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Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 6)

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Guest Essayist: David Eastman

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. This series now concludes by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints today; issue-based legislative accountability, and the calling of a convention of states to amend the United States Constitution.

A Convention for Our Time

When we survey the Constitution today, it is increasingly difficult to picture it as the splendid banner raised by Washington and his fellow delegates at the Constitutional Convention of 1787. Nor does it today call to mind the iron chains described by Thomas Jefferson when he spoke of binding men down from mischief “by the chains of the Constitution.” Instead, the Constitution hangs frayed and tattered today, a silent witness to more than two centuries of flying above our nation’s capital. Its form has changed very little since 1787, but much of the life has gone out of it. Some today have begun to ask if it isn’t time for another convention—and in no state is this idea greeted with greater enthusiasm than here in Alaska. Holding a convention would open the door to a whole series of amendments, which could add new thread to a tattered banner, and in so doing breathe new life into the Constitution. Even so, when the idea of a second convention first began to gain traction in 1788, James Madison argued that the timing of any future conventions should be chosen only with great care. Whether the timing is right for another convention is an important question, and one to which any serious student of the Constitution should give careful consideration.

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Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 2) – Guest Essayist: David Eastman

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This essay continues a series exploring briefly why the Constitution is ineffective at constraining federal officials today, and highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints, both of which claim support from the Constitution and America’s Founding Fathers.

The Constitution in Tatters

As a document setting effective limits on the power of the federal government, the Constitution today lies tattered and worn, each article a testament to a battle lost and a fortification overrun (or bypassed) on the way to the consolidation of power in Washington. Some beginning students of the Constitution today are perplexed and genuinely wonder how it could be that a document that reads: “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” can today have nearly the same effect as if the Framers had instead decided “the powers not delegated to the States by the Constitution will be reserved to the federal government.” Beginning students are particularly prone to reason that if it is simply written in the Constitution, and the Constitution is the supreme law of the land, it must be so, and that’s all there is to it.

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Federalist No. 49

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Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
From the New York Packet.
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE author of the “Notes on the State of Virginia,” quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded.

One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges.

The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.

We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

PUBLIUS.

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The Amendment Process

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- Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

Only with a large effort can the Constitution of the United States be formally amended.  This was not an accident, but the intention of its framers.

If the Constitution is changed too often and for the wrong reasons, the people of America, the Founders held, will lose reverence for its principles, and respect for its rule.  With reverence lost, they might cease to be a self-governing people.  Tyranny itself could topple liberty.

The Constitution is difficult to amend not because the Founders distrusted the people.  In fact, they trusted the American people more than any other constitution-makers had ever before trusted a people.  They took pride in the fact that no separate or special class of persons would hold any authority under the Constitution.  They created no aristocracy or favored group, and their design did not pit one group of citizens against another.

Instead, they rested all power in the hands of the people.  Then they divided that power so as to encourage fairness and deliberation in their judgments.  It is the “reason alone of the people that must be placed in control of the government,” writes James Madison in Federalist 49.  “Their passions must be controlled by the government.”

Our American regime is the first in which sovereignty lies outside the government—in the people.  The Constitution’s structure in its original form was designed to bring power and restraint together.  The people must come to respect the restraint of the government so that its properly-limited power might be upheld.  The Constitution provides for limited government so that the natural rights of citizens can best be secured.

In this sense, Alexander Hamilton noted that the Constitution itself, even before it was amended, was “a bill of rights.”  Adding the first ten amendments, which the First Congress did in 1791, marked a reaffirmation and an explicit statement of rights held by the people and the states, but all of these are affirmed in the original structure of the Constitution—with its separation of powers, representative form, and limited grant of power to the government.  All of these essential features of good government were stated with unmistakable clarity in the Declaration of Independence.

Today, the Bill of Rights is often confused as the source of American liberties.  In fact, as both Madison and Hamilton knew, it is the Constitution’s structure that provides the surest bulwark of our liberties.  Destroy the structure, and liberty will be lost.  Alter the structure significantly (see the Seventeenth Amendment), and liberty is endangered.

Without reverence for it, the Constitution, like the Bill of Rights that is now part of it, will be but a “parchment barrier.”

Out of the more than 5,000 amendments to the Constitution proposed in Congress since 1789, only 27 have been adopted.  There are two possible ways to amend the Constitution, both of them specified in Article V.  All of the current amendments to the Constitution have been adopted following the first path, wherein votes are required by two thirds of both houses of Congress, followed by a vote of three-fourths of state legislatures.

The other path, to date not used successfully, is the convention method, in which two-thirds of the state legislatures can call a constitutional convention, after which three-fourths of the state legislatures or state conventions must then ratify the proposed amendment or amendments to the Constitution.  Conventions have been avoided probably for good reason, since it is not clear to anyone whether a convention would be bound to changing only one item in the Constitution.  We Americans have been pleased to have only one Constitutional Convention.

The New York Times recently noted that outside of the defunct Yugoslavian constitution, there is no other constitution in the world so hard to amend as ours.  By coupling our Constitution with a failed state, the article seemed to imply that if we don’t get with the times, we will be left behind.  Our country, they quote a justice of Australia’s high court as saying, is becoming a “legal backwater.”

For over a hundred years the Constitution has been assailed as undemocratic, and in need of an overhaul.

Long is the list of books written recently suggesting ways—formal and informal—to make our Constitution better.  When formal amendment efforts fail, informal methods are advanced.  Efforts to informally amend the Constitution—to bring it into better congruity with fashionable legal and political norms of today—can be successful only if citizen reverence for the Constitution is lost.

—Dr. Larry P. Arnn is president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It. Hillsdale’s “Constitution 101,” an online course which features lectures by Dr. Arnn and others, starts today.  For more information on Constitution 101, go to: http://constitution.hillsdale.edu

Click here to watch a reading of this essay!

 

 

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Federalist No. 48 & Federalist No. 49 – Janine Turner

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WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!

I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!

In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.

A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.

We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!

I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”

The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:

“As the people are the only legitimate fountain of power and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”

What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.

Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.

“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”

ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.

Knowledge is to power what action is to results.

God Bless,

Janine Turner

Monday, July 5th, 2010

 

 

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Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges!   It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49.  Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution.  In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason.  Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’  final result:  Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“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.”

In practice, what is our country’s history of amending the Constitution?  Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country.  Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.”  Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

 

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Federalist No. 48 & Federalist No. 49 – Janine Turner

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WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!

I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!

In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.

A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.

We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!

I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”

The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:

“As the people are the only legitimate fountain of power and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”

What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.

Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.

“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”

ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.

Knowledge is to power what action is to results.

God Bless,

Janine Turner

Monday, July 5th, 2010

 

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Federalist No. 49 – Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention, From the New York Packet (Madison)

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Guest Essayist: Colleen Sheehan, Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good

James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.

Madison argued that this was a bad idea for five reasons:  1) the proposal doesn’t cover the case in which two departments combine against a third  2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity  3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility  4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place  5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.

In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.”  But this is the exact opposite of how good popular government should work.  According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.

It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay.  He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution.  Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions!  He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.

It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions.  This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government.  In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty.  In the 49th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics.  Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation.  Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety.  Let’s not be impetuous and race headlong at a dangerous pace.  Slow and steady wins the republican race.

Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.

Monday, July 5th, 2010

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Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges!   It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49.  Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution.  In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason.  Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’  final result:  Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“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.”

In practice, what is our country’s history of amending the Constitution?  Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country.  Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.”  Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

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Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, From the New York Packet (Hamilton or Madison)

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Guest Essayist: Professor John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

  •        “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
  •        “The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
  •        “Ambition must be made to counteract ambition.”
  •         “The interest of the man, must be connected with the constitutional rights of the place.”
  •        “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
  •         “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”
  •         “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

 

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