Posts

Federalist No. 84

, , ,

Certain General and Miscellaneous Objections to the Constitution Considered and Answered
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2 “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3 “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3 “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, [1] in reference to the latter, are well worthy of recital: “To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”[2]

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. [3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper Usay the objectorse to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.” The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

PUBLIUS.

1. Vide Blackstone’s “Commentaries,” vol. 1., p. 136.

2. Vide Blackstone’s “Commentaries,” vol. iv., p. 438.

3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.

/0 Comments/by

Amendment X: Our Constitution a Grant of Limited Powers to the National Government

, , , , , , , , , , , , , , , , , , ,
– Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

http://vimeo.com/40200787

Amendment X:

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.

THE TENTH AMENDMENT

Statements about the Tenth amendment tend towards opposing extremes. Some cite the Amendment in claiming more powers than the Constitution actually leaves in the states. On the other side, some claim that the Amendment is merely a “truism,” implying it does virtually nothing. The actual meaning of the Amendment lies in between these two one-sided views.

The Tenth Amendment reads as follows:

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.

The most important word is the one that does not appear in the text, i.e., “expressly.” It is common for those who place great weight on the Tenth Amendment to state incorrectly that the Amendment says “powers not expressly delegated to the United States…” The Amendment, however, pointedly omits the word expressly.

By contrast, somewhat similar language in the Articles of Confederation did include the word expressly.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (emphasis added)

What difference in meaning does the word “expressly” make? The difference is that which distinguishes a confederation from a government. The Articles of Confederation provides that “The said States hereby severally enter into a firm league of friendship with each other…” (emphasis added). The Articles recognize that the States retained their full sovereignty and entered into a special kind of alliance or league. The Articles constitute a treaty involving multiple sovereignties and having several purposes. As a treaty, however, it is still a contract and each State delegates only those powers expressly written into the contract. Although “[t]he Articles thereof shall be inviolably observed by the States,” the document creates no government having the power to enforce its provisions. It provides only for states to send representatives to meet as the “United States in Congress” and to manage those powers expressly given.

The Constitution that emerged from the Convention, as all understood, was not a confederation or simply a league of friendship. Opponents of the Constitution, known as the Antifederalists, concluded that therefore the Constitution would create a consolidated or centralized government. The Federalist (written by Madison, Hamilton and Jay under the pseudonym of “Publius”) countered that the Constitution created a federal government of only limited powers and left most powers of government in the states.

Not persuaded, the Antifederalists contended that the Constitution’s limits on the federal government could and would be swept aside by its “necessary and proper clause.” Their arguments in opposition to the Constitution emphasized the document’s lack of a bill of rights. They urged that a statement of rights was necessary to protect liberty by limiting the power of the federal government and specifically to undo the effect of the “necessary and proper” clause.

The Constitution drafted at the Constitutional Convention contained no bill of rights. This was not an oversight. The Convention voted down George Mason’s proposal that a bill of rights be added. Moreover, during the Ratification period, The Federalist (#84) argued “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” A bill of rights was unnecessary because “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation.” It was dangerous because it “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than was granted.”

The Federalists and Antifederalists held opposing ideas about the best means to protect liberty. Whereas the Antifederalists gave priority to bills of rights, the Federalists distrusted the efficacy of such “parchment barriers.” Rather the Federalists drafted the Constitution on the premise that protecting liberty requires a structure of separation of powers within the federal government and a division of powers between the federal and state governments. For that reason, The Federalist said “The truth is … that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

Predictions of both the Antifederalists and Federalists have proved in part to be accurate. As the Antifederalists feared, the Necessary and Proper Clause has been used to expand the powers of the federal government greatly at the expense of the states, a trend aided (as discussed in a later essay) by the Seventeenth Amendment. The Federalists were correct that the Bill of Rights, aided by the Fourteenth Amendment’s judicially-developed doctrine of Incorporation, has been used to expand the powers of the federal government at the expense of the states.

The foundational explanation of the Necessary and Proper Clause came in Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). The opinion addressed the Necessary and Proper Clause as an additional, not the primary, reason for upholding the constitutionality of the Bank of the United States. Jeffersonian Republicans, many of whom had been Antifederalists, opposed this decision as an unconstitutional expansion of Congress’s powers. Chief Justice Marshall’s opinion, however, was perfectly consistent with, and generally tracked language in several essays from, The Federalist.

Over the years, especially since the New Deal, the centralizers of national power have often relied on a distorted interpretation of the Necessary and Proper clause which disregards the fundamental principle that the federal government is one of limited powers. Accordingly, they dismiss the Tenth Amendment as simply a “truism.” The defenders of state power, on the other hand, emphasize the Tenth Amendment, almost as if nothing else in the Constitution matters. They generally fail to understand The Federalist explanation – confirmed by Chief Justice Marshall’s opinion in McCulloch – that Congress has the fullness of those powers actually given to Congress and that the Constitution includes the Necessary and Proper Clause in order to leave no doubt about the fullness of the powers actually given.

When during the First Congress James Madison spoke for the Bill of Rights he had introduced, among other points he argued that they were of “such a nature as will not injure the Constitution.” Specifically, what became the Tenth Amendment did not injure the Constitution because it did not convert it to a confederation. That is to say, the Tenth Amendment pointedly did not use the word expressly.

As to any power actually given by the Constitution, Congress has the fullness of that power. Congress’s exercise of power is nevertheless limited– first by the fact that it is not given every power of government. Secondly, Congress encounters procedural limits on the implementation of its enumerated powers due to bicameralism and separation of powers. The division of powers between the federal and state governments which effectively limited Congress’s exercise of enumerated powers has been undermined by the Seventeenth Amendment’s provision for direct election of senators.

The U.S. government has over the years consolidated power to a degree feared even by the Federalists, and much more so by the Antifederalists. To point solely to the Tenth Amendment, however, as the primary limit on the expansion of federal power is to misunderstand the Constitution. The Tenth Amendment is a ‘truism” in the sense that it merely confirms that the Constitution creates a federal government with a limited number of powers, those related to national defense, foreign affairs, foreign trade, and trade among the states. See Federalist # 23 and #45. Like the Necessary and Proper Clause, a proper interpretation of the Tenth Amendment must be connected to the Constitution’s structure of divided and separated power.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

Please leave your thoughts on our blog below! Click the Comment Button!

April 12, 2012

Essay #39

/4 Comments/by

Amendment IX

, , , , , , , , , , , , ,
Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40152775

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the waning days of the Philadelphia Convention in 1787, George Mason of Virginia, Elbridge Gerry of Massachusetts and Luther Martin of Maryland began pressing for the addition of a comprehensive bill of rights to the final draft of the Constitution.  Roger Sherman of Connecticut immediately rejected their plea.  A bill of rights, he said, was unnecessary because “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….”  Sherman, a man who Thomas Jefferson regarded as one of the finest statesmen of the founding generation, reasoned that because the Constitution was mute on civil liberties and because it was a document with delegated and enumerated powers for the general purposes of the Union—the States United—the general government could no more legislate on matters of trial by jury than it could on the minutia of state law.  Gerry’s proposal to form a committee to draft of a bill of rights was unanimously defeated (votes were by State), and as a result Mason said he would rather cut off his right hand than sign the document.  This exchange began the process for codifying the language of the Ninth Amendment.

During the ratifying process in the State conventions, several leading proponents of the document made arguments against a bill of rights that mirrored those Sherman gave in the Philadelphia Convention.  James Wilson of Pennsylvania, perhaps the most ardent nationalist among the founding generation, said in the Pennsylvania Ratifying Convention that “A bill of rights annexed to a constitution is an enumeration of the powers reserved.  If we attempt an enumeration, every thing that is not enumerated is presumed to be given.  The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

Alexander Hamilton of New York, the most famous nationalist of the founding period, echoed Wilson in Federalist No. 84.  Adding a bill of rights, he said, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?”   Both Hamilton and Wilson contended that a bill of rights would destroy liberty rather than protect it by allowing scheming men to enlarge the power of the central authority.  In short, if a particular liberty was not protected by the list of rights, they believed it could be assumed that the government had the power to abridge that liberty.  And, since all powers delegated to the general government were enumerated in the Constitution, they wondered why open that Pandora’s Box?

Thus, the modern Ninth Amendment was born.  As proposals for a bill of rights flooded into James Madison’s hands in the months after the Constitution was ratified, he quickly realized that individuals needed assurances that their liberties would not be circumscribed by the Constitution nor would they be left to flutter in the wind should ambitious men usurp power from the States or the people.  The Tenth Amendment protects the States and most importantly the federal compact among the States.  The Ninth does the same for the people individually by implicitly recognizing the validity—and to the founding generation supremacy—of the several State declaration of rights.  It is an enhancer.  The original preamble to the Bill of Rights expressly stated that they were “restricting clauses” on the general government only.  The Ninth Amendment ensured that the powers of the general government as operating on individuals would be further checked by the States.  State declaration of rights often tended to be more detailed and comprehensive and therefore served as a more effective shield for the people.

Madison said in 1789 that Hamilton’s argument against the Bill of Rights was “one of the most plausible…I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”  He was referring to the Ninth Amendment.  Of course, the powers of the general government in the modern era have spiraled out of control and today the two most ignored Amendments in the Bill of Rights are the Ninth and Tenth, arguably the most important Amendments to the founding generation.  The States have always stood at the vanguard of individual liberty.  American citizens should remember that their first line of defense against both the State and Federal government rests in their separate State bill of rights.  The founding generation believed that those declared rights coupled with the Ninth Amendment would prevent the modern leviathan in Washington D.C.  We need to protect their legacy.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina.  He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 11, 2012 

Essay #38 

/4 Comments/by

Amendment IX: Rights Which Are Enumerated

, , , , , , , , , , , , , , , , , , , ,
Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

http://vimeo.com/40060581

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789.  Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.”  An eleventh, the 27th Amendment, was ratified May 7, 1992.  The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified.  However, the Supreme Court in the 20th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.”  The Supreme Court has never provided clear guidance concerning the 9th Amendment itself.  A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution.  In that sense, we may take the 9th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.”  This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government.  The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states.  That argument is made most forcefully in essay number 84 of The Federalist Papers.  An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights.  The 9th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration.  In that sense, the 9th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1st Amendment, namely, that “Congress shall make no law respecting” such additional rights.  It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception.  It was because of the incorporation doctrine through the 14th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states.  Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government.  For the language of the 9th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States.  Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

BLOG your thoughts w/us by clicking the “Comment” Button below!

April 10, 2012

Essay #37

/8 Comments/by

Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State

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

Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

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: http://www.tokenconservative.com/.

March 5, 2012 

Essay #11 

/27 Comments/by

The Bill of Rights, Purpose and Benefits

, , , , , , , , , , , , , , , , , , , , , , , , ,
Guest Essayist: Richard Brookhiser, Author, James Madison

http://vimeo.com/37225503
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).

But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

February 21, 2012 – Essay #2

 

/17 Comments/by

Amendment X of the United States Constitution

, , , , , , , , , , , , , , , , , ,
Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment X

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.

The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st.  In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.

The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states.  When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government.  As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]

What was envisioned was a system of “dual sovereigns,” separate, but  (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people.  In other words, power flows from the people to the government, and as the High Court said 70 years ago:  “The amendment states but a truism that all is retained which has not been surrendered.”[2]

Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades.  It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted.  They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation.  In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:

[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]

How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?

Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government.  There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own.  Moreover, it removes policy prioritization an additional level away from an impacted population.

Again, as the High Court said in New York v. United States:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]

Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court.  In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”.  The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own.  The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.

In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true.  But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated.  When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment:  government does not have rights.  People have rights.  Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights.  All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.

[1] New York v. United States, Coleman v Thompson, etc

[2] United States v. Darby, 312 US 100, 124 (1941)

[3] New York v. United States, 505 US 144 (1992)

[4] Ibid.

 

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

 

/5 Comments/by

Article I, Section 09, Clause 2-3 of the United States Constitution

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

Article 1, Section 9, Clause 2 and 3

2:  The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  3:  No Bill of Attainder or ex post facto Law shall be passed.

The Great Writ.  The writ of habeas corpus, protected in Article I, Section 9, clause 2, is often regarded as the cornerstone of the rule of law in Anglo-American jurisprudence.  Alexander Hamilton, writing in Federalist 84, approvingly quotes Blackstone that habeas corpus is the “ bulwark of the British constitution,” in that it prevents the “dangerous engine of arbitrary government” that comes from “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten.”

Some historians trace the writ back to Magna Charta, although more definitive evidence shows a gradual emergence under the common law, culminating in the Habeas Corpus Act of 1679, during the reign of Charles II.  As Hamilton’s comment shows, the Framers were well aware of the writ.  Note that the Constitution does not “create” the writ; rather, Article I, Section 9, assumes the existence of the writ, but provides for its limited suspension.

Congress early confirmed the federal courts’ jurisdiction to issue the writ in the Judiciary Act of 1789, though the scope of the jurisdiction has changed over time.  It is even plausible, though not without doubt in light of 19th century precedent, that the power to issue writs of habeas corpus is so tied to the essential role of the federal courts that they could issue writs of habeas corpus even if Congress had not affirmatively recognized that power.

The writ is commonly said to be an instrument only to test the constitutionality of the detention, not to adjudicate the guilt or innocence of a detainee.  In other words, it is not the same as a right to appeal a conviction, but a “collateral attack” on the right of the government to detain the prisoner at all.  In some fashion, though, habeas corpus is broader than an appeal.  Rights of appeal are usually limited in time.  Petitions for habeas corpus traditionally were not so limited and could be brought repeatedly, years after trial.

There are two areas where the use of habeas corpus has become controversial in the last few decades.  One is the use of federal courts to challenge state criminal proceedings, especially in death penalty cases.  The other is the applicability of the writ to detainees in military custody.

As to state criminal proceedings, the problem began with the Supreme Court’s “incorporation” into the 14th Amendment of criminal procedure protections in the Bill of Rights.  This process, principally during the Warren Court, extended the federal courts’ supervisory powers over state court proceedings.  Justice Frankfurter as early as 1953 warned of the writ’s “possibilities for evil as well as good,” in light of the roughly 400 to 500 habeas petitions brought in federal court by persons in state custody.  By the end of the Warren Court, that number increased to 12,000 per year.  It continued to climb until the Rehnquist Court in the 1990s began to stem the deluge.

Today, habeas petitions are still a favorite pastime of “jailhouse lawyers,” as well as of attorneys who represent inmates with various complaints, from prison overcrowding or medical care to more individualized concerns about ineffective assistance of counsel in capital cases.  But federal laws and Supreme Court decisions now require petitioners to meet stiffer tests for such collateral review.  In part these restrictions have been justified by the perceived greater due process protections in state criminal proceedings compared to 50 years ago.  In part it is the conscious institutional desire of the Rehnquist and Roberts Court majorities to shift more business out of the federal courts into the state courts.  It is the latter, after all, who are the courts of “general jurisdiction” in our federal system.  In part it is simply the federal judges’ impatience with the sheer volume of repeated and frivolous petitions.  Even before the floodgates opened, only a very small percentage (6%) of petitions were found to have merit.  As so frequently happens, the increase in quantity over the years led to a further decrease in quality.

Regarding jurisdiction over people detained by the military, the writ has a checkered past.  Early in the Civil War, President Lincoln suspended the writ in a portion of Maryland (a de facto imposition of martial law).  In 1861, Chief Justice Taney issued the writ to the military jailer of a Maryland secessionist arrested for destroying railroad bridges.  When the military commander ignored the writ, the Chief Justice, in Ex parte Merryman, denounced Lincoln’s action, arguing that Article I, Section 9, dealt with limitations on Congress’s powers.  Therefore, only Congress could suspend the writ.

In classic implied executive powers fashion, Lincoln responded that the Constitution did not specify which branch could suspend the writ, only the conditions under which it could be suspended.  Moreover, the President could act due to the emergency involved.  Both Lincoln and his attorney general, Edward Bates, declared that the judiciary was incapable of dealing adequately with organized rebellion.  Bates, in his more detailed opinion, pointedly reminded the Court that the executive was not subordinate to the judiciary, but one of three coordinate branches of government.  The President took an oath to “preserve, protect, and defend the Constitution,” Bates asserted, and the courts were too weak to accomplish that task.

In 2008, the Supreme Court decided Boumediene v. Bush.  There, Justice Kennedy, in a 5-4 opinion, declared portions of the Military Commissions Act of 2006 unconstitutional, most significantly the portion that denied habeas corpus review to Guantanamo detainees.  Aside from a host of constitutional and practical problems with the Court’s opinion, particularly troubling was the Court’s extension of the writ to people outside the sovereignty of the U.S.  To do so, the Court had to distort the traditional Anglo-American understanding that the writ applied only within the nation’s territory.

While the writ has long applied to procedures of military courts, the Court previously made clear that it did not apply to acts of such courts outside the U.S.  Thus, in Johnson v. Eisentrager in 1950, the Court, speaking through Justice Jackson, rejected a habeas petition from German prisoners who had been convicted of war crimes by an American military commission and were held at an American military prison in the American occupation zone in postwar Germany.  The Eisentrager Court found “no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy, who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”

Where Justice Jackson and others feared to tread, Justice Kennedy rushed in.  As Justice Scalia wrote in dissent in Boumediene, what drove the Court’s opinion was “neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated sense of judicial supremacy.”  Precisely the attitude that President Lincoln and Attorney General Bates had emphatically rejected in their response to Chief Justice Taney.

Whether the Boumediene opinion has precedential virility, or whether it is merely judicial posturing, remains to be seen.  Justice Scalia feared that it is likely to be the former.  Early indications from the circuit courts suggest the latter.  Those courts have read Boumediene narrowly as applying only to Guantanamo, not, for example, to detainees at Bagram Air Base in Afghanistan.  If that interpretation prevails before the Supreme Court, Boumediene is mere institutional chest-beating.  More troubling, in the long run, is the possibility that Justice Scalia’s concerns are well-founded, and that the Court’s use of habeas corpus in Boumediene is part of the expanding notion of “lawfare” that threatens to tie down the President’s commander-in-chief powers through a web of legal regulations and procedures, an American military Gulliver tied down by legal Lilliputians.

As Justice Frankfurter warned, the writ has “possibilities for evil as well as good.”

Note: Professor Knipprath will address Article I, Section 9, Clause 3 of the United States Constitution in his upcoming essay on: Article 1, Section 10, Clause 1, Scheduled for publication on April 11: 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. 

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: http://www.tokenconservative.com/ .

/3 Comments/by

Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison)

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

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47.  Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty.  For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights.  The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government.  Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists.  As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken.  Montesquieu relied on his understanding of the British Constitution to explain separation of powers.  Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists.  That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary.  Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.”  (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original).  He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions.  He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.”  Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies.  (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and even an actual consolidation of the different powers; and in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

Thursday, July 1st, 2010

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

/0 Comments/by

Federalist No. 84 – Janine Turner

, , , , ,

Howdy from Indiana! We filmed Spencer Kolsak yesterday in Illinois. He is absolutely darling, very bright and we thoroughly enjoyed meeting him and his family. We filmed in front of the oldest log cabin in Illinois, which we thought was very fitting for Illinois, since it is the home of President Abraham Lincoln. Our footage is BEAUTIFUL from all over the country. Our documentaries are going to be awesome in its message, its diversity and its photography. Juliette and I are going to edit the documentaries. It is going to be a huge job but most worthwhile!

We are now on our way to Alabama with a stop through Nashville.

I just read Federalist Paper No. 84. I can’t believe we are on Federalist Paper No. 84!!!! What a journey this has been – amazing, inspiring, educational, and passionately patriotic!

In Federalist Paper No. 84, Alexander Hamilton wraps up the last remaining details regarding the Constitution.

They may be last but they are by no means the least, as a matter of fact, Alexander Hamilton expresses what he believes to be the most important elements.

Alexander Hamilton states in Federalist Paper No. 84:

“The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains.”

When one denounces the Constitution as irrelevant or antiquated, they need only look at Federalist Paper No. 84 and these three basics of Republicanism.

Habeas Corpus: the civil right to obtain a writ of habeas corpus as protection against illegal imprisonment.

A violation of this basic right is a major tactic of a dictator, a principle of tyranny. The dictator imprisons anyone he wishes for any reason and in this way he stifles opposition, maintains control and dwarfs inspiration, creativity and advancement of mankind. Fear is the great silencer of life and intimidator of spirit.

The subsequent preserver of freedom is the prohibition of ex-post facto laws. The prohibition of ex-post facto laws is a vital principle of liberty. It protects Americans from the threat of reprisal of punishment. Dictators use this to perpetually punish or create ways to twist the laws and entrap a citizen in the mire of concentrated confinement.

Nobility, which is the secret wish of any man due to the weakness of human nature which falls prey to the call of power, would then and certainly now, murder liberty and the Republican form of government, if he could do so.

We are so used to our protection from these threats that we know not of the dire straits we would have to contend with if we did not have them. Does this make it not relevant to today? No. It actually makes it very relevant to today, as it protects us against the potential usurper of our liberties. How easily we forget. Yet, we need only look to the recent horrors of Communism, Hitler or modern day dictators, for example, to see the consequences of the violation of these, our brilliant Constitutional, rights.

Knowledge is power. These words from our Constitution and the Federalist Papers call to us. They preserve and protect us. We need only pay heed. Are Americans listening?

Spread the word. America as we know it, depends upon it.

God Bless,

Janine Turner

Monday, August 23, 2010

 

 

/0 Comments/by

Federalist No. 84 – Certain General and Miscellaneous Objections to the Constitution Considered and Answered, From McLean’s Edition, New York (Hamilton)

, , , , , , , , , , , ,
Guest Essayist: Dr. Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

Today, many speak of the Bill of Rights as if it is the whole Constitution, but that is not correct. The first ten amendments to the Constitution have taken on a very different meaning than what was envisioned. In fact, the Constitutional Convention considered and unanimously rejected a motion to draw up such a bill of rights for the constitution its delegates were framing.

In Federalist 84, Alexander Hamilton answers the objection that the proposed Constitution did not include a Bill of Rights. But in this penultimate essay, we learn a key principle of the Constitution and realize why the framers’ intentions and the original meaning of the Bill of Rights is perfectly consistent with the Constitution as a document that limits government in order to secure the rights proclaimed in the Declaration of Independence.

Hamilton begins by pointing out that the Constitution itself contained several related provisions protecting rights, such as the clauses against ex post facto laws, religious tests, and the impairment of contracts. In creating a limited government by which rights were to be secured and the people free to govern themselves, the Constitution, as Hamilton insisted, is itself a bill of rights.

The more important reason for not including a bill of rights at the national level of government had to do with the difference between the state and federal constitutions. Since states had broader reserved powers, bills of rights in state constitutions made sense: They were necessary to guard individual rights against very powerful state governments. But the federal government only possessed those limited powers that were delegated to it in the Constitution. As such, the federal government did not possess the power to address basic individual rights, so there was no need for a federal bill of rights—indeed, one might be dangerous. Such a bill of rights, Hamilton argued, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Put another way, why state in a bill of rights that Congress shall make no law abridging free speech if Congress in the Constitution has no power to do so in the first place? And does a bill of rights that forbids the federal government from acting in certain areas imply that the government has the power to act in other areas? If that were the case, as Madison earlier warned, then the government was “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Nevertheless, the lack of a bill of rights similar to those found in most state constitutions became an important rallying cry for the Anti- Federalists during the ratification debate, compelling the advocates of the Constitution to agree to add one in the first session of Congress. So Madison, who along with Hamilton had opposed a bill of rights, drafted the language himself to make sure these early amendments did not impair the Constitution’s original design.

The twofold theory of the Constitution can be seen especially in the Ninth and Tenth Amendments: The purpose of the Constitution is to protect rights that stem not from the government but from the people themselves, and the powers of the national government are limited to those delegated to it by the people in the Constitution. They also address the confusion that might arise in misreading the other amendments to imply unlimited federal powers (Hamilton and Madison’s chief concern). While the Ninth Amendment notes that the listing of rights in the Constitution does not deny or disparage others retained by the people, the Tenth Amendment states explicitly that all government powers except for those specific powers that are granted by the Constitution to the federal government belong to the states or the people.

The original purpose of the Bill of Rights—stated by both the Federalists and the Anti-Federalists—was to limit the federal government.  Today, the Bill of Rights mainly serves to secure rights against the state governments—the exact reverse of the role these amendments were intended to play in our constitutional system.

The Bill of Rights is indeed a distinctive and impressive mark of our liberty. Unlike the citizens of many other countries, Americans are protected from their government in the exercise of fundamental equal rights.  But there should be no mistake that it is first and foremost the constitutional structure of limited government—the great theme of The Federalist and the point of Federalist 84—that secures our unalienable rights and the blessings of liberty.

Matthew Spalding is the Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.

 

/0 Comments/by