder) as “an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.”

Madison states, “Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.”  David Forte, in the Heritage Guide, points out that some States had enacted these types of laws after the Revolution, and our founding fathers wanted to  eliminate these tyrannical practices many had suffered under, under the crown.

It is interesting to note that the federal government’s powers are specifically enumerated in the Constitution, while the States’ powers are not enumerated.  By listing only what the States are prohibited from doing, the groundwork is laid for what eventually became the 10th Amendment:

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

Madison spends a good deal of the second half of his essay defending the “necessary and proper clause.” We last heard about the “necessary and proper,” clause in Federalist No. 33, The Same Subject Continued: Concerning the General Power of Taxation, by Alexander Hamilton.

In both Federalist 33, and Federalist 44, Publius addresses what is to be done if the federal government oversteps its bounds, as many opponents of the necessary and proper clause feared.

Hamilton stated in Federalist No. 33:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

And Madison in Federalist No. 44:

“If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning……in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”

A recurring theme of the Federalist Papers is that the responsibility to uphold the Constitution rests with the people.

To uphold the Constitution, we must first know it, and understand it.

I am grateful for all I am learning each day.  Some days I learn from an enlightening quote that pops off the page.  Other days, I delve deeper into a topic I don’t quite understand or want to learn more about.  Every day, I learn from all of your blog comments and through our wise and talented Guest Constitutional Scholar Bloggers. Thank you to Pofessor Knipprath for being one of our most frequent contributors!  We love your essays!

Thank you for joining us on this journey, as we strive to continue learning, so we can live up to the phrase our founders bestowed upon our collective intellect, “the genius of the people.”

Good night and God Bless!

Cathy Gillespie

Monday, June 28th, 2010

“But what is government itself, but the greatest of all reflections on human nature?”

Federalist No. 51

Federalist No. 54 reminds us of the fact that the United States Constitution was not, and is not, a perfect document. It is a reflection of human nature, and as our founders knew, human beings are not perfect creatures.  Federalist 54 addresses Article I, Section 2, Clause 3 of the United States Constitution, the Three-Fifths clause. The counting of  human beings as 3/5’s of a person, and the preservation of  the institution of slavery for 20 years, are some of the Constitution’s greatest blemishes.  Although 3/5′s was a compromise, with the ultimate goal being the elimination of slavery, it is still a blemish on a document that is a beacon of liberty for our country and the world.

I was curious where else slavery is mentioned specifically in the Constitution and consulted the Heritage Guide to the Constitution (one of my favorite Constitutional resource books). I found that slavery is also addressed in Article I, Section 9, Clause 1 (Slave Trade); Article IV, Section 2, Clause 3 (Fugitive Slave Clause); and Article V (Prohibition on Amendment: Slave Trade).  The Slave Trade clause of the Constitution (Article I, Section 9, Clause 1) did not allow the federal government to prohibit the slave trade until January 1, 1808.  According to Dr. Mathew Spalding in the Heritage Guide, on that very day, January 1, 1808, Congress passed a prohibition of the slave trade, and President Thomas Jefferson signed it into law.   Although they could not ban slavery at the inception of the Constitution, the founders put a mechanism in place to start the country on that path, and banned it as soon as they could.

Through their humility and understanding of human nature, our founders knew the Constitution was not perfect.  They devised the Amendment process to make corrections, adjustments and refinements, a process not too easy, but also not too difficult, a process Madison describes in Federalist 43:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

One of the great characteristics of Americans is that we are always striving to be better, to improve, and to grow.  Many Amendments to the Constitution reflect this growth.

Although we may not always be proud of every step in our journey, we can be proud that as a country we have made corrections from where we started, that our founders recognized we would need to make corrections, and that a process is in place to continue to refine this brilliant, but human, document.

Good night and God Bless,

Cathy Gillespie

Monday, July 12th, 2010

Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.