Mr. James Ingram was Constituting America Founder, actress Janine Turner’s, beloved 5th grade teacher, who instilled in Janine a love of our founding fathers, through the 5th grade’s production of 1776.

Mr. Ingram was honored as Constituting America’s Constitutional Champion in 2011 and was a beloved and active member of our Education Advisory  board.

Mr. Ingram’s full obituary is below.

NORTH RICHLAND HILLS – James Ingram, 72, passed away on Saturday, March 2, 2024.
Graveside Service: 10 a.m. Saturday, March 9, 2024, at Mount Olivet Cemetery with Jinx Ingram Thompson to officiate. Elizabeth Hatley, a dear friend, will deliver the eulogy. Visitation: 5 to 7 p.m. Friday, March 8, 2024, at Mount Olivet Chapel in the Sandburg Suite.
James was born in Fort Worth. He was the son of, James and Juanita Ingram. James accepted Christ as his personal Savior at a young age. He prayed daily and maintained a positive spirit. His cousins, Jinx and Betty, were like sisters to him. They had many great times including U.S.A. and world travel experiences.
James graduated from Texas Wesleyan University with a Bachelor of Science degree. He obtained a Master’s in Education degree from Texas Christian University.
His lifelong, devoted career encompassed 34 years as an elementary fifth grade teacher at Eagle Mountain Elementary. He enjoyed the challenge of Shakespeare’s Romeo and Juliet in a modified version on the stage with his fifth grade Language Arts classes. He also produced musicals with his students early in his career. The Eagle Mountain-Saginaw I.S.D. school board named the school stage in his honor when he retired.
Other educator honors included: 1995-1996 District-wide Elementary Teacher of the Year, Peer Professional, PTA Life Membership Recipient, PTA Extended Service Award, and Saginaw Chamber of Commerce Educator of the Year.
James appeared on television’s Disney’s American Teacher Awards. He was selected by actress, Janine Turner, a wonderful former student, as her favorite teacher. Furthermore, Ms. Turner recognized him as “The Constitutional Champion Teacher at the “Constituting America” gala.
His involvement with Miss Texas Pageant included Board of Trustees member and Awards Ball Set-Up committee chairman. James was inducted into the Miss Texas Hall of Honor for his pageant work.
James was a season ticket holder with dear friends for the Fort Worth Symphony Pops, Texas Ballet Theater, and Theatre Arlington. B. J. Cleveland, former artistic director at Theatre Arlington, was a talented former student.
Trips to the Texas Rangers baseball games were a highlight. The “good times” were highlighted with his Bunco groups of special friends. The Olive Garden, Chili’s, Babe’s Restaurant, Saltgrass, and Abuelo’s were his favorite restaurants. James enjoyed reading best sellers and viewing the Oscar-nominated movies. Morning walks with his mall buddies at the NE Mall and Grapevine Mills Mall, started each day with special conversations and many smiles. Pilgrimages to Scarborough Faire in Renaissance costumes with his Bros.-in-Hose provided majestic experiences for James and friends.
Surgeries were a challenge later in life. These included open-heart surgery, two hernia surgeries, six leg surgeries, cataracts surgeries, skin cancer surgery and gallbladder surgery. God’s Grace saw James through these times.
Survivors: All from Fort Worth
Cousin, Jinx Ingram Thompson
Cousin, Betty Evans
Second Cousin, Kim, and her 3 children
Second Cousin, Josh and wife, Laurie and their 5 children
Cousin, Tommy Freeman, and his 3 children
To plant Memorial Trees in memory of James Arnold Ingram, please click here to visit our Sympathy Store.

In loving memory of our dear friend, Anne Maureen Quinn. Maureen entered this life on September 25, 1956 and passed away December 14, 2022. Maureen was a bright light who shone in all of our lives.

We were blessed to have Maureen’s beautiful voice narrate many of our 90 Day Studies. She also submitted our We The Future Contest winners’ films into film festivals, achieving over 118 film festival acceptances for our winners over her time with us. In Maureen’s memory, we have named our We The Future short film category after her.

Maureen was a talented writer, inspirational life coach and sought after voice talent in Hollywood, but most of all, she was a treasured friend to all of us who had the blessing of knowing her and working side by side with her over the years.

Please join us in leaving your remembrances of Maureen here on our page.

Guest Essayist: Chris Burkett

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Does the United States today resemble the nation envisioned by the American Founders? Have we lived up to the political and constitutional principles they believed are so important for maintaining a free society and remaining a self-governing people? Have we as a people done a good job of preserving those principles by educating and reminding each generation on their importance? Constituting America’s 90-Day Study on “First Principles of the American Founding” should help each of us, as citizens, think about the first two questions in a more enlightened and informed way – and certainly goes far in ensuring that the third question is answered in the affirmative.

In this series of essays, written by exceptionally thoughtful thinkers, teachers and scholars, we can discern how insightful the American Founders were in recognizing and articulating the first principles upon which the nation of America was founded. From ideas identifying the basis of rights in nature rather than tradition, to constitutional principles that established a limited government, to foreign policy principles meant to promote justice with other nations, these essays allow us to glean in a more capacious way the overarching ideas that informed who we were meant to be as a people and a nation.

These essays reveal that Americans, and especially the Founders, had learned extensively from the careful study of history. Born of English tradition, Americans gradually came to develop their own identity – one might even say “mind,” as Thomas Jefferson called it. Separated from Great Britain and largely left alone for decades, American colonists lived in relative freedom and came to establish local governments and social institutions that complemented their understanding of rights and liberties. They frequently heard these ideas of individual liberty and limited government reinforced in their churches, newspapers, shops, and businesses. The essays in the 90-Day Study, as a whole, show the story of how Americans became one people united by common principles.

The American Revolution was, in more than one sense, a test of those principles. Should the Revolution fail, the principles of liberty and self-government might be lost forever. It was also a test in the sense that Americans found themselves in the position of having to accomplish a political separation and wage a war in accordance with the very principles they declared to be self-evidently true. Winning the war and gaining independence seemed to many, including George Washington, nothing short of miraculous. Having accomplished this, Americans next found themselves having to apply the principles of the Declaration of Independence to the creation of a government that would fulfill the demands of justice both at home and toward foreign nations. In other words, Americans had to learn how to act like a nation – and this is when Americans applied and thought even more deeply about the meaning of their founding principles.

Domestically, Americans faced the great difficulty of establishing a republic, based on consent, to replace the traditional form of monarchy that had prevailed throughout most of human history. The challenge facing the Framers of the United States Constitution was how to frame a government that was sufficiently powerful to secure the natural rights of American citizens, but that was also sufficiently checked to prevent it from abusing and violating these rights and liberties. Another great challenge was to find constitutional ways of obligating America’s government to secure American sovereignty and independence, and to respect the independence and sovereignty of other nations. The essays in this 90-Day Study reveal that, to fulfill these ends, knowledge of fundamental principles proved to be the guiding star for the Framers of the Constitution, and the standard by which American citizens could judge the justice or injustice of acts of government even after the Constitution had been ratified.

In the end, these essays bring to the fore the Founders’ view that without civic virtue, no government – not even America’s own Constitutional government – can succeed. Local political participation can never be replaced by national administration without some cost to individual liberty; and despite the best efforts of the Framers of the Constitution, civic awareness and engagement is still necessary to check laws and policies that are contrary to the principled purposes of government. All of this reinforces why the Founders believed that a proper civic education of the American people was so critical – an education that informs them of both their rights and duties. This 90-Day Study, as a whole, aims to fulfill that crucially important purpose of the American Founders.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: Gary Porter
Bill of Rights of the United States Constitution

American government, as President George Washington notes, is to be based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force:

[I]f Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

The Articles of Confederation Congress had difficulty with the states meeting their funding requisitions during most of the Revolutionary War period. Ending the siege at Yorktown in General George Washington’s favor only made matters worse. With the British no longer posing a threat, the men of the Continental Army were ordered into bivouac at Newburgh, New York. Soon thereafter, Congress stopped paying them, as a “cost-saving” measure, and also stopped funding the soldiers’ pensions.

The conflict over this came to a head when an anonymous letter was circulated in Congress in which a threat was made: the Army would remove itself to “unsettled” western lands, leaving the states unprotected until such time as pay and funding resumed.

Commander-in-Chief General George Washington traveled personally to Newburgh, and in an emotional scene during which he apologized for having to use spectacles to read his prepared remarks said, “I have grown not only gray, but almost blind in the service of my country,” he convinced the officers and men to renew their trust in Congress. Washington noted that the anonymous letter was appropriate since, “[I]f Men are to be precluded from offering their Sentiments on a matter, … the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter.”

“The Founders considered freedom of speech a fundamental natural right.”[i] At the same time, the right was also understood to not be absolute because during the early colonial period, “seditious words” were taken seriously and often prosecuted, as was blasphemy in most states.

When Patrick Henry proclaimed on May 29, 1765, that “Caesar had his Brutus, Charles the First his Cromwell and George the Third … may profit by their example,” he was indeed guilty of treason under English law. To “compass or imagine” the death of the King was one of the several crimes in the Treason Act of 1351, and Henry knew this. To the cries of “Treason” from some of the Burgesses in the room, Henry replied, “If this be treason, make the most of it.”

Christian thinker, G. K. Chesterton, said: “To have a right to do a thing is not at all the same as to be right in doing it.”[ii]

Sir William Blackstone agreed: “Every freeman has an undoubted right to lay what sentiments he pleases before the public…But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.”[iii]  Note that Blackstone refers here to “illegal” speech; the Treason Act would provide but one example.

But other founding era philosophers disagreed. French philosopher Baron de Montesquieu,[iv] in his acclaimed work, The Spirit of the Laws, wrote: “The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea.”

Without freedom of speech during the period 1760-1776, there likely would have been no revolution leading to American independence. Based on the Founder’s experience, the British would have prohibited public speeches arousing the people to claim their freedom and the press would have been severely curtailed.

“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates. An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.”[v]

In ratifying the United States Constitution, Virginia, North Carolina and Rhode Island (both of which copied Virginia’s submission verbatim) all proposed a free speech amendment and James Madison included an amendment, which read: “That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”[vi] In successive House and Senate committees this was “wordsmithed” to the wording eventually placed within the Bill of Rights of the United States Constitution.

The Founders great emphasis on freedom of speech makes the Alien and Sedition Acts of 1798 difficult to explain. Perhaps the expression “when the shoe is on the other foot” best captures Congress’s motivation to censor and suppress speech as the infant nation of America attempted to stay neutral in the on-again, off-again war between England and France. Americans were equally split on the question of which country the John Adams administration should support (even as both England AND France were both interdicting American shipping heading for their enemy’s ports). The Sedition Act made it illegal to make false or malicious statements about the Adams administration, specifically mentioning the President while conspicuously not mentioning the Vice-President. Criticism of Thomas Jefferson was therefore fair game, and certain “Adams-friendly” newspapers took great advantage of it.

So convinced they were of the unconstitutionality of the Acts, Thomas Jefferson and James Madison consented to drafting, respectively, the Kentucky and Virginia resolutions. These essays argued that the states have both a right and a moral responsibility to declare unconstitutional acts of the national government to be so and hold them to be null and void within their state.

The U.S. Supreme Court eventually found the Sedition Act to be constitutional in United States v. Thomas Cooper (1800).[vii] Congress had set the Alien and Sedition Acts to expire on March 3, 1801; the reason being was, the following day, a new President and Vice President would be inaugurated. Over a century later, President Woodrow Wilson’s administration would bring back the Alien and Sedition Laws (as the Espionage and Sedition Acts) as the U.S. entered World War I.

The Free Speech landscape had changed drastically by 1925 when the Court “incorporated” the Free Speech Clause into the Due Process Clause of the Fourteenth Amendment in Gitlow v. New York,[viii] creating an explosion of free speech cases based on state government actions, which continued thereafter.

Although the Free Speech Clause was intended to only restrict government actions, in the 1970s, the Supreme Court began deciding that commercial “speech” could also be regulated to some extent.[ix] Since that time, regulations on commercial advertising have become commonplace.

Eventually, the Court decided that certain types of “symbolic speech,” i.e. “speaking” through actions rather than words, should also be protected.[x] Over the years, the following are some examples of types of symbolic speech among those requiring protection:

  • Wearing of black armbands (Tinker v. Des Moines Independent Community School District,1969)
  • Flag-burning (Texas v. Johnson, 1989)
  • Burning a Cross (R.A.V. v. City of St. Paul, 1992)
  • Political campaign contributions (Citizens United, 2010)

Without freedom of speech, remaining steadfast to the principle of free civil discourse and public debate without censorship, America would likely be a very different place. “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together.”[xi]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Robert Natelson, The Original Constitution; What it Actually Said and Meant.”Apis Books Colorado Springs, CO, p. 212.

[ii] https://en.wikipedia.org/wiki/G._K._Chesterton

[iii] William Blackstone, Commentaries on the Laws of England, 1769.

[iv] Montesquieu was the most oft-quoted political philosopher at the Constitutional Convention, after the Bible.

[v] Benjamin Franklin, On Freedom of Speech and the Press, Pennsylvania Gazette (17 November 1737).

[vi] https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

[vii] https://www.archives.gov/education/lessons/sedition-case

[viii] https://www.law.cornell.edu/supremecourt/text/268/652

[ix] https://constitution.findlaw.com/amendment1/freedom-of-speech-for-corporations.html

[x] https://mtsu.edu/first-amendment/article/1022/symbolic-speech

[xi] Trenchard and Gordon, Cato’s Letters, February 4, 1720.

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Guest Essayist: Gary Porter

Amending the Constitution Without Amending the Constitution

Article V of the United States Constitution describes that the only lawful methods, of amendment, are by its keepers, the American people. While that may have been the Framers’ intent, an unlawful method of amending the Constitution, through judicial activism, for example, usurps the legislative process of the American people when the courts are used as a legislature. Black’s Law Dictionary defines “judicial activism” as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[1]

When the Supreme Court renders an opinion about a constitutional provision, that opinion–it is called an “opinion” and not a “law”–has traditionally assumed the status of the Constitution itself; since the Constitution is the Supreme Law of the Land (see Article VI), the American people and the federal government have given federal court opinions the same status: the law of the land. Nothing in the U.S. Constitution requires this, but that is the way America has operated as a people since the Constitution was ratified. Many distinguished men over the years have warned against this approach:

Thomas Jefferson: “[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.

Andrew Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”

Abraham Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Is the U.S. Constitution “Alive?”

President Woodrow Wilson is credited with originating the concept of a “Living Constitution,” the idea that the Constitution must constantly be updated to reflect changes in the culture and mores of an evolving society. Who best to guide the “evolution” of the Constitution but the legal “scientists” of the federal courts? Why go through the arduous process of amending the Constitution through Article V when the Supreme Court is willing to issue an opinion which will have the same effect as a desired amendment? The Supreme Court has often been viewed as the “legislature of last resort.” Policies which have failed to gain majority acceptance in the Legislative Branch, whether state or federal, are instead “enacted into law” by the Judiciary.

The Anti-federalist called “Brutus”[2] warned: the “power in the judicial, will enable them to mould the government, into almost any shape they please.”

James Madison mentioned in Federalist 51 that the Constitution requires the government “to control itself.”[3]

Congress last proposed an amendment to the Constitution fifty-two years ago, in 1971, the Twenty-sixth Amendment. Scores of proposed amendments are introduced in Congress each session; a handful may make it out of committee; none have achieved a two-thirds vote on the floor in either chamber, or both chambers, since 1971.

Article V of the United States Constitution, on amending the Constitution, states that when two-thirds (34) of the state legislatures apply to Congress for an amendment convention, Congress shall convene one. Nothing in the Constitution describes how such a convention must operate, or the threshold within the convention for approving amendment proposals before they are transmitted for ratification, but there is ample historical evidence showing how such conventions of the states operated during the founding period and model rules for such a convention have already been composed and tested.[4]

Consider next the alternatives to amending the Constitution through an Article V convention:

  • Wait on the Supreme Court to correct past errant rulings?
  • Wait on Congress to “start following the Constitution?” The 240 years of Supreme Court opinions and interpretations have removed most limitations on Congress’ authority.
  • Wait for Congress to proffer needful amendments? How likely is it that Congress will propose term limits on themselves, propose a balanced budget amendment, narrow the interpretation of general welfare or interstate commerce, propose repealing the Sixteenth and/or Seventeenth Amendments, or propose any amendment which results in a reduction of their jurisdiction or power?

The “Article V Question” is indeed controversial. Some opponents insist it will do more damage than good. Still, with arguments on both sides, correctly amending the Constitution remains in maintaining the principle that “the United States Constitution prescribes within the document the only lawful methods of amendment, by its keepers, the American people.”

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[1] As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.

[2] The identity of Brutus is unknown, but scholars have suggested he was either Melancton Smith of New York or John Williams of Massachusetts. See: https://en.wikipedia.org/wiki/Brutus_(Antifederalist).

[3] James Madison, Federalist No. 51, 1788, read at: https://avalon.law.yale.edu/18th_century/fed51.asp.

[4] https://conventionofstates.com/videos/official-convention-of-states-historic-simulation-live.

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Guest Essayist: Gary Porter

Prior to achieving statehood in March 1791, the Republic of Vermont placed a provision in their 1786 State Constitution. Every seven years, the people would elect a 13-person Council of Censors who would examine whether: “the Constitution has been preserved inviolate in every part, during the last septenary (including the year of their service;) and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the Constitution: they are also to inquire, whether the public taxes have been justly laid and collected in all parts of this Commonwealth–in what manner the public monies have been disposed of–and whether the laws have been duly executed.”[i] This Council would: “recommend to the Legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the Constitution; these powers they shall continue to have, for, and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this Constitution which may be defective–explaining such as may be thought not clearly expressed–and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.” (Emphasis added)

Laying on land claimed by both New Hampshire, New York and, at times, Canada, Vermont finally became an independent republic on January 15, 1777. It called itself the State of Vermont but failed to receive recognition by any country until admitted to the union on March 4, 1791.[ii] Because of its independency, Vermont was not invited to the Constitutional Convention in 1787. If it had been invited, would these ideas of constitutional review and revision have made it into the United States Constitution? If the U.S. Constitution had contained such a provision, what sort of amendments might have been ratified over these 234 years (as of 2023). And over these years, would the Constitutional “Council of Censors” find, repeatedly, that the Constitution had not “been preserved inviolate in every part”?

Amendment Under the Articles of Confederation

One of the chief defects of the Articles of Confederation, found in Article XIII, reads in part: “nor shall any alteration at any time hereafter be made in any of [these Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”[iii] (Emphasis added)

This requirement for unanimity among the states meant that the Articles would never be amended or otherwise improved. In his Vices of the Political System of the United States, James Madison’s “homework assignment” to himself, he fails to mention this flaw among the twelve “vices” he identifies; it could be that much of the “blame” for America’s moving to a new Constitution is due to this one defect. At the Constitutional Convention, Charles Pinckney said “it is to this unanimous consent [provision of the Articles], the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.”[iv]

In 1781, a proposal was made to amend the Articles of Confederation to give Congress the power to set an impost on goods. Rhode Island refused to approve the measure. As described in the notes of delegate James Madison, “[t]he small district of Rhode Island put a negative upon the collective wisdom of the continent.” Just as Rhode Island’s veto prevented the adoption of an impost in 1781, New York would be the sole state to obstruct a second impost attempt two years later.

Early in 1785, a Congressional committee recommended amending the Articles of Confederation to give Congress power over commerce. Congress sent the proposed amendment to the state legislatures; only a few states responded.

Later that year, in a letter to James Warren, George Washington, wrote:  “In a word, the confederation appears to me to be little more than a shadow without the substance;..Indeed it is one of the most extraordinary things …that we should confederate for National purposes, and yet be afraid to give the rulers of that nation… sufficient powers to order and direct the affairs of the same.”[v]

In 1786, Charles Pinckney proposed a revision of the Articles. A committee debated the proposal and recommended granting Congress power over both foreign and domestic commerce, and empowering Congress to collect money owed by the states. By now, convinced that at least one state would disagree, Congress never sent the measure to the states. Given this history, it appeared to the Constitutional Convention delegates that something less than unanimity was required to amend the new Constitution they had drafted.

Amendment at the Constitutional Convention

Item seventeen of the Virginia Plan, introduced in the “Grand Convention” on May 29, 1787, stated: “Resolved. that provision ought to be made for the amendment of the articles of Union, whensoever it shall seem necessary;” There  were many provisions of the Virginia Plan to discuss and debate. The delegates did not discuss a process of amendment until a month before the end of the convention.

The U.S. Constitution, Analysis and Interpretation website,[vi] provides this account of the debates over what became Article V of the new United States Constitution:

Alexander Hamilton … suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[vii] In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had suggested one.18 This language passed unanimously.19

But on September 15, 1787, two days before the convention adjourned for the last time, Article V of the draft Constitution was again discussed. To that point, the approved wording gave all power to Congress to officially propose amendments, although the states could suggest them. Virginia’s George Mason rose and cautioned that: “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (as Madison wrote in his notes), as he verily believed would be the case.” Gouverneur Morris and Elbridge Gerry then moved to require a convention on application of two-thirds of the states and the motion passed “nem: con:” (unanimously). And this provided the alternate method of proposing constitutional amendments: a convention of the states. But notice the rationale for this alternate method of amendment: should Congress become oppressive.

The process of amendment placed in Article V was further debated in the state ratifying conventions, the records of Massachusetts,[viii] North Carolina[ix] and Virginia[x] particularly recording the concerns of delegates. Some convention delegates, like Virginia’s Edmund Randolph, who refused to sign the Constitution, even called for an amending convention[xi] to be immediately convened to fix the “deficiencies” in the Constitution before they went into operation, which would make them harder to correct. Madison thought the idea dangerous. Randolph’s suggestion never gained momentum and the Constitution was ratified by Virginia on June 26, 1788, four days after New Hampshire’s ratification “sealed the deal” because it was the ninth state to ratify, the number of states required by the new Constitution. Less than a year later, the new national government went into operation.

Amending the Constitution – Correctly

Article V of the United States Constitution contains two methods of proposing amendments and two methods of ratifying amendments. Congress, with a two-thirds vote of both chambers, can propose an amendment for ratification by the states and the states themselves, in a convention called for that purpose, can propose amendments for ratification. Over America’s history, all 27 current amendments have been proposed by Congress, none by a convention of the states.

Ratification of a proposed amendment can also take two forms: ratification by three-fourths of the several state legislatures (38) or ratification by three-fourths of state conventions held for that purpose, Congress may “propose” either method. Over America’s history, the later method of ratification has been used only once, to ratify the Twenty-first Amendment.

As many as five thousand amendments have been proposed in Congress since the Constitution went into effect in 1789 and only twenty-seven survived the high hurdle of committee discussions/votes followed by super majority floor votes in both chambers.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] https://press-pubs.uchicago.edu/founders/documents/a5s1.html.

[ii] It was Vermont’s admission to the Union which required ratification of the Bill of Rights by ten states versus the nine required to ratify the Constitution itself.

[iii] https://www.archives.gov/milestone-documents/articles-of-confederation.

[iv] Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21.

[v] https://press-pubs.uchicago.edu/founders/documents/v1ch5s9.html.

[vi] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[vii] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[viii] https://press-pubs.uchicago.edu/founders/documents/a5s7.html.

[ix] https://press-pubs.uchicago.edu/founders/documents/a5s10.html.

[x] https://press-pubs.uchicago.edu/founders/documents/a5s9.html.

[xi] https://press-pubs.uchicago.edu/founders/documents/a7s4.html.

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Guest Essayist: Kevin Portteus

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Though the concept of national borders is rejected by many,[1] with some even denouncing the very idea of borders between nations as racist,[2] at both principled and practical levels, however, secure borders are not only defensible, but essential.

More than any other single concept, the foundational principle of the American regime is the principle of natural equality. “That all men are created equal” is the first of the “self-evident truths” proclaimed in the Declaration of Independence. In his 1791 Lectures on Law, James Wilson explains that this equality does not extend to “to their virtues, their talents, their dispositions, or their acquirements,” but only that “the natural rights and duties of man belong equally to all.”[3] This equality of rights originates in “the Laws of Nature and of Nature’s God”: it is inherent in our humanity, and not dependent on any regime or government.

The political corollary of the equality principle is the principle of government by consent. Abraham Lincoln describes this as “the sheet anchor of American republicanism” and “our ancient faith.”[4] Precisely because all men are created equal, no man has the right to govern any other man, without that other’s consent. No one is inherently superior to anyone else in his right to govern. All legitimate political relationships between equal human beings must be on the basis of consent.

This principle of consent is directly applicable to immigration and border security. If borders are insecure, then people may enter into a country, without the consent of those who already comprise that country. It would be as if a homeowner had no right to prevent random people from simply walking in the front door, plopping themselves down on the couch, and claiming to live there now. A property owner has a right to control ingress into his property. A nation is the collective property of its citizens, who have consented to live with each other. If a random person could force himself on the people of a country, without their consent, then that is not a relationship of equals. It is instead tyranny.

Not only is a nation without secure borders subject to the arbitrary whim of whomever may choose to impose himself upon it, that nation also has no control over what comes across its borders. There is overwhelming evidence that huge quantities of illegal narcotics, such as fentanyl, have been pouring across America’s porous southern border.[5] Other problems are known to occur such as increased rates of diseases like polio and tuberculosis.[6] Finally, an insecure border is an invitation to engage in international human trafficking, and the practice is epidemic at the US-Mexico border.[7]  In short, a nation, which does not have secure borders, is not really a sovereign nation at all.

The power to protect the integrity of America’s borders is embedded in the United States Constitution in at least two places.  First, Article I, Section 8 states that Congress “shall have power…to define and punish…Offences against the Law of Nations.” Borders, and migration of non-citizens across those borders, were understood by America’s Founders to be a law of nations issue and are thus covered by this clause. Second, Article I, Section 9, the infamous “Importation Clause,” creates a “negative pregnant,” implying that in the absence of one very specific set of conditions, Congress may regulate “migration” into the United States, not just the “importation” of enslaved persons[8] as was being addressed by the Founders at the time of writing the Constitution. They wanted to continually reduce and end the scourge of slavery in the United States while preserving the Union and without fomenting war between the states over controversial issues.

With this understanding by the Founders, how would it be possible to maintain what makes America its own nation able to self-govern apart from any dictatorships that could take hold? As President, John Adams wrote “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”[9] meaning that the nation of Americans possesses a specifically chosen cultural infrastructure, and the American people have historically adopted certain moral values, that make its system of constitutional self-government possible. This system, in turn, makes it possible for Americans to enjoy their natural rights. Other peoples, and other cultures, antithetical to that system of government, are thus a mortal threat to America’s political system and way of life, and Jefferson cautioned against a mass influx of peoples with opposing cultures and values, to those of America’s, in Notes on the State of Virginia.[10]

The ultimate tendency of the obliteration of borders is the obliteration of the very idea of sovereign nations. In Federalist 10, James Madison argues for the viability and desirability of a large republic, but even this has its limits.[11] The limits of communication and transportation cannot be completely overcome, and there’s more to a self-governing political society than that. The competing interests of society must have something to unite them; Madison also notes in Federalist 10 that “justice ought to hold the balance between them.” In order to constitute a true political society, a regime, they must share something fundamental, which Aristotle at the outset of The Politics calls the “good.”[12]

The natural and inherent differences in people’s thinking about ideas such as what is good and just means that the peoples of the world will never agree on them perfectly, and they can thus never come together into one regime on principles of justice. The result will either be tyranny or anarchy, as philosophers as diverse as Leo Strauss and John Rawls have noted.[13] The destruction of sovereign nations does not signify the dawn of universal justice; it rather heralds the establishment of universal tyranny.

Secure borders, then, are a necessary precondition of liberty and self-government. It allows us to distinguish between those who are members of our political community, and those who are not. It allows people who share conceptions of justice and the good to congregate into one political community and govern themselves according to those conceptions. Secure borders allow Americans to preserve the cultural infrastructure that makes the United States’ version of free self-government possible. The concept of secure borders is embedded in both American principles and constitutionalism. The destruction of secure borders would be a catastrophe for the American republic.

Kevin Portteus is Professor of Politics, Director of American Studies, and the Lawrence Fertig Chair in Politics at Hillsdale College.

 

[1] https://rooseveltinstitute.org/wp-content/uploads/2022/08/RI_TheStatueofLibertyPlan_Report_202208.pdf (accessed August 4, 2023); https://nymag.com/intelligencer/2019/04/this-is-the-immigration-policy-liberals-want.html (accessed August 4, 2023); Alex Nowrasteh, Open Immigration: Yea, in Alex Nowrasteh and Mark Kirkorian, Open Immigration: Yea & Nay (New York: Encounter Books, 2014).

[2] https://www.npr.org/2021/09/30/1041623709/the-racist-legacy-of-early-immigration-law-is-still-alive-today (accessed August 4, 2023); https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins (accessed August 4, 2023).

[3] https://press-pubs.uchicago.edu/founders/documents/v1ch15s48.html (accessed July 30, 2023).

[4] https://teachingamericanhistory.org/document/speech-on-the-kansas-nebraska-act-at-peoria-illinois-abridged/ (accessed July 31, 2023).

[5] https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676 (accessed July 31, 2023).

[6] https://nypost.com/2023/04/18/bidens-open-borders-are-bringing-contagious-diseases-to-your-neighborhood/ (accessed July 31, 2023).

[7] https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html (accessed July 31, 2023); https://www.npr.org/2021/04/24/990150761/human-smugglers-bypass-border-patrol-bedeviling-sheriffs-and-ranchers-in-south-t (accessed July 31, 2023); https://www.washingtonexaminer.com/opinion/op-eds/trouble-at-the-border-is-fueling-human-trafficking (accessed July 31, 2023).

[8] https://www.journals.uchicago.edu/doi/10.1086/705604 (accessed July 31, 2023).

[9] https://founders.archives.gov/documents/Adams/99-02-02-3102 (accessed July 31, 2023).

[10] https://vindicatingthefounders.com/library/notes-on-virginia-8.html (accessed July 31, 2023).

[11] https://founders.archives.gov/documents/Madison/01-10-02-0178 (accessed August 4, 2023).

[12] Aristotle, The Politics, book 1, chapter 1 (1252a1-3).

[13] G. P. Grant, “Tyranny and Wisdom: A comment on the Controversy Between Leo Strauss and Alexandre Kojeve”, Social Research 31, no. 1 (spring 1964): 45-72; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 36.

Guest Essayist: Amanda Hughes

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton in a speech, Compromises of the Constitution, June 20, 1788 during the New York Ratifying Convention.

On federal-state confrontation, Hamilton—an aide to General George Washington during the American Revolution and then our first Secretary of the Treasury— in speaking on this topic quoted above, as he argued for the ratification of the United States Constitution: “We might give to such a government certain powers,” he said of the proposed federal government, and yet, he continued, “to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism . . . establishing a power which would destroy the liberties of the people.” Hamilton wanted the states and their people to have power, too, as a counterweight to the danger of federal usurpation. These warnings note that liberty can be destroyed through abrupt or gradual means either by a domestic tyrant or if a foreign force overwhelms it. Hamilton had the answer for both: “The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments.”

Hamilton made it plain he sympathized with the states: “That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In other words, keep the states intact, as a bulwark of freedom for themselves, and as a bulwark against national impingement. This is part of the genius of the Constitution: for every legitimate power, there’s a legitimate counter-power.

As an entity intended to be indestructible, each state has a right, and a duty, to ensure its own integrity and survival. For example, the federal government leads the national defense, but if it won’t, the states must act. For example, one of the state constitutions declares, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”

Additionally, if the federal government attempts to centralize, for example, law enforcement, education, differing circumstances affecting city or county funding or regulatory needs from state to state, then local control can be usurped of its most basic foundations for maintaining self-government and accountability. Through state constitutions, state legislatures, city and town councils, civil systems closest to the people are enabled to uphold Americans in charge of their own governing.

Along with Founders such as Hamilton, others later in American history learned the importance of state sovereignty which meant local control and self-governing. For instance, Salmon P. Chase appointed by President Abraham Lincoln in 1864 as Chief Justice of the United States, in 1869, Chase opined on behalf of the Court, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” So how, precisely, does the indestructible Union interact with the indestructible States? That is a question each generation of Americans must carefully discern through the study of history.

America’s Founders, and Framers of the Declaration of Independence and Constitution knew the dangers of centralized government that easily usurped the local decision-making process. From the study of world history, they understood this well leading up to what would be contained in the words of the Declaration of Independence, and fought for in the American Revolutionary War. Though they did not want war, they were willing to do so for independence. They discussed through meeting together, writing letters, pamphlets and newspaper articles about how freedom is not free and that the steps to gain independence would be slow and difficult, but worth it. They understood how a government distant from the people could easily turn into a tyrannical dictatorship of top-down control. From the perspective of America’s Founders, Framers of the Declaration of Independence, and eventually the United States Constitution, it was far better to protect local decision-making that would not remove self-governing from the people than to allow centralization of government to take root. This was the importance they saw in limiting the federal government and ensuring liberty of the states and localities of America.

This understanding was more stark to them each day of work it took to gain their independence from Great Britain and eventually form a different type of government. Samuel Adams emphasized this importance after the Second Continental Congress adopted the Declaration of Independence July 4, 1776. Then a little over a week later the Articles of Confederation were presented on July 12 that would serve as a constitution to get the new nation’s government started. In his speech “On American Independence” on August 1, 1776, Adams stated: “Our Union is now complete; our Constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you as the decemviri did the Romans, and say: ‘Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends.’”

The ideas that animated the debate over the United States Constitution nearly a quarter-millennium ago are as alive today as today’s headlines. The principle of distinguishing between the purpose of federal and state governments cannot be overstated. Maintaining the Union through preventing federal encroachments on the states and individual Americans is vital to the foundation of self-governing and independence. Legal and political issues that threaten the ability of the states to maintain local control continually prove the Constitution so relevant and urgent for American citizens to understand and apply.

Amanda Hughes serves as 90-Day Study Director for Constituting America. She is author of a book on faith and voting, Who Wants to Be Free? (WestBow Press). She is a story contributor for the anthologies Loving Moments and Moments with Billy Graham (Grace Publishing). She served as editor of her father’s book, Adventures, Wit & Wisdom: The Life & Times of Charlie Hughes (WestBow Press). Amanda received her B.A. from Texas State University and her M.A. from Southwestern Baptist Theological Seminary.

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Guest Essayist: Tony Williams
Independence Hall, Philadelphia, Pennsylvania

“The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

The Declaration of Independence asserts the self-evident truth that all human beings are created equal and endowed with natural rights. The Declaration then states that governments are established with the purpose of protecting those rights with the consent of the governed. This Lockean conception of social compact theory supported a representative government in the American republic.

The concept of consensual government naturally supported the idea of freedom of speech. While the nature of free speech differed from America’s modern conception, the principle of political free speech was fundamental to a republican form of government and self-governing society. Expressing political opinions in speech and in print, engaging in hearty debate and deliberation, and giving consent to representatives in legislatures were all essential for self-governance.

In The Federalist No. 51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” As the first branch of government, Congress most embodied the principle of self-government and representation. The legislative branch, both in Congress and the state legislatures, was the center of deliberation, debate, and consensus.

Indeed, the American founding experienced great deliberative moments that represented profound moments of reflection and discussion. These debates demonstrate the importance of free speech to exchange political viewpoints in a free society. In each case, they show that free debate of clashing viewpoints can result in the common good. For example, the members of the Second Continental Congress were unsure or even opposed to independence in early 1776. A vigorous debate occurred in which both sides of the issue sought to persuade the other. Eventually, the Congress unanimously agreed to independence.

During 1787-1788, the great deliberative moment of making and ratifying the United States Constitution witnessed robust debates between the Federalists and Anti-federalists over the principles of human nature and government. The debates took place in the secret Philadelphia convention, but the vigorous conversation moved into state ratifying conventions, newspapers and pamphlets, private letters, and taverns.

In the early republic, the George Washington presidential administration had its share of highly partisan and contentious debates. The debates over Secretary of the Treasury Alexander Hamilton’s financial plans and the crafting of American foreign policy were rooted in constitutionalism and establishing the right precedents for the new government as prescribed in the new Constitution. These deliberations could be offensive and personal, but they were also deeply rooted in constitutionalism as both sides took the document seriously.

In all of these debates, the key principle was the element of free speech. The representatives and the people freely asserted their views about the best ways to achieve good government. They may have often had rival conceptions of the public good, but they built consensus through sharing and debating those ideas, listening to the arguments of the other side, and trying to persuade others of a reasonable viewpoint. For these reasons, holding to the first principle of free speech and thought has always been a core component of a self-governing people.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Guest Essayist: George Landrith

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.

The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.

It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.

If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.

America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”

It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.

A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.

Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.

Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.

We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.

But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.

In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.

The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.

Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.

Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.

America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.

If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.

George Landrith is the President of Frontiers of Freedom.

 

 

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

In 1765, the Stamp Act ignited a storm of protest and led to a series of events that sparked a revolution of the American colonies against Great Britain. The dreaded act was a British tax on colonial stamps on newspapers, legal documents, and playing cards among other items. The taxes provoked a strong reaction against the colonists who raised cries that they were being taxed without representation in Parliament.

The colonists resorted to several different forms of protest to the taxes. At first, they petitioned the king and Parliament claiming their constitutional liberties as Englishmen and their natural rights. Soon after learning of the impending taxes, in December 1764, the Virginia House of Burgesses was the first to level a protest and sent a petition stating that, “The people are not subject to any taxes but such are laid on them by their own consent.”

In addition, colonists formed mobs that intimidated and coerced the Stamp Act collectors into not collecting the tax and resigning their offices. Some were threatened with violence, others were burned in effigy, and one was frighteningly buried alive until he relented. Other acts of violence erupted, with Boston mobs tearing down the Stamp collector’s office and vandalizing and plundering the home of Lieutenant Governor Thomas Hutchinson.

The colonists also began to demonstrate a sense of common identity and unity when nine colonies agreed to meet at the Stamp Act Congress in New York. After their deliberations, the delegates agreed to a declaration of rights asserting their fundamental liberties. Foremost among these was the right not to be taxed without their consent. “It is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.”

British merchants were devastated financially by the colonial boycotts of British goods. They petitioned the king and Parliament for relief and eventually found it when Parliament revoked the Stamp Act Taxes. However, the Parliament also passed the Declaratory Act, which affirmed that principle that the body could legislate and tax the colonists in “any case whatsoever.”

The clashing perspectives of the colonists and British showed a fundamental disagreement over taxation and the powers of government. The parliamentary assertion of unlimited authority to govern the colonies led to additional attempts to tax the colonists, who predictably stood by the principle of no taxation without consent and resisted the taxes.

In 1767, Parliament passed the Townshend Acts which were a tax on a variety of items including glass, paint, paper, and tea. The colonists again resolved not to import British goods, which dried up trade between Great Britain and her colonies. Parliament relented and revoked the taxes but soon passed the Tea Act which collected three pennies per pound.

While it might seem like a trifling amount, Virginian George Washington explained that it was the principle that was at stake rather than the money. “What is it we are contending against? Is it paying the duty of 3d. per pound on tea because burdensome? No, it is the right only…as Englishmen, we could not be deprived of this essential and valuable part of our Constitution.”

The Boston Tea Party in late 1773 was the clearest expression of colonial opposition to being taxed without consent. The British retaliated harshly with the Coercive Acts shutting down the Port of Boston, banning town meetings and self-government, and allowing British colonial officials to escape American justice. This course led to the First Continental Congress and the first shots of the war being fired at Lexington and Concord. One of the grievances of the Declaration of Independence was “imposing Taxes on us without our Consent.”

During the war and after, however, the opposition to central authority provoked by resistance to British tyranny meant that one of the problems in the new nation was the inability to tax and collect adequate revenue. During the period, the Continental and Confederation Congress relied primarily on requisitions to the states for taxes, which were frequently ignored. Meanwhile, the states and national government were burdened by large war debts. The national government under the Articles of Confederation was especially unable to pay it off or use revenue to pay for armies to suppress internal rebellions such as Shays’ Rebellion.

Article I of the new United States Constitution empowered the Congress to pass taxes with the consent of the people through their elected representatives. Article I, section 8 stated: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

However, because of the fear that the Senate might form a corrupt cabal with the executive branch, and because the House of Representatives was the only popularly-elected branch of government and was closest to the people, any bills in Congress for taxes had to start in the House. Article I, section 7 states, “All Bills for raising revenue shall originate in the House of Representatives.”

Taxation in the United States was often controversial from the tariff and protective tariff in the nineteenth century to the escalating tax rates to fund a growing federal government in the twentieth and twenty-first centuries. The ideals of the American founding continued to shape American concerns and fears of centralized government and taxation. Supreme Court Chief Justice John Marshall asserted in McCulloch v. Maryland (1819) that, “The power to tax involves the power to destroy.” Americans have believed since the founding that a government that taxes too much destroys liberty.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.

It is worth quoting Aristotle at length on this point, as Adams did:

“In every city the people are divided into three sorts, the very rich, the very poor, and the middle sort. If it is admitted that the medium is the best, it follows that, even in point of fortune, a mediocrity is preferable. The middle state is most compliant to reason. Those who are very beautiful, or strong, or noble, or rich, or, on the contrary, those who are very poor, weak, or mean, with difficulty obey reason.… A city composed only of the rich and the poor, consists but of masters and slaves, not freemen; where one party despise, and the other hate; where there is no possibility of friendship, or political community, which supposes affection. It is the genius of a free city to be composed, as much as possible, of equals; and equality will be best preserved when the greatest part of the inhabitants are in the middle state. These will be best assured of safety as well as equality; they will not covet nor steal, as the poor do, what belongs to the rich; nor will what they have be coveted or stolen; without plotting against any one, or having any one plot against them, they will live free from danger. For which reason, Phocylides wisely wishes for the middle state, as being most productive of happiness. It is plain then that the most perfect community must be among those who are in the middle rank; and those states are best instituted, wherein these are a larger and more respectable part, if possible, than both the other; or, if that cannot be, at least than either of them separate; so that, being thrown into the balance, it may prevent either scale from preponderating. It is, therefore, the greatest happiness which the citizen can enjoy, to possess a moderate and convenient fortune. When some possess too much, and others nothing at all, the government must either be in the hands of the meanest rabble, or else a pure oligarchy. The middle state is best, as being least liable to those seditions and insurrections which disturb the community; and for the same reason extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor. We ought to consider, as a proof of this, that the best lawgivers were those in the middle rank of life, among whom was Solon, as is evident from his poems, and Lycurgus, for he was not a king; and Charondas, and, indeed, most others. Hence, so many free states have changed either to democracies or oligarchies; for whenever the number of those in the middle state has been too small, those who were the more numerous, whether the rich or the poor, always overpowered them, and assumed to themselves the administration. When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state, but, as a record of their victory, will form one which inclines to their own principles, either a democracy or an oligarchy….”

This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.

Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”

Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.

Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.

The instability and short survival of democracies carried over to other small political entities.

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing the majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression….[T]he same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic…is enjoyed by the union over the states composing it.”

Specifically,

“…a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.”

Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.

In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.

The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.

But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.

Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.

Therefore,

“[a]mbition 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, nether 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.

Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,

“But we may hazard a conjecture, that the virtues have been the effect of the well-ordered constitution, rather than the cause: and perhaps it would be impossible to prove, that a republic cannot exist, even among highwaymen, by setting one rogue to watch another; and the knaves themselves may, in time, be made honest men by the struggle.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

The age-old proclamation made in the Pennsylvania Gazette, attributed to Andrew Hamilton, regarding the “reciprocal dependence” between the United States Constitution and free speech, resonates powerfully with the principles held dear by anyone deeply concerned with balance of power between individuals and their government: the inseparability of a free constitution and freedom of speech. For a republican form of government to remain genuinely representative, it is imperative to ensure that citizens can air their grievances without fear of retaliation. To suppress the voice of the people is, in effect, to suppress the very essence of democracy which is the means a representative republic uses to make apparent the consent of the governed.

At the heart of a representative government lies the principle that those in power are there to serve, and not to dictate. They are but emissaries, chosen by the populace to voice their hopes, aspirations, and concerns. Such representation is hollow if the populace cannot, or is afraid to, communicate openly.

Civil discourse, which is simply the ability to discuss and debate matters of public interest in a reasoned and respectful manner, is the bedrock upon which representative government stands. Without it, the bridge between the representatives and those they represent is broken. The essence of representative government is lost if its constituents cannot engage in free discourse without fear of persecution.

Traditionally, classical liberals (which is how one can describe most, if not all, of the founding fathers) firmly believe in the principle of minimal government intervention in the lives of its citizens. Freedom of speech, as a cornerstone of liberty, is not just the ability to speak one’s mind but to do so without fear of government retribution. To silence or suppress speech is to curb the very freedom that serves as a bulwark against tyranny.

The case of John Peter Zenger, defended by Andrew Hamilton, stands as a testament to the dangers of a government that seeks to stifle criticism. Arrested for merely voicing his critique of the establishment, Zenger’s plight underscores the importance of preserving unhindered freedom of speech. When governments are allowed to decide what can and cannot be said, we tread perilously close to the realms of despotism.

The quote from the Pennsylvania Gazette highlights a profound truth: a free constitution and freedom of speech are interdependent. Without the liberty to speak one’s mind, a constitution, however free in letter, becomes tyrannical in spirit. Conversely, freedom of speech without a constitution that protects and upholds it is but an illusion.

The reason for this reciprocal relationship is clear. A free constitution provides the framework within which rights, including freedom of speech, are preserved. Meanwhile, unhindered freedom of speech ensures that this constitution remains truly representative, constantly held to account by the voice of the people.

In an age where voices are increasingly stifled under the guise of various reasons, it is paramount to remember the wisdom of yesteryears, as echoed by Andrew Hamilton. To suppress inquiries into administration might be the hallmark of autocracy, but in representative government, the voice of the people must remain unbridled and unbroken.

In any dynamic society that prides itself on progress, innovation, and the welfare of its people, the free flow and exchange of ideas is not just a luxury, but an absolute necessity. The significance of this cannot be overstated, particularly when it comes to addressing and solving the myriad problems society faces. At their core, the principles upon which this nation was founded cherish the values of individual freedom, limited government, and the sanctity of personal choice. This philosophy acknowledges that every individual, with their unique experiences and perspectives, has the capacity to contribute to the vast tapestry of human knowledge. However, this can only be realized if they are allowed and encouraged to express themselves freely, even if their ideas are unpopular or deemed contentious.

At the foundation of the free exchange of ideas is the belief in the “marketplace of ideas,” a theory that the truth will emerge from the competition of ideas in free, transparent public discourse. Just as economic markets rely on competition to produce the best goods and services, intellectual progress requires a contest of ideas. Suppressing unpopular or controversial ideas, even those deemed false or harmful, doesn’t necessarily make them disappear. Instead, it drives them underground where they are not subject to public scrutiny, critique, and potential refutation.

Moreover, it creates a “marketplace of ideas.” Many of the most groundbreaking discoveries and social movements in history were once viewed as controversial or even heretical. Galileo’s heliocentric model and the rights of women to vote were both, at different times, unpopular ideas. Without the freedom to challenge prevailing notions and the status quo, society would stagnate, and advancement would be hindered. A society that is open to the free exchange of ideas is more adaptable, resilient, and inventive.

Free speech also offers protection from despotism and tyranny. One of the most potent tools at the disposal of tyrannical regimes is the suppression of speech and the curtailment of the free exchange of ideas. By controlling the narrative and silencing dissent, these regimes can maintain power and perpetuate their ideologies unchallenged. History has repeatedly shown the dangers of this approach. Protecting even unpopular speech ensures a check against potential governmental overreach and tyranny.

One can also not understate the importance of freedom of speech to the betterment of men and women themselves, outside of just the political realm. On an individual level, exposure to a wide array of ideas, even those that challenge our deeply held beliefs, is essential for personal growth. It encourages critical thinking, promotes empathy by understanding various perspectives, and enriches our knowledge base. Suppressing unpopular speech denies individuals these opportunities. Promoting the greatest amount of speech ensures a vibrant civil society.

The freest speech also is a way to ensure that society solves its own problems. No society is without its problems, and often, it is only through open dialogue and the free exchange of ideas that these issues come to light. Unpopular speech can draw attention to overlooked issues, catalyze movements for change, and present alternative solutions to pervasive problems. Silencing such speech, on the other hand, can perpetuate ignorance and hinder society’s ability to address its challenges.

The suppression of speech, particularly when it involves the silencing of religious or ethnic expressions, can have dire consequences on societal cohesion and stability. Yugoslavia, under its Communist regime, is a poignant example of this phenomenon. The country, a mosaic of ethnicities and religions, was kept together through strong centralized governance and strict control over nationalist sentiments. The Communist authorities aimed to forge a unified Yugoslav identity, which involved suppressing religious and nationalist expression, relegating it to the private sphere, and often demonizing it in the public sphere. This suppression did not eradicate the deeply-rooted ethnic and religious sentiments; rather, it drove them underground, where they festered, accumulated grievances, and lacked the necessary open space for dialogue and reconciliation.

When the Communist regime in Yugoslavia disintegrated in the early 1990s, the suppressed sentiments and grievances came to the surface with a vengeance. Without the structures or platforms for peaceful dialogue in place, these sentiments exploded into sectarian violence, leading to a series of brutal wars that resulted in the dissolution of Yugoslavia. Had there been a more open space for religious and ethnic expression during the Communist era, communities might have had the opportunities to address and possibly reconcile their differences or at least coexist peacefully. Instead, the suppression created a vacuum, and when the lid was abruptly removed, the pent-up frustrations and hostilities were unleashed in a tragic wave of violence. This serves as a powerful reminder of the dangers inherent in suppressing speech and the importance of fostering open dialogue in multi-ethnic and multi-religious societies.

The importance of the free flow and exchange of ideas, even those that are unpopular, cannot be emphasized enough. Such freedom is at the very core of a thriving, advancing society. In embracing the free exchange of ideas, the fundamental human right to express oneself is championed, and fostered is an environment ripe for innovation and the holistic betterment of society.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Scot Faulkner
Carpenter's Hall In Old City Philadelphia, Pennsylvania

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“New England town meetings have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” – Thomas Jefferson, 1816

“Local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.” – Alexis de Tocqueville, 1835

The concept of people openly gathering to discuss matters of public interest was developed among the ancient Greek city states in the 6th Century B.C.  It became known as “Athenian Democracy” under the leadership of Pericles (461-429 B.C.) during Athens’ “Golden Age.” Participation was open to all adult free male citizens.

In actions that would be repeated throughout history, Athenian public meetings were suppressed to centralize government power. This occurred in 322 B.C. by the rulers of the Macedonian Empire, first Philip II and then his son, Alexander “the Great.”

Freedom of assembly vanished during the Roman Empire and the feudal states. People could still petition the chief, warlord, or king for grievances, but local democracy was lost.

Iceland rekindled community-based democracy in 930 A.D.

The Althing (Norse for “assembly field”) was an open area (near present day Reykjavik) reserved for the annual gathering to discuss and decide issues facing the community. The presiding official, Lögsögumaður (Norse for “Law Speaker”), stood on a central rock outcropping known as the Lögberg (Norse for “Law Rock”).  He established the procedures for the Althing and declared decisions after open discussion and voting. All free men had the right to attend and participate.

The Althing lost its authority when Iceland was annexed by Norway in 1262.

In 1231, the freedom of assembly, and early federalism, arose among the various independent regions (Cantons) in Switzerland. The Landsgemeinde (German for “cantonal assembly) was established as a system of direct democracy, open voting, and majority rule among the communitas hominum (Latin for “the community of men”). This terminology was to emphasize that it was an assembly of all citizens, not just the elite.

Citizens of the Swiss Cantons fiercely defended their assemblies. In 1499, they defeated the forces of Emperor Maximillian I, the Holy Roman Emperor, at the battle of Dornach. They retain their system to this day.

The practice of holding town meetings in Colonial America developed from 17th Century English “vestry” meetings. These meetings allowed parishioners to discuss and decide issues relating to their local parish. These became integral to New England communities in the mid to late 1600s. Their agendas ranged beyond church governance to community matters.

In 1691, the Colonial Parliament (General Court) of the Commonwealth of Massachusetts passed a Charter that declared that final authority on bylaws rested with town meetings. In 1694, the Massachusetts General Court granted town meetings the authority to appoint assessors. In 1715 it granted town meetings the right to elect their own presiding officers (moderators) instead of relying on outside appointees.

Colonial meeting houses remain places of reverence in small towns throughout New England.

It is not surprising that eradicating town meetings, and restricting the right to free assembly, were key elements in Britain’s suppression of America’s Independence movement in the early 1770s.

Lord North, the British Prime Minister (1770-1790), instituted harsh measures to suppress dissent and disrupt the culture of self-government, which he viewed as the root cause of the chaos. On May 2, 1774, North declared Massachusetts was “in a distempered state of disturbance and opposition to the laws of the mother country.”

On May 20, 1774, the British Parliament passed the Massachusetts Government Act, which nullified the Massachusetts Charter of 1691. It abolished local town meetings because, “a great abuse has been made of the power of calling them, and the inhabitants have, contrary to the design of their institution, been used to treat upon matters of the most general concerns, and to pass dangerous and unwarrantable resolves.” Ongoing local meetings were replaced by annual meetings only called with the Colonial Governor’s permission, or not at all.

A series of five punitive acts were passed by Parliament intended to restrict public discourse and punish opponents. It was England’s hope the “Intolerable Acts” would intimidate rebellious Colonists into submission. The “Acts” ignited a firestorm of outrage throughout Colonial America. More importantly, it generated a unity of purpose and inspired a willingness for collective action among leaders in the previously fragmented American colonies.

In a bold “illegal” act to assert its right to free assembly, the First Continental Congress met in the Carpenters Hall in Philadelphia from September 5 to October 26, 1774. Twelve of the thirteen colonies (Georgia opted out) were represented. They issued the “Declaration of Rights and Grievances,” the first unified protest of Britain’s anti-colonial actions.

The British Crown’s assault on the right to free assembly was among the top Grievances listed in the Declaration of Independence less than two years later.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Guest Essayist: Patrick Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.

The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.

A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.

England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.

Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.

This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.

Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.

With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.

The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.

Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights.  And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.

For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Essay Read By Constituting America Founder, Actress Janine Turner

 

Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”

As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”

In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.

Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.

Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.

A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.

Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.

Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”

The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.

In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.

The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”

When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.

Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”

Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.

Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”

Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”

The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.

Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.

Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.

The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.

Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Patrick M. Garry

 

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“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.

This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.

One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.

The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.

Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.

As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.

The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.

During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.

During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.

In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.

The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.

In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.

After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Essay Read By Constituting America Founder, Actress Janine Turner

 

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792

Americans are exceedingly fortunate in some regards. The founding generation that theorized about creating a government did not evaporate into thin air or disappear into classrooms after publishing a few papers or demonstrating for change. Instead, most of them engaged in practical politics. They were around to find the limits and implications of their theories. James Madison, as the primary author of the United States Constitution could have retired and lived the life of a hermit and still made it into our history books. He did not do that.

By the Spring of 1792 Madison was a congressman from Virginia, engaged in the messy horse-trading of practical politics. He was also actively engaged in describing how the underlying principles of our government interacted with the real world. He watched the beginnings of the ideological and partisan divisions between people who shared all of the same fundamental principles. He saw regions compete with regions and nations serve as both positive and negative examples for America.  In that spirit, he wrote an essay on the subject of property published March 29, 1792.

Madison conceived of property rights in a way that was much broader, deeper, and more expansive than the mere protection of wealth or land. Understanding his conception is central to understanding the very nature of the American government. Unlike some later thinkers, Madison and the Founders did not consider the rights of property to be a “thing” that was separate, apart, held only socially, or distinct from all other rights of an individual. While that might seem like an inconsequential bit of political theory, the practical implications of this formulation were enormous and foundational to the idea that human beings could live prosperous lives at peace with one another.

If property rights were natural to all other rights, things like free market trade, industry, innovation, and competition were the consequences of the deeper foundational principles of the Founders—not their purpose.  To put it another way, Madison and the Founders did not envision liberty in order to justify the free market or property rights; Madison merely recognized the implications of property rights in the real world. To pretend that our system of government could function without the protection of individual property rights would have seemed oxymoronic and absurd to the framers of our political institutions.

In the American system and as outlined by Madison, the same set of individual rights have both a private and public function. He understood that every right an individual holds has some manifestation in the physical world. Understanding that simple fact led him to a conclusion that was inescapable, profound, and should be obvious: Every right lived and breathed in its relationship to the rights of property. No just government could sever property rights from any of the natural rights held by any individual. This was not enough.

Because individuals exercise the rights of property in a social context, they depend on a reciprocal, peaceful recognition within a political system. A just system protected the rights of every individual. As Madison wrote, property, “…embraces every thing to which a many may attach a value and have a right, and which leaves to every one else the like advantage.[1] Any right you have and anything you find valuable is defined as property. Because everyone has rights, everyone has property worthy of protection.

Property then, was more than simply money, wealth, land, or objects. Madison understood that one could not claim to have free opinions without being free from violence when communicating those ideas. One could not freely express religious belief and practice when personal safety and property were threatened. The freedom to choose where to work, what to work for, and what to do with the product of one’s work were inseparable. All were rights. All were inseparable from property.

To Madison, any pretended choice between the rights of property and any other right was a false dichotomy. The rights of property were inextricably linked to every other right and should be recognized and balanced in a peaceful constitutional order. As he concluded, “…a man is said to have a right to his property, he may be equally said to have a property in his rights.”[2] Protecting property rights – in this expansive understanding of property – was the very purpose of just government. There could be no other definition of justice beyond every individual peacefully having what they deserved to have while secure in their peaceful possession of all liberties. Because of this, Madison believed government ought only to interfere with property rights sparingly.

Any government that violated religious liberty with tests, taxes, or an imposed hierarchy would not be just. Any government that failed to enforce contract law, engaged in arbitrary property seizures, or allowed one class of people to oppress another would be violating the rights of conscience, which Madison called “the most sacred of all property.”[3]  But he had a special ire for the regulated markets of the British mercantilist system and worried that America might follow their example.

Government itself could easily fall out of balance by imposing, “restrictions, exemptions, and monopolies” that would interfere with property rights.[4] Property was not secure when government encouraged one form of work or manufacturing over another. Such encouragement would be similar to an unjust tax designed to reward friends and punish enemies. He deplored the use of taxation as social policy and recognized the temptation to, “invade the domestic sanctuaries of the rich,” or taxation that would, “grind the faces of the poor.”[5] He understood that human beings always sought advantages for themselves and would try to use taxation to gain those advantages.

Leaders needed to be scrupulous in dealing with all forms of property–including the property that individuals hold in ambitions, religion, opinions, and labors. None should be taken from an owner without full compensation. If the United States wanted to maintain its legitimacy and serve as an example to the world, its government had to “equally respect the rights of property, and the property in rights….”[6] There could be no substitute for this formulation.

Human beings are infinitely complex. Part of Madison’s genius was his understanding of the practical application of rights based on how imperfect human beings lived in an imperfect world. Instead of theorizing about how to turn human beings into angels, Madison understood the complexity of human experiences and the relationship between the internal and the external world. He knew that politics can do many things, but it cannot do everything.

Of course Madison and the Founders believed in the principles of free market trade, industry, innovation, and competition. Every competition requires the peaceful execution of its rules or it could not be said to be a competition. The violent suppression of innovation or use of violence in directing labor was anathema to anything resembling a free life. If all of our rights have a manifestation in property, individuals must be able to buy, sell, withhold, cherish, and labor for property – broadly understood – as they see fit. To say that our Founders believed in a “free market” is to state nothing so plain as the Founders believed that people could live peaceful lives. One could not protect any fundamental rights without protecting the “property in rights.”[7] There is no other way.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/property/

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In the early 1790s, Representative James Madison was a skilled politician, newspaper polemicist, and member of the Jeffersonian Republican Party. In all of these roles, Madison demonstrated increasing concerns about the centralizing tendencies occurring in the first of the American presidencies which began with the Washington administration. He was especially concerned about Secretary of Treasury Alexander Hamilton’s financial policies regarding the public credit and a national bank.

In late 1791 and throughout 1792, Madison penned a series of eighteen newspaper essays on various topics of government, law, and economics. He wrote them to reflect on various topics related to self-government, but his main purpose was to expose how Federalist Party policies stretched the boundaries of the United States Constitution by expanding the power of the national government.

On March 29, 1792, Madison published one of the essays entitled “Property.” In the essay, he leaned in on the principles of natural rights, the purposes of government, and limited government. These principles were important to Madison because they protected individual liberty. His ideas were heavily influenced by the ideas of Enlightenment philosopher, John Locke.

In his Second Treatise of Government (1689), Locke wrote that all humans  are in a state of nature, free and equal in their natural rights. For Locke, property was the most important natural right, and it included possessions but also most significantly a property in one’s person, labor, and rights. He wrote, “Yet every man has a property in his own person…The labour of his body, and the work of his hands.”

Government was established by common consent for the purpose of protecting a person’s property rights. He wrote, “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”

These Lockean ideas fundamentally shaped the Declaration of Independence in 1776. The Declaration lays down natural rights as the basis of self-government. It asserts that “all men are created equal,” and that they were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration also states the fundamental purpose of government is to protect rights. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

In 1792, these ideas continued to shape Madison’s thinking about American constitutionalism when he penned his “Property” essay. Locke clearly helped to influence Madison’s understanding of property as he argued that it included physical property, a person’s opinions, the right to have safety of one’s person, and an individual’s religious liberty. In fact, he described religious conscience as the “most sacred of all property.”

Importantly, while Madison had all of these conceptions of property, he thought that individuals had an inalienable property in their rights. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” he wrote.

Like Locke and the Declaration of Independence, Madison believes that government exists to protect inalienable rights especially property. He explains that a just government is one that protects rights, and, conversely, an unjust government violates those rights or fails to protect them adequately. Therefore, he attacks arbitrary government, which is the definition of tyranny. He writes,

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.

Madison continued to oppose many of the policies of the Washington and Adams administrations. He served as vice-president under Thomas Jefferson and helped to usher in the “Revolution of 1800,” in which they believed they restored republican limitations on the national government. Madison was elected president in 1808 and served two terms. While his administration reflected his republican ideals from his “Property” essay, he did eventually change his mind on certain centralizing policies he opposed in the early 1790s including signing the Second National Bank into law in 1816. Still, James Madison believed in a natural rights republic and constitutionally limited government throughout his entire life.

The Founders applied the principle of limited government in the Constitution and early republic. The national government had no authority to tax without consent or to take property without consent or compensation. The First Amendment prevented a national establishment of religion and protected religious liberty. George Washington set the great example of limited republican government when resigned from the presidency after two terms.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: James C. Clinger

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Contracts are the promises that are made individually or collectively that are presumed to be legally enforceable. They are normally the product of negotiation and deliberation among parties regarding the mutual obligations that they accept voluntarily.[1] Not every agreement is a contract, and not every promise is legally enforceable, but contracts have become an essential means by which individuals can organize themselves and carry out personal and professional interactions, particularly with persons or entities with whom they have no personal or familial connection. The ability to make contracts, and the capacity and willingness for a neutral arbiter to guarantee that contracts will be enforced, became one of the critical developments that made long-term and long distance trade relations possible.[2] Contracts also became a building block of the modern corporation, which is often described today as a “nexus of contracts.”[3]

The freedom to make contracts and the confidence that contracts will be enforced cannot be taken for granted. Prior to the United States Constitutional Convention of 1787, many of the original thirteen states were actively undermining the enforcement of contracts among citizens. In most cases, the contracts that were threatened by state actions were concerned with debts. State legislatures enacted a number of laws which prevented creditors from collecting debts in the time frame stipulated in contracts. For this reason, many creditors looked to the federal government to curb state actions which threatened the execution of contracts. Congress, under the Articles of Confederation, provided in the Northwest Ordinance that in that soon to be developed territory stipulated “no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide and without fraud previously formed.” [4] Notably the clause pertained only to “private” contracts that were already in existence.

At the Constitutional Convention, a stand-alone contracts clause was debated and ultimately rejected, but the Committee on Style inserted a general form of the clause within a section dealing with limits on state power, which the convention did approve.[5] The final language in Article 1, Section 10, reads as follows: “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.”[6] The clause is sandwiched between other provisions that limit states’ ability to engage in diplomacy, affect international trade, or carry out monetary policy. There is no language limiting the clause’s application to private contracts, nor is the clause clearly limited to contracts that were “previously formed,” although the courts quickly established that state law could regulate future behavior that might otherwise be the subject of a contract. It should also be noted that the contracts clause does not forbid the federal government from “impairing the obligation of contracts.” In fact, the federal government may modify debt contracts very dramatically through bankruptcy laws, which were authorized explicitly by the bankruptcy clause in Article I, Section 8 of the United States Constitution.

The clause was applied in some early cases of the Supreme Court. In 1810, the Court ruled in Fletcher v. Peck that the state of Georgia could not revoke a previously issued land grant to private parties. This ruling established that the contract clause applied to both public and private contracts.[7] A few years later, the Court more clearly asserted the constitutional protection of contracting in the case of Dartmouth College v. Woodward. In this ruling, the Court held that a charter establishing and organizing a private academic institution could not be fundamentally changed by an enactment of the New Hampshire legislature.[8] This decision was not only significant because it defended the right of private parties to have their contracts respected, but also because it recognized that private associations and incorporated entities could be at least somewhat insulated from state government control.

In later cases, the Court made clear that the right to engage in personal contracts is not absolute. In Ogden v. Saunders, the Court ruled that the states could make laws affecting contracts as long as those laws had prospective effect.[9] Later, in Stone v. Mississippi, the justices ruled that the contract clause did not prevent states from exercising their police powers to protect health and morals.[10] This ruling was echoed in a twentieth century case, Home Building & Loan Association v. Blaisdell, in which the Court expanded that exception to include advancing public welfare through a redistribution of resources.[11] In recent years, some legal scholars have said that the federal Constitution’s contract clause has been eviscerated because the courts have ruled that its applicability is limited by so many public policy related exceptions.[12] Nevertheless, it should be noted that many state constitutions contain contract impairment laws which are still applied, often in legal challenges to legislative changes in public employee pension fund benefits.[13]

The freedom to contract and the expectation that contractual obligations will be enforced has been critical to American economic life since its founding. Courts have long been involved in the settling of contractual disputes, sometimes invoking the contract clause, but more often using common law principles or provisions of the Uniform Commercial Code, which every state has adopted. But the implications of the freedom to contract is not limited to economic matters. Contracts are involved in many forms of association,  including political organizations and civic and religious entities. Without protection for these contracts, these associations could not function effectively.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1]  Cornell Law School.   Legal Information Institute.  https://www.law.cornell.edu/wex/contract  Accessed August 12, 2023.   On the view that contracts should be seen essentially as promises, see Fried, Charles.   Contract as Promise: A Theory of Contracting Obligation. Cambridge, Mass.: Harvard University Press, 1981.

[2] Wallis, John Joseph.  “Institutions, Organizations, Impersonality, and Interests:  The Dynamics of Institutions.”   Journal of Economic Behavior & Organization 79 (1-2)

[3]  Jensen, Michael C., and William H. Meckling. 1976. “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure.” Journal of Financial Economics 3 (4): 305–60.

[4]  Northwest Ordinance.  Article II, Clause 5.   See also McConnell, Michael W. “Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure.” California Law Review 76, no. 2 (1988): 267–95.

[5]  Douglas W. Kmiec and John O. McGinnis, “The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. Law Quarterly 5 (1987): 525-560.

[6]  United States Constitution, Article I, Section 10

[7]  Fletcher v. Peck.  10 US 87 (1810).   See also  Hobson, Charles F. 2017. “The Yazoo Lands Sale Case: Fletcher v. Peck (1810).”      Journal of Supreme Court History 42 (3): 239–55.

[8]  17 US 518. See also O’Kelley, C. R. T. (2021). What Was the Dartmouth College Case Really About? Vanderbilt Law Review, 74(6), 1645–1725.

[9] 25 US 518 (1827).

[10]  101 US 814 (1879).

[11]  290 US 398 (1934).

[12]  Ely, James W., Jr. “Whatever Happened to the Contract Clause?” Charleston Law Review 4 (2010): 371–94.

[13]  Hull, Bradley. 2015. “State Contract Impairment Clauses and the Validity of Chapter 9 Authorization.” Emory Bankruptcy Developments Journal 32 (1): 87–122.

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Guest Essayist: Robert E. Wright

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

For over half a century, the colonists living in mainland British North America sought a monetary system like that described by Benjamin Franklin in his 1729 Modest Enquiry into the Nature and Necessity of Paper Currency. In other words, they wanted their own “inside” money composed of paper “bills of credit” (fiat notes like today’s Federal Reserve notes) useful only in local trade and an “outside” money composed of full-bodied gold and silver coins (referred to collectively as specie) useful in international trade.

All the colonies eventually emitted fiat paper bills of credit but only the Middle Colonies of New York, New Jersey, Pennsylvania, Maryland, and Virginia managed to do so without causing massive inflation, which the colonists perceived as depreciation of the bills of credit in terms of the “outside” or “real” money, specie.

As with most things in life, too much of a good thing can lead to bad outcomes. The colonists wanted “inside” money because each unit of it  (confusingly, for us, called “pounds”) they emitted into circulation allowed the same amount of gold or silver to be used to purchase goods abroad. That helped the colony’s economy but only until all the specie had been exported. The effect of issuing more bills of credit after that point was to make each unit less valuable domestically – price inflation or currency depreciation depending on your perspective.

The northernmost and southernmost colonies greatly exceeded that break-even point because they found it easier to finance their many wars against the French, Spanish, and their American Indian allies by printing more inside money than by raising taxes. Double-digit inflation ensued, which injured the interests of creditors, the rich people who lent money. That is because the purchasing power of the depreciated money they were repaid with, even with single-digit interest paid in addition, was less than they expected.

Those rich lenders had the ear of policymakers in London, who in 1764 prohibited the colonists, even those in the Middle Colonies, from emitting any more bills of credit. This may have merely miffed the colonists had the restriction not taken place in the midst of a postwar economic downturn and a period of toughened trade restrictions that made it difficult for the colonists to trade enough with the right partners abroad to maintain sufficient amounts of specie in domestic circulation. Instead of inflation, the colonists suffered from massive deflation.

As a result, foreign and domestic trade decreased markedly, as did real estate prices. Interest rates increased on mortgages, when they could be had at all, because money was in such limited supply. Money matters became so desperate that squirrel scalp bounties began to circulate as cash in Bucks County, Pennsylvania and newspapers published odes to coins that colonists rarely saw in circulation anymore.

By 1765, borrowers began to default and lose all their property at sheriff’s sales. Many found themselves still owing money even after all their assets had been sold at low prices and ended up in debtors’ prison, where some died. The colonists pleaded for relief but instead the “Mother” Country implemented the Stamp Act, which imposed new taxes and threatened to denude the colonists of all their remaining specie.

The colonists successfully protested the Stamp Act but in the process initiated a series of increasingly violent conflicts that ended with the Declaration of Independence and Revolutionary War. The Americans funded much of the war effort with a new inside money called Continentals, issued far too many, and saw them depreciate in value, at first slowly but later essentially to zero. No longer constrained by British trade policies and with help from French infusions, specie again became the predominate form of money in America.

Yet Franklin and younger financially savvy policymakers, like Robert Morris, Thomas Willing, and Alexander Hamilton, knew that inside money could help to stimulate the economy, so long as it did not displace all of the specie once again. So they created new institutions, commercial banks, that issued two forms of inside money, deposits and notes, convertible on demand into a fixed amount of specie.

When the new Constitution was framed, the financiers managed to ban state governments from issuing fiat money but were silent about the new federal government’s power to issue it. For over a century, it did so only during major wars and afterwards withdrew it from circulation via taxes, as the Middle Colonies had done.

Before the Federal Reserve became operational in 1914, most money in America took the form of bearer or “cash” instruments like banknotes and specie coins, supplemented by money of account in the form of bank deposits transferable by check. Deposits could be tracked but the government rarely tried to access private bank records because of strong customs concerning confidentiality. Notes and specie provided anonymity and hence even stronger privacy protections.

From its inception, America defined its dollar in terms of specie, eventually settling, as most other nations did, on gold alone. Dollar denominated banknotes and deposits were not legal tender but convertible into legal tender coins on demand. They circulated because they were more convenient than coins but always could be exchanged for them.

Retail convertibility meant that international trade, not policymakers, determined America’s money supply. Gold flowed in when exports exceeded imports and out when imports outstripped exports. As explained by Scottish Enlightenment thinker David Hume and well understood by policymakers like Hamilton, the gold flows automatically adjusted the domestic money supply and interest rates towards more balanced international trade and long-term price stability.

During the New Deal of the 1930s, however, the nature of money changed dramatically in America, starting a process that culminated in the 1970s with the nation’s monetary system returning to its Revolutionary War roots, or in other words a fiat inside money delinked from specie and of constantly declining value.

Some dispute the Constitutionality of the current monetary regime, which simultaneously greatly diminished the privacy of bank accounts. A planned central bank digital currency (CBDC) threatens to end anonymous cash transactions entirely and wipe away the last legal vestiges of transaction privacy. Benjamin Franklin and the other Founders and Framers would not approve. Instead, they would urge moving back to the retail specie standard that the nation enjoined from its inception until the New Deal.

It will be up to the American people to push for a return to Constitutional money, though, because politicians dislike the constraints that come with linking the dollar to gold, or anything else, like Bitcoin, in relatively fixed supply. Unlike the statesmen of the founding generations, partisan policymakers today want to borrow and spend so they can appear to help some people without immediately increasing taxes on others. In the process, though, they run huge deficits that have compounded over the last few decades into a massive national debt that would be impossible with a gold-linked dollar.

Robert E. Wright is a Senior Research Fellow at the American Institute for Economic Research. He is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.

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Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.

The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”

Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.

It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.

The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.

The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.

Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.

This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Guest Essayist: Gary Porter

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Life, liberty, and the pursuit of happiness.” As most Americans will recognize, these are words from the Declaration of Independence.

Dr. Larry Arnn, President of Hillsdale College, in his beautiful and insightful book: The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It,” writes: “The Founders understood [the Declaration and Constitution] to be connected, to supply together the principles and the details of government, to be a persuasive and durable unity.”[i]

Most Americans have never encountered Thomas Jefferson’s first draft of the Declaration[ii] and are not aware the Declaration went through significant “wordsmithing” on its path to approval on July 4, 1776. In his draft, I particularly prefer Jefferson’s more powerful: “We hold these truths to be sacred & undeniable” to the final, “self-evident.” On the other hand, other sentences in Jefferson’s draft clearly benefited from the collaboration of the Congress, even while Jefferson later complained his work had been “mangled.” The judgment of historian Carl Becker was that “Congress left the Declaration better than it found it.”[iii]

“Life, liberty, and the pursuit of happiness.” Here Jefferson is of course referring to the “certain unalienable Rights” we have been “endowed by [our] Creator.” These natural, unalienable rights derive from natural law. In a 1775 newspaper essay entitled “The Farmer Refuted,” Alexander Hamilton explains the relationship between natural law and natural rights this way:

“To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind … The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.” (Emphasis added)

Indispensably obligatory? Sir William Blackstone explains why:

“Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will.”[iv]

If there was one political principle which was ubiquitous during the founding period, it was the natural, unalienable rights of the colonists. Early Americans almost never missed an opportunity to proclaim them. As Thomas West argues, “the founders shared a ‘theoretically coherent understanding’ of politics rooted in natural rights philosophy.”[v]

While Jefferson directly lists only three unalienable rights, other rights, both individual and collective, are hidden in plain sight. These include:

  • The right of a people “to dissolve the political bands which have connected them with another.”
  • The right “to alter or to abolish [an old government], and institute new government.” (Note: this right can also be seen as a duty!)
  • The right to secure their unalienable and civil rights through the institution of government.
  • The right to delegate power to government, through the people’s consent.

We must also note that Jefferson’s use of “the pursuit of happiness” is unusual. The normal “trio” of essential rights was “Life, Liberty and Property.” We find property mentioned in most “rights” documents from the founding period: “pursuit of happiness” is an outlier. John Adams, in A Defence of the Constitutions of Government of the United States of America (1787), reminds us:

“Property is surely a right of mankind as really as liberty.…The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

But as Thomas Paine warns us:

“[P]roperty will ever be unequal …. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.”[vi]

Is there a relationship between property and other rights? To James Madison there certainly was: “In its larger and juster meaning, it [property] embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage… In the latter sense, a man has a property in his opinions, and in the free communication of them. He has a property of peculiar value in his religious opinions, and in the professions and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right in his property, he may be equally said to have a property in his rights.”9 Madison then explains that “conscience is the most sacred of all property … more sacred than his castle.”[vii]

With “property” aside, the unalienable rights of Life and Liberty are relatively easy to understand, but a right to “pursue happiness” begs further explanation.

In his First Inaugural Address, George Washington explained: “There exists in the economy and course of nature, an indissoluble union between virtue and happiness.” Jefferson would agree. But perhaps we should first clarify what the pursuit of happiness did not mean. To America’s founders, it was not the pursuit of licentiousness, the pursuit of base pleasure or the pursuit of wealth for wealth’s sake. John Locke warns us: “mistake not imaginary for real happiness”[viii]

“[T]he “pursuit of happiness” as envisaged by [John Locke] and by Jefferson was not merely the pursuit of pleasure, property, or self-interest (although it includes all of these). It is also the freedom to be able to make decisions that result in the best life possible for a human being, which includes intellectual and moral effort. We would all do well to keep this in mind when we begin to discuss the “American” concept of happiness.”[ix]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Larry Arnn, The Founders’ Key; The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It, Nashville, 2012, p.11.

[ii] https://founders.archives.gov/documents/Jefferson/01-01-02-0176-0004.

[iii] Carl Becker, Declaration of Independence, New York, 1922, p. 209.

[iv] Sir William Blackstone, Commentaries on the Laws of England, Section 2, Of the Nature of Laws in General, accessed at: https://www.laits.utexas.edu/poltheory/blackstone/cle.int.s02.html.

[v] Thomas West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, 2017.

[vi] Thomas Paine, Dissertation on First Principles of Government, 1795.

[vii] Kurland, Philip B. The Founders’ Constitution. Vol. 1. Chicago , IL: Univ. of Chicago Pr., 1987, p.598.

[viii] John Locke, An Essay Concerning Human Understanding, 1689, accessed at https://oll.libertyfund.org/title/locke-the-works-vol-1-an-essay-concerning-human-understanding-part-1.

[ix] Anonymous, accessed at https://www.pursuit-of-happiness.org/history-of-happiness/john-locke/.

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Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The essence of the American Dream lies in the belief that every individual, irrespective of their background, has the opportunity to succeed based on their talents, abilities, and hard work. A central driver of this dream is the principle of individual free enterprise, a system where businesses are free from excessive government interference, and individuals have the right to use their resources to create, innovate, and grow.

The beauty of individual free enterprise is that it unleashes the inherent potential within each of us. It allows an individual with a great idea to take that concept, build upon it, and bring it to the marketplace. It encourages creativity, fosters competition, and drives innovation. In this arena, an entrepreneur’s vision can be actualized, and dreams can truly come alive.

The American Dream, therefore, can be aptly described as the Entrepreneur’s Dream. It is a dream that does not discriminate based on race, color, or creed, but instead extols the resilience, tenacity, and spirit of individuals who are willing to take risks and work hard to realize their visions. It is the dream of creating something that can not only change an individual’s life but potentially impact the world.

The cornerstone of the American dream, the pursuit of happiness, is intrinsically linked to the principles of private property rights and individual free enterprise. Rooted in the United States Constitution and the Bill of Rights, these tenets have been the lifeblood of our nation’s prosperity and ingenuity for centuries. Understanding the interconnectedness of these concepts and their critical importance is paramount to preserving the spirit of liberty that fuels American progress.

The right to “pursue happiness” is not merely a poetic phrase; it is the Declaration of Independence’s embodiment of the American dream, anchoring the pursuit of personal fulfillment and prosperity to the soul of the nation. Rooted in the Enlightenment philosophy of John Locke, the Founding Fathers believed that government’s primary role was to safeguard the natural rights of its citizens, granting them the autonomy to seek their own path to happiness. This novel notion freed the American people from the chains of monarchical rule and ushered in a new era of self-determination, where individuals were encouraged to chart their destinies with vigor and determination.

Yet, for this dream to thrive, we must create and maintain an environment conducive to entrepreneurial growth. An essential ingredient of this environment is a regulatory and policy framework that facilitates rather than hinders enterprise. The government’s role should be to provide a stable, predictable legal framework that protects property rights, upholds the rule of law, and maintains a level playing field.

The concept of individual free enterprise, which underpins the American economic system, complements the right to pursue happiness perfectly. Free enterprise embodies the principles of economic freedom, private property rights, and voluntary exchange. By unleashing the entrepreneurial spirit of the American people, it facilitates the pursuit of happiness on an unprecedented scale. Indeed, the Founding Fathers understood that the realizations of one’s dreams and aspirations were inextricably tied to the freedom to engage in commerce and create wealth.

At the core of the Constitution’s protection of private property rights is the Fifth Amendment, which states, “nor shall private property be taken for public use, without just compensation.” The Founding Fathers understood that private property is the bedrock of personal liberty and economic growth. It is a tangible manifestation of an individual’s labor, ingenuity, and ambition; it fuels motivation and contributes to societal development. Moreover, the right to private property extends beyond the mere possession of physical goods to encompass intellectual property, businesses, and even ideas.

Inextricably linked to the notion of private property rights is the concept of individual free enterprise. This principle is the foundation upon which America’s economic success has been built. Free enterprise allows individuals to use their private property—whether it be their labor, capital, or ideas—to create value, compete in the marketplace, and achieve their own version of the American dream.

These concepts are not separate entities, but rather two sides of the same coin, each strengthening and reinforcing the other. The security of private property rights fosters an environment conducive to free enterprise, where individuals are more inclined to take risks, innovate, and invest, knowing that their efforts and resources are safeguarded. Similarly, free enterprise, through its production of wealth and opportunities, allows for the further accumulation and managing of private property.

Another critical factor is the societal attitude towards failure. In a true free enterprise system, failure is not a stigma but a stepping stone toward success. It is through trial and error that entrepreneurs refine their ideas, hone their skills, and ultimately succeed. A culture that encourages risk-taking, celebrates entrepreneurial spirit, and sees failure as a learning opportunity is one that will generate more innovation and prosperity.

Education also plays a significant role. Equipping individuals with the knowledge and skills to start and manage businesses, understand market dynamics, and adapt to changing economic landscapes is vital. This isn’t merely about promoting business education but encouraging a mindset of creativity and problem solving.

However, it is essential to note that these principles do not exist in a vacuum. The government plays a crucial role in ensuring their existence and efficacy, providing a stable legal framework and enforcing the rules of the game. Nevertheless, the balance is delicate. Overreaching government intervention can stifle creativity, disrupt the natural mechanisms of the free market, and erode private property rights. Thus, the principle of limited government—another pillar of our constitutional order—is central to this discussion.

The government should avoid policies that stifle ingenuity or add unnecessary burdens to entrepreneurs. High taxes, excessive regulations, and restrictive labor laws can serve as barriers to entry, preventing new ventures from getting off the ground and stifling the creativity and dynamism that drive economic growth and job creation.

The connection between the Constitution’s protection of private property rights and individual free enterprise is a testament to the profound wisdom of our Founding Fathers. Their understanding of human nature, individual freedom, and economic principles enabled them to construct a system that has fostered unprecedented prosperity and liberty.

Today, as we face the challenges of an increasingly globalized and digital world, these principles are more important than ever. Protecting private property rights and promoting free enterprise will enable us to preserve individual liberty, spur economic growth, and maintain America’s position as a bastion of invention.

The success of free enterprise in America is rooted in the belief that individuals, not government, are best suited to determine their needs and aspirations. This laissez-faire approach to economic governance has unleashed an unparalleled era of prosperity, creating the world’s largest economy and improving the lives of countless citizens. The unyielding spirit of entrepreneurship, driven by the pursuit of happiness, has fostered a culture of risk-taking and relentless ambition that has propelled America to greatness.

Individual free enterprise embodies the principles of meritocracy, rewarding hard work and creativity while fostering competition. It allows individuals to utilize their unique talents and skills to create value for others and, in turn, realize their own dreams. By removing bureaucratic barriers, free enterprise empowers citizens to participate in an ever-changing economic landscape, ensuring that success is not predestined but earned through dedication and effort.

The right to pursue happiness, as written in the Declaration of Independence, and the ideal of individual free enterprise are intrinsically linked. Together, they form the bedrock of the American dream, empowering individuals to chart their own destinies, create prosperity, and leave a lasting impact on society. Embracing the principles of liberty and free enterprise ensures that the pursuit of happiness remains not just a mere aspiration, but a tangible reality for all American citizens, as it has been for centuries since the nation’s founding.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In 1785, in his book Notes on the State of Virginia, Thomas Jefferson wrote in Query XIX, “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example.” In similar tone, in a passage in a letter to John Jay that same year, Jefferson effusively tied together all of the notions American agrarians held dear: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, & they are tied to their country & wedded to its liberty & interests by the most lasting bonds.” He repeated similar sentiments throughout his life.

Jefferson was not alone in these adulatory opinions. Americans, whose beliefs otherwise might be quite heterodox about the nature of virtue or the best government or economic system, broadly shared his views. Nor was this mindset restricted to Americans, who occupied—rather sparsely, on the whole—a large tract of land and whose nation was overwhelmingly agricultural. The French physiocrats of the mid-18th century endorsed agricultural production as the true measure of a nation’s wealth, and land combined with agricultural labor as its only source. Going back further, Aristotle had extolled the virtues associated with agrarian society. But it was Roman writers such as Cato, Cicero, and Virgil whose works most influenced Enlightenment agrarians. Roman republicanism exalted land ownership to the point that senators were formally prohibited from engaging in any but agricultural endeavors, a restriction the senators avoided through various artifices as Rome became a more commercial society. The ideal of the Roman statesman was told in the story of Cincinnatus, the nobleman who was called from his pastoral existence to lead Rome in a time of crisis, only to lay down his office and return to his small farm when the crisis ended. For Americans, the resemblance to George Washington was not a coincidence.

But the most immediate influence on Americans’ exaltation of the yeoman farmer was a school of British Whiggism, the so-called country party. The 17th-century political philosopher James Harrington had penned Oceana, his description of an ideal commonwealth based on roughly equal holdings of land by its citizens. The land must be enough, unencumbered by debts, to provide for himself and his family. Only in this manner could he avoid dependence on another, his would-be master. That independence was crucial to cultivating the virtue necessary for self-government. English essayists of the 18th century, such as John Trenchard and Thomas Gordon, writing in Cato’s Letters, and Henry St. John, 1st Viscount Bolingbroke, with whose works Americans were quite familiar, also advocated the necessary relationship among ownership of an adequate estate in land, independence, virtue, and liberty.

Perhaps the single most influential philosopher for Americans of the Founding was John Locke. As with other political principles, Locke’s ideas on property, virtue, and limited government resonated in Jefferson’s writings. Locke posited that God gave the world to mankind in common. But man had the right to his own labor and could claim as his own both the land with which he mixed his labor and the fruits of his labor in the crops the land produced. At least implicitly, this required a plentiful supply of land that would be available for future generations.

Not surprisingly, Locke’s views found favor among Americans, who saw a virtually limitless bounty of land in their world. Although some areas along the Atlantic seaboard were becoming more populated, it was always possible to decamp for a tract unsettled, at least by Europeans, just a few dozen miles farther west. Various plans of settlement were grounded in the easy availability of land. There was the almost feudal system of land ownership designed for the Carolinas by John Locke, the secretary for one of the proprietors of that colony. Fortunately, his Fundamental Constitutions were substantially amended by the proprietors and then suspended after two decades, in 1690. More consistent with Locke’s other writings was the project of the proprietor of Georgia, James Edward Oglethorpe, in 1733. Oglethorpe designed a plan of economic and social development founded on land grants of equal size. Acquisition of additional land by marriage or purchase was prohibited. Likewise, slavery was prohibited as immoral, but also to prevent the emergence of large plantations as had happened in other colonies.

There was plenty of land in Georgia, as well as in the country west of the Allegheny Mountains. But there was a catch. After the end of French rule in North America, the British government signed treaties with the Indians to end Pontiac’s Rebellion and issued the Proclamation of 1763 to prevent western settlement. Existing settlers were ordered to abandon their tracts. Americans considered this to be a blatant attempt to prevent an increase in the population. The Proclamation was immensely unpopular among all classes, from the land speculators and investors in land syndicates with their fortunes now at risk, to the settlers looking for cheap and plentiful land. It became a major contributor to the ill will emerging against the British government.

Once American independence was achieved, settlers poured through the mountain passes into the western lands of the states and then into the unorganized areas of the Old Northwest. The Confederation Congress adopted the Land Ordinance of 1784, drafted by Jefferson, and the implementing Land Ordinance of 1785 to survey the lands and prepare them for sale.

While the peace treaty with Britain opened up potentially vast tracts of land for sale or, more frequently, squatting, some of the most committed ideologues of American agrarianism were still ill at ease. In particular, the rise of manufactures and merchant commerce troubled them. They saw in England the fate that awaited Americans of future generations. As the population there grew and the supply of land became filled, people were forced into wretched conditions in cities to labor for others. Adam Smith had described their condition in 1776 in Wealth of Nations: Farming required a variety of knowledge and practical understanding; not so factory work. “The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps always the same…has no occasion to exert his understanding …. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become.” This was hardly the stuff of the virtuous and enlightened citizen, jealous of his liberty, but ready to sacrifice for the well-being of the community, the free yeoman farmer or artisan suited to self-government in a republic.

Jefferson needed no convincing. He agreed with Smith that the division of labor in the emerging capitalist manufacturing sector produced significant material benefits. But he was also convinced that the nascent banking system with its creation of debt, as well as the monotony of factory work, created a dependency that robbed ordinary citizens of the autonomy needed for republican government. Regardless of material wealth produced by manufacturers and “stock jobbers,” a nation of farmers was better suited for a republic. Writing in Notes on the State of Virginia, Jefferson declared, “Manufacturing, and its attendant commerce, as European evidence had so graphically shown, distorted relationships among men, bred dependence and servility, and spawned greed and corruption which became a canker on the society. A nation of farmers, on the other hand, each of whom owned his own plot of land, who was free and beholden to no one, would assure the preservation of those qualities on which the strength of a republic depended.”

It was important, therefore, to provide land for as many as possible, including future generations. Echoing Locke, Jefferson wrote in a letter to James Madison on October 28, 1785,

“The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed… It is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.”

Jefferson’s advocacy for the Land Ordinances of 1784 and 1785 reflected his eagerness to promote widespread land ownership. But his most edifying moment was the stroke of good fortune in the form of the Louisiana Purchase of 1803. For a bargain price of $15 million, or an estimated $350 million in today’s money, the territory acquired from France almost doubled the size of the United States. More accurately, the United States acquired the exclusive right to deal with the American Indian tribes that occupied most of the land. While there were other benefits, commercial and military, sufficient to overcome whatever constitutional scruples President Jefferson voiced to others about his authority to make the treaty, he was most gratified that the purchase achieved his goal of plentiful land for his republic of farmers and artisans: “The fertility of the country, its climate and extent, promise in due season important aids to our treasury, an ample provision for our posterity, and a wide-spread field for the blessings of freedom.” By this action, he could assure himself, he had guaranteed a republican future for generations of Americans to come, where the plenitude of land made certain that no one would have to subject himself to exploitation or domination by another.

Whereas Jefferson returned to the theme of his republic of farmers and artisans in frequent correspondences, he was not a systematic theorist of American agrarianism. That description best fits John Taylor of Caroline County, Virginia. Taylor was a lawyer, planter, military officer, and politician. He engaged in scientific agriculture, becoming a leader in promoting crop rotation, and published pamphlets and a book about those endeavors. He also wrote several books about political economy and the connection among land ownership, private happiness, independence defined as republican self-government, liberty, a limited and decentralized political system, division of political powers, and the laissez-faire economics of a free market. He vigorously opposed wealth and political power from the emerging capitalist manufacturing enterprises fueled by burdensome protective tariffs. But his most fervent denunciations were of banks, the paper issued by them unbacked by sufficient specie, and their practice of patronage and lobbying which according to Taylor, secured them unnatural privilege and wealth.

Taylor’s five books, especially his 1814 work, Inquiry into the Principles and Policy of the Government of the United States, brought philosophical discipline to the agrarian mythos among Americans. His contributions to political theory have been declared among the best that Americans have produced. Taylor’s adoration of agrarian republicanism at times took on a religious tone. He tied the story of the Garden of Eden to an agrarian social order and was convinced that an agrarian republic would allow man to regain his lost paradise.

Agriculture provided freedom which, in turn, produced private happiness. With family roots in the land, social organizations could develop organically, and people would enjoy true community through friendship, love, religion, education, and leisure. As well, agriculture provided the independence needed for republican self-government and the resulting public happiness created by wise laws. Manufacturing and capitalism had the opposite effect. In language reminiscent of Adam Smith, and to a degree of Karl Marx, Taylor denounced the emerging factory system as degrading human nature by destroying man’s freedom and happiness. The laborer was nothing more than a wage slave, paid a wage that supported him for that day and left no money for savings and improvement of his condition. Capitalists got the laborers to work for them but did not reward their efforts in commensurate manner. Like Smith and the French physiocrats, Taylor believed that true wealth ultimately was derived through the profits from land. Capitalism robbed that wealth from farmers and workers through tariffs and banks, and substituted paper wealth for true prosperity.

In all societies, some groups or classes dominate the exercise of political power at a given time. In a republic, a landed gentry was best. Perhaps not coincidentally, Taylor was among the landed gentry exercising political power in Virginia. Admittedly, a landed gentry had a degree of inherited power. The disparity in wealth and power among the agrarian class was tolerable, because these resulted from working the land. The broad availability of land and the nature of agricultural work would keep such differences within appropriate limits. On the other hand, a “paper system” of banking and commercial speculation created exorbitant wealth dangerous to society. Such a paper aristocracy relied on patronage and on taxation of productive farmers and laborers to maintain itself.

Taylor’s acceptance of inequality of landed wealth as sufficiently innocuous not to threaten personal liberty or republican self-government touched on a ticklish point for American agrarians. If republican government depended on broad participation by a politically fit and independent people, exercising their freedom through their connection with the land, was it not obligatory on republican government to assure broad equality in land ownership? Those who wrote passionately about the republic of yeoman farmers and artisans inevitably had significant land holdings themselves. Taylor, for example, at one point owned three plantations in Virginia and thousands of acres of western lands, so there was a limit to how far he was willing to press agrarian fundamentalism. There was the scent of self-interest in their discussions when they opposed proposals to redistribute land through “agrarian laws.” The only estates that were redistributed were those seized from Loyalists during the Revolutionary War, and even those were generally sold to purchasers of substantial means, often for speculation.

The opposition to such redistribution was broad and deep among those who determined policy. Jefferson may have been a supporter of the idea of equality in landed estates, but was less enthusiastic about redistributive laws. As he wrote in a letter to Joseph Milligan on April 6, 1816, “To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of [political] association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”

Madison devoted considerable attention to the matter in the debates over the Constitution. He was strongly critical of the more enthusiastic exponents of agrarianism and considered the whole doctrine potentially turbulent. At the Philadelphia Convention, Madison warned about the “leveling spirit” manifested in the tax rebellion of farmers in western Massachusetts in 1786, known as Shays’ Rebellion:

“An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symtoms [sic], of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded agst. on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst.?”

In short, as John Adams succinctly observed in 1790, “Property must be secured, or liberty cannot exist.” People were equal in that no one should be dependent on the will of another, and property, in particular land, made this independence possible. The way to such independence was not, however, through radical redistribution schemes but through the acquisition of plentiful land. Adams observed in a May 26, 1776, letter to James Sullivan:

“The balance of power in a society accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society, to make a division of land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will take care of the liberty, virtue and interest of the multitude, in all acts of government.”

Americans at the Founding and for several generations thereafter saw themselves and their communities as naturally fit for republicanism precisely because they were “a people of property; almost every man is a freeholder.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Will Morrisey

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Guest Essayist: Andrew Langer
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

In the true spirit of the American founding, George Mason’s assertion during the Federal Convention of 1787 deeply resonates with our contemporary political and social landscape. As he opined, a lack of virtue and unchecked corruption pose significant threats to the integrity and endurance of our government. Today, as we explore the principle of the appropriate role and purpose of government in protecting people from violence and fraud, we must bear these foundational truths in mind. We must also heed the wisdom of Mason, understanding the immense potential of the government as a force for good, but also the catastrophic possibilities when it strays from the path of virtue and integrity.

At its most fundamental level, the government exists to serve and protect its citizenry, a contract defined and limited by the United States Constitution. In this regard, the state’s role as a protector against violence and fraud becomes manifestly clear. This duty underscores the necessity for law enforcement agencies, a system of justice that ensures accountability, and regulatory mechanisms that guard against fraudulent actions. It is within these parameters that the government can and must act, without overstepping its boundaries and encroaching upon individual liberties.

Mason’s words have their roots in the prose written by his fellow Virginian, Thomas Jefferson, in the Declaration of Independence: “to secure… rights, Governments are instituted among Men” and is the very the heart of the United States’ philosophy and the very nature of democratic governance. These words are an affirmation of the contract between the governed and their governors, denoting a central truth of political theory and civil society: the state’s primary purpose is to protect the individual rights of its citizens.

Liberty has an intrinsic value, not as an abstract philosophical concept, but as a practical, living principle that shapes our everyday lives. The freedom to pursue our dreams, express our thoughts, associate with others, and engage in economic transactions without undue restraint is what gives life its richness and vitality. Yet, as vital as individual liberty is, it does not exist in a vacuum. Rights inevitably come into conflict, and when they do, a mechanism is needed to adjudicate those conflicts in a fair and just manner. This is where government steps in.

The role of government in protecting individuals from harm when individual rights conflict is a delicate balancing act. The government must tread carefully to prevent undue encroachments on individual liberty while simultaneously safeguarding the common good. It must protect individual rights without creating a lawless society where might makes right and the strongest prevail over the weakest. In doing so, it preserves the delicate balance between individual freedom and societal stability.

Consider the realm of property rights. Suppose one person’s use of their property causes harm to another’s property, such as pollution flowing downstream from a factory to a farmer’s field. Here, the rights of one individual or group, the factory owners, are in direct conflict with the rights of another, the farmers. If left unresolved, such conflicts can escalate, potentially leading to animosity, legal battles, and even violence.

In this instance, government, as the arbiter of rights and protector of the public good, has a vital role to play. By setting and enforcing regulations that prevent harm, it can ensure the factory owner’s right to conduct business without infringing on the farmer’s rights to a clean environment and productive land. In this way, the government upholds the tenets of liberty and justice for all, ensuring that no individual or group’s rights supersede another’s to the detriment of society.

All just law is rooted in this concept: where rights come into conflict, the party that is more aggrieved/harmed is supposed to be protected by the law. However, as the government steps in to mediate such conflicts, it must be careful not to overreach, a common pitfall in the quest to ensure harmony. Overreach can manifest in excessive regulation, infringing upon individual freedoms, and stifling economic prosperity. The challenge lies in striking the correct balance, respecting individual rights while preserving the common good.

Moreover, it is vital to remember that government itself is not immune to the temptation of overreach. This is precisely why the Founding Fathers, mindful of the potential for tyranny, insisted on a system of checks and balances to prevent any one branch of government from gaining too much power. It is incumbent upon us, as citizens, to remain vigilant against any such overreach, to question and challenge when necessary, and to insist on our rights and freedoms.

The delicate balance between liberty and security is a critical concern. Too much emphasis on security, and we risk suffocating individual freedom; too little, and we expose ourselves to the danger of anarchy and lawlessness. This tension forms the crux of the government’s challenge in protecting its people from violence and fraud while preserving the inalienable rights of its citizenry.

However, in today’s increasingly complex society, the government’s role is constantly being tested and redefined. As we delve further into the 21st century, we find ourselves grappling with unprecedented challenges—cybercrime, international terrorism, economic fraud on a massive scale—that blur the boundaries of the state’s role. In this context, it is crucial to reassert the primacy of integrity and virtue, two pillars Mason identified as essential to good governance. Without them, the government risks becoming a tool for the powerful, rather than an institution that serves its people.

Indeed, Mason’s concerns about corruption, temptations, and the erosion of government integrity remain as pertinent today as they were in the 18th century. The key to preserving the integrity of our government lies in adhering to the principles of transparency, accountability, and the rule of law. Our elected officials must remain accountable to the people they serve, demonstrating their commitment to these ideals in every decision they make. Additionally, the government’s regulatory role must be applied uniformly, without favor or prejudice, to ensure a level playing field for all.

Mason was also prescient in his prediction of how unchecked corruption could spell the end of a government. In this, we are reminded of the ever-present need for vigilance and active participation from the citizenry. The fight against corruption and fraud should not be left to the government alone. As citizens, we must hold our government accountable, demanding transparency and integrity in all its dealings. Furthermore, we should also resist the allure of complacency, instead embracing our civic duty to contribute to the democratic process, whether that be through voting, peaceful protest, or public discourse.

Mason’s words serve as a beacon, guiding us through the murky waters of modern governance. As we navigate the complexities of the 21st century, his emphasis on virtue, the prevention of corruption, and the importance of a government that serves its people rather than its self-interests continues to ring true. As we affirm the government’s role in protecting us from violence and fraud, we must also insist on its adherence to the principles that have defined our nation since its inception: liberty, integrity, and the unyielding pursuit of justice. Only by doing so can we ensure the preservation of our government and the endurance of America.

The role of government as the protector of individual rights when they come into conflict is an essential one. It balances the scale between liberty and societal stability, ensuring harmony among conflicting interests. Yet, it must perform this duty with due respect for the very rights it is sworn to protect, treading the line between regulatory oversight and individual freedom. As we navigate these complex issues, we must remember that preserving liberty is the ultimate goal, and a government that respects this will indeed be a government of the people, by the people, for the people.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: James P. Pinkerton

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The new movie Oppenheimer offers us a window into the past: Into a key moment in the evolution of our national defense—and along the way, the film underscores the importance of fending off treason.

The authors of the U.S. Constitution, steeped as they were in history, knew all about the danger a nation faced from betrayal. In particular, the Catilinarian Conspiracy of the ancient Roman Republic loomed large in their minds, such that in the 18th century, “Catiline” became synonymous with “traitor.” Yet that same knowledge of history told the Americans that oftentimes in the past, mere dissent, peaceful and legitimate, had been labeled as treachery, the easier to crush the dissenters. So Article Three, Section Three, of the Constitution carefully circumscribes the offense; it declares that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Explaining this narrowly constructed language in The Federalist Papers, the essays aimed at encouraging the ratification of the Constitution, James Madison wrote, “Artificial treasons have been the great engines by which violent factions . . .  have usually wreaked their alternate malignity on each other.” That is, bad regimes were too easily tempted to label troublemakers as traitors. Seeking to reassure Americans that their rights and liberties would be protected, Madison pledged that the Constitution establishes “a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” In other words, no overbroad definition of treason, and no collective punishment—no reigns of terror—for the acts of an individual.

The Constitution’s sense of moderation and due process informs the new movie about J. Robert Oppenheimer, director of the laboratory at Los Alamos, N.M., which developed the atomic bomb during World War Two. Oppenheimer was a scientific genius blessed with, in addition, great skills of organization and leadership. And he was also at least something of a communist. Thus the paradox in the film: Oppenheimer was needed for national defense, and he was also a potential security threat.

Beyond any reasonable doubt, the atomic bomb has been vital to defending America and protecting American lives. During World War Two, there was reason to believe that Nazi Germany was building an atomic weapon, and we had to have the bomb before Hitler. And even after that satanic regime was crushed, the other enemy, Japan, was still fighting, still killing Americans; the Okinawa campaign of April-June 1945 led to the death of some 12,500 GIs, as well as more than 110,000 Japanese. Yet despite these terrible defeats, Japan showed no inclination to give up its hopeless fight—until the U.S. used atomic bombs in August 1945. The carnage of Hiroshima and Nagasaki notwithstanding, Japan’s surrender saved hundreds of thousands of American lives, and many millions of Japanese lives. To illustrate the depths of the challenge the U.S. faced, in 1946, Karl Compton, president the Massachusetts Institute of Technology, reported on his conversation with a Japanese military officer who suggested that were it not for the intervening surrender, every Japanese would have died combating Americans. “We would have kept on fighting until all Japanese were killed, but we would not have been defeated,” the officer told Compton. The population of Japan at the time was 77 million.

So Oppenheimer was a hero of our national defense, just as Americans were heroes for mobilizing the resources needed to build the bomb. The Manhattan Project employed a total of 610,000 Americans. And some of those Americans were traitors, spies for the Soviet Union. Only after World War Two, with the onset of the Cold War against the Soviets, did we discover the espionage of such figures as Klaus Fuchs, David Greenglass, and Ted Hall. All had worked at Los Alamos under Oppenheimer.  Fuchs and Greenglass were tried, convicted, and imprisoned—but in both cases, for less than a decade (Fuchs served his time in Britain). As for Hall, he was stripped of his security clearance, but allowed to continue his career as a physicist.

This pattern of treachery, of course, reflected on Oppenheimer himself. In 1954, after a quasi-judicial proceeding lasting two months—complete with witnesses to be examined and cross-examined by lawyers—Oppenheimer was stripped of his security clearance. Yet even so, he was free to live his life; he wrote a book, lectured widely, toured the world (although not the USSR or any other communist country), and even received an award from President Lyndon Johnson in 1963. He died in 1967.

So we can see: The Constitution’s carefully crafted words about treason—and the overall tone of restraint applied to the charge—prevented any of these convicts and suspects from drastic punishments.  (Other spies of that era were treated more harshly.)

The freedoms accorded to us by the Constitution have made us prosperous, of course, in no small part because liberty makes the U.S. a magnet for talent from around the world—four of the top Manhattan Project scientists were born in Hungary, and none of them were spies. Those strengths give us the capacity to build wonder-weapons such as the atomic bomb. And yet that same freedom makes it harder for us to keep secret our secrets.

So this is our Republic: If we can keep it.

James P. Pinkerton worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W. Bush and in their 1980, 1984, 1988 and 1992 presidential campaigns. In 2008, he served as a senior adviser to Mike Huckabee’s presidential campaign. From 1996 to 2016, he was a Contributor to the Fox News Channel. A frequent contributor to Breitbart, The Daily Caller, and The American Conservative, he is a senior fellow at the America First Policy Institute. He is finishing a book on directional investment.

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Parthiv Varanasi is an 18-year-old who is graduating from Plano East Senior High School in Plano, TX. He plans to attend the University of Texas at Austin to pursue a double major in Mathematics and Economics and wants to work in international economic policy eventually. Outside of school, Parthiv has been playing tennis for 11 years competitively and has been on the varsity tennis team for four years, serving two of them as the captain of the team. He has also been a leader in his high school’s JROTC program for four years reaching the senior-most leadership position as the Battalion Commander. In the JROTC program, Parthiv led the Academic team and qualified for the JROTC Leadership and Academic Bowl International Championship. In his free time, he enjoys cooking and being active through running and rock climbing. During his time in high school, Parthiv helped raise over 15,000 pounds of food for homeless people, wrote a 4000-word essay evaluating the 17th amendment, and got selected to represent his peers and programs on the Principal’s Advisory Committee and the Student-Athlete Leadership Team.

Guest Essayist: Ron Meier

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

The Oath of Office for elected and appointed officials of the United States government, including Congressional Senators and Representatives, states that they will “support and defend” and “bear true faith and allegiance” to the United States Constitution. Yet, the first time the Constitution was read aloud in the Congress was in 2011. Every two years since, at the beginning of each new Congressional term, members of the House from both parties, for most years since 2011, read aloud the Constitution.

Many Americans support Congress taking time (approximately 45-90 minutes) at the beginning of each Congressional session to read aloud the document they pledge to support; many other Americans consider the reading a waste of time. Videos of the readings seem to support the latter opinion. The only members of Congress in the Chamber during the reading appear to be those who read passages. If all members are not present following along, one can easily conclude that there is little to no value to the exercise.

In September, 1787, upon completion of the writing of the Constitution, a Mrs. Powel is reported to have asked Benjamin Franklin, upon exiting Independence Hall in Philadelphia, “Well, Doctor, what have we got, a republic or a monarchy?” Dr. Franklin replied “A republic, if you can keep it.”

The creation of the document, the Constitution, over the summer of 1787 involved much heated debate among the Convention’s delegates, focused primarily on the concern over the transition from a Confederation, where the states were relatively independent and sovereign, to a Representative Republic, which many feared would eventually become more authoritarian in practice, leaving the states with little to no sovereign powers. New York’s ratification was a concern.  Alexander Hamilton and John Jay of New York and James Madison of Virginia took it upon themselves to write the Federalist Papers for publication in New York newspapers to promote ratification by New York.

Jay also wrote a pamphlet entitled Address to the People of New York in April 1788, to further convince New York to ratify the Constitution. At the time of his Address, only six of the required nine states had ratified the Constitution. New York ratified the document in July, after the required nine had been achieved.

After the Constitution was ratified, the desired “more perfect union” quickly reflected Madison’s warning of faction, expressed in Federalist 10. Jefferson and Madison formed the Democratic Republican Party to oppose their perceived centralized national government tendencies of the Federalist Party of George Washington and John Adams. Over the past 231 years, the “more perfect union” has been under constant attack and counterattack by factions.

Some of today’s influential politicians believe that the 1787 Constitution no longer is relevant in a more pluralistic and modern nation than existed in 1787. Some others differ and believe that the core principles of the Declaration of Independence and the Constitution reflect the best aspirations of the nation formed in the 18th century, that those aspirations remain relevant today and must be retained.

So, many questions are worth asking. For example, if a member of Congress professes to be a Socialist and intends to propose legislation that makes the country more Socialist in nature, is he or she not “bearing true faith and allegiance” to the Constitution? If a member of Congress encourages universities to stifle the speech of members of opposition parties in the classroom and at on campus events, is he or she rejecting the First Amendment to the Constitution, not “supporting and defending” the Amendment? Many other similar questions can be posed.

All factions over the past 231 years have believed that they have better plans for how the American government should be structured. But, John Jay’s 1788 remarks on that topic are as relevant today as they were in 1788.

Jay also noted in his address to the People of the State of New York that:

“zeal for public good, like zeal for religion, may sometimes carry men beyond the bounds of reason. Remember that a power to do good, always involves a power to do harm. The objections made to it (the Constitution) are almost without number, and many of them without reason—some of them are real and honest, and others merely ostensible.”

He acknowledges man’s hubris, saying:

“Let it be admitted that this plan, like everything else devised by man, has its imperfections: That it does not please everybody is certain and there is little reason to expect one that will. It is a question of great moment to you, whether the probability of your being able seasonably to obtain a better, is such as to render it prudent and advisable to reject this, and run the risk.

They do not hold it up as the best of all possible ones, but only as the best which they could unite in, and agree to. What reason have we at present to expect any system that would give more general satisfaction?”

Today, some on both sides of the political divide suggest that we should have a Constitutional Convention. Jay addressed this also.

“Some will answer, let us appoint another Convention. This reasoning is fair, and as far as it goes has weight; but it nevertheless takes one thing for granted, which appears very doubtful; for although the new Convention might have more information, and perhaps equal abilities, yet it does not from thence follow that they would be equally disposed to agree. The contrary of this position is the most probable. You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists. We have unhappily become divided into parties.

Nor will either party prefer the most moderate of their adherents, for as the most staunch and active partisans will be the most popular, so the men most willing and able to carry points, to oppose, and divide, and embarrass their opponents, will be chosen. The same party views, the same propensity to opposition, the same distrusts and jealousies, and the same unaccommodating spirit which prevail without, would be concentrated and ferment with still greater violence within. As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason. To expect that discord and animosity should produce the fruits of confidence and agreement, is to expect “grapes from thorns, and figs from thistles.”

A discordant warning follows:

“But if for the reasons already mentioned, and others that we cannot now perceive, the new Convention, instead of producing a better plan, should give us only a history of their disputes, or should offer us one still less pleasing than the present, where should we be then? The old Confederation has done its best, and cannot help us; and is now so relaxed and feeble, that in all probability it would not survive so violent a shock. Then “to your tents Oh Israel!” would be the word.”

Jay concludes, saying:

“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect. are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men everywhere, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.

Some of our Congressional Representatives and Senators may sincerely believe that a better government can be formed than the Republic under which we have prospered for 231 years. If so, then they should meet, not in a Constitutional Convention, but in study groups outside of Congress to discuss, plan, and test their ideas against history. In the meantime, their duty, expressed in their oath of office, is to better understand the Constitution under which they serve and to faithfully uphold its principles and laws. They should not propose legislation, nor ignore enforcement of existing legislation, that they can, and should, know is inconsistent with the Constitution to which they have obligated themselves to “bear true faith and allegiance” as well as to “protect and defend.”

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.

Sources:

Bowen, Catherine.  Miracle at Philadelphia.  New York:  Little, Brown and Company, 1986

“I Do Solemnly Swear” – The Oath Of Office And What It Means | FedSmith.com

1787: Jay, Address to the People of N.Y. (Pamphlet) | Online Library of Liberty (libertyfund.org)

Order of States in Ratification of the US Constitution (thoughtco.com)

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

In late 1782, General George Washington was encamped with the army at Newburgh, New York and was deeply troubled. He had won the Revolutionary War with the stunning allied victory over the British at Yorktown and awaited word of a preliminary peace treaty that had been signed in France. However, the British still occupied New York City. Virginia revoked its approval of a five-percent tariff which meant that Congress had little funds. Therefore, it could not pay the officers and soldiers of the Continental Army who were increasingly disgruntled and ready to mutiny. Washington would soon face one of his greatest crises that would test his character and the survival of the republic.

Throughout the war, as Commander-in-Chief, Washington had scrupulously deferred to the civilian authorities of the states and the national Congress. Even when the states and Congress did not pay the troops or offer much-needed supplies, weapons, and money, the general always supported the republican government. He was often frustrated by the civilian government as it hampered the war effort, but he set the right precedents for civil-military relations within a republic.

On December 28, the officers sent a delegation from Newburgh to Congress with a threatening petition that read, “We have borne all that men can bear – our property is expended – our private resources are at an end, and our friends are wearied and disgusted with our incessant applications.” They warned, “Any further experiments on [our] patience may have fatal effects,” and hinted at an overthrow of Congress and civilian government.

A few politicians in Philadelphia saw an opportunity to use the anger to secure a more powerful central government rather than the weak government under the Articles of Confederation. For example, financier Robert Morris threatened to resign if Congress did not pass a tax to collect revenue to pay the soldiers. Representative Alexander Hamilton and others also wanted to use the threats of the officers to pressure Congress to adopt greater powers.

Despite the woeful financial situation, Washington did not stand alone in his support of Congress. His trusted friend and general of the artillery, Henry Knox, was a patriot who refused to take the bait of his fellow officers and defended the civilian government. Knox told them, “I consider the reputation of the American Army as one of the most immaculate things on earth. We should even suffer wrongs and injuries to the utmost verge of toleration rather than sully it in the least degree.”

In February, Hamilton tried to persuade Washington to join the scheme. Hamilton wrote, “The claims of the army urged with moderation, but with firmness, may operate on those weak minds . . . so as to produce a concurrence in the measures which the exigencies of affairs demand.” Washington would have none of it and responded that the consequences of a general mutiny against Congress “would at this day be productive of civil commotions and end in blood. Unhappy situation this! God forbid we should be involved in it.” He cautioned Hamilton that, “the army is a dangerous instrument to play with.”

In mid-March, General Horatio Gates, the hero of the American victory at the Battle of Saratoga in 1777, joined the conspiracy. Gates’ aide penned an address to American soldiers that fanned their anger towards Congress: “Faith has its limits, as well as temper; and there are points beyond which neither can be stretched.” Gates called the officers to a meeting to discuss the situation.

The rebellion against the government was averted by the character of George Washington, who dedicated himself to the republican principle of military deference to the civilian government. He learned about the Newburgh conspiracy and strode into the appropriately-named Temple of Virtue on the symbolically-fraught March 15—the Ides of March. In the Newburgh Address, he called on his soldiers to stop those who would “overturn the liberties of our country, and who wickedly attempt to open the flood gates of civil discord.”

Washington continued: “This dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country?” His view of patriotism was rooted in Roman virtue—serving the republic, acting with reason over passion, putting country over himself, respecting civilian authority.

When the general’s patriotic appeal fell somewhat flat and his audience seemed unpersuaded, Washington made a dramatic appeal based upon his love of theater. He pulled out his glasses while stating, “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country.” Most of the men present had never seen their general use eyeglasses; this simple action reminded the officers that Washington, like the men he led, had made great sacrifices for the cause of liberty. The men renounced their intent to overthrow Congress and pledged their support for the republican government.

Washington quelled the rebellion in the army and established the right precedent for civilian control of the military. He refused to become a Caesar who overthrew the Roman republic for his own glory and became a modern Cincinnatus who served the republic in its hour of need and returned to his plow. The Newburgh Conspiracy became Washington’s finest hour.

The history of American civil-military relations has seen its share of challenges from ambitious individuals. Perhaps the most notable and infamous case was President Harry Truman firing an insubordinate General Douglas MacArthur during the Korean War. In each challenge, the example laid down by Washington held, and the American republic continued to be governed by the constitutional rule of law and popular self-rule rather than military dictatorship.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Guest Essayist: Tony Williams
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

When George Washington assumed the office of the presidency in 1789, the new republic faced a world fraught with imperial rivalries of the European great powers. This struggle played itself out in North America where the British ruled Canada and had troops stationed in forts along the northwestern frontier of the United States. The Spanish held Mexico, the West, and the Floridas. Meanwhile, the new nation soon went to war with several hostile Native American tribes on the frontier. Several powers, including the French, contended for the valuable sugar islands of the West Indies, or Caribbean. The British Empire excluded its former colonies from lucrative imperial trade.

Washington and his Cabinet along with members of Congress had to formulate the principles and policies of American foreign policy according to the dictates of constitutionalism, American ideals, and prudence. The outbreak of the French Revolution in 1789 and its expansionary wars compounded the difficulties of American diplomacy in the early 1790s.

President Washington had to navigate these shoals keeping in mind that the new nation was weak compared to the great empires. The United States had only a small army and not much of a navy. The economy was similarly weak as the country was locked out of former markets in the British West Indies and had to get its public credit in order by paying off the Revolutionary War debt. National security was a priority for the Washington administration but securing it would not be easy.

When the French revolutionaries sought to spread the fires of revolution to liberate the people of Europe from monarchy and aristocracy, Washington had to decide an appropriate response for the new nation. Washington and his Cabinet debated the issue and prudentially decided that it was ill-prepared for war and would not join the French despite their 1778 treaty from the American Revolution. The United States would remain neutral with a presidential Proclamation of Neutrality.

This led to an internal debate within the administration that was played out in essays published in partisan newspapers. Among them were Alexander Hamilton writing as Pacificus, who urged presidential prerogative over asserting neutrality, and James Madison writing as Helvidius, who thought the Congress had power over war and peace. The debate fueled the emerging contentious party system and split the administration into factions.

The Washington administration pursued a policy of trade and non-interference, but the British and French were at war and began seizing American vessels because they traded with each of the belligerents. Soon, Washington dispatched John Jay to Britain to resolve the seizure of ships, impressment of American sailors into the Royal Navy, and outstanding issues from the Revolutionary War including western British forts.

The resulting Jay Treaty benefited the United States, including some trade concessions in the West Indies, but it did not resolve many of the key issues including impressment. Moreover, it further inflamed partisan tensions among Americans and in Congress. Even worse, as it soothed relations with Great Britain, the French saw it as an Anglo-American alliance aimed against France. The French became more belligerent and ramped up their seizure of American vessels leading to an informal war that continued into the John Adams administration.

In 1795, the administration signed the Pinckney Treaty with Spain which extended the western boundary of the United States to the Mississippi River. Americans also won long-contested rights to free navigation of the Mississippi River to conduct trade.

By the end of his second term, President Washington could proudly survey the diplomatic accomplishments of his administration. From a position of relative weakness, he had averted war, successfully negotiated important treaties, established a strong presidency respecting foreign policy, and placed the country in a stronger position in a dangerous world. As he prepared to retire and worked on his Farewell Address to his fellow countrymen, he used his decades of experience as general and president to lay down certain principles of American foreign policy.

In his Farewell Address, Washington asserted that it should be the policy of the United States to “steer clear of permanent alliances with any portion of the foreign world.” He explained that it should be the principle of the United States to establish “peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.”

Washington promoted an enlightened and principled national self-interest in foreign relations. The United States would pursue its self-interest trading with other nations and forming temporary alliances in its interest. As the French example proved, a nation might be a friend at one point but could become an enemy at another. So, the United States would not form a permanent alliance that would bind it in an untenable situation. Instead, as with all nations, it would pursue its own interest.

However, Washington strikes an important chord of principled self-interest according to the founding ideals of an exceptional nation. In the Address, he speaks of “amity,” “justice,” “liberality,” “good faith,” and “harmony” as the principles guiding American relations with the other countries of the world. He proposed the idea that America should demonstrate a good example for the world. He wrote, “It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence.”

American foreign policy has changed over the last two centuries. Successive administrations through the nineteenth century generally followed Washington’s vision; however, during the twentieth century, President Woodrow Wilson helped commit the United States to “making the world safe for democracy” and exporting it abroad. Wilsonian internationalism meant that the United States would not merely be a “City Upon a Hill” for other countries to emulate its ideals but would take an active role in bringing about more democratic regimes. This expansive and controversial foreign policy was at odds with Washington’s vision in the Farewell Address. George Washington’s words and example reminds us to exercise justice and good faith toward other nations but also defending American national security with enlightened self-interest.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Essay Read By Constituting America Founder, Actress Janine Turner

 

“to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

A significant point of contention in the debates over the proposed United States Constitution was the maintenance of a peacetime army. Some stalwart opponents, like Eldridge Gerry of Massachusetts, wanted a ban on a “standing” army written into the Constitution. Others wanted the text to specify a maximum number and an expressly limited peacetime use, such as for border garrisons. In the minds of many Americans, standing armies were a direct and dire threat to the people’s liberties. Recalling their use by the last Stuart kings and the debate over them in the English Glorious Revolution of 1688, those Americans saw such an army as a tool of monarchical absolutism unfit for a republican system.

Instead, those critics wanted to rely on the militias of the states as the principal armed forces. Militia service long had been the mainstay of colonial self-government. It extended to all men able to bear arms, with some variations as to age and race. Universal service was a practical necessity to suppress insurrections and counter Indian raids. It also maintained the ancient republican connection between military service and qualification to participate in the community’s public affairs. Laws required individuals to keep arms sufficient to serve in the militia and, in some communities, to bear those arms while walking about.

The critics’ alarms about the Constitution were only magnified when they saw that the proposed charter also gave Congress the power to organize, arm, and discipline the militia, and to govern the militia employed in the service of the United States. They considered this to be an obvious attempt to deprive the states of control over their militias by establishing a highly trained national “select militia” composed of only a small portion of the whole eligible militia, in effect creating a standing army by another means. The distinction between the whole militia and a select militia was a common practice at the state level and was also followed by the federal government with the Militia Act of 1792. Although men fifty-five years old might be part of a state’s whole militia, they were unlikely to be called out for actual service at that age. Alternatively, critics charged that these provisions allowed Congress to neglect funding and training the militia altogether.

Supporters of the Constitution pointed to the Revolutionary War to expose the deficiencies in armament and training of the militias. General George Washington wrote the Continental Congress about his wartime experience with the militia:

“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….”

The general tenor of Washington’s letter reflected a common critique. Alexander Hamilton, a former militia officer who also served in the regular Continental Army, was more generous in Essay No. 25 of The Federalist, but nevertheless made similar points:

“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.”

It was not enough for the Constitution’s supporters to point out the practical need for a regular army. Thoughtful critics might accept that, but still be alarmed by the danger an army posed to republican liberty. James Madison in Essay No. 46 of The Federalist sought to assuage those concerns:

“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still, it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Madison lay great stock in three facts, that Americans were armed, that they could form themselves into militias that would still be commanded by men chosen by them or their states, and that there existed subordinate governments—the states—to which they were more attached than to the national government. As he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

The critics were not persuaded. True, even if Congress set up a select militia, or, worse, if Congress refused to fund the militia, the states could still, under their reserved powers and general principles of federalism, maintain militias outside those parameters. That authority was eventually confirmed by the Supreme Court in 1820 in Houston v. Moore. The problem was what else Congress might do. After setting up a select militia, Congress could, the critics reasoned, then pass laws to disarm the rest of the citizenry. Something else was needed to protect the people’s liberties.

Madison in that same essay had noted the distinction between the American states and other countries. In the kingdoms of Europe with their military establishments, “the governments are afraid to trust the people with arms.” But something more concrete than reliance on the willingness of politicians to trust the people was needed. American politicians are not necessarily and inherently more respectful of the people’s liberties or less prone to oppressive actions than the European versions. If Congress and the President join to form a national tyrant, and the states have been rendered impotent, the people have the right to organize themselves to oppose that tyrant, just as the Minutemen did to King George and his regular army. As the Declaration of Independence averred, each person is endowed by the Creator with certain “unalienable rights,” and each person individually has the right to defend his life and liberty, even if the right as a practical matter sometimes might be carried out collectively. As concerns a tyrannical government, that right normally might be exercised through the state’s formal militia structure, but it does not depend on such a structure.

It is this right of self-defense exercised through a personal right to keep and bear arms that is reflected in the language of the Second Amendment. Supreme Court Justice Joseph Story made that point in a famous passage in his influential 1833 work on the Constitution. “The militia is the natural defence of a free country,” he wrote. “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.”

The right to life, including the right to defend oneself and others from those who wantonly pose an imminent threat to that right, is the most fundamental of all rights. No government may deprive an individual of that right, including the right of defense by means reasonable and commensurate to the threat. That right of defense extends to defense of the community. It is an individual right. While, in the latter case, it is usually exercised collectively, that is not a requirement and is not the basis of the right’s existence.

The connection between the individual nature of the right and its practical collective application when used in defense of the community is reflected in the words of the Second Amendment. As the late Justice Antonin Scalia explained for the Supreme Court in D.C. v. Heller, the right protected in the amendment’s operative clause is the individual right to keep and bear arms. The prefatory clause explains the concerns that drove the adoption of the amendment, the right of the people to organize themselves into a militia to resist tyranny even if Congress and supine state governments seek to disarm them.

The formulation of the Second Amendment through a prefatory and an operative clause is unusual among those in the Bill of Rights. But the approach was not uncommon in other settings. The original proposal by James Madison was clearer, but the definition of the right and its distinction from the concerns that gave rise to the amendment are similar: “The right of the people to keep and bear arms shall not be infringed; a well regulated militia being the best security of a free country ….”

Likewise, various state proposals to amend the Constitution followed this structure. Thus, the Virginia convention observed in relevant part on June 27, 1788, “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit ….” Lest the formulation “the people” suggest only a collective right, that same term was used by the Virginia convention to define the right of the people to freedom of speech and of writing and publishing their sentiments. Yet such a right is clearly one that is exercised individually.

Other state ratifying conventions generally used the same structure for various proposed amendments. The report of the Pennsylvania Minority declared, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals, and as stranding armies in the time of peace are dangerous to liberty they ought not to be kept up ….”  The New York convention urged, “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State ….” [Emphasis in the original.]

What if there were no Second Amendment? Ultimately, that would make no difference. The right to life and self-defense is a fundamental or natural right conferred not by the Constitution as a matter of political grace but, in the language of the Declaration of Independence, by the Creator. It is a long-recognized right inherent in each human that even as fervent an apologist for powerful government as Thomas Hobbes accepted. As to the right to defend the community by organizing a militia, that is exactly what the colonists did at Lexington and Concord when the British sent a military force to seize American weapons. It was this engagement that started the Revolutionary War and led directly to the Declaration of Independence with its endorsement of armed resistance to tyrannical government.

The Supreme Court has embraced this reasoning as to state and local laws in cases such as McDonald v. Chicago. After all, the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government. States and cities are, however, limited by the Fourteenth Amendment, which includes protection against legislative violation of fundamental rights of life, liberty, and property. The rights to individual and collective self-defense, including the right to keep and bear arms and the right to organize a militia, are integral to all three.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Essay Read By Constituting America Founder, Actress Janine Turner

 

“One nation, under God, indivisible, with liberty and justice for all.”[i]

As most Americans know, our pledge to the American flag concludes with those words; where did that phrase come from?

We owe a minister named Francis Bellamy for the original inspiration for our pledge. Bellamy went to work for a Boston-based magazine: Youth’s Companion[ii] which was published from 1827–1929, an impressive 102-year run. Bellamy’s pledge was not exactly what we recite today: it originally read “my flag” without saying whose or what nation’s flag was the object of the pledge. That was rectified in 1932 when “of the United States of America” was substituted.

The phrase “under God” was added in 1954 by an act of Congress[iii] at the urging of President Dwight D. Eisenhower, who was responding to citizen petitions.

Is America in fact “one nation under God?” Well, certainly we are – in one respect we cannot not be; the sovereign God overlooks our affairs whether we would like Him to or not, whether we acknowledge his presence or not, whether we worship Him or ignore Him. In that sense the phrase is true and will always be true. But let’s pick the phrase apart a bit.

There is disagreement on this point today,[iv] some arguing that America is a country and/or a federation or union of sovereign states, and not a nation. Some point to the fact that the word “union” appears six times in the Constitution; “foreign nations” and “the law of nations” are the only use of the word “nation” and neither refers directly to the United States. But the evidence is strong that the most prominent of America’s Founding Fathers considered us a true nation.

After the Constitution went into effect with the ninth ratification, various Founding Fathers did refer to “the Union” in speeches and letters, but they frequently used the word “nation” as well.

Alexander Hamilton compared us with “other nations” almost incessantly as Washington’s Secretary of State. But his boss used the word nearly as much. In fact, George Washington can rightfully be called one of the strongest nationalists of the founding era.

Even before the Constitution was ratified, Washington, as a private citizen albeit a celebrated one, wrote a circular letter to the Governors of the several states. He ended the letter by stating:

“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to Government; to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large; and, particularly, for their brethren who have served in the field; and finally, that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacifick temper of the mind, which were the characteristicks of the divine Author of our blessed religion; without an humble imitation of whose example, …, we can never hope to be a happy Nation.”[v]

In his first inaugural address, drafted by his friend and new Congressman, James Madison, Washington said:

“No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.”[vi]

In his first Thanksgiving Proclamation as President, Washington began by insisting that “it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.” Wouldn’t it be fitting and proper to read President Washington’s Thanksgiving proclamation each year at church on that holiday?

To a Jewish congregation in Savannah, Georgia, President Washington wrote:

that Jehovah God, who had delivered the Hebrews from their Egyptian Oppressors … has been conspicuous in establishing these United States as an independent Nation.”[vii]

James Madison called us a nation;[viii] Thomas Jefferson,[ix] James Wilson,[x] John Adams and John Jay[xi] did as well.

There is no doubt America’s Founding Fathers viewed us as “a nation under God;” and for them, that meant the God of the Bible. Donald Lutz, professor of political science at the University of Houston, reports: “Scholars in recent years seem to have forgotten the degree to which religious ideas permeated the political world of the seventeenth and eighteenth centuries.”[xii]

Carl Sandburg, a Pulitzer Prize winning poet and author, once wrote: “When a nation goes down, or a society perishes, one condition may always be found; they forgot where they came from. They lost sight of what had brought them along.”[xiii]

I’ll conclude with the words of Ronald Reagan, who said: “If we ever forget we are one nation under God, we will be a nation gone under.”[xiv]

The United States can never be a nation that is not “under God.” We can either be a nation that acknowledges that fact and seeks God’s superintending care, one that humbly asks God to heal our land,[xv] or we can be a nation that insists on going it alone. The choice is ours.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] https://www.ushistory.org/documents/pledge.htm.

[ii] http://youthscompanion.com/.

[iii] https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title4-section4&num=0&edition=prelim.

[iv] https://mises.org/wire/united-states-not-nation-problem-national-conservatism

[v] https://founders.archives.gov/documents/Washington/99-01-02-11404.

[vi] https://teachingamericanhistory.org/document/first-inaugural-address-gw/.

[vii] https://founders.archives.gov/documents/Washington/05-05-02-0279.

[viii] James Madison, Federalist #46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

[ix] Thomas Jefferson, Notes in the State of Virginia: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.”

[x] James Wilson, Remarks at the Pennsylvania Ratifying Convention, November 26, 1787: “Governments, in general, have been the result of force, of fraud, and accident.  After a period of 6,000 years has elapsed since the creation, the United States exhibit to the world the first instance…of a nation…assembling voluntarily…and deciding calmly concerning that system of government under which they would wish that they and their posterity should live.”

[xi] John Jay, Federalists #2: “As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.”

[xii] Donald S. Lutz and Jack Warren, A Covenanted People; The Religious Tradition and the Origins of American Constitutionalism. 1987.

[xiii] https://www.brainyquote.com/quotes/carl_sandburg_400796.

[xiv] https://www.reaganlibrary.gov/archives/speech/remarks-ecumenical-prayer-breakfast-dallas-texas.

[xv] See: 2 Chronicles 7:14.

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.

“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.

Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?

Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.

Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?

All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.

A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.

In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”

Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”

In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]

The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.

As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”

Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]

Moreover, courts could disregard only those statutes which were clearly unconstitutional.

“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.

Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.

What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.

Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.

There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: J. Eric Wise
United States Congress, House Floor, United States Capitol, Washington, D.C.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Almost 250 years ago, on December 16, 1773, American colonists dressed as Mohawk Indians dumped tea into Boston Harbor protesting under a rallying cry of “No taxation without representation.” We call this the Boston Tea Party.

23 years ago, in May of 2000 Washington, D.C. changed the design of its license plates replacing the words “Discover and Celebrate” with “Taxation Without Representation.” This memorialized D.C. residents’ grievance that they have no voting representatives in Congress.

Suffice it to say, the principle of representation is an enduring opinion that is at the heart of what it means to be an American. But like many such opinions that spring from what Abraham Lincoln called “the mystic chords of memory” does anyone really know, concretely, what it means?

To understand, perhaps it helps to think about concepts of sovereignty. For the most part after the end of the Roman Republic most of Europe was ruled by kings or emperors. They ruled on a religious, revealed, and practical basis known as divine right of kings.

Derived from the Bible and history, divine right of kings relied on the authority of Abraham over his children, the authority of anointed kings beginning with Saul and David, and the authority of Caesar over Rome and its dominions. A single person embodies the sovereign for subjects, and that person’s authority comes down from divinely sanctioned anointing, according to hereditary rules and conquest.

The Scottish protested the oppressions of the English king, Edward II. In the Declaration of Arbroath, the Scottish appealed to their own divine right of kings through conquest.

“The Britons they first drove out, the Picts they utterly destroyed, and, even though very often assailed by the Norwegians, the Danes and the English, they took possession of that home with many victories and untold efforts.”

Contradictions aside, that was how most of Europe thought about the question of just government.

But did this mean they had no representation? To the contrary, when the English nobles at Runnymede in 1215 forced the king to sign the Magna Carta, representation in parliament became part of the English system of government though that system remained clearly under the notion of the divine right of kings. The French, whose monarchy was more absolute, had the Estates General, beginning in 1302 A.D. The German principalities of the Holy Roman Empire had the Imperial diet, as early as 777 A.D.

If there is any doubt about the compatibility of divine right of kings and representation note that the Mayflower Compact, organized to authorize the colonial pilgrims to frame “just and equal laws,” begins with the identification of the signers as “the loyal subjects of our dread sovereign Lord King James.”

But compatibility is not the same thing as perfection, and at some point after the Protestant Reformation, new ideas about the authority of men over their conscience in the concept of the “priesthood of every believer” [presbyterii fidelium] led to new ideas about the authority of men over their own government.

In Connecticut, in the 1600s, the Reverend Thomas Hooker established in his sermons consent as the basis of government rather than divine right of kings. “The foundation of authority is laid firstly in the free consent of people,” he propounded from the pulpit. And in 1639, he drafted the Fundamental Orders governing Windsor, Hartford and Wethersfield, the first charter government in the New World that did not appeal to the authority of a king for its basis in justice. Reverend John Wise of Massachusetts would preach and protest in 1687 against the imposition of taxation without representation. President Calvin Coolidge would later praise Reverend John Wise as an inspiration of the Declaration of Independence.

One should observe that the positions of Hooker preceded Thomas Hobbes’ theoretical writing on consent in Leviathan by more than 11 years, and John Locke’s theoretical writing on consent in Two Treatises by 50 years. Should anyone tell you the foundations of American notions of consent were dreamed up by theoreticians or first came to mind in 1776, correct them. Theory backfilled the practice and ethos that had taken root and was growing in America from the very start.

By the time the American Revolution rolled up on the English, Americans had been thinking about government and justice in terms of consent for more than 100 years. The Declaration of Independence reiterated and memorialized this, stating “Governments are instituted among Men, deriving their just powers from the consent of the governed.”

But consent requires renewal, and this implied that the practice of the colonists of electing their representatives would continue under the new forms of government of the new nation. Every election is a reflection of the principle of consent, which is not just compatible with consent but a microcosm of a broader conception of the universe. God chooses us; we choose our form of government; we choose to renew it through amendment of its form; we choose our representatives in our form of government.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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Essay Read by Constituting America Founder, Actress Janine Turner

 

“[The President] will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.” – James Wilson, Speech at the Pennsylvania Ratifying Convention (December 4, 1787).

“It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States.” – Alexander Hamilton, Federalist No. 68

America’s founding generation gets a bad rap these days, and the presidential election system they created, if anything, receives even less respect.

News outlets blast the Electoral College as “terrible, skewed, [and] anachronistic.” The system was allegedly created because of slavery, one prominent critic writes, and it was intended to “help one group—white Southern males.” Others claim the system is anti-democratic, created by aristocratic white men who wanted to dilute the voices of the masses because they believed “ordinary citizens . . . too poorly informed to choose wisely.”

To listen to these critics, free and fair presidential elections will not exist until the Electoral College is eliminated, replaced by a national popular vote.

Except none of it is true. The reality is that the delegates to the Constitutional Convention strove to design a system that would accurately reflect the will of the people, knowing that the new United States government would be a miserable failure if the people’s voice was not expressed at election-time.

George Mason, delegate from Virginia, emphasized that “the genius of the people must be consulted.” Pennsylvania delegate James Wilson agreed that “[n]o government could long subsist without the confidence of the people.” Governmental authority, he concluded, must “flow immediately from the legitimate source of all authority. . . the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society.”

This sentiment was just as strong when it came to election of the President.

“It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” Alexander Hamilton concluded.

Yet what does it mean to reflect the “sense of the people” in a nation composed of both large and small states, as well as many religions, industries, and subcultures? How can both rural and urban areas be represented? The questions are difficult. After all, the President is the only elected official expected to represent every single American, from every walk of life, simultaneously.

A simple national popular vote for President would be too easily manipulated, the delegates to the Convention concluded, ensuring that large states and heavily populated areas are over-represented while small states are ignored.

“An Election by the people [is] liable to the most obvious & striking objections,” Charles Pinckney of South Carolina observed. “They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.” Roger Sherman, delegate from Connecticut, echoed this concern: “[The people] will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”

The Founders knew that a unique presidential election process would be needed to reflect the “sense of the people” in such a large, diverse country. Thus, they created our Electoral College: Its state-by-state election process requires presidential candidates to obtain more than just a simple majority, too heavily focused on one part of the country. Instead, candidates must obtain cross-regional support and federal majorities to win.

“[The President] is now to be elected by the people,” James Madison concluded. James Wilson, delegate from Pennsylvania, agreed that the President “will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.”

It’s an important point: The Electoral College seeks the fairest solution for the whole Union, not merely one part of it.

The Electoral College supports the principle of fair and free elections in a second way that often goes unnoticed. The system minimizes fraud and provides “as little opportunity as possible to tumult and disorder,” as Alexander Hamilton wrote.

Because of its state-by-state structure, the Electoral College typically produces quick and undisputed outcomes. When problems do occur, they are isolated to one or a handful of states, where they can be more easily resolved. Fraud is minimized because it is hard to predict where stolen votes will matter.

The election of 2020 proved—again—the ability of the Electoral College to provide stability when chaos threatens to reign. Because of the system, problems were isolated to a few states such as Michigan, Pennsylvania, and Wisconsin. Moreover, problematic areas such as Detroit and Philadelphia were highlighted.

Such transparency would not have occurred without the Electoral College. In a national popular vote system, local difficulties could have been glossed over, lost in the glare of the large 7-million national popular vote margin. As things stand today, however, state legislators have an opportunity to investigate and fix local problems, as needed.

An American historian once described the Founders’ conclusions about their presidential election system: “[F]or of all things done in the convention,” Max Farrand wrote, in his book, The Framing of the Constitution of the United States (2022), “the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Indeed, the Electoral College has done more to protect fair and free elections in America than the Founders could possibly have imagined.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).

Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

Advocates of republican systems long have insisted on certain features in a government to qualify it as a republic. Among those are the right to vote vested in a variable, yet sufficiently substantial, portion of adult residents, the election of the important figures in government, regular elections, short terms for those elected, rotation in office through restrictions on re-election, and the right of voters to recall elected officials. The objectives of these conditions are to keep the governing members responsive to the people’s wishes, to promote fresh blood in positions of authority, and to allow more persons to participate in governing, thereby bestowing legitimacy on the system even in the eyes of those who may lose a particular political contest.

The opponents of the United States Constitution found much to criticize in what they saw as the deficient republicanism of the proposed charter. Colonial practice had been annual or even semi-annual terms for legislators. Early state practice generally continued that tradition, although some permitted longer terms for the upper house of a bicameral legislature. Annual or biennial terms became the norm for governors. For example, the Massachusetts Constitution of 1780 provided that the governor, lieutenant governor, and senators and representatives in the state legislature be elected annually. The Virginia constitution of 1776 provided for annual election for the House of Delegates, the lower house of the state legislature, but allowed four-year terms for state senators, the terms ending on a rotating basis, with one-quarter of senate offices up for election each year. The governor was elected annually. He could be re-elected for three terms but then became ineligible for re-election for at least four years.

At the level of the national government, the Articles of Confederation left the precise mode of choosing delegates to the states, but limited their terms in Congress to three years in six. Virginia, for example, chose its delegates to the Confederation Congress anew annually. The Northwest Ordinance of 1787, enacted by the Confederation Congress to govern the Old Northwest territory also required annual election to the territorial legislature.

It is today taken for granted that only citizens might vote. But that was not always the American practice. The Constitution requires citizenship for those elected to either house of Congress and to the Presidency. But there is no similar qualification required for those doing the electing. The Constitution left it to the states to sort out. The Massachusetts Constitution of 1780, for example, discussed voting by “inhabitants” and imposed age, residency, and property qualifications, but not separate citizenship.

Nor was there a lack of awareness of the concept of citizenship versus residency. The Northwest Ordinance provided that voting for territorial representatives was open to two classes: those who were citizens of other states, had resided in the territory for one year, and owned a specified amount of property; and those who were not citizens, but had resided in the territory for three years, and owned the same specified amount of property. The Ordinance made a similar distinction between citizens and non-citizens for candidates for election to the territorial legislature.

States generally allowed non-citizens to vote well into the 19th century to attract immigrants. It is a common trope in historical accounts to write about urban political machines whose operatives at election time waited at the docks to welcome those fresh off the ships from Europe with job opportunities, a small gift, and a voting card filled out in favor of their benefactors. At the level of presidential elections, it was not until the election of 1928 that all states restricted voting to American citizens. Even today, about a dozen municipalities, mostly in Maryland, allow non-citizens to vote in local elections.

While there was no significant debate about citizenship for voting, the length of terms of office was a matter of significant contention at the convention in Philadelphia and in the state ratifying conventions. The Constitution’s supporters tried different approaches to blunt attacks. One was to cherry-pick the length of terms of particular state offices or offices in Great Britain. As to the two-year terms of the House of Representatives, James Madison in No. 53 of The Federalist agreed that there must be frequent elections, but “what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation,…” Thus, a range of terms of service reasonably would be sufficiently republican.

To illustrate his point, Madison contrasted the terms of the lower houses of various state legislatures:

“In Connecticut and Rhode Island, the periods are half-yearly. In the other states, South Carolina excepted, they are annual. In South Carolina they are biennial; as is proposed in the federal government. Here is the difference as four to one, between the longest and the shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina;…”

If anything, shorter terms were undesirable, in that they encouraged electoral fraud, a concern not unheard of today: “[S]purious elections cannot be investigated and annulled in time for the decision to have its due effect….Hence a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns.” It might be added that representatives complain that, even with modern transportation, two-year terms are burdensome because they need to spend so much time campaigning for re-election. It should be noted that these complaints have increased as the members of Congress have become full-time legislators and the size of the government has expanded.

Even if long terms of office might be undesirable as a matter of general consideration, there might be more justification for a longer term in Congress than in state or local legislative councils. National affairs regulated by Congress require greater acquisition of knowledge of complex policies and of the needs of other states. Hence, more time is needed to become sufficiently familiar with these complexities, whereas in a state the laws are uniform and the people and their needs are less diversified. In the end, Madison argued, “the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it.”

The six-year terms for Senators came in for especially harsh criticism. Madison and other Federalists frequently defended the Senate’s long terms on two grounds, the need for a stabilizing influence over the popular passions likely to influence the short-term focus of the more democratic House of Representatives, and the Senate’s role in the potentially complex matters of foreign relations. After a brief attempt to analogize the terms of office of United States Senators to the five-year terms of senators in the state of Maryland, Madison in Essay No. 63 of The Federalist emphasized the role of the Senate as a stabilizing influence on the House of Representatives both by taking a “longer” view on policy and because of the “propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” As well, there was the Senate’s function in foreign affairs which required sophistication, wisdom, and knowledge. Moreover, longer terms gave that body the stability to provide a “national character” needed for the United States to be effective in dealings with foreign nations.

The critics were not convinced. Even moderate opponents saw the Senate’s terms as dangerous. In Essay of Brutus No. 16 of April 10, 1788, the New Yorker Robert Yates agreed that the Senate’s stabilizing role and its tasks in foreign affairs required longer terms than those of the typical state legislature or of the House of Representatives. Yates also agreed that the Senate was to represent the country’s “natural” aristocracy. But the danger to republicanism remained. “Men that hold office for long become detached from their constituents.” This is especially a problem with the Senate, as “they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.” [Emphasis in original.]

The solution for Yates and for his fellow New York Anti-federalist Melancton Smith, writing as The Federal Farmer, was to reduce the term to four years. In addition, there must be rotation in office—Yates proposed a limit of three terns for Senators—and recall as existed in the Articles of Confederation. Otherwise, the reality will be that Senators will be reelected over and over for life, due to the influence of their “friends.” “Everybody acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it.”

The concerns of the Constitution’s critics found their way into proposals for reform even as the states approved the new plan of government. Among the list of proposed amendments from the Virginia convention sent on June 27, 1788, was one that called for rotation in office as a very useful tool to limit the potential threat to the people’s liberty from an entrenched political class: So that members of legislative and executive branches “may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections,…”

None of the proposals have been adopted. Senate terms are still six years. There is no rotation in office, and an attempt by the people of Arkansas to provide “term limits” for members of both houses of Congress elected in Arkansas was struck down as unconstitutional by the United States Supreme Court. Likewise, an attempt by people in New Jersey even to collect signatures to allow a recall vote for a Senator was blocked by the state supreme court as unconstitutional. Meanwhile, members of Congress, especially Senators, generally hold office for decades, often until death. It is common for them to be “absent from the state they represent.” They live in the “federal city,” returning to their states only at election time. The environs of the District of Columbia include the wealthiest areas of the United States, so it may also be rightly said that they associate with “the great and mighty of the earth,” who “possess very little of the feelings of the middling class of people.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

The Framers of the United States Constitution considered ex post facto laws and bills of attainder so repugnant to justice that the document expressly bans them twice. In Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter likewise targets state enactments. These provisions are a proto bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance. Still more thought-provoking is the claim often made then that such laws would be invalid even without an express constitutional provision. That position required its advocates to appeal to higher principles of justice or law as limiting the power of legislatures.

Emblematic of that approach was the opinion of Justice Samuel Chase in the 1798 case of Calder v. Bull. The suit involved a Connecticut case in which a will initially had been denied probate, to the benefit of certain of the deceased’s heirs at law, Mr. and Mrs. Calder. The state legislature then enacted a law which provided for a new hearing that was not permitted under the statute in effect when the original proceedings were held. The will was then admitted to probate, which benefitted the beneficiaries under that will, Mr. and Mrs. Bull.

Justice Chase defined ex post facto laws as,

“1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.”

He also gave examples of English precedents to illustrate the dangers of such laws. Bills of attainder were acts of Parliament that imposed the death penalty on an individual for a criminal act. If Parliament imposed a lesser penalty, the law was a bill of pains and penalties. Either one was odious. Often, but not always, they operated ex post facto:

“These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed; at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence.”

But Chase went further and declared that a legislature could not pass bills of attainder or other ex post facto laws, even if there were no express constitutional prohibition. He urged that such laws were against the social compact through which people enter into political society and against fundamental principles of free republican government. A legislature that undertook such an action might engage in an “act” but had not made a “law,” because a law must not conflict with the fundamental purposes for which governments are formed by the people, to protect their persons and property.

He provided examples of the types of laws that are so destructive of personal liberty and private property and so manifestly unjust, that they are obvious and flagrant abuses of power:

“A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”

If bills of attainder and ex post facto laws were so obviously contrary to justice, reason, and the essential purposes of governments, why then is there a need for specific prohibitions in the Constitution? Some delegates in the Philadelphia convention and in the state ratifying conventions raised that very question. A couple of reasons present themselves.

Consider another opinion in Calder, that of Justice James Iredell. He agreed about the definition of ex post facto laws and their unconstitutionality under the express provisions of the Constitution. But he also warned that, in their absence, a court was incompetent to declare such laws void.

“If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so.”

The reason was that natural justice was not a sufficiently precise concept to allow judges to override the legislature’s power to make all laws which are not expressly prohibited to it: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

Another reason was that, in fact, there had been such laws passed. During the debate in the Virginia ratifying convention in June 1788, Patrick Henry defended the use of bills of attainder and ex post facto laws in some circumstances. His example was the case of one Josiah Philips, a loyalist guerrilla leader during the Revolutionary War. Philips’s band had repelled a militia sent by then-governor Patrick Henry. Henry then had sought an attainder of Philips. None other than Thomas Jefferson had drafted the bill of attainder which the legislature had adopted unanimously on May 28, 1788. The bill accused Philips and his associates of various crimes amounting to treason and directed that they be executed expeditiously after their capture. Moreover, if those attainted had not turned themselves in to the authorities, the act directed that “it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates… or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape.”

Edmund Randolph, the state attorney general at the time, had opposed the attainder. Instead, when Philips was caught, he was tried and convicted by a jury for grand theft of 28 hats and five pounds of twine. That made little difference in the end, as the punishment for that conviction also was death by hanging. Both Henry and Jefferson years later still defended the attainder of someone they considered the equivalent of a pirate engaged in crimes against humanity and therefore hostis humani generis, beyond the protection of the law.

Nor was Virginia alone. Many other states engaged in the practice against Loyalist Tory sympathizers. It must be noted, however, that actual executions under such attainders were rare, estimated by one authority to number 15 during the entire war. The Pennsylvania legislature, acting on its own initiative or at the instigation of its judiciary, enacted attainders for treason in hundreds of cases, although only four ended in hangings, all of Quakers. Due to its pacifism, that religious minority was broadly suspected to be at least unfriendly to the Patriot side. A particularly colorful tale is that of the members of the extended Doane family of Loyalist Quakers who helped the British while marauding in the countryside.

Several states used such attainders, even though their own constitutions prohibited them. It was to these events that James Madison was reacting in The Federalist No. 44 in language similar to Justice Chase’s,

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.”

Although all justices in Calder v. Bull agreed that ex post facto laws were those that retroactively altered rules about conduct to the detriment of the now-accused, there apparently was less unanimity about that definition during the debate over the Constitution. Some constitutional historians, most notably Professor William Crosskey writing in the mid-20th century, have argued that the phrase ex post facto was commonly understood in the 18th century to apply to any retroactive law. They have reviewed the records of the debates at the Philadelphia convention, primarily the printed Journal of the Convention, James Madison’s notes and notes taken by another delegate, David Brearley, a future New Jersey chief justice, and by convention president George Washington. Crosskey also analyzed numerous other contemporary English and American sources of 18th-century usage of the term.

The more restricted definition arose when, according to Madison’s notes, some delegates registered confusion about the phrase. John Dickinson, a much-respected authority on constitutional law at the time, then claimed to have researched the matter by consulting Blackstone’s influential Commentaries on the Laws of England. He concluded that Blackstone defined the phrase as applying only to retrospective criminal laws. The problem is that this definition appears to conflict with the Journal and with another part of Madison’s notes recording a debate about the clause a day earlier, on August 28, 1787, where the speakers assumed that the phrase applied more broadly to all retrospective laws. As well, the notes of Brearley and Washington reflect that earlier, broader understanding and say nothing about Dickinson’s remarks. Dickinson’s own papers about the Constitution do not show that he made those remarks.

Ten months later, during the intense debates in the Virginia ratifying convention, Patrick Henry also charged that the ex post facto clause applied to all retrospective laws, criminal and civil. Henry objected that, if no such laws were permitted, would the old worthless continental paper dollar notes have to be repaid at face value with gold and silver because no law could discharge such payment retroactively. Faced with such assertions, it is surprising that neither Madison nor his fellow delegate to the Philadelphia convention Edmund Randolph cited Dickinson or Blackstone. As a result, these historians speculate that Madison’s position in the Virginia convention and in essay No. 44 of The Federalist, which was adopted in Calder was not correct and that, indeed, Madison made up the Dickinson remarks and added them to his notes some years after the events.

Whatever the understanding about the scope of ex post facto was in 1787, the more limited meaning put forth by Madison in his essay and in the Virginia convention, and adopted by the justices in Calder is the accepted meaning today. Retroactive criminal laws create profound instability in that no one can predict whether one’s conduct is outside the law, because the law might be changed retroactively at any time. Their potentially destructive effect on people’s lives justifies Justice Chase’s description of ex post facto laws as contrary to basic conceptions of justice and a fundamental violation of the proper relationship between the government and the governed.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Tony Williams

Essay Read by Constituting America Founder, Janine Turner

 

 

The right to a trial by jury is one of the core principles of the Anglo-American constitutional tradition. The trial by jury ensures that the government is limited, essential rights are protected, and the rule of law is preserved. As Thomas Jefferson noted to Thomas Paine, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The trial by jury can be traced back to Magna Carta (1215), which King John signed as a limit on royal power. Clause 39 read, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” It protected the right of habeas corpus—meaning that one could not be indefinitely imprisoned.

The English Bill of Rights (1689) confirmed the right to a trial by jury. It also protected related rights for those accused of crimes. The document guaranteed a trial by jury as well as protections against arbitrary government. It outlawed cruel and unusual punishments, excessive fines, and unreasonable bail for the accused.

The English colonists brought this tradition of rights to British North America. They expected to enjoy the rights of Englishmen. The trial by jury became a core issue of the resistance to British tyranny during the 1760s and 1770s. The British began enforcing the Navigation Acts regulating imperial trade more stringently and tried colonial smugglers in Vice-Admiralty courts. These courts did not have juries, and cases were decided by judges. Colonists felt as if they could not get a fair trial and protested this injustice.

In late 1765, delegates from nine colonies attended the Stamp Act Congress in New York. They issued a list of resolutions claiming their rights especially the principle of “no taxation without representation.” They also asserted the right to a trial by jury. “That trial by jury is the inherent and invaluable right of every British subject in these colonies,” the Stamp Act Resolutions read. Many other documents claimed this essential right over the next decade.

The Declaration of Independence asserted the right of a people to overthrow an oppressive government violating their rights. The Continental Congress included a list of grievances against arbitrary government to prove British tyranny and justify separation. One of those grievances was blaming the king for “depriving us in many cases, of the benefits of Trial by Jury.”

When the Framers created the United States Constitution during the Philadelphia Convention in the summer of 1787, they protected some basic rights including habeas corpus and trial by jury. Article III, section 2 guaranteed the right to a trial by jury. It stated, “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.”

During the 1787-88 ratification debate, the opponents of the Constitution, the Anti-federalists, argued for a Bill of Rights to protect individual liberties against a more powerful national government. The Federalists, those who supported the Constitution, promised to create a Bill of Rights in the First Congress. In 1789, Representative James Madison urged his colleagues to craft a Bill of Rights and took the lead in the process.

Congress did pass a Bill of Rights that was ratified by all the states by 1791. It provided widespread protections of rights for the accused including the right to a fair and speedy trial in criminal prosecutions, the due process of law, the right to an attorney, and no cruel and unusual punishments. The Seventh Amendment guaranteed a jury in civil trials.

The right to a trial by jury and related essential rights have been a bedrock of justice and the rule of law in the American constitutional system. Controversies have arisen throughout American history such as the suspension of habeas corpus during the Civil War, the denial of trials for Blacks during slavery and rarely fair trials during segregation, the constitutionality of the death penalty, and the holding of terrorists in Guantanamo Bay without a trial during the War on Terror. During the 1960s, the Court also protected several rights of the accused including the right to a trial by jury for the indigent in Gideon v. Wainwright (1963) and the right against self-incrimination in Miranda v. Arizona (1966).

The right to a trial by jury has been one of the foundations of a just constitutional order and limited government in the British tradition and under the American Constitution. The trial by jury thwarts arbitrary government and provides a rule of law that preserves the liberties of the people.

*****

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

Guest Essayist: James Humphreys

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The Fourth Amendment to the United States Constitution protects Americans from “unreasonable searches and seizures” by government officials. The Fourth Amendment was ratified in 1791 along with the other nine amendments in the Bill of Rights. It reads, “The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment safeguards Americans from heavy-handed and arbitrary government action in some of the most private arenas of their lives.

The experience of the American colonists with British military and civil officials during the American Revolution convinced many colonists of the necessity of defending themselves from invasion and search of their homes by government agents. A number of state constitutions, written in 1776 during the early stages of the Revolution, included in a list of rights belonging to citizens a prohibition against the use of general warrants. Among the states with such a restriction in their constitutions were Maryland, Virginia, and Pennsylvania.

British officials, during the colonial era, often used general warrants to justify the search of a colonist’s home. General warrants provided little detail about whom or what were to be searched for, and, in some cases, colonists, with no evidence against them of illegal activity, suffered the indignity of having their homes searched. The Fourth Amendment demanded that a warrant be more detailed for a search and seizure to be legal. First, to obtain a warrant, there had to be “probable cause” or a good reason to believe a search was necessary in order to uncover evidence of a crime that might be used in a court of law.  Second, a search warrant had to denote explicitly whom or what authorities were searching for and where their search would take place. Third, a warrant had to be signed by a judge. These three conditions lessened the chance of government authorities carrying out a baseless search of an American’s home and personal property.

State and federal judges’ interpretations of the Fourth Amendment became more complicated in the twentieth and twenty-first centuries than in earlier eras with the explosion of technologies that enhanced government officials’ ability to carry out electronic surveillance of citizens. The members of the Supreme Court, for example, upheld the use of wiretapping in the 1928 case of Olmstead v. United States, but in later cases, they ruled that government officials needed search warrants to justify wiretapping. In 2010, in the case of City of Ontario v. Quon, the judges ruled that emails and other forms of communication sent by workers over their employers’ servers were searchable without a warrant. According to another Supreme Court ruling, information on a personal cell phone belonging to an individual, who had been arrested, could not be subjected to a warrant-less search. The cell phone could be confiscated by the police and searched later after the issuance of a warrant.

Online learning, widely implemented during the Covid pandemic, also has Fourth Amendment ramifications. A federal judge, in 2022, wrote that a testing system’s requirement that a student scan his room before remotely completing an online assignment met the Fourth Amendment’s definition of an unreasonable search. University officials, who appealed the decision, argued that a scan held the potential to reveal evidence that a student planned to cheat on an assignment. While questions regarding the application the Fourth Amendment to the use of electronic devices abound, there is no question that evidence, for it to be admitted in court, must be obtained legally, that is, in accordance with all laws and rulings on what constitutes a reasonable search. The Supreme Court, by a 6-3 vote, ruled that evidence gathered illegally was inadmissible in court in the 1961 case of Mapp v. Ohio.

That the Framers of the Fourth Amendment included protection from illegal searches and seizures in the Bill of Rights indicates the significance of the right to the Revolutionary generation. In no way, though, is that liberty less important now than it was in early America. Instead, with government officials’ enhanced ability to surveil American citizens through more clandestine ways than entering and searching homes, the right may be of even more significance today than it was in past eras. One thing is for certain: During every period of United States history, citizens’ freedom from illegal searches and seizures has been vital to the maintenance of a free society.

 James S. Humphreys is a professor of United States history at Murray State University in Murray, Kentucky. He is the author of a biography of the southern historian, Francis Butler Simkins, entitled Francis Butler Simkins: A Life (2008), published by the University Press of Florida. He is also the editor of Interpreting American History: the New South (2018) and co-editor of the Interpreting American History series, published by the Kent State University Press.   

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Guest Essayist: Ben Slomski

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788

The United States Constitution places members of the federal judiciary in a unique position. Article III stipulates that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Unlike members of Congress or the President who are elected for a set term length, all federal judges are appointed for the term of good behavior. Practically, this means federal judges are appointed for life. The only way to remove a federal judge from office is through impeachment by Congress, which is limited to the cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”

The logic of life tenure for judges was best explained by Alexander Hamilton in Federalist No. 78. Here, Hamilton declared that

[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Life tenure upon appointment creates independence for the judiciary in the administration of the laws. This ensures that the laws are applied in a consistent and fair manner. Even in a republican government, the individuals who comprise the legislature are human beings who can succumb to despotic passions. Judicial independence is just as useful a safeguard from oppression in a republican government as any other.

The institutional capacity of the judiciary makes life tenure especially necessary. Hamilton explained that the judiciary lacks Congress’ power of the purse and the President’s power of the sword and wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary is comparatively weaker to the other two branches of government because it lacks the will to make laws as well as the force to enforce the law. There is a risk that the political branches could ignore the Constitution and the judiciary could be too weak to resist their usurpations.

In order to protect the judicial branch from the greater powers of the other branches, life tenure is necessary to create judicial independence. Hamilton stated that

as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Federal judges are appointed through a political process where they must be nominated by the President and confirmed by the Senate. Once judges are appointed, however, they have life tenure so that they do not need to rely on the political branches for any further security. Life tenure allows judges to be independent from politics so that they have the security to stand up against the political branches when necessary.

Judicial independence is beneficial under all forms of government but it turns out that it is especially necessary under the American form of government with a written Constitution. For Hamilton,

[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

A written constitution embodies the fundamental will of the people for the government. There is no point to writing down a constitution if the written limits are not enforced. The task of enforcing constitutional limitations cannot be left to Congress or the President because each would naturally be inclined to favor itself. The judiciary must exist as a third, independent branch that stands outside the political process to enforce the Constitution’s limits. Hamilton explained that it is natural that the judiciary fulfills this role because “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Courts interpret and apply laws as part of their normal function and so it makes sense that it will be the judiciary that interprets the Constitution as the fundamental law of the land in legal cases.

Federal judges are given excellent job security because they are entrusted with a great responsibility. Article III ties life tenure to the specific office that is held, which is that of a judge on a court. Good behavior for judges is understood in the sense of carrying out one’s duties in a judicial manner. Judges act consistently with their constitutional charge when they remember that they are judges tasked with the application of the Constitution and the laws to particular legal cases. Judges stray from this responsibility when they seek to exercise the functions of legislating or executing laws and impose their will rather than the Constitution. Impeachment by Congress remains as a check on judges who misuse their office. Good behavior requires judges to resolve legal cases and invalidate government acts when necessary to preserve the sanctity of the Constitution.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

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Guest Essayist: Eric C. Sands

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

It has been around since the Middle Ages. It’s been called the second Magna Carta by some, and the “great writ” by others. What we are referring to is habeas corpus, a Latin phrase meaning “you should have the body.” Put most simply, habeas corpus allows a person who has been detained the chance to challenge that detention in court. This prevents the government from holding an individual indefinitely without bringing charges against them. In the American system of justice, habeas corpus applies both at the federal and state level.

While some scholars locate the origin of habeas corpus in Roman law, a less disputed claim is that habeas corpus originated in Article 39 of the Magna Carta. Article 39 held that “no Freeman shall be taken, or imprisoned…but by lawful Judgment of his Peers, or by the Law of the Land.” It is true that this does not necessarily speak directly to habeas corpus as it is understood today, but it seems to have something like habeas corpus in mind. From this starting point, though, habeas corpus evolved in the English courts and sheriffs could be served with the writ.  A court could then issue an order to release a prisoner if it was found he or she was being held without cause.

The modern understanding of habeas corpus arose out of conflicts between Parliament and the king in the 17th Century. The Petition of Right in 1628 charged that the king’s jailers were ignoring the writs and were illegally detaining English subjects. In 1679, Parliament passed the Habeas Corpus Act, which applied to sheriffs and jailers who were causing delays in releasing prisoners. The Act imposed strict deadlines for responding to the writ and imposed heavy fines if sheriffs or jailers did not act promptly. By this point habeas corpus had come into its own in Britain, but it still needed to make its way to the new world.

When the United States Constitution was written, the writ of habeas corpus was the only English common law writ given specific reference in the document. Article I, Section 9 of the document provides that “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.”  This became known as the Suspension Clause and it both recognized the existence of the writ of habeas corpus and stipulated the conditions under which it could be withheld. Two years later, in the Judiciary Act of 1789, Congress provided that both justices of the U.S. Supreme Court and judges of the federal district courts “have the power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.” Importantly, though, this law only applied to people in custody by the federal government or being tried in federal courts. Federal judges thus did not have the power to extend the writ to prisoners in the states.

During the Civil War, the Suspension Clause was put into effect by President Abraham Lincoln at the beginning of the war to deal with saboteurs and traitors operating in the state of Maryland. Under the suspension of the writ, John Merryman was arrested by military authorities, and was detained at Fort McHenry outside of Baltimore. Merryman’s lawyer petitioned Supreme Court Justice Roger Taney for a writ of habeas corpus. The issue in Ex parte Merryman was whether Lincoln, as president, could constitutionally suspend the writ in a case of rebellion. That the country was in a state of rebellion no one had any doubt. But the Constitution located the Suspension Clause in Article I, which dealt with the powers of Congress. This seemed to make it a legislative power and, therefore, one the president could not exercise alone. Lincoln believed the suspension of the writ could be undertaken by either the president or Congress, especially if Congress was not in session when an emergency began.

Taney disagreed with Lincoln and held that Lincoln had violated the Suspension Clause by suspending the writ. Yet, Taney seemed to recognize the limited scope of his power and, therefore, did not order Merryman’s release. Instead, he filed his opinion with the U.S. Circuit Court of Maryland and ordered that a copy of the opinion by delivered to the president. Taney concluded that “it will then remain for that high officer…to determine what measures he will take to cause the civil process of the United States to be respected, and enforced.” In the end, the Merryman decision became a moot point as Congress retroactively approved the suspension and passed sweeping legislation that authorized Lincoln to suspend the writ for the duration of the war. Moreover, the case left unanswered the question of who has the actual power to suspend the writ since Taney did not write in his capacity as Chief Justice and, therefore, the case did not become Supreme Court precedent.

During Reconstruction, in tandem with the passage of the Fourteenth Amendment, Congress passed the Habeas Corpus Act of 1867. This Act provided “That the several courts of the United States, and the several justices and judges of such courts, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” What this meant, significantly, is that federal judges could now issue writs to state prisoners in state cases for violations of their constitutional rights. While this expanded protections for those charged with crimes throughout the United States, it also created a great deal of tension between the states and the national government and raised issues of federalism. Clearly, therefore, the issues related to habeas corpus have not all been resolved, yet it remains without question one of our most important civil liberties.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties.

Guest Essayist: Ben Peterson
Scales of justice in association with Lady Justice and the presentation of evidence to be carefully weighed.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Numerius, the Governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar, if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1

I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.

Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.

Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The Court found that the lower court should have instructed the jury that,

The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.

The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”

The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.

As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.

Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.

Ben Peterson is an assistant professor of political science at Abilene Christian University.

 

 

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Guest Essayist: James C. Clinger
Principle of Due Process of Law

Essay Read by Constituting America Founder, Janine Turner

 

 

The principle of due process of law has long been a central principle in Anglo-American jurisprudence. The principle has been formally codified within the Fifth and Fourteenth Amendments of the United States Constitution. However, while the principle has a long history, it has changed dramatically over time, with new interpretation and applications of the principle affecting not only law and administrative practices throughout the country.

In Clause 39 of the Magna Carta, the essence of due process is expressed in the following terms: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[i] At the very least, this provision limited the power of the crown to take arbitrary or capricious injurious actions that were not sanctioned by law. The phrase “law of the land” later found its way into many of the provisions of American state constitutions, although the phrase “due process of law” was also used, with apparently very similar if not identical meaning. Many of the early state courts, applying this language, considered the protections of due process or the law of the land to be a means of preventing governments from carrying out policies threatening vested rights in property of their citizens, although it could also protect their personal liberty.[ii]

The “due process” language appeared in the federal constitution in the form of the Fifth Amendment, which declares that no person “be deprived of life, liberty, or property without due process of law.” The Fifth Amendment is most famous for its provisions regarding criminal procedures, although it also contains the very significant “takings clause” pertaining to protections for property. There is very little historical record regarding the inclusion of the due process language, and the clause was not invoked by the United States Supreme Court until the 1856 case of Murray v. Hoboken Land & Improvement Company.[iii]    The following year saw the clause invoked again, this time in an infamous ruling in the case of Scott v. Sanford,[iv] more commonly known as the Dred Scott decision.

For much of the period before the Dred Scott case, state courts had generally treated due process as a procedural protection, just as the wording suggests. When government deprived someone of life, liberty, or property, due process required that individuals have a right to a hearing before an impartial arbiter and to confront their accusers. In short, due process did not absolutely prohibit deprivations of life, liberty, or property by government but did require government to do so only in a manner that contained expected legal safeguards. What emerged in the Dred Scott decision was a judicial concern for the substance of government action, a view that has come to be known as “substantive due process.” To some, substantive due process is an oxymoron concept, much like “green, pastel redness,” in the words of John Hart Ely.[v] In this decision, Chief Justice Roger Taney, joined by six other justices, ruled that the federal government had deprived a slaveholder of property without due process of law by forbidding slavery in free territories under the Missouri Compromise. This decision was essentially about the substance of the federal government’s position on slavery and had little to do with the process by which that policy came into being or the way in which it was enforced. The decision was immensely controversial and must be considered one of the key events that precipitated the Civil War.

After the war, Congress proposed and the requisite number of states ratified the Fourteenth Amendment to the Constitution, which includes a due process clause that is applicable specifically to the states, rather than just the federal government. It should be noted that most state constitutions already had due process clauses at the time the Fourteenth Amendment was ratified, but this new provision involved the federal government in ensuring that due process was followed. These protections were intended to provide a legal guarantee of due process for the recently freed slaves and their descendants in all states, including the states that had promoted slavery prior to the Thirteenth Amendment. Of course, the language was quite broad, offering a guarantee of due process to all persons.

Many states, however, found ways to circumvent the due process clause, largely because the provisions applied to public action, rather than private activities. In some cases, the clause was used by business organizations who believed that state regulations deprived them of property without due process of law. In the case of Lochner v. New York, the Supreme Court invoked essentially substantive due process arguments to strike down a New York law limiting the working hours of bakers.[vi] In that case, the plaintiff successfully argued that the state law denied him property that could have been generated if his freedom to contract had not been denied by the regulation. By the 1930s, the Supreme Court stepped away from economic versions of substantive due process arguments, but in the 1960s and thereafter began to identify a doctrine of individual privacy that is not explicitly based on specific provisions of the Constitution but which appears to be a socially liberal version of substantive due process.[vii]

Another implication of the Fourteenth Amendment’s due process clause is what has been called the “selective incorporation” of the Bill of Rights. What this doctrine means is that some if not all provisions of the Bill of Rights, which originally limited the actions of the federal government, are now applied to the state governments. It is not clear that the drafters of the Fourteenth Amendment had any form of incorporation in mind when the due process clause was written. The Supreme Court did not clearly apply this doctrine until 1925 in the Gitlow v. New York decision that applied the First Amendment’s protection of freedom of speech to state governments.[viii] No majority of the Court has ever concluded that the entirety of the federal constitution applies to the states, but the Court has concluded that the Fourteenth Amendment selectively incorporates only those rights that are “of the very essence of a scheme of ordered liberty.”[ix] Over time, through incremental decisions, the Court has incorporated most of the Bill or Rights. The few exceptions include such provisions as the Third Amendment’s prohibition against the quartering of soldiers, the grand jury indictment requirement in the Fifth Amendment, and the Seventh Amendment’s stipulation that a jury trial be available for suits where the value in controversy exceeds twenty dollars.

Over the last sixty years, the due process clause of the Fourteenth Amendment has taken on new meaning because the definitions of property have changed. The language of the clause indicated that due process must be provided when the state deprives “life, liberty, or property.” In cases involving capital punishment, the government clearly must supply due process. In fact, in such cases the government is compelled to provide exceptional procedural protections. In cases involving arrest or incarceration, obviously the government is obligated to provide due process. Traditionally, when governments deprive individuals of property they are involved in activities such as eminent domain or regulations that affect personal and corporate income. But beginning in the 1960s, the courts began to perceive that individuals could have a property interest in various kinds of government benefits, which could include welfare or disability payments, public contracts, government licenses or permits, or even public employment. In 1968, the Supreme Court ruled that welfare recipients had a property interest in the receipt of their payments, so that the state of New York could not terminate payments without first having a public pre-termination hearing.[x] A few years later, applying the Fifth Amendment’s due process clause, the Court ruled that recipients of Social Security disability checks were entitled to some due process, but not as much as in the case at issue in Goldberg v. Kelly. With disability cases, post-termination hearings would be sufficient, because the Court reasoned that other interests must be “balanced” with those of the individual claimants.[xi] The courts have continued to ponder very particular circumstances in individual cases to determine how much and what kind of process is due in very particular situations.[xii]

The last issue that this essay examines is the ambiguous issue of what constitutes public action. The due process clauses of the Fifth and Fourteenth Amendments apply to public entities, not private firms or organizations. But can a private organization be subject to due process requirements if it is acting pursuant to public policies?[xiii] Of course, there is also a dispute regarding what constitutes a policy? Would a guidance document issued by a government agency be considered a public policy? A statute enacted by a legislature no doubt would be a public action. Generally speaking, a rule issued by a government agency under a legislature’s delegated authority would be considered a public action, since it would normally be considered legally binding. A guidance document or an interpretive rule would not, strictly speaking, be considered legally binding, but agencies may threaten investigations or the loss of future grant funds or contractual dollars if a private organization is not in compliance with directives that are not formally recognized as legally binding. The case law on these issues is still developing, but recent cases indicate that private organizations acting under the influence of government may be liable if they do not offer due process protections, even if the policy that they are following is quite informal. For example, Cornell University, a private institution, has been challenged by a dismissed faculty member for following irregular investigative procedures derived in part from the Title IX guidance handed down by the Office of Civil Rights within the Department of Education.[xiv]

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[i] Magna Carta, Clause 39.  Accessed July 7, 2023 from Magna Carta Project – 1215 Magna Carta – Clause 39 (uea.ac.uk)

[ii] Inglis, Laura. “Substantive Due Process: Continuation of Vested Rights?” The American Journal of Legal History 52, no. 4 (2012): 459–97.

[iii] 18 Howard 272.

[iv] 60 US 393 (1857)

[v] John Hart Ely, 1980.  Democracy and Distrust: A Theory of Judicial Review.  Cambridge: Harvard University Press, p. 18.

[vi] 198 US 45 (1905)

[vii] See, for example, Griswold v. Connecticut 381 US 479 (1965).

[viii] 268 US 652 (1925)

[ix] 302 US 319 (1937)

[x] 397 U.S. 254 (1970)

[xi] 424 U.S. 319 (1976)

[xii] Shapiro, Sidney A., and Richard E. Levy. 2005. “Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process.” Administrative Law Review 57 (1): 107–53.

[xiii] Verkuil, Paul R. 2005. “Privatizing Due Process.” Administrative Law Review 57 (4): 963–93.

[xiv] Vengalatorre v. Cornell University.  2022.  United States Court of Appeals for the Second Circuit.   Docket No. 20-1514.

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Guest Essayist: James C. Clinger

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

The above quotation from Joseph Story, an associate justice on the United States Supreme Court, is drawn from his discussion of the United States Senate, and more specifically from his analysis of the role of the Senate in the impeachment process. Story’s analysis is an insightful illustration of what is sometimes called the separation of powers, but which some observers call “separate institutions, sharing powers.”[1]

In Article I, Section 1 of the United States Constitution, the Framers wrote that “all legislative powers are vested in a Congress.  Article II of the Constitution discusses executive powers, and Article III covers judicial powers, but notably the adjective “all” is absent from the text of those articles. Only in the first article does the text emphasize the comprehensive nature of the powers vested in Congress. To make sense of this language and to contrast it with the empowering language written for the executive and judicial branches requires us to have some understanding of what words such as “legislative” and “executive” and “judicial” actually mean. Virtually all dictionary definitions describe the word “legislative” as pertaining to the making or enacting of laws. However, that definition is of little use to us if we do not have any particular idea of what a law actually is. Definitions of “law” are a bit more varied, in part because the definitions sometimes refer to regularities in natural phenomena with a common causal pattern (e.g., the law of gravity). In a constitutional context, law is generally regarded to be general rules made by government, using a proper procedure not forbidden to the government, which the government enforces with the use of penalties. Those penalties may take the forms of civil and/or criminal actions. This legislative power stands in contrast to the power of the executive, which is a word drawn from the Latin word exsequor, which means “to follow thoroughly.”[2] Ironically, the executive function has come to be known as a matter of leadership, rather than as the role of a follower. In the case of a government executive, the executive function is a matter of following or administering the rules enacted through a legislative process. The judicial power is generally a matter of making decisions regarding a legal matter in which there are two or more contending parties. Unlike the legislative power, which is applicable to all within a community, and accessible to all in a republic, the application of the judicial power has immediate effect upon the particular parties standing before the court. However, the judgments of an appellant court may become precedents that would have impact on other parties more generally.

In the case of impeachment, the Constitution authorizes a legislative function that in some respects resembles a judicial process.   Article II, Section 4, of the Constitution specifically states that the president, the vice-president, and all civil officers of the United States may be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This is a process that makes decisions regarding particular individuals accused of high crimes and misdemeanors. It is not a process that implicates whole classes of individuals or entire categories of behaviors, but a particularized decision about specifically identified individuals. The cause of action for an impeachment action is some kind of “High Crime or Misdemeanors,” which implies the possibility of a criminal proceeding. Nonetheless, as Joseph Story points out, impeachment is not considered a judicial process. No punishment beyond removal from office can be ordered through impeachment. In these instances, a civil officer accused of misconduct is examined by the House of Representatives, a chamber made up of elected individuals. Upon an impeachment vote by the House, the members of the Senate, acting as representatives of the states, consider whether or not to remove the civil officer.

As Story noted, a “free” public would be “jealous” of its power to use their elected, political representatives to make decisions on the removal of civil officers found to be guilty of misconduct. That kind of decision, if made by unelected judges, would outrage the public. As is often the case, the public has expectations about what kinds of decisions an institution within the government should make. Of course, since Joseph Story’s time public perceptions of the proper institution to address different issues may have changed dramatically. Views on the separation of powers have often changed over time. Recent events suggest that much of the public has a very results-oriented view of public decisions, without considering which institution is constitutionally authorized to make important policy choices. These views may be quite short-sighted, since an institution which usurps the powers of other institutions may occasionally make decisions favored by the public, but over the long term may accumulate power that will threaten individual rights and the aggregate interests of the public.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1] Richard Neustadt, Presidential Power: The Politics of Leadership.   New York: Wiley (1964), p. 42.

[2] https://en.wiktionary.org/wiki/exsequor#Latin

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Guest Essayist: Daniel A. Cotter

Essay Read by Constituting America Founder, Actress Janine Turner

 

From the beginning of our nation’s founding, the concept that all are equal under the law and have equal justice under law has been aspirational. But in the late 1890s, with the Supreme Court of the United States’ Fourteenth Amendment jurisprudence, the concept became concrete. Questions remain about whether the concept has been fully fulfilled.

The Idea

The concept of equal under the law is pretty straightforward. It means that regardless of race or color, political views, sex, religion, or other characteristics, justice is blind and everyone is treated the same and equally under the law. From the most powerful to the penniless, all are to be treated equally under the law, from due process rights to the rights under the Fourth and Fifth Amendments. A mental image of the concept can be had by taking a look at statues of Lady Justice, who has balanced scales before her and a blindfold over her eyes, so that impartiality is the standard by which all under the law are judged.

The Fourteenth Amendment

Some have referred to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments as the “Second Founding.” The Fourteenth Amendment language provides for equal protection, Section 1 ending, “nor deny to any person within its jurisdiction the equal protection of the laws.”  Blacks were the intended beneficiaries of the language, but in its early days after ratification, the Equal Protection Clause was not always used to benefit the intended beneficiaries.

The Language of Equal Justice Under Law

In 1891, in a case, Caldwell v. Texas, 137 U.S. 692 (1891), Chief Justice Melville Fuller wrote in a Fourteenth Amendment case (emphasis added), “By the Fourteenth Amendment, the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law.” In a second case, Leeper v. Texas, 139 U.S. 462 (1891), the Fuller Court repeated the same language. (The Fuller Court in 1896 in the context of segregation also gave us the language “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).)

In 1958, in Cooper v. Aaron, 358 U.S. 1 (1958), a post-Brown case involving the State of Arkansas and resistance to integration of public schools, the Court in an unsigned opinion wrote:

“The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.”

The United States Constitution itself makes no mention, except for the Equal Protection Clause, of any equality concept.

The Pledge of Allegiance

The concept of equality is embedded in many of our national documents, including the Pledge of Allegiance, which was written in 1892 (around the time of the Texas cases referenced above. The original Pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were added in 1954, during the Red Scare, by President Dwight Eisenhower.

The Supreme Court Building

Prior to the 1930s, the Supreme Court met in the Senate building, with no separate home. Former President William Howard Taft, who became Chief Justice of the United States, worked to establish a place for the Court. Architects suggested the front of the building, the West Pediment, have the phrase, “Equal Justice Under Law,” over the entrance, to remind all that when they stepped before the highest court of the nation, they each were treated with equality. From the beginning, some have debated the phrase and whether the nine justices inside the building have lived up to the aspirational goal.

Roots Go Way Back

Democratic principles have long included notions of equality under the law. For example, in ancient Greece, Pericles wrote of equal justice under law.

From the United States of America perspective, our initial document establishing this Union, the Declaration of Independence, which we recently celebrated, begins in substance with the concept of equality:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Conclusion

The debate about the law and whether all are treated “equal under the law” remains one of great interest and discussion. Our nation should be one that treats all equally under the law, and may this continue to be a goal we aspire to achieve.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: Andrew Langer

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

The United States Constitution, ratified in 1788, has stood as a beacon of democratic principles and rule of law for over two centuries. One of its most profound contributions is the pursuit of “justice for all,” an ideal engraved in the Pledge of Allegiance. The preamble to the Constitution sets the tone by stating one of the document’s purposes as to “establish Justice.” This phrase signifies the Framers’ intent to create a system of governance that promotes fair treatment and equality under the law, a cornerstone of justice.

“Justice for All,” Generally, in the Constitution

The Constitution’s first ten amendments, known as the Bill of Rights, are crucial to achieving “justice for all.” These amendments protect individual liberties and limit governmental power, thereby ensuring fairness. The Fourth Amendment protects against unreasonable searches and seizures, while the Fifth and Sixth Amendments guarantee rights that are fundamental to a fair trial, such as the right to due process and the right to a speedy and public trial. The Eighth Amendment prohibits cruel and unusual punishments, affirming that punishment must be proportional and humane.

The Fourteenth Amendment, ratified after the Civil War, is another cornerstone in the pursuit of justice. The amendment’s Equal Protection Clause prohibits states from denying any person within their jurisdiction the equal protection of the laws. This provision has been instrumental in combating discrimination and ensuring that all individuals, regardless of their race or other innate attributes, are treated equally in the eyes of the law. Landmark Supreme Court cases, such as Brown v. Board of Education have utilized the Equal Protection Clause to deliver justice to marginalized groups.

The Constitution establishes the judiciary as an independent branch of government, playing a vital role in upholding justice. Article III vests the judicial power in the Supreme Court and other federal courts as Congress may establish. The courts interpret the Constitution and have the power to strike down laws that are unconstitutional, ensuring that the principles of justice are upheld against potential abuses of power.

Lastly, the Constitution itself provides for amendments to adapt to changing societal norms and understandings of justice. The Nineteenth Amendment, which granted women the right to vote, and the Twenty-Sixth Amendment, which lowered the voting age to 18, are examples of how the Constitution can evolve to better realize the promise of “justice for all.”

“Due Process” as the Embodiment of “Justice for All”

The concept of due process and the ideal of “justice for all” are two fundamental principles that underpin the legal systems of free and just societies. At the core of these principles is the commitment to protecting individual rights and ensuring fair treatment for all citizens under the law. Both concepts are deeply intertwined, serving as the backbone of a just and impartial society.

Due process, a concept firmly rooted in the legal framework, is a safeguard from arbitrary denial of life, liberty, or property by the government. It’s a constitutional guarantee that all legal proceedings will be fair and that no person will be deprived of their rights without a fair procedure. The essence of due process is the right to notice and a reasonable opportunity to be heard and defend one’s rights.

The commitment to due process is directly linked to the promise of “justice for all.” It establishes a level playing field in the court system, ensuring that no one is unduly favored or unfairly disadvantaged. This adherence to process and fairness guarantees that every citizen, irrespective of their social, economic, or political standing, has an equal opportunity to present their case and seek justice.

Through due process, the law is applied uniformly, emphasizing the principle that all are equal before the law. This means that every person, regardless of their status, is subject to the same laws and legal proceedings as anyone else, reinforcing the concept of “justice for all.” It embodies the idea that justice should not be the privilege of the few, but the right of all.

Due process is a bulwark against the arbitrary exercise of power by the state. It prevents individuals from being unjustly targeted or punished without substantial evidence and a fair trial. By doing so, it reinforces the ideal of “justice for all,” ensuring that no person is unjustly deprived of their rights or freedoms.

Due process promotes transparency and accountability in the legal system. It requires that legal proceedings be carried out in a fair, open, and consistent manner, which enhances public trust in the system. This transparency ensures that justice is not only done but seen to be done, thus promoting the ideal of “justice for all.”

Due process is intrinsic to the concept of “justice for all.” It guarantees fair treatment, equality before the law, protection against arbitrary power, and promotes transparency and accountability. Without due process, the promise of “justice for all” would be an empty rhetoric. As such, any society committed to justice must also be committed to upholding and enforcing due process.

“Justice for All” and the Supreme Court

While the phrase “justice for all” is not found in the body of the Constitution, the preamble to the Constitution does present a mandate that the Federal Government will “establish justice.” The Supreme Court has often been tasked with interpreting what “establishing justice” means in various contexts and how it should be applied in practice. Most scholars look at four seminal cases in which the Supreme Court has interpreted and applied this mandate: Marbury v. Madison, Wesberry v. Sanders, Plessy v. Ferguson, and Brown v. Board of Education.

First, Marbury v. Madison (1803) was a landmark case in which the Supreme Court, under Chief Justice John Marshall, affirmed its power of judicial review, the power to declare laws unconstitutional. It was a case where the interpretation of “establish Justice” was at the core. The Court held that it was the very essence of justice to ensure that government acts within the limits of the law, and when it doesn’t, there needs to be a mechanism to check and correct it. Judicial review was therefore seen as an essential instrument of justice, ensuring that the laws themselves and the actions of government are just, fair, and align with the Constitution.

Second, Wesberry v. Sanders (1964) centered on the principle of “one person, one vote,” an essential aspect of democratic justice. In this case, the Supreme Court ruled that electoral districts must be roughly equal in population, ensuring that all citizens’ votes carry equal weight. This interpretation of “establish Justice” reflected the belief that justice in a democratic society requires political equality, where each citizen’s voice matters equally in the public decision-making process.

Third, Plessy v. Ferguson (1896) is a historic case that unfortunately reflects a period when the Supreme Court fell short in its mandate to “establish Justice.” The Court upheld state racial segregation laws for public facilities under the doctrine of “separate but equal.” This decision was a significant deviation from the ideal of justice as it endorsed racial discrimination and inequality, contradicting the Constitution’s guarantee of equal protection under the law.

Lastly, Brown v. Board of Education (1954) is a landmark case in which the Supreme Court rectified its previous stance from Plessy v. Ferguson. The Court unanimously ruled that racial segregation in public schools was unconstitutional, stating that “separate educational facilities are inherently unequal.” This case epitomizes the Supreme Court’s role in establishing justice, as it actively sought to dismantle institutionalized racism or uphold the principles of equality and protect the rights of marginalized communities.

“Justice for all” runs as a vein throughout the Constitution—starting with the preamble’s charge that “We the people” will use the Constitution to “establish justice” and then running through the principles embodied therein. Much of this charge is carried out by the Due Process clauses in the Fifth and Fourteenth Amendments, and it has been left to the Supreme Court throughout U.S. history to further ensure that this commission from the Founders to ensure that there is “justice for all” is carried out.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Andrew Langer
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

In the realm of United States governance, the terms “mandate” and “law” frequently arise, often creating confusion due to their seemingly overlapping meanings. Both play essential roles in shaping the country’s legal and political landscape, yet they are distinctly different in nature and application—and both must be understood within the context of due process of law, both substantive and procedural.

A law, as per the United States Constitution, is a rule established by the government that dictates the actions of its people. It’s a formal norm that has been approved by a legislative body and, if necessary, signed into effect by the executive branch. Laws are codified in written form and are enforceable by the judiciary. In the United States, federal laws apply to all states and territories, while state laws apply only within their respective jurisdictions.

On the other hand, a mandate in the context of U.S. governance often refers to a policy or requirement that a higher level of government imposes on a lower level. For instance, federal mandates require states or localities to perform certain actions, often under the threat of financial or legal penalties. These mandates may come in various forms, including conditions for receiving federal grants, requirements imposed as a part of federal civil rights laws, or conditions for participating in voluntary federal programs.

Unlike laws, mandates do not necessarily have to go through the same rigorous legislative process. Some mandates are issued by federal agencies as regulations, under the authority granted to them by Congress. Others are issued directly by the executive branch, such as through executive orders.

While a law is a directive that comes with its own enforcement mechanism, a mandate is a requirement that may or may not come with specific penalties for non-compliance. Compliance with a mandate is often tied to the receipt of federal funds. For example, states may be required to comply with certain federal mandates to receive funding for highway construction or education.

In the dynamic landscape of American politics and law, it is essential to note that the boundary between mandates and laws can sometimes blur. As such, ongoing vigilance and discourse are required to ensure the appropriate balance—especially given how both laws and mandates can impact “true” law—which can be viewed within the context of the 5th and 14th Amendments’ guarantees of due process for all citizens,

The founding of the United States was a grand experiment, the creation of a republic aimed at securing the rights and liberties of its citizens. Central to this vision was the rule of law, which the Founders intended as a safeguard against arbitrary and tyrannical rule. The United States Constitution thus enshrines due process as an essential component of legal justice, a bulwark against any effort to dilute the power and relevance of law and order. The twin concepts of substantive and procedural due process, while less known to the general public, are pivotal elements of the due process doctrine and serve as vital tools in safeguarding individual liberties.

Before delving into the importance of both substantive and procedural due process, it is crucial to understand the distinction between the two.

Substantive due process is a doctrine that protects citizens from government actions that could interfere with fundamental rights or liberties. It requires the government to justify any intrusion into personal and economic freedoms with a sufficient and compelling state interest. For instance, the right to privacy and the freedom of speech are protected under this doctrine, and any governmental attempt to restrict these rights must meet a rigorous standard of scrutiny.

Procedural due process, on the other hand, is concerned with the fairness of how a law is applied or a decision is made. It safeguards individuals from arbitrary deprivation of life, liberty, or property by ensuring they receive a fair process, which typically involves notice and an opportunity to be heard. Procedural due process thus protects against the abuse of power, ensuring that the rule of law is upheld even when the government takes necessary actions.

The Founding Fathers were acutely aware of the danger posed by arbitrary laws and mandates that had the force of law but lacked the due process of law. They had experienced firsthand the arbitrary rule of a distant monarch and were determined to construct a system of government that would prevent such abuses.

Substantive due process plays an indispensable role in upholding this vision. By requiring the government to justify any infringement on fundamental rights, it ensures that laws and regulations do not arbitrarily or unjustly infringe on individual liberties. This doctrine serves as a shield, protecting citizens from arbitrary laws that could unduly limit their freedoms.

Procedural due process, meanwhile, acts as a sword, enabling citizens to challenge any governmental actions they believe infringe on their rights. By providing a fair and transparent process for reviewing governmental actions, it ensures that citizens have a meaningful opportunity to contest any perceived injustices.

Timothy Sandefur, a legal scholar, has made significant contributions to the understanding of the phrase “due process of law” in the United States Constitution, specifically emphasizing the importance of the term “of law.” He has argued that “due process of law” is not just about the process itself, but also about the substance of the laws that govern that process, a concept commonly known as substantive due process.

One of the key elements of Sandefur’s argument is the idea that “due process of law” should not be understood as merely a procedural guarantee. Rather, it also provides substantive guarantees against “unfairness.” This understanding is rooted in a deeper interpretation of the Constitution, not limited to the literal wording of the document but also considering its structure, ideas, and history. According to Sandefur, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” implies not only that the government must adhere to certain procedures when imposing a deprivation, but also that some acts are inherently off-limits for the government, regardless of the procedures used to implement them​.

Sandefur also discusses the concept of law in this context. He explains that law is the use of government’s coercive powers in service of a general principle of the public good, and it is the opposite of arbitrariness. The law should not be a self-serving tool of those in power. Therefore, the “of law” in “due process of law” ensures that the government’s actions are guided by lawful principles and not by arbitrary or self-serving motives. A lawful government is characterized by general rules that benefit all, rather than specific commands or actions that only benefit those in power. This principle is a fundamental part of due process of law, guaranteeing citizens protection under the general rules that govern society​. In Sandefur’s view, due process of law means that the government may not limit our freedom without good reason. What constitutes a “good reason” is determined by reference to political and legal principles, not merely by legislative whims or self-interest. This view reflects the inherent overlap of “procedure” and “substance” in the understanding of due process of law. To be treated lawfully means to be treated in accordance with general, public principles (substantive) and through established procedures (procedural). Sandefur uses the examples of a vetoed tax bill and a bill establishing an official religion to illustrate the concept of substantive due process. In both cases, even if the procedural steps have been followed, the substantive aspect of the law can make it invalid. The same logic, according to Sandefur, applies to implicit or inherent limits on government power. If the legislature passes a statute that it lacks the authority to make, that statute cannot be considered law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law​​.

In the end, regardless of whether the government is enforcing a law derived from legislation, or a mandate derived from some other government action, the rights to due process must be respected.  Anything short of that respect does serve to dilute “true law” and undermines the protection of the liberty of the people.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Winfield H. Rose
James Otis (1725-1783) Author of “Rights of British Colonies Asserted and Proved” pamphlet, 1763.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

James Otis, Jr. was born in and lived all his life in Massachusetts. He was a contemporary of both John and Samuel Adams and was a prominent and effective proponent of American independence. He lived from 1725 to 1783.

Known for his pamphlet “Rights of British Colonies Asserted and Proved,” published in 1763, he was very offended by the Writs of Assistance adopted by the British government in 1761. Otis may or may not have coined the phrase “Taxation without representation is tyranny” but he certainly believed and proclaimed it. According to the Smithsonian Magazine (https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166/),

“As John Adams told it, the American Revolution didn’t start in Philadelphia, or at Lexington and Concord. Instead, the second president traced the nation’s birth to February 24, 1761, when James Otis, Jr., rose in Boston’s Massachusetts Town House to defend American liberty. That day, as . . . a rapt, 25-year-old Adams—listened, Otis delivered a five-hour oration against the Writs of Assistance, sweeping warrants that allowed British customs officials to search any place, anytime, for evidence of smuggling. . . . Otis denounced the British king, parliament, and nation as oppressors of the American colonies—electrifying spectators. ‘Otis was a flame of fire,’ Adams recalled years later. ‘American Independence was then and there born.…Then and there was the first…opposition to the arbitrary claims of Great Britain.’”

We say Washington was the father of our country and Madison was the father of the Constitution. According to Adams, we likewise need to say that Otis was the father of our independence.

Tyranny was an issue for our revolutionary forefathers but it was not the primary issue. The primary issue was legitimacy or, more accurately, the lack of legitimacy. The lack of legitimacy created the tyranny under which our American ancestors were then living, and that lack of legitimacy was due to the absence of the consent of the governed. The absence of this consent could have been remedied by the British government’s granting their American colonies representation in Parliament but it was too arrogant and stubborn to do so. They paid for this mistake with the loss of their American empire.

Looking back with hindsight, one may ask why the British made this political blunder. Careful arithmetic would have shown the numerical threshold beyond which they should not go, and they could have granted the Americans a safe number of representatives in Parliament, thereby acquiescing to their demand and quieting the uproar. This would have been a practical solution, but the British were not interested in a practical solution. They adhered to the principle that the American colonists were neither citizens nor subjects but vassals without rights totally subject to rule from London.

One might also reply that each American colony had a legislative assembly, and that is true. But, according to the complaints against the British government Jefferson listed in the Declaration of Independence, by the 1760s those assemblies had been reduced to irrelevance.

We would be remiss if we did not remember that King George III had ascended the throne in 1760 at the age of 22 and that the French and Indian War (1754-1763) was underway at this time. This war and its aftermath created severe financial problems for the treasuries of both Britain and France which, in turn, then led to ill-fated attempts to raise taxes and ultimately to both the American and French Revolutions.

Not only had the French and Indian War been costly to fight, it left the British with a very long western frontier to defend, a frontier that extended all the way to the Mississippi River. This was the time of Daniel Boone when American settlers wanted to move westward past the Appalachians. Defending this frontier was going to be costly. Thereby came the need for tax measures such as the Stamp Act.

A line in the Otis quote at the beginning of this essay is especially informative:

“The sum of my argument is . . . That this constitution [the British constitution] is the most free one, and by far the best, now existing on earth: That by this constitution, every man . . . is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature.”

Otis and many others correctly believed the existing British constitution, based on the Glorious Revolution of 1688 and the English Bill of Rights of 1689, was “by far the best now existing on earth.” The problem was that King George III and Parliament had corrupted it (as Edmund Burke correctly observed) and thereby had intolerably violated the natural rights of their fellow citizens in America. When the British created their Commonwealth of Nations many years later, knowingly or not, they followed the principles Otis enunciated in 1763.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

 

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Guest Essayist: George Landrith
Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Rule of Law comprises a number of important legal doctrines designed to make our governmental system and our society more just and fair. It starts with the idea that we are all equal before the law and accountable to the same laws. But it also includes the concept that those laws should be made in public and not in secret; that the law should be evenly applied and not selectively applied, that all laws must be applied prospectively — meaning a law cannot punish behavior that occurred before the law’s existence; that government power cannot be exercised arbitrarily or capriciously, and that we should all have access to due process and an independent and fair-minded decision maker before our life, liberty or property can be taken from us.

For most of human history, most people have been ruled by individuals who had almost unquestioned power. For example, for much of Europe’s history, it was ruled by kings, who claimed “the divine right of kings” – meaning that no one on earth could question or challenge their rule. Such a ruler could imprison those he or she didn’t like or found annoying simply on a whim. And they had power to make laws that would be applied solely to those they didn’t like or had some grievance with.

Magna Carta officially ended the “Divine Right of Kings” by placing very modest limits on the power of the king. But modest limits on the arbitrary rule of men doesn’t qualify as the Rule of Law.

Fortunately, America’s Founders saw the Rule of Law as a foundational element of the society and nation that they sought to build. Thomas Paine in his seminal work, Common Sense, wrote that “in America, the law is King…” — meaning that there would be no king to rule over Americans. The law, as an impartial standard, would govern Americans.

Part of our national heritage in the Rule of Law means that we ought not care whether we like or dislike the accused, or whether we agree with the politics of the accused. We ought to be concerned only about the law and its equal and fair application. The Rule of Law is a major check against the abuses of government.

Soviet dictator Joseph Stalin once described his totalitarian view of the law as — “show me the man, and I’ll find the crime.” That is obviously not the Rule of Law. That is a prime example of the arbitrary and capricious rule of man.

While America has been an example to the entire world of the Rule of Law, it has not always been perfect in its application. But our commitment to the Rule of Law is noteworthy all over the globe and it has helped to make us “the land of the free and the home of the brave.”

America cannot survive as a beacon of hope and a land of freedom and opportunity for all if the Rule of Law is sacrificed upon the alter of political expediency. Americans of all political stripes must demand that the government play by the rules, live within the limitations placed upon it by our United States Constitution, and honor and uphold the principles of the Rule of Law.

One informal test that can help us judge the relative health of the Rule of Law in our nation is: does the government treat us like subjects or citizens?

Sir Thomas More lived from 1478 to 1535 AD and was an English lawyer, judge, and author. He was a strong and heroic advocate of the Rule of Law. In 1535, More did not attend the coronation of King Henry VIII’s latest wife, Anne Boleyn as Queen. Not attending the coronation was not an act of treason and, in a letter, More had wished the King and his new bride much happiness. And while most of the nation had not attended, More’s absence angered the King because of his reputation and influence.

After a number of failed attempts to punish More for not attending the coronation, the King came up with a plan to entrap More. He demanded that More sign a statement that King Henry was the head of both the nation of England and the Church of England. More had made no statements against the King’s authority, but he was unwilling to sign such a statement because it required him to repudiate his Catholic faith.

More made it clear to the King that he was not refusing to sign because he challenged the King’s authority. He simply was unwilling to repudiate his faith. But this did not matter; the King had him arrested and imprisoned in the Tower of London and eventually executed for treason.

A Man for All Seasons is a play and movie based upon Sir Thomas More’s life. In the play, the King pressures More to sign the statement and promises to pardon him if he will sign. More asks the King, I’ve acknowledged your right to rule and your Queen, “then why does your Grace need my poor support?”

The King’s response was, “Because you’re honest… and what is more to the purpose, you’re KNOWN to be honest. There are those … who follow me because I wear the crown; and those … who follow me because they are jackals with sharp teeth and I’m their tiger; there’s a mass that follows me because it follows anything that moves. And then there’s you….”

Later, a friend of More’s tried to talk him into signing a statement to avoid the King’s wrath by saying, “Oh, confound all this…. Thomas, look at those names…. You know those men! Can’t you do what I did, and come with us, for fellowship?” More responded, “And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?”

Later, Oliver Cromwell tried to bully More into signing the statement. More objected to being bullied and said, “You threaten like a dockside bully.” Cromwell responded, “How should I threaten?” More responded, “With justice.” Cromwell, then replied, “Oh, justice is what you’re threatened with.” Thomas More said, “Then I’m not threatened.” Obviously, More understood that a process focused on right and wrong and justice and fairness would not harm him.

Another interesting conversation in A Man for All Seasons shows why the Rule of Law must protect everyone’s rights — no matter how unpopular or disliked. More’s son-in-law, William Roper, while discussing the Rule of Law and More’s defense of it asked, “So, now you give the Devil the benefit of law!” More responded, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper responded, “Yes, I’d cut down every law in England to do that!” Sir Thomas More’s response is both insightful and correct:

“Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil the benefit of the law, for my own safety’s sake!”

More was no fan of the Devil as he was a very religious man and was executed because of his commitment to his faith and refusal to bend to the will of the King. But his point was important and true — we cannot have laws and judicial processes that only protect those that we like or approve of. Even those we despise must be afforded the benefits of the Rule of Law or we do not have the Rule of Law.

Thomas Paine’s description of America as a place where the law is king will hopefully always be true. Our nation’s freedom depends upon it. Thus, Americans who value freedom must, as Thomas More did, uphold, support and champion the Rule of Law. There is no freedom without it.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

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Guest Essayist: Eric C. Sands
Supreme Court of the United States, photo by Joe Ravi.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution does not say much about the Judiciary, listing it third among the articles dealing with the main institutions of government. For some, this implies that the Judiciary was intended to be last in order of importance and the most insignificant of the institutions overall. While the three branches were intended to be equal in terms of legitimacy and functionality, they were not equal in terms of power.  The Legislature wielded the awesome power of the purse and directed the affairs of government. The Executive held the only slightly less impressive power of the sword and executed the will of the Legislature. But what of the Judiciary? What power does it hold and what was its role in constitutional government intended to be?

One might be forgiven for thinking that Article III was something of an afterthought. There is a sense to the Article of being incomplete and not fully thought out. It begins by saying that the judicial power shall be given to a Supreme Court of the United States, but then leaves a lot unsaid. The Article never defines what the judicial power is or how it is used. It never explains the nature of the judicial power or how the Judiciary might go about using it. Its existence in the Article is a mystery. The Article then goes on to tell us only a little about the Court. Its size will be determined by Congress. Judges will be appointed by the president and confirmed by the Senate. Yet no qualifications are listed to be a Supreme Court Justice. There is no age requirement, no experience requirement. In fact, a person does not even have to possess a law degree.

The Article continues saying that the judges will hold their tenures for life on terms of good behavior, a provision justified to insulate judges from the whims of public opinion that is much more likely to sway the other branches of government. Following this, there is the Cases and Controversies Clause outlining what kinds of cases the Supreme Court can hear. This includes, controversially, cases under the equity power which is not clearly defined by the Constitution. A distinction between original and appellate jurisdiction comes next, followed by some clauses dealing with jury trials and trial for treason. And that is it. Compared to what preceded it in Article I and Article II, this is not much.

The lack of content in Article III, according to one of the Founders, was by design. It was a reflection on the nature of the institution and the more subservient role it played in American constitutional government. In Federalist 78, Alexander Hamilton gave a defense of the Judiciary and argued that the Court possessed neither force nor will, but merely judgment. This made the Court the “least dangerous” branch of government and the least threatening to the Constitution. According to Hamilton, “it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” This further adds to why the judges need lifetime tenures and such radical independence – it is the only way to ensure justice without the interference of the political branches of government or public opinion.

So, we see the task of the Supreme Court as interpreting the laws passed by Congress, exercising its judgment over what those laws mean and how they should be applied. But is this all? Not according to Hamilton and other Federalists. The Court also had a more fundamental duty to protect the Constitution. It preformed this function through the power of judicial review. Judicial review is the power of the Court to determine that government actions conflict with the Constitution and are, therefore, null and void. It was first used in a Supreme Court case, Marbury v. Madison, but was held to be a part of the Court’s power by many Federalists at the founding. Anti-federalists, such as Brutus, denied that the Court possessed this power and claimed that if it had been intended to give the Court such an extraordinary power, the Founders would have written it into the Constitution. The president cannot not even completely override a bill passed by Congress, so it would be incredible if this unelected body of judges could do what the president could not. If the Framers had intended judicial review, they would have enumerated it.

Federalists countered by saying that the power of judicial review was enumerated when Article III said that the judicial power shall be vested in a Supreme Court. What else could the judicial power be but the power of judicial review? Though it was not stated explicitly in the Article, it was clearly implied in its language. But there was an even stronger argument for judicial review. If the Court lacked this power, how would it play a role in the separation of powers and checks and balances? The Court would effectively be relegated to playing the role of an advisory body, making suggestions to the other branches about constitutionality but not having the power to compel anyone to listen. This would effectively destroy the purpose of an independent judiciary and render the Court not just weak but impotent. Thus, judicial review must be part of the design of constitutional government and a vital part of the principal of the judicial branch.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties.

Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The delegates who met in 1787 for the Constitutional Convention faced a difficult task when it came to designing the nation’s executive branch. Americans of the time tended to look upon a strong executive with suspicion. This was a natural response, given the previous experience with the English monarchy. Under the Articles of Confederation, there was no independent executive. This lack of a strong executive turned out to be one of the central defects of the Articles. National authority was often just ignored by the states and disobedience towards democratically-enacted laws culminated in Shays’ Rebellion in Massachusetts. Delegates at the Constitutional Convention were challenged with creating an independent executive who would be powerful enough to enforce the laws effectively yet not so strong that he could overpower the other republican institutions of government. The result of this work was the American presidency.

The text of the United States Constitution recognizes the difficult nature of executing the law. Authority is placed in the president by the vesting clause in Article II, Section 1 which states that “The executive Power shall be vested in a President of the United States of America.” This should be contrasted with the vesting clause in Article I, Section I which grants certain legislative authority to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress only receives the legislative powers specifically granted to it in the Constitution. The executive power granted to the president, however, is not limited to certain powers “herein granted.” Some specific examples of the president’s executive power are given in Section 2. He is the Commander in Chief of the military, can pardon crimes against the U.S., and makes treaties with foreign nations, among other powers. The powers listed in Section 2 are not an exhaustive list but rather specific instances of the way in which executive power can be exercised.

Article II, unlike Article I, does not comprehensively detail the scope of the president’s executive power because it cannot be precisely defined. The president’s function is to execute the laws passed by Congress and to “preserve protect and defend the Constitution” as enumerated in the presidential oath of office. What is necessary to enforce the law and defend the nation depends on the innumerable variety of circumstances that will occur in human life. As human beings cannot predict every emergency that might occur, they cannot list every single circumstance in which the executive can act without restricting the president during an unforeseen crisis. Therefore, the Founders wisely left the executive power broadly defined so that the president can act in whatever situation that might arise.

The broad nature of executive power does not mean that the president’s power is unlimited or arbitrary. For the president to have constitutional power to do something, the act must be executive, meaning that it does not make law but carries out existing laws. The president cannot usurp legislative power from Congress just as Congress cannot interfere with the president’s execution of the laws. Presidents also cannot nullify congressional laws by refusing to execute them. The president’s broad power is constrained by the constitutional system in which it is placed. Senate approval is needed for the ratification of treaties and the confirmation of many presidential appointees. Congress can always restrict the president through the denial of funding or impeachment. The Supreme Court can review the constitutionality of executive actions in legal cases. The people retain the ultimate check of voting the president out of office. The president is neither a dictator nor a pawn of Congress.

The constitutional insight that there must be a powerful and independent president who is defined by the executive functions he must perform was expressed well by Alexander Hamilton in Federalist No. 70. Here he wrote that:

“Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Government is ineffective unless its laws are obeyed and individuals will not respect the law unless there is a strong enough executive to ensure there is sufficient force behind the laws. A powerful president is of course needed to command the military and defend the nation from invasion. It is equally important to ensure that the government is well-administered and that laws are enforced consistently and effectively.

The genius of the Constitution is that it reconciles the need for a powerful executive with the constraints of republican government. George Washington embodied this idea as the first president. He recommended legislative measures to Congress, vetoed bills on both constitutional and policy grounds, proclaimed American neutrality between France and Britain, and personally led federal troops to suppress the Whiskey Rebellion. These energetic actions were not taken as the personal prerogatives of a king but rather as the exercise of constitutional power granted by the people to a republican servant. Washington understood the president to be the “Chief Magistrate” who must remain aware “of the confidence which has been reposed in me by the People of United America.” The executive’s power must be wielded with the humility and prudence required of a republican governing statesman.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

 

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Guest Essayist: Scot Faulkner
In 1619, the Virginia House of Burgesses met in the Jamestown Church, the first elected legislative body in America.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In advocating for establishing the Legislative Branch in the United States Constitution, James Madison and Alexander Hamilton, writing under “PUBLIUS,” stated in Federalist No. 52:

“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

Madison and Hamilton explained how the Legislative Branch was fundamental to Americans remaining in control of their own government in FEDERALIST No. 57:

“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”

Binding the Legislative Branch to the people built upon the precedents from America’s colonial period.

The Royal Charter that established Jamestown in Virginia evolved from governance by the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.

The House of Burgesses became a proving ground for what would become the U.S. House of Representatives. Drawing upon British tradition, revenue and spending bills originated in the House instead of the “upper chamber.” Drawing from British tradition, the members of the House held their positions for short periods of time, the better to be held closely accountable by those they represented.

Tying government closely to the people is foundational to America. The reason America is a “federal” system, and not a “national system,” is to preserve state and local government. This assures most public policy and public activity is closest to the people it serves and reflects their diversity. Serving a New York City neighborhood is very different from serving a rural community in Montana.

America’s diversity is embodied in our nation’s motto: “E Pluribus Unum” – out of many, one. Governing the nation of America is institutionalized in the Tenth Amendment of the U.S. Constitution:

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.

Today, America is governed by 87,576 local units. This includes 3,034 counties, 19,429 municipalities (cities, towns, villages), 16,504 townships, 13,506 school districts, and 35,052 special districts (such as water & sewer, fire, and conservation).

Except for Switzerland and Germany, European governments are national. Their policy and programs are based on “one size fits all.” National governments ultimately amplify regional and ethnic tensions. England’s Acts of Union with Scotland (1707) and Ireland (1801) spawned countless conflicts. Today, Scotland and Wales have separate Parliaments. Ireland divided itself into a Free State and Northern Ireland in the wake of years of violence (1921). England leaving the European Union in January 2020 reflected what happens when a weak parliament was dominated by a powerful and unaccountable bureaucracy.

America’s federal structure, emphasizing government closest to the people, was chronicled by the Frenchman, Alexis Clerel, the Viscount de Tocqueville.

“Democracy in America” was published in two volumes (1835 and 1840). It remains a foundational document describing how Americans benefit from local government.

“The village or township is the only association which is so perfectly natural that wherever a number of men are collected it seems to constitute itself. The town, or tithing, as the smallest division of a community, must necessarily exist in all nations….”

“….local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.”

de Tocqueville recognized how Americans preserving local governance serves as a model for a better world:

“I believe that provincial [local] institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people.

The only nations which deny the utility of provincial [local] liberties are those which have fewest of them; in other words, those who are unacquainted with the institution are the only persons who pass a censure upon it.”

Thanks to the strength of local government, America remains an inspiration for all those who seek free and open societies.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Guest Essayist: Scot Faulkner

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

On November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth.”

Citizens holding government accountable begins with knowing what their government, at all levels, is doing.

Two long-standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.

During the Virginia Ratifying Convention for the United States Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”

Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:

“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…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”

Madison raised concerns about those who aspire to unbridled power.

“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…it is the reason, alone, of the public, that ought to control and regulate the government.”

Public access to view the proceedings of House and Senate began in December 1795.

The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches. The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:

  1. to require agencies to keep the public informed of their organization, procedures and rules
  2. to provide for public participation in the rulemaking process, for instance through public comment
  3. to establish uniform standards for the conduct of formal rulemaking and adjudication
  4. to define the scope of judicial review

The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, was the Government in the Sunshine Act which was enacted September 13, 1976. Similar “Sunshine Laws” were enacted among state and local governments. However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.

The practice of the public accessing of public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act.” Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.

The world’s first law requiring “publicity for official documents” was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).

“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”

Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.

While the Administrative Procedures Act in America mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.

Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross’s 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.

In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).

On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.

Johnson opposed the legislation but allowed it to become law on July 4, 1966.

On this 4th of July, we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power.

It reminds us that citizens must remain constantly vigilant to protect our God-given rights.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Guest Essayist: Patrick M. Garry

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution creates a government with three separate branches, each vested with different powers and responsibilities for different functions. This particular structure reflects the doctrine of separated powers. The Framers adopted this doctrine so as to diffuse government power and thereby protect individual liberty from government encroachment. Congress possesses the authority to make laws; the President has the duty of executing those laws; and the courts interpret and apply those laws in cases brought before the judiciary.

By creating three competing branches, the separation of powers scheme uses the power of each independent branch to check and restrain the power of the other branches. In this way, there is a self-executing structure built into the constitutional scheme that restrains any one branch from abusing its power to the detriment of individual liberty.

The Supreme Court has recognized the importance of the separation of powers principle. This principle, according to the Court, “is at the core of American ideology” and is “as fundamental as the vote or representative government.” Separation of powers provides a system of checks and balances, as well as a guard against improvident or impetuous government action. The separation of powers principle seeks to control government power by splitting it among three different functions and branches, with each branch confined to the exercise of its own function and not allowed to encroach on the functions of the other branches.

Separation of powers does more than just accomplish the negative function of preventing abuses of power; it also achieves a number of positive functions. These functions include allowing a wide-ranging political presentation of diverse interests, leading to a broad-based consensus across a diverse republic, as well as promoting the distinctive qualities associated with each branch. Separation of powers helps the government to be deliberative, representative, and accountable. It helps slow down the lawmaking process so that it can be responsive to all the various constituencies in a large democracy. Such a checks-and-balances system makes it more difficult for the government to act unless there is widespread agreement that it should do so.

The separation of powers principle reflects the Framers’ fear of centralized power, which in their experience had led to tyranny. In this respect, the Framers were very much influenced by the earlier writings of French philosopher Baron de Montesquieu, who wrote that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” Throughout its deliberations, the Constitutional Convention remained steadfast in the belief that governmental power should be separated and balanced among the three branches of government, as recommended by Montesquieu.

The Framers foresaw that the separation of powers structure, by placing impediments in the path of the political process, would help to restrain the excesses of lawmaking. Although this structural bias in favor of the status quo would naturally defeat a few good laws, it would even more importantly prevent a number of bad ones.

The judicial enforcement of separation of powers was greatly weakened during the New Deal of the 1930s, when the courts acquiesced in the dramatic expansion of the federal executive branch’s powers and activities. To combat the Great Depression, the New Dealers in President Franklin Roosevelt’s administration significantly expanded the administrative state. This expansion contradicted traditional notions of separation of powers, since the newly empowered administrative agencies combined all three functions in their rulemaking and adjudicative activities. Contrary to the beliefs of the founding era, strong executive government was seen not as a threat to liberty but as a savior of society, and the agents of that saving power were the administrative agencies. But to enable those agencies to perform that role, the Court had to sanction the granting of wide, virtually undefined powers. The Court also had to approve the combination of all three functions within each individual agency. Not surprisingly, the rise of the administrative state meant the corresponding decline of the separation of powers principle.

As a result of the erosion of separation of powers during the New Deal period, the administrative state has grown to the point of being called the “fourth branch” of government. However, contrary to the idealistic hopes of the New Dealers, agencies are often rigidly bureaucratic and cravenly political. But out of perceived necessity for meeting the demands of modern society, the courts have accepted, as a constitutional matter, the administrative state. Moreover, it is perhaps not surprising that – the more the administrative state contradicts separation of powers principles – the more abuses of power and infringements on liberty occur.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Guest Essayist: Adam Carrington
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Abraham Lincoln concluded his famous Gettysburg Address with the hope that “government of the people, by the people, for the people, shall not perish from the earth.”

Why would such a government perishing be so bad? After all, myriad regimes have started, fallen, and now are no more–no better than a footnote in history books. Moreover, a popular government, one so focused on the people, hasn’t been the norm for most of human history.

But we should not merely be looking for the most famous nor the most common governments. We should be looking for the best. Lincoln here does that. For he describes the essential components needed for a free society and a free government.

Lincoln summarizes America’s political principles through three phrases each focused on the people. Each builds off a central assumption about human beings, namely that they are inherently equal. Thus, the origin of political rule, the administration of political rule, and the purpose of political rule all must be grounded in the famous phrase of the Declaration of Independence that “all men are created equal.”

For Lincoln, “Of the people” says that our government originates from the body of citizens. The people pre-existed the government and consciously created that government. This point matters greatly. In political philosophy, much is said about the nature and location of sovereignty–ultimate, unrivaled authority to rule. Lincoln here succinctly says that the people are sovereign, that political power originates with them. The authority of governments, by contrast, is delegated, derivative of the people’s power. Nor was the government the creation of one proto-king or a few elites. The people together were the source.

We here have a basis for freedom.  If the government created the people, then we would exist to serve it. But if the people establish the government, then that government must serve us. Or if one or a few had done so, the rest of us would be subject to him or to them. Our United States Constitution, which begins “We, the People,” makes clear the origin of the government’s power is from us.

“By the people” declares the means through which government exercises its power. The focus remains on the people. For a government by the people means that citizens administer the government they created. They do not merely leave it to others but engage in active self-rule. We do so in three main ways. First, we all can engage in discussion with each other in hopes of learning from and persuading with our neighbors. Second, do so  through voting for those who will directly exercise our power in office. Third, and related, we can self-govern by holding office.

This point also matters for a free society and a free government. The Founders understood that human nature struggled with a temptation to selfishness. Monarchy risked one man ruling for his own good at the expense of the rest. Aristocracy threatened a few elites wielding political power only to help themselves. A popular government sought to direct such self-interest toward the good of the greatest number. At its best, this popular rule by the people would pursue what is called the “common good.” The Founders knew that the people also could be selfish and thus that the majority could harm the minority. But they thought the majority will would mirror the common good more often than the whims of one or a few. And they put in place systems like representation, federalism, and separation of powers to mitigate such selfish tendencies from having free reign even in popular rule.

Finally, “for the people” states for whom the government acts. All governments are “for” someone within their borders. They make laws and enforce them with the good of this group in mind. In acting for the people, Lincoln assumes that popular government should be oriented toward the good of all its citizens. Here we see the underpinnings of the Constitution’s commitment to “promote the general Welfare” as described its Preamble. Just as rule did not originate with one person or a few, nor was it administered by one or a few, so our government would not seek the benefit of one or a few. Our belief that government exists to protect natural or human rights, summarized as life, liberty, and the pursuit of happiness, forms the core of what Lincoln meant by government existing “for the people.” And in protecting those rights, we can rest secure in our freedom, exercising it in pursuit of a happy life.

Thus, we, too, should hope that this kind of government does not perish from the earth. We have been blessed in that government’s establishment by our ancestors and its maintenance by those who came before us. We have not sunk into despotism because we have not lost the grounding of political power and purpose in the people. At the same time, we always face the risk of losing this precious gift. It remains to us to keep our republic, guarding it from all foes external and internal. The task is up to us. We are the people, after all.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National  Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Guest Essayist: Ron Meier
Æthelstan, considered the first king of England, 895-939 AD. A sixteenth-century painting in Beverley Minster in the East Riding of Yorkshire of Æthelstan with Saint John of Beverley

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

While the King and Parliament were visible primarily through their Colonial Governors, they had been directly visible to Paine in England before his emigration to the colonies. Paine was familiar with hereditary succession and was opposed to that idea, as he later wrote in the Dissertation quoted above. King George III was the grandson of King George II; George III might have been George IV had not his father died in 1751, nine years before his grandfather died, making George III the heir to the Throne. George III ascended to the Throne at the age of 22.

The impact of the laws of Parliament and the King on the ordinary British citizen had encouraged Paine to publish his pamphlets critical of the “abuses and usurpations” enforced on British citizens there. Thus, while he had minimal direct knowledge of the American colonies’ political affairs, he had significant direct knowledge of the impact of the British political policies in Britain, giving his words in the colonial pamphlets a great deal of significance. The timing of his arrival and his ability to communicate effectively to the colonists while they were in an excellent position to declare independence were the keys to the impact his “Common Sense” pamphlet had on the colonies.

The first two chapters of Common Sense focused on the purpose of government, the English Constitution, the monarchy and hereditary succession, and how those factors made living under British rule difficult for all and intolerable for some. His pitch was emotional at a time of heightened emotions in the American colonies. On the first page, he states that “government even in its best state is but a necessary evil; in its worst state an intolerable one. We furnish the means by which we suffer.”

He states that “the design and end of government is freedom and security.” Paine argued that the British government was filled with both “monarchical and aristocratical tyranny.”

Paine presents scathing attacks on the monarchy with scriptural references very familiar to the colonists. Christian faith and tradition were strong in the colonies and all knew of the chaos of the era of Israelite Kings and how, in just three centuries, that chaos resulted in the destruction of the Temple and the exile. He states that “monarchy is ranked in scripture as one of the sins of the Jews.” He differentiates King David from other Israelite Kings in that David “was a man after God’s own heart.”

He attacks hereditary succession, stating that “all men being originally equals, no one by birth, could have a right to set up his own family, in perpetual preference to all others forever.” He observes that usurpation, rather than selection by lot or by election, has been the most common method of ascension to the throne, and that original sin and hereditary succession are parallels. The then-common idea that hereditary succession preserves a nation from civil wars is quickly debunked. Monarchy and succession are a form of government leading to “blood and ashes.”

In Chapter 2, Paine leaves some hints for the institution of a republic and for the necessity of a “house of commons” in the future nation.

In Chapters 3 and 4, Paine turns toward the present state of affairs in the American colony. Here he builds a strong emotional case for “Independency.” He states that the 1775 British attacks on Lexington, Concord, and Bunker Hill made all attempts at reconciliation void and that “the period for debate is closed; arms must decide the contest.” He first supports the economic and trade arguments for separation. The British attempts to “tax without representation,” to reimburse the costs of British protection of the American colonies, are for the benefit of the colonies’ exclusive trade arrangements with Britain. By declaring independence, the American colonies would then be an open trade port to all nations.

In addition, severing the exclusive alliance with Britain would eliminate the risk that Americans might be enlisted into wars with Spain and France. Paine notes that only about 1/3 of the colonies are inhabited by English descendants, but that people fleeing tyranny from all of Europe have sought a new life in America. He states that “everything that is right or natural pleads for separation.”

Paine focuses on the fact that April 19, 1775 forever destroyed the ability of the colonies to reconcile with Britain. He asks, “can you still shake hands with the murderers?” He quotes Milton, “never can true reconcilement grow where wounds of deadly hate have pierced so deep.”  Repeated petitioning has consistently failed. He observes that “there is something absurd in supposing a continent to be perpetually governed by an island.”

Paine makes a strong argument that laws, made by the people of America, should be King, not laws made by a King and Parliament thousands of miles distant, laws that reflect the King’s premise that “you shall make no laws but what I please!” He presents a plan for government after independence, a plan for representative government that was unlikely to be adopted, but that may have had some influence on the Declaration of Independence and the Articles of Confederation.  Thomas Jefferson may have made note of Paine’s suggestion for “a mode of government that contained the greatest sum of individual happiness” as he wordsmithed the Declaration of Independence.

Paine makes the case for America’s ability to build, supply, and maintain a Navy equal or superior to Britain’s Navy; that was possible due to the abundance of natural resources in the large, largely unexplored nation. America’s abundant natural resources also could be exported to all nations in exchange for gold and silver.

He argues that the current infant state of the colonies is advantageous for independence; it is easier to unite a small nation now than a large one later. An interesting point he makes about equal representation, which ultimately led to two Senators per state, resonates today; specifically, that unequal representation of large and small counties in Pennsylvania could have resulted in Pennsylvania’s laws being decided by only two counties in the state.

While the elected representatives to the Continental Congress were focused on applying reason and diplomacy to resolve the dispute with England, Paine understood the passions of the citizens and used his pen and press to stir their emotions to pressure their representatives to choose independency rather than reconciliation.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Sources:

Stamp Act – Fact, Reaction & Legacy (history.com)

Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)

What Was the Olive Branch Petition? – History of Massachusetts Blog

Paine, Thomas.  Common Sense.  New York:  Fall River Press, 1995

John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)

Guest Essayist: Ron Meier

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

It would be easy to conclude that the Declaration of Independence had been in development for a decade and simply finalized in the summer of 1776. The 1764 Sugar Act and the 1765 Stamp Act were the first in a long series of “repeated injuries and usurpations” cited in the Declaration of Independence in 1776.

In fact, over the decade, numerous reconciliation appeals were made to the King of England to redress colonists’ grievances; the colonists were British citizens and wanted to remain so. It took a decade for the Continental Congress to be convened. Although the colonial militia had effectively defeated the British armed force in April 1775, the militia suffered defeat on Bunker Hill in June 1775. Therefore, one of the first acts of the Second Continental Congress was to pass the “Olive Branch Petition” in July 1775, an attempt by the colonies to avoid escalation into a full-scale war.

The Olive Branch Petition expressed loyalty to the King to avoid a larger war. The British Army and Navy were formidable and no American Army or Navy existed. To declare war on Britain in 1775 would have seemed an irrational act for a group of independent colonies. The delegates to the Continental Congress knew world history and knew that the odds of military success were slim to none should the British government send its Army and Navy in overwhelming force to defeat America’s militia. Debates for and against independence were vehement over the subsequent months, but the general mood was against declaring independence.

As happens frequently in world history, a single, unexpected spark turns events. Casual observers of recent American history can identify such events in our lifetimes, including 9.11, the fall of the Berlin Wall, the sudden collapse of the Soviet Union, the Russian invasion of Ukraine, among many others. So it was with the American Revolution.

That unexpected spark could not have been predicted. A man, Thomas Paine, arrived in America from England in November, 1774. He knew little about the American colonies and he was unknown among the members of the Continental Congress.

Paine’s personal and business life in England was unremarkable.  However, he engaged in what today would be called political activism; in the 18th century, publishing political pamphlets was the common method used by political activists. His political publishing activities in Britain enabled his introduction to America’s best known publisher then residing in Britain, Benjamin Franklin; Franklin encouraged Paine to strike out for America where his political activism might be put to better use – and where he might escape persecution by the British government.

Franklin’s letter of introduction proved invaluable in getting Paine immediately employed in the publishing business in Pennsylvania. His political activism in England, against a common adversary, the King, enabled Paine to rapidly understand the American issues and turn those issues into political pamphlets in the colonies. The 1775 battles in the Massachusetts colony, however, didn’t seem to move the needle politically; America’s Continental Congress, and most colonists, continued to seek Reconciliation, not Revolution. As Paine’s frustrations grew, he published a new pamphlet, distributed throughout the colonies in January, 1776. That pamphlet was called Common Sense.

Paine was not an intellectual philosopher. His writing style was directed towards the common man, of which he was one. Well over 100,000 copies of Common Sense circulated in the colonies. King George’s declaration that the American colonies were in open rebellion against the Crown arrived in the same month that Common Sense was published.

Paine had not been present during the preceding decade of colonial angst regarding the suppression of British rights in the American colonies.  However, the timing of his arrival in Pennsylvania, his recommendation by Benjamin Franklin, and his history of stirring political emotions in England against the King and Parliament proved beneficial. He arrived after the Boston Tea Party and the King’s enactment of the “Intolerable Acts,” and after the assembly of the First Continental Congress. Only months later, the battles of Lexington, Concord and Bunker Hill would stir the colonists’ passions more strongly against the dictates of a King on the other side of an ocean. “No taxation without representation” reflected the colonists’ views that the time for representative government of the people rather than rule by King had come.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Sources:

Stamp Act – Fact, Reaction & Legacy (history.com)

Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)

What Was the Olive Branch Petition? – History of Massachusetts Blog

Paine, Thomas.  Common Sense.  New York:  Fall River Press, 1995

John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In the grand scheme of social ideals, meritocracy reigns as one of the most impactful principles, fostering a society where individuals rise to prominence and power based on their abilities and achievements, rather than birthright or privilege. The principle of meritocracy underscores the very foundation of a fair society, where hard work, talent, and innovation are rewarded. It is pivotal in maintaining a free and prosperous society, and here’s why.

Firstly, meritocracy promotes equality of opportunity. In a true meritocracy, everyone has the chance to succeed based on their own merit regardless of background. This allows for a leveling of the playing field, granting each person the right to rise according to their abilities and efforts. A society that champions meritocracy encourages individuals to strive for their best, fostering a culture of hard work, resilience, and ambition.

Secondly, meritocracy fuels innovation and economic growth. When individuals are rewarded based on their talent and efforts, they are incentivized to innovate, create, and perform at their best. This, in turn, stimulates economic growth and prosperity. History is rife with examples of societies that flourished when merit was rewarded – from the rapid technological advancements of the Silicon Valley tech giants to the economic miracles witnessed in post-war Japan and Germany.

Thirdly, meritocracy ensures the most competent individuals lead. In a society where leadership roles are based on merit, the most qualified, skilled, and effective leaders rise to the top. This promotes better decision-making, efficiency, and performance in both public and private sectors, leading to overall societal improvement.

While the term “meritocracy” was not in use during the time of the Founding Fathers, their actions and beliefs make it clear that they championed the principles that underpin this concept. Through their personal examples and the institutions they established, they laid the groundwork for a society that values individual ability and achievement. It is this foundation that has allowed the United States to continually strive towards the ideal of a meritocracy, where everyone has an equal opportunity to succeed based on their own merits and abilities.

It is clear, however, that concept of meritocracy was implicit in their writings and actions. Meritocracy resonates deeply with the democratic ideals that the Founding Fathers held. Their approach to this concept, while not explicitly labeled as meritocracy, can be discerned through a careful examination of their actions, writings, and the institutions they established.

The Founding Fathers, including individuals such as George Washington, Thomas Jefferson, and Benjamin Franklin, all demonstrated a belief in the power of individual merit. This belief was deeply rooted in the Enlightenment, a period of intellectual and philosophical development that greatly influenced their thinking.

George Washington, for example, rose to prominence not because of inherited wealth or title, but due to his leadership abilities and military acumen during the Revolutionary War. He was a model of the self-made man, a figure that would become emblematic of the American Dream, and his leadership was a testament to the power of merit.

Thomas Jefferson, the principal author of the Declaration of Independence, held a belief in the natural rights of man. He stated that “all men are created equal,” indicating that everyone should have the same opportunities for success. This belief aligns with the principles of a meritocracy, which values individuals based on their achievements rather than their social status or wealth.

Benjamin Franklin was perhaps the most explicit proponent of meritocratic ideals. He was a vocal advocate for education, believing it to be the key to social mobility and individual improvement. Franklin’s establishment of public institutions like libraries and universities was a practical embodiment of his belief in the power of self-improvement and personal merit.

The Founding Fathers not only championed the concept of meritocracy in their personal lives but also institutionalized it in the formation of the American political system. The U.S. Constitution, which they crafted, has several meritocratic elements.

For instance, there are no hereditary offices in the U.S. government, meaning that one cannot inherit a position of power. This provision was a clear departure from the monarchical systems of Europe where power was often passed down through generations. Instead, public offices in the U.S. are filled through elections, with the aim of choosing the most qualified individuals, a clear nod to meritocratic principles.

The system of checks and balances, another cornerstone of the U.S. Constitution, is also implicitly meritocratic. It requires that individuals in power continually demonstrate their abilities and merits in order to maintain their positions. This system promotes accountability and discourages complacency, further emphasizing the importance of merit over inherited status.

In a society where positions and rewards are distributed according to merit, the concept of meritocracy reigns supreme. It’s a system that believes in the power of hard work, talent, and ambition, asserting that each individual, regardless of their background, has the potential to climb the societal ladder based on their capabilities. But what happens when we abandon this principle? How does it affect our political and economic landscapes?

Politically, abandoning meritocracy may lead to a shift in power dynamics, affecting the governance of a nation. In a meritocratic society, leaders are chosen based on their abilities, credentials, and proven track records. They have demonstrated their competence and capacity to lead, fostering a sense of public trust. If we abandon this principle, we risk ending up with leaders who might not possess the necessary skills or experience. There’s a potential for nepotism and cronyism to take root, as appointments might be influenced by personal relationships rather than professional competence. This could erode public trust and potentially destabilize political systems.

Economically, meritocracy is a key driver of innovation and productivity. When rewards and advancements are tied to performance, it encourages individuals to improve their skills, innovate, and work efficiently. Removing this incentive might lead to a decline in overall productivity. Furthermore, it could also result in an inefficient allocation of resources. If jobs and promotions are not given based on merit, then the most competent individuals may not end up in positions where their skills are best utilized. This inefficiency can slow economic growth and development.

Abandoning meritocracy also brings up concerns about fairness and social mobility. Meritocracy, at least in theory, offers an equal playing field, allowing individuals from any background to succeed if they have the ability and put in the effort. Without it, those from privileged backgrounds may have an unfair advantage, leading to increased social inequality and a decrease in social mobility.

Like so many other aspects of American society, the embedding of the principles of meritocracy within our political and economic systems have yielded enormous benefits.  Abandoning those principles would be foolish, and have terrible consequences in the near and long term.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of equality, a cornerstone of democratic societies, is deeply rooted in the idea of “equal opportunity” – the notion that everyone should have a fair shot at success. This concept is fundamentally distinct from the ideology of “equal outcomes,” which guarantees identical results for everyone, irrespective of effort, talent, or innovation. Equality of outcome is a seductive concept; it promises a world without disparity or struggle. However, this notion undermines the core tenets of free markets, competition, and innovation that have been the driving force behind American society’s economic prosperity and advancement.

The Declaration of Independence’s statement that “all men are created equal” signifies that all individuals are endowed with the same inherent rights and that they are equally worthy of respect and dignity. This phrase is generally interpreted as a call for equal treatment and opportunities, rather than a guarantee of identical results.

This profound statement, however, does not imply that all men will achieve equal outcomes. Rather, it signifies that all men are endowed with the same inherent rights and that they are equally worthy of respect and dignity. It is a call for fair treatment and equal opportunities, not a guarantee of uniform results.

The Constitution of the United States, a document drafted by forward-thinking individuals who appreciated the dangers of tyranny, does not promise equal outcomes. Rather, it guarantees equal rights and opportunities. This foundational text ensures that every citizen has the same fundamental rights, echoing the Declaration, that of life, liberty, and the pursuit of happiness. The Constitution is essentially silent on the matter of ensuring equal outcomes, a silence that underscores the drafters’ understanding of human nature and the importance of individual agency, meritocracy, and free market principles.

Renowned Constitutional scholars also reflect on this difference. They argue that the Constitution’s promise of equality under the law is not a guarantee of equal outcomes. Instead, it is a promise of equal treatment, a commitment to impartiality and fairness. Legal scholar Robert H. Bork, for instance, argued that “In terms of the Constitution, ‘equality’ refers to the equal protection of the laws,” which does not extend to ensuring uniform outcomes in life.

The free market system, an essential aspect of our society, thrives on the principles of competition, innovation, and consumer choice. The market is a dynamic system that rewards efficiency, innovation, and hard work. It is a platform where individuals can compete on a level playing field, leading to the creation of new products, improved services, and economic growth. A guarantee of equal outcomes would stifle this dynamism, extinguishing competition, and discouraging innovation.

In contrast, the concept of equality of outcomes rests on the notion that everyone should have the same level of material wealth and social standing, regardless of their individual efforts or abilities. This idea, seductive in its apparent fairness, is a cornerstone of many communist philosophies. However, in practice, it has often led to disastrous consequences, both economically and culturally.

Consider the Soviet Union, a nation that wholeheartedly embraced the principle of equality of outcomes. Despite initial hopes for prosperity and fairness, the Soviet economy was characterized by stagnation, inefficiency, and widespread poverty. The central planning that drove the Soviet economy disregarded the intricate web of individual desires, talents, and efforts that naturally guide economic activity. This resulted in a mismatch of supply and demand, with shortages of basic goods and services becoming the norm.

When the rewards of hard work and innovation are stripped away, the incentive to strive for excellence diminishes. A system that does not reward individual effort or skill discourages initiative and creativity. The Soviet Union suffered from this stifling of innovation, with its technology and industries lagging behind those of its Western counterparts.

The cultural implications of equality of outcomes are no less severe. When outcomes are predetermined, competition becomes a threat rather than a source of motivation. This breeds resentment and hostility, turning people against each other in a society that should foster cooperation and mutual respect. In the Soviet Union, the state’s intrusive control over every aspect of life led to widespread distrust and fear, further fracturing social unity.

Moreover, the pursuit of equality of outcomes often necessitates a powerful central authority to enforce redistribution. This can lead to the concentration of power in the hands of a few, ironically fostering a new form of inequality. In the Soviet Union, this led to an authoritarian regime marked by brutal repression and a disregard for individual liberties.

As former Congressman and Director of the Office of Management and Budget David Stockman noted in his book, “The Triumph of Politics”:

“[Those who believe in equality of opportunity] start with history and society as they are, and places the burden of proof on those who would use the policy instruments of the state to bring about artificial change. [Those who believe in equality of outcomes] start with an abstraction—a vision of the good and just society—and places the burden of defense on the bloody process. Implicit in the [former] is a profound regard for the complexity and fragility of the social and economic order, and a consequent fear that policy interventions may do more harm and injustice than good. By contrast, the activist impulses of the [latter] derive from the view that a free society is the natural incubator of ills and injustices.”

The pursuit of equality of outcomes in the Soviet Union and other similar regimes resulted in economic inefficiency, social division, and the undermining of individual liberty. These historical examples serve as a stark reminder of the potential dangers of such an approach.

Critics argue that the pursuit of equality of opportunity can still lead to significant disparities in outcome. This is undoubtedly true. However, it is essential to remember that the goal is not to eliminate disparity but to ensure that these disparities are not the result of arbitrary discrimination or unfair practices. Moreover, a certain level of inequality can serve as a motivating factor, encouraging individuals to strive for betterment, to innovate, and to contribute to society’s progress.

The principle of equality of opportunity, rather than equality of outcomes, promotes a healthier society. It encourages personal growth and accountability, rewards hard work and innovation, and respects individual liberty. This principle aligns with the Constitution’s guiding tenets and the Declaration of Independence’s profound assertion that “all men are created equal.”

In conclusion, a focus on equal outcomes can lead to unintended consequences, including stifled innovation, suppressed competition, and a disregard for individual liberty and choice. Conversely, a commitment to equal opportunity fosters a dynamic society where individuals are free to chart their own paths, innovate, and contribute to societal progress. The Constitution and our nation’s founding documents endorse this principle of equal opportunity, a principle that has been instrumental in shaping the American ethos of liberty, hard work, and individualism. This is the path we must continue to tread.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Patrick Garry
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of limited government greatly inspired the drafting of the United States Constitution. Indeed, the framers’ desire to restrain the new federal government was one of the primary design features of the Constitution. Not only was the U.S. Constitution the first written constitution to govern a democratic republic, but it was also the first constitution to be structured according to the goal of limiting the new government it was creating. Consequently, the notion of limited government was a uniquely American contribution to the science of political governance.

The failure of the Articles of Confederation—the first form of national government adopted following the War of Independence—gave rise to calls for a constitutional convention to draft a new design for a federal government. A main reason the Articles failed so quickly was that the national government it created was too weak—a weakness that reflected the deep-seated mistrust of central governments harbored by Americans in the wake of their experience with a British government that had used its power to deprive the American colonists of their liberty.

Although the first goal of the constitutional framers was the creation of a republican form of government which included a stronger national government than had existed under the Articles, the immediately subsequent goal was to build into the new constitution various structural limitations, preventing the federal government from overstepping its proper role. This belief in limited government stemmed from the framers’ opposition to the patterns of statism, absolutism, and totalitarianism existing in the eighteenth-century world. Consequently, within the Constitution, the framers designed an array of checks on federal power. These checks included, for instance, a separation of powers creating three separate branches of government, each of which could help check and restrain abuses committed by the other branches, as well as a federal government possessing only enumerated powers.

Even though the U.S. Constitution establishes a strong and independent federal government, it does so through a scheme of enumerated powers.  The federal government only possesses those powers specifically granted it by the Constitution. Unlike the state governments, which possess plenary power to begin with and which the state constitutions must then limit or restrain, the national government under the U.S. Constitution possesses only those powers specifically granted to it. If the Constitution does not grant a power, then the federal government does not possess that power.

The framers held a cautious and skeptical view toward concentrations of government power. The framers worried more about empowering a federal government that could use its power to deprive people of their liberty than about not giving that government enough powers to swiftly address any political or economic crisis that might arise. They were more concerned about a government doing something wrong than about a government with enough power to be able to always do what was right. Therefore, the scheme of limited government built into the Constitution served as a means of safeguarding liberty, since a government limited in power would be less able to exercise power in abusive or oppressive ways.

To the framers, the principle of limited government was an even greater protection for liberty than were the freedoms outlined in the Bill of Rights. This was because a limited government would be a general protection for all types of liberty, whereas the Bill of Rights protected only a few specified liberties. While individual rights protect against particular acts of government abuse, structural provisions like limited government protect against systemic and continuing government abuses resulting from a lack of effective limits on that power. Indeed, an impetus for passage of the Bill of Rights was the belief that the original Constitution did not do enough to limit the power of the new federal government.

For the first century and a half of the nation’s existence, limited government was widely supported as a constitutional principle. But in the 1930s, as President Franklin Roosevelt’s New Deal agenda greatly expanded the scope and authority of the federal government to fight the consequences of the Great Depression, a belief in limited government waned significantly, especially among liberal activists who wanted the federal government to assume a much larger role in shaping society.   Although the Supreme Court initially opposed this contradiction to the limited government principle, it eventually caved to political pressure and nearly abandoned this principle. As a result, the federal government has grown substantially since the 1930s. With its vast array of administrative agencies, the present federal government hardly seems reflective of the limited government principle originally embodied within the Constitution.

Over the past century, political pressures have pushed the expansion of the federal government, to a size and scope far beyond what the framers foresaw. This pressure can be seen whenever some crisis arises that appears as if it can only be solved by a national government unrestrained in the amount of debt it can accumulate. But as the framers foresaw, and as is so often witnessed today, a larger and more powerful federal government is also more prone to abuses and deprivations of liberty.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Guest Essayist: Joerg Knipprath
State flags on each state within its border inside of a map of the United States

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

Melancton Smith is not a household name when considering the adoption of the United States Constitution. But he was well known to the members of the crucial 1788 New York ratifying convention. Through his writings, his ideas became well known beyond his state, even if his name did not. In the convention, Smith was aligned with Governor George Clinton, Aaron Burr, and the upstate Albany faction against John Jay, Alexander Hamilton, and the downstate New York City faction. Clinton was a wily politician and powerful political figure in the state and, later, in the country. He was also a prominent and effective antifederalist leader, who traditionally has been thought to be the writer of a series of antifederalist essays appearing under the pseudonym Cato.

Smith, too, was a prolific critic of the proposed Constitution. Indeed, he was such an effective advocate in the state ratifying convention for the opponents of the Constitution that Alexander Hamilton and other federalists felt obliged to respond to his challenges and criticisms. Smith had been a lawyer and was a merchant, so his style was logical, and his substantive critique was moderate and pragmatic. He appears to have been the author of a series of antifederalist essays previously attributed to the Virginian Richard Henry Lee and published anonymously under the name “Letters from a Federal Farmer to the Republican.”

Like the essays by Cato (George Clinton) and Brutus (attributed to Judge Robert Yates), those of the Federal Farmer posed a real threat to the adoption of the Constitution. Alexander Hamilton replied to them directly by name in Nos. 67 and 68 of The Federalist, the only antifederalist authors whom he named expressly. But there was a difference. With some justification, Hamilton considered the Cato essays to be works of political expedience, and Governor Clinton to be swayed by personal concerns about looming restrictions on the powers of state governments, should the Constitution be adopted. He castigated Cato as presenting deliberate falsifications of the constitutional structure of the executive branch. Falling into passages of purple prose at times, Hamilton singled out Cato as an example, “This bold experiment upon the discernment of his countrymen, has been hazarded by the writer who (whatever may be his real merit) has had no inconsiderable share of the applauses of his party; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded.”

By contrast, the Federal Farmer received, reluctantly, some faint praise. Hamilton noted that the method of selecting the president had received little criticism. Referring specifically to Federal Farmer, he wrote, “The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded.”

Smith eventually broke rank with the antifederalist opposition and voted in favor of the Constitution for practical reasons. By the time the convention voted, the requisite nine states had already approved it, so the Articles of Confederation had been supplanted. Then, the Virginia convention, where the result had been uncertain, voted narrowly to approve the Constitution. Virginia was the largest and wealthiest state. With Virginia out, there was reason to believe that the Constitution ultimately was not viable as a plan of union. With Virginia committed to the new charter, New York’s hand was forced, Smith believed. His defection helped the Constitution’s supporters gain a crucial 30-27 favorable vote, although the price was a letter that listed 25 proposed provisions in a bill of rights and 31 amendments to the Constitution, to be addressed through a second “general convention,” which never materialized.

Particularly because he was such a voice of moderation, Smith’s concerns about the threat of a far-away general government to the liberty of the people struck a chord. Moreover, his warnings were closely tied to the historical perceptions of Americans regarding Great Britain, including the charge that the people’s complaints would fall on deaf ears with a distant government, that such a government would tax and control them in ways that the people could not support, and, recalling sentiments from the Declaration of Independence, that such government would send in “an innumerable swarm of officers, to infest our country and consume our substance.”

Finally, his criticism simply “made sense.” Government close by is more likely to respond to local needs and to mirror local values than government in a remote location. It was a self-evident truth to classic republican writers that republics were homogeneous, with many shared traits and values among the people, and small in area and population. Although republics could be larger than pure democracies and exercise self-government through the principle of representation, the sacrifice that civic virtue often demanded under either system was rooted in notions of friendship and cultural affinity. Social science research has shown that the larger and more diverse the population of a polity is, the less civic engagement occurs. The result is that a ruling elite becomes distant from the general population, and self-government becomes a cherished fiction, a Platonic “noble lie,” more theoretical than real. Such homogeneity and small size have potential downsides of provincialism and inflexibility, of a “small-town” staidness, but there is a limit to the size of what truly could be characterized as a community.

Antifederalist writers made much of this connection among size, cultural affinities, civic virtue, and republican government. They repeatedly invoked the danger of “consolidation” under the new Constitution, that is, the fusion of the states into a single large unitary government, an empire, destined to become tyrannical. As Melancton Smith warned, that process of effective abolition of the state constitutional systems would not be a sudden event. Rather, it would be gradual but irresistible and inevitable, as the general government grew and expanded its powers ever more intrusively into traditionally local matters. “These liberties will not be violently wrested from the people; they will be undermined and gradually consumed.”

The potency of this republican challenge to the Constitution created an urgency for the charter’s supporters to respond vigorously. They used several arguments. Federalist writers commonly pointed to the limited powers which the Constitution vested in the general government in contrast to what they described as the vast reserved powers of the states. For example, James Madison used this tactic in The Federalist, No. 45:

“The powers delegated to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers of the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.”

Another approach was to emphasize the effect of the natural rivalries of politicians fostered by the horizontal separation of powers in the structure of federalism. In the classic essay No. 51 of The Federalist, James Madison presented as a key feature of the Constitution the simultaneous separation and blending of powers in a system that guarded against oppressive government not by a myopic focus on civic virtue but on structures that enabled “Ambition…to counteract ambition.” “In a single republic [such as the several states], all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments [state and national], 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.”

Still another was to go on the offensive and to point out that even most American states at the time barely qualified as classic republics in view of their large territorial spread and population, and to note concurrently that the state constitutions lacked various protections so dear to antifederalist writers. As to size of republics, antifederalists cited Montesquieu, but Hamilton rejoined in No. 9 of The Federalist that “the standards he had in view were of dimensions, far short of the limits of every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia, can by any means be compared with the models from which he reasoned and to which the terms of his description apply.”

As to protections of liberty, Hamilton objected in The Federalist No. 84,

“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 on 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 persons who in this state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a bill of rights.”

In similar vein, Madison asserted that the danger of factions, the bête noire of republican belief, was much greater in the states than in the union. Waxing metaphorical, he insisted in No. 10 of The Federalist,

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is likely to taint a particular county or district, than an entire state. In the extent and proper structure of the union, therefore, we behold a republican remedy for the disease most incident to republican government.”

Finally, the Federalists pointed out the psychological tendency of voters to connect with local politicians. Hamilton described this in No. 17 of The Federalist:

“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than his neighbourhood, to his neighbourhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, ….”

Madison echoed that analysis in No. 46 of The Federalist and challenged Smith’s assertion that the new government would infest the country with swarms of bureaucrats:

“Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt, that the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow…. With the affairs of these, the people will be more familiarly and minutely conversant; and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments.”

It is notable that the defenders of the Constitution at the time agreed that a distant government had systemic tendencies towards unresponsiveness and autocracy. They sought to blunt that criticism by defending their new “confederated republic.” As noted above, a significant part of that defense was that the general government’s powers were few and directed at truly “national” concerns which would arise in only unusual and occasional situations, whereas the states would deal with the everyday matters most directly and closely affecting the people. In hindsight, a fair observation is that many of the alarms the Antifederalists raised about an intrusive and overweening central government have materialized. The Federalists’ responses often appear quaint and unrealistic, perhaps even utopian, in light of events. Their own perceptions of human nature must have alerted them to the weaknesses of their positions and the veracity of the objections of calm and pragmatic critics such as Smith.

That said, Madison, Hamilton, and the other Federalists were not disinterested commentators. They were intent on completing their project of adopting the Constitution. As well, just because the Antifederalists appear prescient in their criticisms of the national government does not mean that their confidence in the republican attributes of state governments would have resulted in less control and regimentation of people’s lives. States and localities in fact do still control the main of people’s lives, just as the Federalists argued. Can it really be said that many state governments have not also “undermined and gradually consumed” the liberties of the people, that those governments have not created “an innumerable swarm of officers, to infest our country and consume our substance,” and that the people have not become “subject to impositions which they cannot support, and of which their complaints can never reach the government”?

We live in a country nearly one hundred times the population and four times the area of the United States when the Constitution was adopted. The principle of subsidiarity espoused by Melancton Smith in a republican constitution has the virtues of more direct popular participation and influence, more efficient implementation of political decisions, better reflection across broader domain of the diversity of local values and needs, and, hence, more immediate claims to political legitimacy. The many commentators on effective self-government who have warned over the centuries about the practical limits of republics in terms of area, population size, and cultural heterogeneity were keen observers of political systems. A devolution of more power away from the national government to the states and from the states to the localities well might be consistent with better republican government. Yet, with many current cities and metropolitan areas each exceeding the entire population of the United States in 1787, there will be further questions about how realistic it is today to expect republican government in anything but name even at the local level. Benjamin Franklin’s challenge remains, when he said about the nature of the government under the Constitution, “A republic, if you can keep it.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Joerg Knipprath
King John signing Magna Carta, 1215. Depicted is a signature, though typically an official seal would be affixed. Illustration by James William Edmund Doyle, 1864.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin in an opinion editorial, No. 2, published April 16, 1722 in the New-England Courant.

In the 1215 version of Magna Carta, King John acknowledged, “We have granted moreover to all free men of our kingdom…all the liberties below…” “Free men” were the knights, barons, and small class of free tenants of land, not the large majority of the population who were villeins or other serfs. There follows a long list of such “concessions,” some profound, others whose inclusion must have been due to some alarming event, or some quirk of history or contemporary custom or feudal practice. Whatever the reason, even fundamental matters, such as that no tax shall be imposed except by the common council of the kingdom, or that criminal convictions —at least for nobles and free men—must be through trial before a jury of peers, were cast as matters of the king’s grace. Perhaps that formulation was due to the fact that the barons were holding King John hostage until he agreed to their terms, and those barons wished to make the matter look like a voluntary arrangement. But what the king grants, the king can take away, which John promptly did by repudiating the charter once he was released.

By the time of the American drive for independence, the original Magna Carta had little legal effect in England, with only a few provisions remaining in force after the subsequent issuance of differing versions and the enactment of various English statutes that overrode most of those provisions. However, Magna Carta retained a mythical hold on Americans, who argued that they were not rebelling against their constitutional government but preserving their ancient rights as Englishmen against usurpations by the king and Parliament. Americans believed the Whig perspective that Magna Carta protected the right of common Englishmen against arbitrary royal government and placed the king under the ancient common law. The jurist Sir Edward Coke had been the most influential originator of this idealized interpretation during his political clashes with the Stuart kings early in the 17th century. Not everyone agreed, most certainly not James I and Charles I. A bill introduced in Parliament in 1621 to confirm Magna Carta as law failed.

Appealing as Magna Carta was symbolically as a written constitution that represented a contract between king and people, when Americans actually read it, they could not avoid the fact that the language of the charter assumed that the rights involved originally belonged to the king. Moreover, the king had granted the enumerated rights only to a select few. This stood in clear contrast to the dominant theory at the time of the American revolution that every person is endowed by God with certain rights. Those were inherent in such persons by the grace of God, not by that of the king.

The theory of universal natural rights inherent in each person was a distinct derivative of the much older theory of human law and relations controlled by universal higher moral laws or by principles of natural justice. It was distinct because it focused on the sovereignty of each person, independent of all others and connected to the exercise of the person’s own rational self-interest. It placed the individual at the center of social community and required, at least as a general theory, the consent of each to form a political commonwealth. Duties undertaken to others arose out of the free exercise of one’s right to consent to do so.

The more traditional approach of writers on natural law and natural justice had assumed the operation of a universal order external and antecedent to human society. It functioned concretely, as manifested in the physical universe and human society, and morally, through human reason. Each person was a part of both aspects of that order. Moral and, ultimately, legal duties to others could arise only in humans as creatures who have the capacity to participate in the moral structure of that order. From these natural duties arose rights to make it possible to meet those obligations. In Nicomachean Ethics, Aristotle distinguished between natural and conventional justice: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not.”

In a similar manner, the Roman philosopher and political leader Cicero, expressing a Stoic interpretation, repeatedly explored the connection among law, justice, nature, God, and reason. Just a few select passages from his book Laws suffice as examples. “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. But in determining what Justice is, let us begin with that Supreme Law which had its origin ages before any written law existed or any State had been established.” Once it was established that there was a superintending structure of natural law commensurate in its essence with reason, Cicero explained how human beings can participate in that order, and can understand the duties created thereunder and exercise the correlative rights. “[T]hat animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, full of reason and prudence, has been given a certain distinguished status by the supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.” Such a momentous project is the work of an all-powerful and all-knowing superhuman mind. “[Natural] Law is not product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things ….” Finally, a human enactment, no matter the political system which created it, cannot truly be law if it conflicts with the higher natural law. “[N]either in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.”

Cicero has not been alone in distinguishing between a statute which is not truly law and one which is because of its conformance to justice represented by higher law. The distinction was clearly expressed by, among others, justices of the early Supreme Court. For example, in a colloquy between himself and Justice James Iredell, Justice Samuel Chase declared in 1798 in Calder v. Bull, “An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” The “first principles” to which Chase referred are those of natural law and natural rights, as shown by Iredell’s skeptical response: “It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so…. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

St. Paul acknowledged the universality of natural law and its connection to the God of all mankind. In his letter to the Romans, Paul explained that “When Gentiles who do not possess the law do instinctively what the law requires,” it proves that God’s universal law exists outside any particular received commands. Those Gentiles “show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them” on the day of judgment. In that manner, enlightened pagans such as Plato, Aristotle, and Cicero might have keen insight into the moral order created by God, and they would be judged the same as those who had received the declared law. They were accountable for their thoughts, words, and deeds under the natural moral law, although their ignorance of specific aspects of the declared law might not be held against them.

Then why was it necessary to have revealed law at all? Philosophers and theologians have long made clear that not all people possess equal capacity to understand what God has written on their hearts, but also that the reason of all humans is imperfect due to the human condition. Humans lack the omniscience of God and His perfect reason to comprehend the full extent of the natural law. Revelation is necessary both for those matters whose substance is beyond human understanding and, at least for some people, “about those religious and moral truths which of themselves are not beyond the grasp of human reason,” in the words of Thomas Aquinas.

Alexander Hamilton in essay No. 33 and James Madison in essay No. 44 of The Federalist made similar arguments about a rather different matter. In Article I, Section 8, the United States Constitution expressly grants Congress the power to legislate regarding certain substantive matters. The question presented was why the Constitution also gave Congress the power to make all laws “necessary and proper” to carry into effect its other powers, when Congress already had the implied power to make such laws as a means for effectuating the ends specified in the Constitution. As Madison pointed out,

“Had the constitution [sic] been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.”

Hamilton concluded that “it could only have been done for greater caution, and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” In other words, the implied power to make such laws already existed under universally accepted and applicable principles of government. But the extent of implied powers is ill-defined and subject to considerable debate and uncertainty. The express enumeration, then, provides a more concrete statement less subject to manipulation and deception.

If the immutable laws of nature represent the work of the divine reason, good human laws are the result of human reason applied to concrete conditions and problems. But human laws are sometimes the product of passion, often temporary, rather than of reason, in denigration of the classic definition. Hamilton addressed this problem in essay No. 78 of The Federalist, where he characterized judicial review of legislation as itself an act of reason to control the ill effects of popular passions:

“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

As Cicero taught earlier, the fact that these laws, enacted as the result of temporary public passions, may have been approved by the nation does not lessen their incompatibility with the Constitution and with reason.

Mob rule would be another, perhaps even more blatant, triumph of passion over reason than the arbitrary human law hastily produced by the legislature. That body had more of an opportunity to calm those passions or might at least blunt their force in the eventual statute. However, there is another side to be considered. What is mob rule? Does the uncoordinated broad refusal of the people to go along with an arbitrary statute qualify as such, in what has been dubbed “Irish democracy”? Is direct peaceful opposition by large numbers in the form of demonstrations and petitions? Is rioting and violent opposition? Is insurrection by destroying government property, tarring and feathering government officials, and shooting at soldiers? Or is even the last a legitimate form of opposition to allegedly arbitrary government, at least if those opponents eventually win and write the history books? After all, to the British in the 1760s and 1770s, Americans often engaged in mob rule by a violent minority faction, which then escalated to insurrection and, eventually, full rebellion in a civil war.

The Constitution is positive law, proposed by humans in Philadelphia and approved by assemblies of humans in the several states. The charter incorporates what the Supreme Court has accepted as universal principles of natural law, such as prohibitions of ex post facto laws or of  laws which interfere retroactively with the obligations and rights in contracts, take property without compensation or as mere redistribution for a private person’s benefit, deny basic protections of due process, burden one’s right of self-defense, or interfere with fundamental rights of conscience by abridging rights of free speech, assembly, press, and religion. If Thomas Paine is correct, and there is a natural right of self-government, the Constitution even protects that right, at least within broad bounds.

Still, even the Constitution is not at one with the immutable, constant laws of nature. What the human lawgiver gives, it can take away, just as King John did with Magna Carta. The Constitution can be amended, and nothing in its text prevents the nullification of the rights mentioned earlier. Nor is the discovery by the Supreme Court of unenumerated rights through flexible and creative interpretation of “liberty” under the due process clauses of the Constitution inherently immutable. Such discoveries can be reversed or neutralized by the Supreme Court itself, as happened recently with the retraction of the right of a woman to obtain an abortion, first discovered rather belatedly in 1973. Or a formal amendment can be adopted which overrides an earlier Supreme Court opinion, as has happened several times.

Nor does the Constitution address all principles of natural law and natural rights. It was not until adoption of the 13th Amendment in 1865 that the Constitution took a clear position against slavery, although Western philosophers of ethics and politics and theologists had wrestled with that issue for millennia and had found slavery to be contrary to nature and natural law at least under many circumstances. Worse, the Constitution itself may conflict with natural law and natural rights. After all, a mere five years earlier, on the eve of the Civil War, President Abraham Lincoln and other Northern politicians had advocated for another, far different 13th Amendment, one that would have expressly protected at the level of constitutional law that very same institution of slavery in the states where it then existed. Only the refusal of Southern radicals to accept the geographical limitation in that proposal and the force of the process already set in motion in the Southern states towards secession prevented its further consideration by Congress.

Another difficulty lies in this. To the extent that the Constitution’s text falls short of manifesting the immutable, constant laws of nature and the extent of natural rights, may the Supreme Court fill in those gaps? The Ninth Amendment does no more than state the obvious, that the enumeration of certain rights in the Constitution does not exhaust the scope of rights each person has. It provides no express license for the Supreme Court to substitute its judgment for that of the people or the people’s representatives. Moreover, as Justice Iredell objected in Calder, the commands of the natural law and natural justice are difficult to discern, especially in application to specific and varied circumstances, and have long been the object of philosophic speculation.

Of course, the people or their representatives should make law only in accordance with natural law. But the problem is precisely that they often are driven by self-interest and passion, not by the requisite reason. Nor are the people generally, or the legislators, inherently qualified as moral philosophers any more than the judges. This quandary requires inquiry into the role of private and public virtue in the promotion of proper self-government and the establishment of a political order and human law consistent with the natural law and the protection of each person’s natural rights.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Eric C. Sands
The United States Constitution and Declaration of Independence on an American Flag background

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In a republic, it is common to refer to government action needing to be supported by the consent of the people. But what do we mean by the “people?” Certainly, this cannot mean the consent of every person in a political community since no such universal consent would ever be possible. Instead, a republican form of government relies on the consent of the majority in undertaking action and carrying out public policy.  This does not mean that the will of the majority is always right or just or that the majority cannot be tyrannical in how it exercises its will. There is no question that majorities can be as despotic as kings if given the ability to rule unchecked. The majority will, however, properly organized, limited, and directed within a constitutional framework will generally prove the most legitimate basis for good government.

No one makes this argument more effectively than James Madison, the architect of the large republic that can operate over a broad territory with a big population. This model, presented in Federalist 10, became the basis for the American idea of republicanism. In doing so, Madison argued that majority rule was not perfect, but it was better than any of the available alternatives. Majority rule is what allowed republican government to exist and what further allowed rule by the people. In short, the principle of majority rule is the basis of popular sovereignty and is tempered and moderated through the institutions of constitutional government. To be sure, not everyone agreed with Madison’s defense of majority rule. Some, like Thomas Jefferson, complained that rule by the majority left the rights of the minority insecure and presented the minority with few options in protecting their rights and liberties. A perfect example of this was the Alien and Sedition Acts passed in 1798, which restricted immigration and speech in the United States.

Jefferson was called on to help prepare a protest against the acts, which he did in the famous Kentucky Resolutions. In the Resolutions, Jefferson argued for a narrow reading of the Constitution and embraced a states’ rights interpretation of the constitutional system. His major concern, though, was how the minority could protect itself from the majority within the constitutional system. His solution was to embrace the doctrine of state nullification. As Jefferson explained, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.” Clearly, this was quite a radical doctrine and had important implications for the young republic. A number of prominent statesmen spoke out against Jefferson’s idea and predicted that nullification would become the death knell of the nation. In that they were not far wrong. Madison, for his part, helped prepare an alternative set of resolutions for Virginia, but was much less radical and said nothing about a power of nullification to protect the minority. The Alien and Sedition Acts showed that the majority’s will could sometimes be in error, but it was still the best way of organizing the voice of the people.

The challenge of nullification to the principle of majority rule came up again in 1832 when South Carolina nullified two tariff bills that it claimed were unconstitutional. Under the heavy influence of John Calhoun, South Carolina’s Nullification Proclamation announced that the acts “are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens.” According to Calhoun and South Carolina, every state had the right to judge for itself the constitutionality of the laws of the country and to negate those laws if a state believed them to be unconstitutional. This was the only way of protecting the minority against the overreach of the majority and to make sure that minority rights and interests are taken into account.

But the nullifiers’ claims did not stop there. Backing up their doctrine of nullification was an appeal to secession. The Proclamation warned the national government that any attempt to change South Carolina’s nullification by force would leave the state with no choice but to leave the Union. An act of aggression against the state would be

“inconsistent with the longer continuance of South Carolina in the Union; and that the people of this State will henceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States; and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.”

Eventually, South Carolina backed down on nullification, but the fact it had been raised again speaks to what a powerful challenge it was to the principle of majority rule. It is for this reason that Madison as an elder statesman prepared a response to Calhoun and a defense of majority rule. In 1833, Madison wrote in a letter that articulated his strong position on majority rule and how the extended republic makes majority rule possible and safe. As Madison wrote,

“Those who framed and ratified the Constitution believed that as power was less likely to be abused by majorities in representative governments than in democracies…and less likely in the larger than in the smaller communities, under a representative government, inferred also, that by dividing the powers of Government and thereby enlarging the practicable sphere of Government, unjust majorities would be formed with still more difficulty.” 

To men like Calhoun, and Jefferson, who would attack majority rule, Madison put the matter plain. Without majority rule, republican government was simply not possible. This made it clear that “while the Constitution is in force, the power created by it [in a popular majority] must be the legitimate power, and obeyed as the only alternative to the dissolution of all government.” Thus, it is, according to Madison, that majority rule under constitutional government is not to be preferred because it is perfect, but because it is the least imperfect.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties.

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Guest Essayist: Josh Herring
John Jay, first Chief Justice of the United States Supreme Court

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In The Abolition of Man, C.S. Lewis argues that education exists to inspire students’ affections so that they love good and hate evil. Such, the Western tradition has held time out of mind, is the route to being able to perceive the choices which lead one towards a happy life, and the choices which lead away from such an end. Lewis stands in agreement with both Aristotle and Kierkegaard in affirming that as rational creatures, human beings have the ability to make real choices.

It is this capacity for rational choice that makes the founding principle of “self-government” so vital for the flourishing of the American republic. James Madison famously wrote that the regime the founders and framers envisioned could only be maintained by a “moral people,” meaning that the American system of governance depends upon the majority of citizens practicing customs which train the heart and hands to love what is good. The founders were not naive; they knew the evil that resides in the human heart. And yet, their federalist system envisioned a people whose religious allegiance and moral training enabled them to choose right over wrong, good over evil, beneficial over harmful, in most cases. John Jay made the connection between a self-governing people choosing virtue and maintaining their freedom clear:

Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…[1]

Such self-governance is necessary for the flourishing of a legal system within which the people can, through various hierarchical structures, vote to construct their society as they see fit. We have that capacity. Given this reality, the importance of self-government should be clear. We need citizens to value rule of law, to see and approve of the connection between natural law and civil law, to perceive the necessary goods of property rights and constitutional order for the American way of life to continue. Different regimes exist; it takes but a momentary survey of 20th century history to see fascism, communism, and dictatorship as counter examples of what is possible. How then do we inculcate the value of self-governance in the rising generation?

Self-governance becomes a question of education. And this is where the classical education renewal movement holds the seeds of restoring health and vitality to the American way of life. I propose three ways the classical education passes on the principle of self-governance to students. First, we teach students that humans exist as embodied souls, and as such hold intrinsic worth. As rational creatures of infinite value, their choices matter. But with those choices comes responsibility. Second, school is a place for students to learn that actions, words, and ideas have consequences. Choosing to study diligently throughout the term results in academic progress and completion of a course. Engaging in physical violence results in expulsion. Being a faithful, diligent student who participates in the great tradition leads to forming strong relationships with teachers (creating the teachers’ ability to write recommendations). Third, classical schools teach students to see the past as an inheritance they must receive, steward, and pass on. In so doing, students take ownership of the ideas, values, concepts, and skills that previous generations have developed. They then exercise those ideas to build a fulfilling life capable of reaching happiness. Through these concepts, long abandoned by mainstream education, the classical renewal movement offers hope to an America in need of rediscovering her first principles.

A self-governing citizenship is the only way to avoid Thrasymachus’s accusation in The Republic that “Justice is nothing but the will of the stronger.” If a people will not govern themselves, they will eventually cause their own destruction. But such an end is not inevitable. In families, in churches, in schools, and in all the variations of Edmund Burke’s “little platoons” which make up our society, the principle of self-governance is still taught, practiced, and exemplified. So long as we live aware of the value of our choices, we preserve our freedom. In losing that awareness, in living as if reality were consequence-free, we exchange freedom for bondage. Someone will rule over us, and for that to be ourselves, we must recover self-governance as a way of life.

Josh Herring is Professor of Classical Education at Thales College, where he oversees the development of the Classical Education teacher training program. He also serves as Director of Debate for the Thales Debate Network, and hosts The Optimistic Curmudgeon podcast. He tweets at @TheOptimisticC3.

[1]  John Jay. “Citizen of New York: An Address to the People of the State of New York” (April 15, 1788).

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Guest Essayist: Andrew Langer
“Washington as Statesman at the Constitutional Convention” a painting depicting George Washington presiding over the Constitutional Convention of 1787, by Junius Brutus Stearns.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The brilliance of the United States Constitution lies not just in its innovative governance structure but in its foundational principle: that it is a written contract allowing, under strict limits, a government to run under the authority of the American people within the states. This principle, in fact, was not an accidental development but a conscious response to the concerns and criticisms prevalent in the post-revolutionary era. One such concern was voiced in a 1778 letter disparaging the American constitutions as inadequate in their republican form, claiming they replicated the tyrannies America sought to escape. It is to this concern that John Adams, a pivotal figure in the nation’s founding, offered a compelling defense.

Adams replied in his first letter which was part of his three-volume response written from 1787 to 1788:

“There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, John Adams, Grosvenor-Square, October 4, 1786

Even though, through his letters, Adams’ initial response is directed to the American state constitutions of the time, through this lens, the U.S. Constitution that would come later can be seen not just as a foundational document of a nation, but as a meaningful dialogue with history, philosophy, and human nature itself. His profound assertion draws attention to the uniquely American synthesis of reason, experience, and an informed understanding of human nature that undergirds the U.S. Constitution.

Adams’ defense provides an insightful understanding of the Constitution’s design. The reference to “reason, experience, the constitution of human nature” underscores the importance of these elements in the design of the Constitution. He acknowledges that no political document, including the American constitutions, can be free from imperfections. Yet, he contends that the United States Constitution, by grounding itself in human reason and experience, offers a robust framework for the functioning of a republic.

The Constitution’s written nature, as Adams seems to imply, is central to ensuring its efficacy as a contract between the people and the government. A written constitution provides a tangible and constant point of reference, a standard against which the actions of the government can be measured. In the context of the American Revolution, a written constitution was particularly significant. It represented a break from the unwritten traditions and discretionary powers that characterized the monarchy America was rebelling against.

Moreover, the Constitution goes beyond merely setting the rules of governance. Its provisions for separation of powers, checks and balances, and federalism were innovative measures to prevent the concentration of power – a direct response to the accusation of the American constitutions merely “repeating dictatorships.” These mechanisms ensure that no single entity within the government can dominate, thus safeguarding the people’s control over their government.

In the light of Adams’ emphasis on the “uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern,” it is clear that the Constitution was not conceived in a vacuum. Instead, it was informed by a rich tradition of political thought. The Framers drew upon lessons from ancient Rome and Greece, Enlightenment philosophies, and contemporary political experiences. They sought to create a Constitution that would not only serve the immediate needs of the fledgling nation but also stand the test of time.

Moreover, they were influenced heavily by the country’s experience under the Articles of Confederation, the nation’s first written constitution. Its deficiencies, including the national government’s inability to act during Shays’ Rebellion (1786–87), exposed the need for a more robust central government capable of direct taxation and regulating interstate commerce.

Furthermore, the U.S. Constitution embodies the principle that the ultimate authority rests with the American people. This principle is most evident in the Constitution’s opening words: “We the People…” It is the people who are giving the government its power and setting its limits. The Constitution, therefore, is not an instrument of the government to control the people, but an instrument of the people to control their government. This is the essence of the republican form that the 1778 critique claimed was lacking.

The Constitution’s authors were acutely focused on limiting the power of government and securing citizens’ liberty. They sought to strike a balance between authority and liberty, embodying the central purpose of American constitutional law. To achieve this, they adopted the doctrine of legislative, executive, and judicial separation of powers, checks and balances, and explicit guarantees of individual liberty.

Integral to the Constitution’s design is the principle of a social contract—a fundamental agreement between the government and the governed. This social contract places the Constitution within the Enlightenment’s philosophical tradition, drawing upon ideas from ancient philosophy, English common law, English political theory, and the European Enlightenment.

However, this isn’t the complete picture of the Constitution’s influence. To fully comprehend its breadth and significance, it’s essential to understand John Adams’ quote in context. His argument suggests a keen awareness of the complexities and potential pitfalls of constructing a republic, a challenge the Framers of the U.S. Constitution had to grapple with—an awareness no doubt gleaned from his years of political work in the Continental Congress, where he saw firsthand the perils of unbridled power, fostered a deep-seated commitment to the principles of decentralization and individual liberty. It was Adams who famously remarked that “power must never be trusted without a check.”

Adams’ involvement in the negotiations leading to the unanimous vote on the Declaration of Independence further honed his views on the balance of power. He witnessed the states banding together in a common cause, each contributing to the struggle for independence while retaining their individual identities and rights. The unanimous vote was a testament to the power of cooperative federalism, a principle that would later be enshrined in our Constitution.

In crafting the Constitution, Adams drew on these experiences to advocate for a system of government that balanced the authority of the federal government with the rights of states and individuals. He championed the idea of a strong central government, yes, but one that was kept in check by the rights of states and the liberties of the citizenry. It is this delicate equilibrium, so cherished by Adams, that has allowed our republic to flourish.

For Adams, and for us, the essence of American liberty lies in this balance. His experiences in the crucible of independence shaped a vision of government that valued both the collective strength of the federal government and the individual freedoms of its citizens.

The United States Constitution stands as a beacon of American political philosophy, embodying a profound understanding of human nature, reason, and the wisdom of past statesmen, legislators, and philosophers. It is the embodiment of a social contract, firmly rooted in the principle of popular sovereignty. Yet, it is also a testament to the profound challenges and complexities involved in crafting a republic that is both robust and responsive to the needs of its citizens. To fully appreciate its significance, we must heed Adams’s words and reconcile its provisions with the wisdom that can only come from experience.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The idea of a constitution is an ancient one. The idea of a written constitution, however, is relatively new. To be sure, regimes have long created written documents and legal codes that outline the structure of governing authorities and protect certain rights for citizens and subjects. Yet before the United States Constitution, these written documents were not seen as fundamental for understanding what constitutes a regime. Before Americans chose to produce written constitutions, a constitution was understood in terms of the norms that make up a regime rather than the words written on any piece of paper.

Classical political thought recognized the need to study constitutions, but a regime’s constitution was the collection of formal and informal norms that made up a people’s way of life in a regime. In Aristotle’s Politics, he describes the regime (the Greek word politeia) as “an arrangement of a city with respect to its offices, particularly the one that has authority over all matters. For what has authority in the city is everywhere the governing body, and the governing body is the regime.” In other words, the constitution of a city was not a legally-binding written document outlining the powers and restrictions on officers. Instead, the constitution was the way the people of a regime lived and how they chose to organize their governing offices at a given time. Constitutions were much less a matter of fixed law and much more a matter of a people’s organic norms. Politics was inherently contingent as a regime would change in its nature whenever the people changed in their ways and how they chose to organize authority.

All of this changed with the United States Constitution. Certainly, the idea of a written document to serve as the fundamental law of government did not spring from the mind of James Madison in 1787 without any antecedents. Early settlers of the American colonies wrote documents outlining the governing principles for their new settlements, such as the Pilgrims’ Mayflower Compact. The idea of a model constitution for a regime had been developing in modern political thought, such as in John Locke’s Second Treatise of Government. During the American Revolution, states began writing new constitutions even before the Declaration of Independence was published. The Continental Congress passed the Articles of Confederation as the first written constitution for the United States. The document produced by the Constitutional Convention in 1787 to correct the defects of the Articles, which was then ratified by the American people, was the culmination of these efforts.

The shift in thinking on the importance of a written United States Constitution cannot be understated. The implicit idea was that a written document outlining the new government’s fundamental principles and its structure could establish a legal and political framework to shape the informal norms by which the people constitute themselves. The Constitution would serve an educational role by informing citizens of the government’s organizing principles. Under a written constitution, politics could be at least less contingent than under the older notion of a constitution as there are written norms that can last across generations to shape political conduct. A written constitution does not guarantee any political outcomes, of course, as politics will always be subject to the individual choices of human action. The Constitution does, however, distribute authority and establish norms in a way that will make certain outcomes more likely. The Constitution establishes a lasting structure to guide politics because there are further principles embedded in the idea of a written constitution.

One of the central ideas behind writing a constitution down is that government’s power is not unlimited. Chief Justice John Marshall explains this well in the famed Supreme Court case Marbury v. Madison:

“To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.”

If the government’s power is absolute, then there is no reason to write down restrictions on government because it would be free to do whatever it wants. If limits on government authority are written down, then it is assumed that these limits will be upheld; otherwise, there was no point to writing the limits down. Marshall thus proclaims in Marbury that a written Constitution is “what we have deemed the greatest improvement on political institutions.”

The deepest assumption behind the idea of a written constitution is that all political power originally comes from the people. If government’s power came from within itself, then there would be no natural limits to what government can do and no need for written restrictions. Instead, governmental power is granted by the people and a constitution serves as a specific statement of what is granted and what authority the people retain for themselves. This delegation of power must be done in an explicit, concrete act by writing it in a public document approved by the people to embody their fundamental will. The written United States Constitution recognizes that the ultimate source of authority remains with the people who have enacted a document to last for ages so that future generations will share the blessings of this supreme law of the land.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

 

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Guest Essayist: Gary Porter

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Why Government?

Thomas Jefferson said it most succinctly: “to secure these rights, governments are instituted among men.” We could end this discussion right there – the “appropriate role and purpose of government” is the “security, the protection of unalienable rights,” but we all know there is more to the story.

Americans today are losing touch with the concept of God-given, unalienable rights, some in fact firmly reject the idea, even the existence of such rights, believing instead that government is not only the protector of our rights, but also their source. America’s Founders rejected this concept out of hand. As Jefferson clearly stated, we “are endowed by [our] creator with certain unalienable rights.” He made a similar observation two years prior in his Summary View of the Rights of British America[i] and later in his 1785 Notes on the State of Virginia.[ii]

The Source of Rights

Today, however, when someone speaks of “natural law” or “natural rights” they should be asked to clarify whether they are referring to God-given natural rights or rights which accrue to humans “naturally” through a social contract or “the nature of things.” The use of the adjective “inherent” in describing rights, as George Mason did in the 1776 Virginia Declaration of Rights,[iii] lends itself to two different interpretations, the rights are either uniquely inherent to humans as creations of God or are uniquely inherent to humans as the apex species of evolution. Given this, I prefer “unalienable” to “inherent.”

Though a Christian (he authored “The Truth of the Christian Religion”), the Dutch political philosopher Hugo Grotius[iv] promoted the idea (borrowed from Cicero and others) that natural law was created by the natural order and was not, or at least not necessarily a creation of God. Natural law did not require God’s revelation but could be discovered simply and solely through human reason. While America’s Founders knew of and respected Grotius, particularly his famous 1625 On the Law of War and Peace (De Jure Belli ac Pacis), as we see will in the following quotations, they held to a theistic source for both natural law and natural rights.

But even America’s leaders had to remind their fellow citizens of this from time to time. Writing in reply to an essay from “The Farmer,”[v] Alexander Hamilton explained:

“The fundamental source of all your errors, sophisms[vi] and false reasonings is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society…”To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature . . . . Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety . . . . The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.”[vii]

Human beings have natural, unalienable rights which are incapable of being “be erased or obscured” by any act of man or government.

In his 1765 Dissertation on the Canon and Feudal Law, John Adams insisted that our rights were “derived from the great Legislator of the universe.”

Virginian lawyer George Mason, arguing in the 1772 case of Robin v. Hardaway, (1 Jefferson 109) affirmed that:

“The laws of nature are the laws of God: A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.” [viii]

Other American Founders, such as John Dickinson, expressed similar views:

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.”[ix]

Dickinson was an intriguing man, largely overlooked today. Born into a family with long-standing ties to the Quaker religion, Dickinson received an education in the law at the Middle Temple, London, before setting up his practice near Philadelphia. He inherited land holdings in both Pennsylvania and Delaware and became one of the richest men in both states.[x] In 1776, Dickinson represented Pennsylvania at the Continental Congress as it considered independence. His Quaker roots kept him from openly voting for independence (and inevitable war), so on the fateful day of July 2, 1776, Dickinson (along with Robert Morris) “absented himself” to give the Pennsylvania delegation a majority in favor of Virginia’s resolution for independence. Once the resolution for independence passed, Dickinson similarly refused to vote in favor of Jefferson’s Declaration, a decision which then forced his resignation from the Pennsylvania delegation. Once out of the Congress, Dickinson surprisingly joined the Pennsylvania militia as a Brigadier General, becoming one of only two members of the First Continental Congress who actively took up arms during the war. Dickinson capped his long public service career by representing Delaware at the Constitutional Convention.

In this statement on natural rights, Dickinson repeats familiar themes: rights originating with a Creator God, resulting from God’s natural law, and which “cannot be taken from us by any human power.”

James Wilson, one of six men who signed both the Declaration of Independence and the Constitution, after calling God “the promulgator as well as the author of natural law,” observed in his famous 1790 Lectures on Law:

“I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.”[xi]

To protect and enlarge our natural rights, this becomes the “business” of civil government, or at least one of the responsibilities or duties of government.

The History of Rights (much abridged)

Rights, and the security thereof, had gradually become a central focus of Englishmen as they wrestled with two oftentimes opposing concepts: the divine (i.e., God-endorsed) right of kings on the one hand, and the unalienable, God-given rights of individuals on the other hand. Magna Carta became a waypoint in this investigation; forcing King John to subordinate his divine right and accept responsibility for protecting certain individual rights, including due process of law and trial by jury.

Magna Carta was soon ignored, but was eventually replaced by newer versions. In the 17th century, Magna Carta’s rights were supplemented by Parliament’s Petition of Right (1628) and the English Bill of Rights (1689). This growing focus on natural rights accompanied America’s settlers as they sailed for the colonies, being encapsulated in the first colonial charters as “liberties, franchises and immunities”[xii] of Englishmen. From there, rights were expanded and reinforced, expounded in a host of colonial documents, beginning with the Mayflower Compact and ending one hundred and seventy-one years later with the Constitution’s Bill of Rights. Over this period, the colonists seldom passed up an opportunity to reiterate their essential rights. A partial list:

1620 – Mayflower Compact (Plymouth)

1636 – Code of Law (Plymouth)

1639 – Fundamental Orders (Connecticut)

1639 – Act for the Liberties of the People (Maryland)

1641 – Body of Liberties (Massachusetts)

1677 – Declaration of the People (Virginia)

1701 – Charter of Privileges (Pennsylvania)

1763 – The Rights of the British Colonies Asserted and Proved (James Otis)

1764 – The Rights of Colonies Examined (Stephen Hopkins)

1765 – Declaration of Rights and Grievances (Stamp Act Congress)

1766 – An Inquiry into the Rights of The British Colonies (Richard Bland)

1772 – The Rights of the Colonists (Samuel Adams)

1774 – A Summary View of the Rights of British America (Thomas Jefferson)

1774 – Declaration and Resolves (1st Continental Congress)

1775 – Declaration on the Causes of Taking Up Arms (2nd Congress)

1776 – (January) Bill of Rights (New Hampshire Convention)

1776 – (June) Declaration of Rights (Virginia)

1776 – (July) Declaration of Independence (2nd Continental Congress)

1776 – (July) Declaration of Rights (Pennsylvania)

1776 – (September) Declaration of Rights (Delaware)

1780 – Declaration of Rights (Massachusetts)

1788 – Declaration of Rights (North Carolina)

1790 – Of the Natural Rights of Individuals -Lectures on Law (James Wilson)

1791 – The U.S. Bill of Rights

Natural law and the natural rights which spring from them are enjoying a resurgence in popularity of late, thanks to the scholarly work of men like John Finnis in Natural Law and Natural Rights (Clarendon Law Series, 2nd Edition; J. Budziszewski in Written on the Heart: The Case for Natural Law; Hadley Arkes in Mere Natural Law: Originalism and the Anchoring Truths of the Constitution; and others. As John Horvat explains, “the growing acceptance of natural law theory among frustrated Americans is shaking the legal field.”[xiii] This resurgence within the legal and scholarly communities appears to terrify some, however, natural law and natural rights are still ignored or misunderstood by the vast majority of Americans.

The Extent of Natural Rights

There is no known “inventory” of natural rights, at least none that all political philosophers or natural rights expositors over the millennia have agreed upon. The Founders knew of course of the Ten Commandments, which form the core of “the laws of Nature’s God.” If God commands “thou shalt not steal” it seems reasonable to derive from that “a right to acquire and retain property.” “Thou shalt not murder” denotes a “right to the preservation of one’s life.” But no Founding Father appears to have attempted an enumeration of all natural rights.  Indeed, as James Iredell explained at the 1788 North Carolina Ratifying Convention, such an enumeration, if used as the basis for a Bill of Rights:

“…would not only be useless, but dangerous, … it would be implying, in the strongest manner, that every right not included in the [enumeration] might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”[xiv]

But a useful list of those essential rights the Founders collectively supported can nevertheless be gleaned from their writings. As Chester James Antieau explains:[xv] “the natural rights on which there was the largest agreement and the greatest significance were … freedom of conscience and religion, life, liberty and the pursuit of happiness, property, the right to govern and tax themselves, and freedom of communication.”

Some Founders also supported rights derived from the common law, such as the right to trial by jury, and freedom from warrantless searches, but such rights cannot be denominated as “natural” rights since they would have no rational basis in a hypothetical state of nature.

How Should Rights Be Secured?

The next question we must consider is: how should the government fulfill its responsibility of protecting our unalienable rights? Is a Bill of Rights necessary, or even appropriate?

James Madison and other Founders considered the Constitution itself to be a “bill of rights.” A constitution of limited and enumerated powers, carefully drawn, will protect individual rights by not providing the new government with the power or authority necessary to infringe on those rights. “For why declare that things shall not be done which there is no power to do?” wrote Alexander Hamilton in Federalist 84.[xvi] While the Framers certainly felt they had created a limited power document, replete with checks and balances, history has shown the ambiguity of language to be the Framers’ downfall. The Anti-federalists saw “loopholes”; for instance, the power given the Supreme Court would allow the court to “mould the government, into almost any shape they please.[xvii] The Anti-federalists fumed over the absence of a Bill of Rights, “would it have consumed too much paper?” scowled Patrick Henry. When sent a copy of the Constitution to review, Jefferson replied by gently chiding his friend: “A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.” [xviii]And so a reluctant James Madison agreed to single-handedly champion the project.

The initial draft he submitted to Congress, borrowing heavily from the Virginia Declaration of Rights, contained several protections which did not survive the House and Senate “wordsmithing.” Madison’s treasured “rights of conscience” didn’t even make it through the House Committee on which Madison himself sat!. Despite these setbacks, Madison persisted and the document was finally sent to the states for ratification, achieving that on December 15, 1791, with Virginia’s acceptance. But would a Bill of Rights be enough?

In an October 1788 letter to Thomas Jefferson, Madison had warned that even a Bill of Rights might not be sufficient: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”[xix] “Tyranny of the majority,” the primary reason the Founders’ abhorred democracy. But infringements of rights do not require a majority, with the help of government even a minority can prevail.

When Governments Become Corrupted

Americans have recently witnessed how a government can be enticed to infringe upon our unalienable rights by a “popular current” arising from even a small minority faction. The revelation that officials in the Executive branch of the federal government colluded with media companies to silence the public expression of viewpoints they did not agree with shocks us, it is reminiscent of the Communist regimes under Stalin and Mao, not to mention the authoritarian governments in present-day Russia and China.

Jefferson believed that: “The republican is the only form of government which is not eternally at open or secret war with the rights of mankind.”[xx]

The Americans are the ultimate sovereigns in their republican form of government; government is their servant, not the reverse. Unfortunately, the American people, by and large, have abandoned the Founders’ view of both law and government.

If there is any good news here it is that at least some Americans, those who understand the societal sea-change being forced upon them, are willing to fight for protection of their unalienable rights. Welcome assistance comes from the present Supreme Court, which is currently staffed with a majority of justices who share an originalist and therefore Founders’ view of rights. But our trust in a temporary majority of originalist justices should be cautioned by the realization that future courts may not be so favorably apportioned. As Jefferson reminds us: “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”[xxi]

So, it is to the Bill of Rights itself we must turn; is its language sufficient or too open to interpretation? Should we consider the words of the original Bill of Rights as unamendable, or should we be willing to clarify ambiguous 18th century language? Are we to accept our society’s present worldview confusion as inevitable or should we work to correct it?

These are the sort of questions we should be asking, and debating.

In his 1967 Inaugural Address, the great Ronald Reagan cautioned:

Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.  And those in world history who have known freedom and then lost it have never known it again.”[xxii]

If we want to continue to enjoy our natural, unalienable, God-given rights, and we wish our posterity to be likewise blessed, we must be prepared to fight for and defend them.

I will conclude with the words of Founder John Jay, first Chief Justice of the Supreme Court under the new Constitution, who in 1777, while instructing (charging) a New York grand jury, reminded us:

“Every member of the State ought diligently to read and to study the constitution of his country and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.”[xxiii]

Note that, for (at that time) Judge Jay, reading the Constitution is not sufficient, it should also be studied, and diligently so. The goal, of course, lies not simply in the reading and studying; the goal is to pass along what you have learned to the next generation of Americans. Even then, the project is not complete; the rising generation requires this knowledge to be better equipped to defend and assert their rights, thus, hopefully, perpetuating a society of freedom and liberty.

John Jay would be proud of the commendable work Constituting America accomplishes in pursuing his charge.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at 

gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] https://avalon.law.yale.edu/18th_century/jeffsumm.asp.

[ii] https://docsouth.unc.edu/southlit/jefferson/jefferson.html.

[iii] “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

[iv] A latinizing of his given name: “Huig van Groot.”

[v] Hamilton was replying to a series of essays, appearing from November 1774 to January 1775, written by “A W. Farmer, (loyalist Bishop Samuel Seabury, the first American Episcopal bishop), who had set out “to detect and expose the false, arbitrary, and tyrannical PRINCIPLES upon which the [Continental] Congress acted, and to point out their fatal tendency to the interests and liberties of the colonies.” To see the arguments Hamilton is “refuting,” the “Farmer’s” letters can be accessed at: http://anglicanhistory.org/usa/seabury/farmer/.

[vi] Sophisms: specious arguments for displaying ingenuity in reasoning or for deceiving someone. Dictionary.com.

[vii] Alexander Hamilton, The Farmer Refuted, February 23, 1775, New York.

[viii] https://cite.case.law/jefferson/1/109/.

[ix] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.

[x] Interestingly, for a short period of time (November 1782-January 1783) Dickinson served as the President of both states.

[xi] http://www.nlnrac.org/node/241.

[xii] 1606 First Virginia Charter, at: https://encyclopediavirginia.org/entries/first-charter-of-virginia-1606/.

[xiii] https://www.tfp.org/why-the-left-hates-and-is-terrified-by-natural-law/.

[xiv] https://docsouth.unc.edu/nc/conv1788/conv1788.html, p. 192.

[xv] Chester James Antieau, Natural Rights And The Founding Fathers-The Virginians, 17 Wash. & Lee L. Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.

[xvi] https://avalon.law.yale.edu/18th_century/fed84.asp.

[xvii] Brutus XI, in The Complete Anti-Federalist, Herbert J. Storing, ed., (Chicago: The University of Chicago Press, 1981) Volume Two, Part 2, 417-422.

[xviii] Thomas Jefferson, Letter to James Madison, December 20, 1787.

[xix] https://press-pubs.uchicago.edu/founders/documents/v1ch14s47.html.

[xx] Letter to William Hunter, 11 March 1790., at https://founders.archives.gov/documents/Jefferson/01-16-02-0130.

[xxi] Thomas Jefferson, in a draft of the Kentucky Resolutions of 1798.

[xxii] This is the version Reagan uttered during his Inaugural Address as President on January 5, 1967, not the more familiar and edited version published afterwards. See: https://www.reaganlibrary.gov/archives/speech/january-5-1967-inaugural-address-public-ceremony.

[xxiii] The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 1 (1763-1781), p. 164., accessed at https://oll.libertyfund.org/title/johnston-the-correspondence-and-public-papers-of-john-jay-vol-1-1763-1781?html=true.

 

Guest Essayist: Joerg Knipprath
Thomas Paine, oil painting by Laurent Dabos, 1791.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Thomas Paine became an immensely popular figure during the American War of Independence, primarily on the basis of his works Common Sense, a pamphlet initially published anonymously in 1776, and a series of pamphlets collectively referred to as The American Crisis, published from 1776 to 1783. They were ringing defenses of the American cause, well-written in uplifting and patriotic language easily accessible to ordinary readers.

Yet, only a handful of mourners attended that same Thomas Paine’s funeral three decades later, he having estranged many American leaders by his attacks on the character of George Washington in an open letter published in 1796. As well, his many occasions of writing negatively about organized religion, especially in the three parts of the pro-deism Age of Reason, had alienated much of the American public.

In between, Paine lived in England, where he soon became the target of official displeasure after publishing vigorously anti-monarchist and anti-aristocratic tracts in the two volumes of Rights of Man. While these works were widely read in England, his enthusiastic support of the French Revolution cost him popularity. Fearing prosecution, he fled to France.

Paine was initially very well received in the revolutionary French Republic. He was elected to the National Convention and appointed to its committee to draft a constitution. However, he soon made himself unpopular with the radical faction and eventually was imprisoned and slated for execution. He was saved from a date with the guillotine by the fall of the radical leader Maximilien Robespierre and subsequently was released from prison by the intervention of the new American ambassador, James Monroe.

He stayed a few more years and met Napoleon Bonaparte, who spoke admiringly about him, at least until Paine denounced the future emperor as a charlatan. Not long thereafter, Paine decamped for the United States at the invitation of one of his more steadfast friends, President Thomas Jefferson.

What raised Paine to such heights of fortune was his talent for “plain speaking.” That was also a cause for his lows, when his direct style rubbed influential persons the wrong way. His works during the Revolutionary Period were said to have made independence inevitable by bringing the common people to the cause, the people who might not have understood some of the more refined philosophical arguments made by elite American intellectuals citing elite European and ancient intellectuals. His most famous work, Common Sense, sold 500,000 copies by the end of the war in a country of fewer than 3 million free persons, including children. Jefferson, comparing him to Benjamin Franklin as an essayist, opined that, “No writer has exceeded Paine in ease and familiarity of style, in perspicuity of expression, happiness of elucidation, and in simple and unassuming language.”

The first installment of The American Crisis began with a stirring call to action for a demoralized American army: “These are the times that try men’s souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.” Four days after its publication in a Philadelphia newspaper, General George Washington had the pamphlet read to his soldiers recovering near the Delaware River after a long retreat from New York. The following night, Christmas Eve, the army crossed that river during a winter storm and, on Christmas Day, won a resounding victory at Trenton, New Jersey.

Paine’s value as a propagandist was not just in the cause of revolution and independence. He was a committed republican, to the point that it alienated some of his erstwhile admirers. The purpose of the quoted document, Dissertation on First Principles of Government, was to reiterate  and develop the points about hereditary versus representative government made in Rights of Man. Having concluded that hereditary government was a form of tyranny, and even treason against successive generations, Paine rooted representative government in the inherent equality of human beings. The most significant right which flows from that equality is the right of property in oneself. If government is to be formed, as it must for the better protection of people in their persons and estates, each adult has the right to participate in that process on the principle of equality. If much of this sounds like the philosophy of John Locke, that should be no surprise, in light of the popularity of Lockean ideas at that time. But Paine made those ideas more accessible to ordinary people. Unlike many American state constitutions at the time, Paine rejected property qualification for voting. He did not address female suffrage, although his frequent reference to “man,” if used generically, did not foreclose that possibility.

In the minds of many 18th-century writers on politics, the problem of a general franchise and a purely elective government was the danger it posed of degenerating into a democracy. Paine did not reject such a democracy outright, although he considered it impractical for large political entities such as France and the United States. Those parts of the Dissertation could have fit comfortably in The Federalist. Others, such as the paragraphs addressing the nature of executive power and its formulation in the Constitution of 1787, sat less well.

Paine’s discussion of the importance of voting was consistent with classical American republicanism, which also considered the “republican principle” of the vote as the mainstay of liberty. As a matter of practical application, Paine emphasized the use of majority rule, whether exercised through direct democracy in a town or a representative body. As he wrote in the Dissertation, “In all matters of opinion, the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for the whole and that the minority yields practical obedience thereto.”

Paine was not nearly as agitated about the baleful influence of factions as James Madison was in The Federalist. That noted, Paine’s solution to the potential problem of majority dominance over a political minority was similar to Madison’s explanation in No. 10 of The Federalist about the relative lack of danger from an entrenched majority faction in Congress compared to town or state governments. Paine observed that political majorities change depending on the issues involved, so there is constant rearranging of the composition of whatever constitutes a majority. “He may happen to be in a majority upon some questions, and in a minority upon others, and by the same rule that he expects obedience in the one case, he must yield it in the other.” Like Madison at that time, Paine could not know about the subsequent emergence of organized political parties and party discipline over elected officials.

There is, however, a danger from straight majority rule, whether that rule is exercised through direct voting by whatever class of persons is qualified to vote or in a legislature composed of some class of persons deemed qualified to stand for public office and represent the people. No matter how many laudatory words 18th-century American republicans might put forth about voting and representation, consent of the governed, and majority rule, the temptation to vote for self-interest rather than the res publica, the general wellbeing of society, and to call forth the “spirit of party,” becomes irresistible. As has been noted by cynics, without additional protections “Democracy is two wolves and a lamb deciding what is for dinner.” Or, as the 19th-century New York lawyer and judge Gideon Tucker quipped, “No man’s life, liberty, or property are safe while the legislature is in session.” Jefferson commenting in Notes on the State of Virginia on the structure of the Virginia Constitution of 1776, insisted “An elective despotism was not the government we fought for.” One of the great fallacies of modern political discourse is that we just need to get more people to vote to bring about a just society and to protect personal liberty.

Paine recognized the danger of party spirit and the need for a constitution to restrain the excesses of government, including of government by popular mandate. He decried the brutality of the French Revolution and noted, “[I]t is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, THUS FAR SHALT THOU GO AND NO FARTHER.” [All emphases in the original.] In addressing “party,” Paine was referring to self-interest, in this context the interest to gain and exercise unrestricted power. He opined that, “[h]ad a constitution been established [in 1793] … the violences that have since desolated France, and injured the character of the revolution, would … have been prevented.”

Instead, “a revolutionary government, a thing without either principle or authority, was substituted in its place; virtue and crime depended upon accident; and that which was patriotism one day became treason the next.” Lacking a constitution that protects inherent rights causes an “avidity to punish, [which] is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

Paine’s insistence on a constitution as a check on government focused on the need for the type of protections found in the American system mainly in the Bill of Rights. A declaration of rights had to be more than a collection of meaningless slogans. It had to limit governmental action directly and expressly. Moreover, such limits were not a matter of political grace. “An enquiry into the origin of rights will demonstrate to us the rights are not gifts from one man to another, not from one class of men to another; for who is he who could be the first giver? Or by what principle, or on what authority, could he possess the right of giving? A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man.” The Constitution likewise enumerates certain rights but expressly does not purport to provide an exhaustive list. As the Ninth Amendment declares, there are other rights retained by the people. It is disheartening to hear so often from law students that the Constitution “grants us rights,” an understanding of the nature of rights at odds with that of the people who drafted and adopted the Declaration of Independence, the Constitution, and the Bill of Rights.

In the American system, the Constitution is not merely a collection of customs and traditions of political practice. It is a legal charter and has the essence of law enforceable, within limits, in courts of law. It is higher law in the sense that, in case of conflict between it and ordinary federal or state statutes, the Constitution prevails. But it addresses expressly only limited topics. Almost since the Constitution’s adoption, there has been debate about the authority of courts to look to other forms of higher law reflective of the principle of inherent rights to limit legislative authority, such as theories of natural law or natural rights. That debate continues, often in trying to define what the ambiguous term “liberty” means in the Constitution, for example, in relation to abortion, marriage, or gun ownership.

Another unresolved question is whether such higher law is superior to the Constitution itself. After all, the Constitution can be amended with the requisite supermajority votes prescribed in Article V of that charter. Suppose that a constitutional amendment were adopted that protected infanticide or that repealed the prohibition of slavery. Would infanticide or slavery, at that point constitutionally permissible, yet be consistent with natural law or natural rights? If the answer is “no,” it shows a recognition that certain rights inhere in each person as a matter of essence, not as a grant from a legislative majority or a constitutional supermajority. The religious skeptic in Paine might not allow him to go as clearly to the source of those rights as did the language of the Declaration of Independence that we are endowed with them by our Creator, but Paine would readily acknowledge the existence of such higher law.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

Guest Essayist: Joerg Knipprath

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Declaration of Independence famously announced that all human beings not only are created equal, but are endowed by their Creator with certain “unalienable” rights. Among those rights are life, liberty, and the pursuit of happiness. These were, as the Declaration also held, self-evident Truths, even to someone like Thomas Jefferson, the document’s author, often described as irreligious, a Deist, or a lukewarm Christian. The phrasing was not unique to the Declaration, but differed slightly from the version by John Locke from whose writing this selection of “natural rights” was drawn. Locke had assigned “property” as the third category of natural rights, the most common formulation, also used, for example, in the Bill of Rights. Moreover, Locke had urged that property was the foundation of liberty and happiness, because of the property each had in his own person, and because government’s abusive power over property, such as through arbitrary taxation, threatened one’s personal liberty and happiness.

Humans derive their equality from being God’s creatures, king and commoner, master and slave, prince and pauper alike. This is essential Christian teaching. The Creator is not an impersonal force or one who has set in motion the laws of nature but otherwise sits back and watches that creation passively as if enjoying a model railroad layout. Rather, he has actively endowed each person with certain unalienable rights. Those rights exist for the purpose of each person’s flourishing as a human being. It is for that end also that governments are established, and on consideration of which the powers of rulers are inherently limited. There is a purpose for government and, by implication, for human law, all directed by the Creator.

There is, then, a normative test for all acts of government. Such acts must be directed only to this purpose and must not violate one’s sacred rights which are beyond the authority of others to transgress. Governmental legitimacy depends on conforming to those Truths. This constitutes the very basis of the social compact, the construct by which, through the consent of the governed, political society was established in the minds of Americans in the late 18th century.

Supreme Court Justice Samuel Chase expressed these principles in 1798 in Calder v. Bull, about the constitutionality of a Connecticut law.

There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”

Chase’s distinction between an act of government and a law defines an inherent quality in the latter. It is not enough that a particular statute was adopted by a properly constituted governmental entity in accordance with prescribed procedure. The statute’s substance must meet the standard of a “good” law. Government can bind people to obedience to its directives in two ways. One is through the law’s moral legitimacy, in that it promotes human flourishing and does not conflict with those natural rights. The other is through sheer power of enforcement. The former is stable. The latter is the path to suffering, discontent, and revolution, as set out in the Declaration’s list of grievances against King George.

The natural rights framework of external ethical limits on law builds on a long Western tradition of a universal higher moral law that obligates human lawmakers. Norms for judging a human law must exist outside the structure of that human law itself. The older tradition, going back to ancient Greek and Roman philosophers, conceptualized an order based on law, within which physical and metaphysical forces operated predictably and constantly. Laws imply a lawmaker. As a result, expositors of this approach always assumed a connection between natural law and some divine or morally perfect eternal existence.

There is, however, a difference, in that natural rights metaphysics focuses not on a classic universal order of creation of which humans and the moral laws to which they respond through their reason are a part. Rather, natural rights are inherent in the sovereignty of personhood of each adult derived from existence in a hypothesized state of nature. Some of those natural rights are surrendered as individuals choose to leave that state of nature and join a social compact to form a political society. Others, among them the rights listed in the Declaration, are retained even upon entry into political society.

In the version of John Locke and subsequent expositors of Lockean political philosophy, the decision to enter into such a social compact is made out of rational self-interest to gain better protection of one’s property in person and estate. The decision is made by free will consenting to be governed. Although Plato had written much earlier about government formed by such consent, the concept was insignificant in his work on the best government. It was the influence of the Renaissance and the secular ramifications of the Protestant Reformation that shifted the focus from humans as part of a universal order governed by divine reason and intelligible through our reason, to humans at the center of everything and controlling their destiny through their wills. The philosophic shift to a focus on rational self-interest as the ethical foundation of the state matured in the Age of Reason and the Enlightenment of the 17th and 18th centuries, respectively.

Yet even as the metaphysical cosmology of a divinely-directed order was challenged, there remained a significant problem. Where do these rights originate? Why do humans have rights at all, while horses, rhubarb, and iron ore did not? Why are some rights “unalienable”? Which rights? Some social contract theorists veered close to severing the entire matter from its ancient connection to divine morality. Thomas Hobbes’s version of the social contract laid out in Leviathan, a work best considered as an apologia of rational totalitarianism and glorification of the absolute State, is a prime example. The German philosopher Samuel Pufendorf, writing in the late 17th century, studied Hobbes. He was less anticlerical and less militant than Hobbes, but still deified the State by establishing it as a “moral person” charged with the ordering of rights and duties. His work became a source of legitimacy for European “enlightened despots” in the 18th century.

But old concepts die hard, especially if they reflect crucial foundational considerations. Locke quite overtly connected his theory of rights to God. Near the beginning of The Second Treatise of Government, Locke defined man’s liberty in his state of nature as governed by a law of nature that none may harm another “in his life, health, liberty, or possessions.” Why not? Because “men being the workmanship of one omnipotent and infinitely wise Maker—all the servants of one sovereign master, sent into the world by his order, and about his business—they are his property whose workmanship they are, made to last during his, not another’s pleasure;…” Because of that essential equality, “there cannot be supposed any such subordination that may authorize us to destroy one another.” Neither may anyone, “unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb or goods of another.”

The connection to God as Creator is as fundamental to the existence of inherent, natural rights in humans and the correlative duties owed to others as it is to the existence of a universal moral order within which humans live and which is the source of their duties and rights. Moreover, recognizing this relationship and the existence and unalienability of these basic rights is an exercise of reason itself. Hence, these are self-evident Truths to any rational being and need no further proof for Locke, Jefferson, or the Americans of the Founding Era more generally.

There are problems with this reasoning. It depends on assumptions that some may not share, such as a belief in the existence of God. Some may scoff at the idea of a pre-political “state of nature” as either an anthropological fact or even an appropriate political construct. Less intellectually rigorous individuals may get lost by its hyper-rationalism.

Certainly, there has been no shortage of critics. In Candide, the French philosopher and satiric writer Voltaire mocked the Enlightenment’s faith in reason and the propensity of his academic contemporaries to construct idealized systems for the progress of humanity based on those writers’ conception of self-evident truths in turn based on reason. The Scottish parliamentarian Edmund Burke, representing the views of many conservatives, reacted against the version of natural rights in the French Declaration of Rights as revolutionary and as delusional about the “monstrous fiction” of equality when viewed thorough the experience of “men destined to travel in the obscure walk of laborious life.”

Liberal utilitarians reacted against the lack of concreteness of the doctrine. The English philosopher Jeremy Bentham derided it as “nonsense on stilts.” He described such rights as ambiguous and not empirically verifiable. He asserted that rights can only come from human law, not from “imaginary” natural law. Thus, to call “liberty” and such concepts natural “rights” was a perversion of language to Bentham. The idea that humans might possess rights beyond the control of human law was anarchic and directed “to excite and keep up a spirit of resistance to all laws—-a spirit of insurrection against all governments.”

Romanticism in the 19th century and its resultant European nationalism, especially in Germany, turned away from the Enlightenment’s optimistic universalism and refocused rights and law through a historical lens, the peculiar history and ancient customs of each national community. The Anglo-American movement of legal positivism taught that rights were the result of human law, and that the only criterion for law was that it was the command of a political sovereign. Thomas Hobbes would have approved. The Progressives of the 20th century reduced the notion of law to utilitarian legislation or administrative regulation, and characterized rights as whatever such legislation or regulation permitted. Formerly, such grants would have been described as “privileges.”

The current approach continues to retreat from the Founders’ self-evident Truths about the relationship among humans, their Creator, and their unalienable rights. All over the Western World, there is a trend away from the traditionally dominant view of God directly involved in human flourishing. The deification of the State continues.  With a few unorthodox exceptions, rights today are not viewed as something with which each individual is inherently endowed. Rather, rights increasingly are claimed to belong to certain groups, with a manichaean division of humanity into oppressors and victims, which reflects the Marxist origins of the approach. Unlike the economic classification of traditional Marxism, today’s groups are defined by characteristics of physical or psychological identity.

Rights today are those activities which the community or some elected or merely appointed official is willing to let people undertake. Rights fundamental to human vitality as social creatures, such as the right to interpersonal association and the liberty of moving about, are curtailed or prohibited by stoking fear and panic over contrived emergencies earlier generations would have scoffed at. At best, today we exercise rights at the sufferance of a majority of the community. We have none inherently, because everything is based on human will and consent. Today’s human rights declarations are simply lists promulgated by functionaries of, for example, the United Nations. The drafters of its Declaration of Human Rights consciously refused to include Jeffersonian language about the nature and source of rights in the document. One might be excused for being unimpressed by such lists overseen by a council composed of China, Cuba, Eritrea, and other habitual violators of essential human rights. What one human lawmaker can legitimately grant, a subsequent one can legitimately rescind. Before their War of Independence, Americans pointed to the Magna Carta of 1215 as a source of their ancient rights which the British government was said to be violating. But that tactic fell out of favor when it was discovered that the document repeatedly said that the king was “granting” those rights, not that people possessed them inherently.

Finally, there are today no Truths with a capital “T,” self-evident or otherwise, except, perhaps, an unassailable Truth that there are no Truths. In the past, skeptics claimed that our minds and reason are not sufficiently incisive to discern such Truths, and that, therefore, the best we can humbly do is to make utilitarian decisions on what is perceptible to us and appears to be the best result for our society at the time. These are truths with a small “t,” which can claim no inherent superiority over another society’s truths.

Today, following radical “critical studies” theory, “truth” is deemed a narrative imposed by oppressors to perpetuate power relations. In short, there simply is no Truth. Everyone can create his or her own truth. At the same time, in an ironic twist, no one (at least not those denounced as oppressors) may disagree or may challenge another’s truth, no matter how absurd such “truth” might appear to an observer. Not only may one not say that the emperor has no clothes. One must profess that the emperor is truly wearing clothes if he identifies his naked body as clothed. Who can really know? There is no “right” answer, because there is no objective reality. Plato weeps.

The result of such extreme subjectivism is the chaos it creates in society. To achieve a fulfilled life that balances both parts of human nature, the unique aspects which shape each individual and the character of humans as social creatures, people seek order. That is why revolutions always end, and Maoist plans for “permanent revolution” are merely dreams, albeit nightmarish ones. But when there is no inherent right or wrong, just competing random perceptions with no hope of shared objective reality, order comes about through the unrestrained exercise of power.

However, no government claims to act simply on the basis of raw power. The reason is that humans also have an innate attraction to ethics, although the extent of such innate moral sentiments has long been a topic of debate. Therefore, an ethical basis for government is quickly put forth, a justification for the duty to obey society’s rules. In the past, the ruler’s legitimacy might simply have been based on a claim that he is the embodiment of a divine entity, as was the case in many non-Western cultures. Today, “oppression theory” seeks to vest political legitimacy in the actions of those or which benefit those who are anointed the oppressed and to divest it from those stigmatized as the oppressors.

The contribution of Western political philosophy has been to desanctify the ruler, first by bringing him down to the rest of the community within a broader order governed by a universal moral law created and administered by God. The price for his rule was that he must not transgress against that moral law, which sought to protect the community from arbitrary exercises of power contrary to human flourishing. Though the conceptual structure later was secularized and redefined on the basis of rule by popular consent, the ruler still must not transgress against certain individual rights essential to humans and their flourishing. Those rights, too, are universal, and arise out of the universal moral law created by God.

The very longevity of such basic assumptions about the relationship among individuals, their rights, the rulers, the moral law, and God attests to their conformity with human nature and their connection to human flourishing. That longevity is evidence of their Truth. Indeed, it may be said, perhaps with some embellishment, that such Truths are self-evident. The words of the Declaration of Independence are expressions of optimism and hope. They will prove to be more significant and will outlast the current depressing fads of sanctifying or demonizing persons or actions based on arbitrary group identity, decoupling law and political action from ethical standards founded in a higher order, and rejecting the existence of an objective reality.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Chris Burkett
First page of Thomas Paine's pamphlet, The American Crisis, first edition, 1776.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Thomas Paine, in The American Crisis, December 19, 1776, Pamphlet 1, in his speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

The same principles that breathed life into Thomas Paine’s resistance to tyranny and justified the American Revolution also formed the basis of the American sense of justice in foreign policy after 1776. The American founders believed that the guides derived from the principles of the Declaration of Independence would better enable them to formulate policies that would satisfy the demands of interest and justice – that is, that would do justice to our own citizens by securing their rights, but would also do justice to foreign people by respecting their independence. In essays #17 and #18 we saw that, according to the principles of the American Founding, the American people have a right to domestic sovereignty and political independence; and because government has a moral obligation to secure the rights of its citizens, the government of the United States has a duty to preserve the nation’s political independence. These same principles provided further guides that would help American statesmen do a better job of securing justice for our nation and doing justice to others as well.

American statesmen believed, first of all, that when possible, peaceful means to resolve conflicts with other nations should be preferred. The founders practiced the doctrine of “peaceful appeals when possible” in the American Revolution itself, by making every possible appeal to the King for a peaceful resolution to the conflict before resigning themselves to an appeal to heaven. The manner in which Americans came to declare the British to be not only a foreign people but enemies was a long process involving many attempts to reconcile differences peacefully. After the “long train of abuses” detailed in the list of grievances against the British, for example, the Declaration of Independence emphasized that “in every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury.” In 1775 the Continental Congress had issued the “Olive Branch Petition” to King George III in 1775 in a last effort to persuade him to come to his senses, stop further bloodshed, and prevent the escalation of hostilities.[1] The appeal to the King was unanswered, and so the Americans were forced to make the “Appeal to Heaven” through a resort to arms and, eventually, by declaring independence.

Second, Founding-era statesmen believed that the United States should respect the equal right of other nations to political independence as much as possible. The right to political independence, derived from the fundamental “Laws of Nature and of Nature’s God,” is a universal right, not an exclusive right of the people of the United States. This right to political independence, therefore, also means that the United States should respect the political independence and domestic sovereignty of all other nations as much as our own security will permit. Just as we expect other nations to respect the independence and domestic sovereignty of the United States as much as their sense of security will allow, we are also obligated to respect the independence of all peoples and their right to consent to their own choice of government, laws, and policies as much as our own sense of security will allow. We see this axiom expressed very clearly in James Kent’s Commentaries on American Law in 1826:

Nations are equal in respect to each other. . . . [T]his perfect equality, and entire independence of all distinct states, is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government, or religion, or a course of internal policy, to another.[2]

The American founders believed that by following these two fundamental principles – preferring peaceful measures and respecting the independence and sovereignty of other nations, as much as possible – the United States would avoid giving just cause for war to other nations. This end would also be promoted by performing our engagements, fulfilling treaty obligations, paying debts, and showing little or no favoritism toward particular nations.

We can see these basic principles of American foreign policy thought displayed in many symbolic images. For example, the Gadsden flags popular during the American Revolution portrayed a rattlesnake with the words “Don’t tread on me” on them. This signified America’s willingness, like the rattlesnake, to leave others alone when not threatened; but it also showed the willingness of the United States to strike powerfully and quickly when “meddled with.” This also reflects the claim in the Declaration of Independence that “we hold the rest of mankind, Enemies in War, in Peace Friends.”

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Continental Congress, “The Last Address of the People of America to the King,” 5-8 July 1775.

[2] James Kent, Commentaries on American Law, 1826.

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Guest Essayist: Robert Brescia
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“To be prepared for war is one of the most effectual means of preserving peace.” —George Washington

“It is a principle incorporated into the settled policy of America, that as peace is better than war, war is better than tribute.” —James Madison

“We know only too well that war comes not when the forces of freedom are strong, but when they are weak. It is then that tyrants are tempted.” —Ronald Reagan

Introduction

Peace through strength (PTS) – this is a recurring theme throughout the history of our great nation. It’s as old as ancient civilizations such as China’s Sun Tzu (author of The Art of War), and as new as today. I’ve heard people assert that the United States should only increase its military capabilities if it is attacked somewhere in the world. Others say that we shouldn’t augment our defensive or offensive strengths unless we are attacked on our homeland. That’s a relatively shortsighted strategy – the world is way too small for that to be effective. While some believe that you should only focus on military strength upon being attacked, either on the world stage or on our own turf, it is too late at that time to assemble and employ a suitable riposte.

Enter the strategy of peace through strength. It has been supported by several of our Founding Fathers and our U.S. Presidents from 1789 to today. The basic premise of PTS is that if the United States builds a military capability so great, with an extraordinary over-match ratio to potential attackers, that no nation on earth would dare to attack us because they know it would bring their swift and complete destruction.

By virtue of our PTS strategy, peace in our homeland would be achieved and maintained. If one accepts such a premise, then the next logical question might be, “to what extent do we need to arm ourselves to be that deterrent that we seek?” That would entail a constant comparative exercise, accomplished by thinktanks and large consultancies who monitor the military capacities of world nations.

A second, related question could be, “does this strategy only include conventional armaments or would it also include nuclear?” A third question might also be, “have we any empirical evidence that a PTS strategy was or is successful?” I might add a fourth question, but it has no matter-of-fact answer and that would be, “would super-arming our nation constitute a temptation for present or future political leaders to use that power for much the same reason that President Clinton claimed during his impeachment – “because I could.”

Historical Tie-in of Peace Through Strength

PTS is sometimes confused or interleaved with RealPolitik. RealPolitik is the result of a collision between Enlightenment ideas that our Founders espoused and the fast development of nation-states in the second half of the 19th century. On the one hand, we had political leaders who espoused ideologies and liberal type policies while, on the other hand, countries began the empirical quests for more power and domination, seeking colonies to aggrandize their positions on the word stage.

RealPolitik is a result of that strategic conflict and it is occasionally very tempting to associate PTS within it. The next evolution of these ideas extended RealPolitik and PTS into political realism. This happened when world nations began practicing international relations to try and justify their actions. We saw two generally oppositional ideas emerge: 1) policy actions and international relations are primarily concerned with the extension and growth of power and, 2) policy actions and international relations are the manifestation of a desire for national survival.

Summary and Conclusion

While not a subtle hint or a visible charge by our Founding Fathers for us today, PTS captures the American spirit of wanting to be protected against the bad will and actions of other nations. However, the reality of politics and national priorities in our times is such that we may not have the luxury of arming ourselves to the teeth, not to mention continuously updating our military arsenals with the latest technologies. We have nondiscretionary social entitlements such as Medicare and Social Security that must be paid up front. We also have a massive national debt that our politicians can’t seem to get a hold of. American politicians seem to have difficulty fending off involvement in foreign struggles. Consider President Bush’s war waged in Iraq because of his desire to reestablish U.S. world leadership after September 11, 2001. One close adviser revealed that the thinking behind the war was to show: “We are able and willing to strike at someone. That sends a very powerful message.” Consider President Obama’s co-invasion as well with NATO of Libya in 2011 – the stated rationale was to support Libyan rebels but then Secretary of Defense Robert Gates said, “Publicly, ‘the fiction was maintained’ that the goal was limited to disabling Colonel Qaddafi’s command and control. Given that decapitation strikes against Qaddafi were employed early and often, there almost certainly was a decision by the civilian heads of government of the NATO coalition to “take him out” from the very beginning of the intervention.”

My own conclusion is that the Founding Fathers had a period-appropriate notion of PTS, contextually supportive of the big ideas behind it, and resplendent with hope and faith for future peace. There are other strengths, however, that the United States possesses and nurtures which are undeniably elements of national prowess. These include our homeland values of courage, benevolence, individualism, economic opportunity, and generosity. These and other American values continue to attract many to our shores. Along with military superiority, they make us strong and resilient. That’s a certain broadening of the word strength in the term peace through strength.

Bob Brescia, Ed.D. of Odessa is a Teacher of Record for Ector County Independent School District, and an adjunct professor for Wilmington University. He previously served as the Executive Director for The John Ben Shepperd Public Leadership Institute and served as the Head of School for Saint Joseph Academy in Brownsville. He is a board member at Constituting America in Dallas, a member of the Odessa Information & Discussion Group, and an Advisory Board member for Odessa’s Southwest Heritage Credit Union. He is the former chairman of Basin PBS television and the American Red Cross of the Permian Basin and former president of Rotary International – Greater Odessa. He is also a monthly columnist for the American Society for Public Administration in Washington, DC. Brescia has twenty-seven years of military service as a highly decorated Airborne Ranger Cavalry soldier, NCO, and commissioned officer in the United States Army. He received a Bachelor of Arts (summa cum laude) in Civil Government from Norwich University, a Master of Science in Computer Information Systems and a Master of Arts in International Relations from Boston University – European Division, and a Doctor of Education in Executive Leadership with distinction from The George Washington University.

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Guest Essayist: Chris Burkett
Declaration of Independence Signer James Wilson, a Framer of the U.S. Constitution, Supreme Court Justice appointed by George Washington, and author of Lectures on Law.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The previous essay, #17, showed that, according to the principles of the Declaration of Independence, the people of the United States of America have a right, from the “Laws of Nature and of Nature’s God,” to establish their independence and thereby their national sovereignty. Those same principles, however, that establish the right of a people to independence and sovereignty, also impose a duty upon government to protect and maintain that independence and sovereignty once established. This essay will focus further on the principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

The duty of government to maintain national sovereignty and political independence arises from two arguments of the Declaration of Independence regarding the very nature and purpose of government. First, the Declaration of Independence asserts that it is the equal right of every people, sharing the same political principles, to form through consent a government laid on such foundations “as to them shall seem most likely to affect their safety and happiness.” The Declaration of Independence also asserts that “governments are established among men” for the purpose of protecting the natural rights of its citizens. These principles therefore impose a duty upon our government, because independence is necessary in order for us as a people to determine what must be done for national security, which is, in turn, necessary in order for our citizens to peacefully enjoy their natural rights in the pursuit of happiness. A nation must maintain its independence, therefore, free from the political control of any other nation, in order to remain master of its own fortunes. Only when it has such liberty can a nation freely and prudently determine for itself what is necessary for the preservation, security, and happiness of its own people.

The importance of maintaining political independence can also be seen in the writings of American Founder James Wilson, signer of the Declaration of Independence, framer of the United States Constitution, and one of the original Supreme Court Justices appointed by President Washington. In his important work Lectures on Law, Wilson clearly echoed the Declaration of Independence on the right and duty of maintaining independence:

The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory upon individuals . . . The same principles, which evince the right of a nation to do everything, which it lawfully may, for the preservation of itself and of its members, evince its right, also, to avoid and prevent, as much as it lawfully may, everything which would load it with injuries, or threaten it with danger.[1]

The right and duty of the United States to defend its national sovereignty was also articulated by American courts well into the nineteenth century. In Schooner Exchange v. McFaddon (1812), for example, Chief Justice Marshall wrote that “[t]he world [is] composed of distinct sovereignties, possessing equal rights and equal independence.” In light of those equal rights, Marshall continued:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. [2]

In its larger sense, political independence especially means the liberty that a people or nation has by right to decide when to engage in war or continue in peace. George Washington understood well that to have full freedom regarding such decisions, the United States should have as little political connection with other nations as possible, by which they might have an undue influence in determining what actions we might – or must – take. This especially meant that we should avoid as much as possible engaging in permanent political or military alliances with other nations – a lesson the United States learned through the controversy over the French Treaties during the French Revolution in the 1790s. During this time, Americans were passionately divided over whether the treaties with the French (agreed to by Congress during the American Revolution) obliged the United States to assist France in its wars against other European nations during the French Revolution. The issue nearly embroiled the United States in the French Revolution against its will and contrary to the desire of Congress.

Reflecting on this challenge to American political independence in his Farewell Address, Washington wrote, “The Nation which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.” The peace and sometimes the liberty of nations, Washington wrote, had frequently been the victims of such foreign attachments. This is especially so when “the policy and will of one country, are subjected to the policy and will of another” through permanent alliances. Washington understood, therefore, that having “command of one’s own fortunes” could hardly apply to a slave any more than to a people who “interweave [their] destiny with that of any part of Europe, [or] entangle [their] peace and prosperity in the toils of European Ambition, Rivalship, Interest, Humour or Caprice.” Only when a people remains politically independent can it be free to select the means most conducive to its own safety and happiness; or, as Washington wrote, free to “choose peace or war, as our interest, guided by justice, shall counsel.”[3]

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

[1] James Wilson, Lectures on Law, in Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, Volume I (Indianapolis: Liberty Fund, 2007), 529 and 536.

[2] Schooner Exchange v. McFaddon (7 Cranch 116 1812), The Founders’ Constitution, http://press-pubs.uchicago.edu/founders/documents/a1_8_10s7.html (accessed January 5, 2010)(emphasis added).

[3] Washington, Farewell Address, 1796.

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Guest Essayist: Chris Burkett
2nd Continental Congress Vote on Declaration of Independence by Robert Edge Pine

Essay Read By Constituting America Founder Actress Janine Turner

 

 

“That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

This essay by Thomas Jefferson, written two years before Congress would declare American independence, contains many of the same arguments that would eventually justify the separation of Great Britain in 1776. Here Jefferson speaks of the natural rights of “a free people,” and calls the King a “servant” rather than the “proprietor” (or owner) of the people. As essay #9 of this study showed, Americans had been developing the idea that those who govern must do so for the good of the people, rather than use their subjects for their own good, and Jefferson’s argument in “A Summary View” echoes that sentiment.

It is also important to note that the quote from Thomas Jefferson’s “Summary View of the Rights of British America” reveals that the American Revolution involved more than the legal separation of the United States from Great Britain. It was at its core an ideological movement that was motivated by a political philosophy shared in common not only by the prominent movers of events but by Americans in general. This philosophy, commonly referred to as social compact theory, led to and supported the principles contained in the Declaration of Independence, which in turn expressed the principles upon which American national sovereignty and independence are justified.

The Declaration of Independence begins and ends with statements regarding the right of a people to establish and maintain their national sovereignty. The Declaration asserts that “one people” are entitled to assume a “separate” station from all others, and they derive this right – a right that is shared equally by all peoples – from “the Laws of Nature and of Nature’s God.” It begins with the claim that the “laws of Nature and Nature’s God” entitle “one people,” when necessary, to “dissolve the political bands which have connected them with another,” and “to assume among the powers of the earth” a “separate and equal station.” It ends with the claim that as “free and independent” states, the United States have dissolved “all political connection between them and the State of Great Britain,” and therefore “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do.”

The opening and closing paragraphs of the Declaration of Independence, therefore, have this principle in common – for a people or nation to be “free and independent,” it must totally dissolve “all political connection between them” and other nations. The immediate purpose of the Declaration of Independence was to formalize our separation from Great Britain; but it also expressed a fundamental principle – to be truly free and independent (i.e., sovereign over its own affairs) the United States ought to have no political connection with any other nation.

Like individual liberty, national independence is necessary to allow one people, through their government, to decide for themselves how best to secure and exercise their individual liberty. The first paragraph of the Declaration of Independence therefore transposed the principle of individual liberty to apply to whole peoples and nations. Nations are described as having the right, by the “Laws of Nature and of Nature’s God,” to an equal station as “free and independent” states. And individuals are described as having the equal unalienable or natural right to liberty. The Declaration of Independence teaches us, therefore, that there is an inseparable connection between individual liberty and political independence – or what one might call “national liberty” – and it establishes this fundamental relationship in its very first paragraph.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: Tom Hand
During the War of 1812, the American Flag over Fort McHenry inspired Francis Scott Key to write what eventually became America’s National Anthem, the Star Spangled Banner. The flag hangs in the Smithsonian’s National Museum of American History.

Essay Read By Constituting America Founder, Actress Janine Turner

 

Citizenship goes well beyond being a citizen. According to the Fourteenth Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” But it does not require citizens to do anything to maintain it. It confers a right but does not demand a responsibility.

Practicing good citizenship, doing things such as voting, serving your country, following the law of the land, and getting involved in your local community is that unstated, corresponding responsibility. It is that one overarching shared responsibility that gives people common ground and brings them and binds them together and makes cities and towns, rich and poor, men and women, and all races one nation.

So how does a nation inspire its citizens to voluntarily practice good citizenship? How does a nation get its people to do something that takes effort but is not required? What does it take to move citizens beyond “self” and towards the “whole,” beyond “me” and towards “us?”

It is really quite simple; it is love of country. It is human nature for one to treat better and care for more thoughtfully that which they love. It is no different with citizenship. For citizens of the United States, those that love the country best will serve it best. It was certainly the case during our founding era.

Amor patriae is Latin for love of country. It is a noble concept, but what does it mean and how is it manifested? Is it done by flying a flag from your front porch on Independence Day or singing a heartfelt Star Spangled Banner at a ballgame or cheering as America wins yet another gold medal at the Olympics? It is all that but so much more.

Men more eloquent than I have discussed it through the ages. Seneca, the great Roman philosopher, stated “Men love their country, not because it is great, but because it is their own.” Seneca is correct. In many facets of life, we justly love that which is ours, including and even especially, our country. This love of country is not determined by an individual’s wealth but runs deeper than that and transcends material property and wages.

Love of country requires an unselfishness that drives men to reach for a higher place and to love something greater than oneself as Katharine Lee Bates described in America the Beautiful.

O beautiful for heroes proved

In liberating strife,

Who more than self their country loved,

And mercy more than life!

Love of country amongst a people leads to a unity of purpose that is critical to a nation’s success. As George Washington noted in his Farewell Address, “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize.” Washington continues that we must be ever on our guard and “watching its preservation with jealous anxiety…and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest.”

Love of country is inspirational and creates pride deep within the soul for one’s homeland and those without this feeling are to be pitied. As Walter Scott lamented for such a man in The Lay of the Last Minstrel.

Breathes there the man, with soul so dead,

Who never to himself has said,

This is my own, my native land!

Love of country is a beautiful thing, but it can be a terrible beauty for it compels us forward down a path we may otherwise lack the courage to take as described in the sad Irish ballad The Patriot Game.

For the love of one’s country is a terrible thing.

It banishes fear with the speed of a flame,

And makes us all part of the Patriot Game.

Love of country can fade from the forefront of our minds and the United States, and its countless blessings, can be taken for granted. But sad is the man who would lose his country as Edward Everrett revealed in his short story The Man Without a Country. This poignant tale tells of Philip Nolan, a young American officer turned traitor who wishes to be rid of his country and is granted his wish.

Near the end of his life, Nolan, who has yearned for his wish to be reversed, scolds a young sailor for expressing disgust with the United States: “Remember boy, that behind all these men…behind officer and government, and people even, there is the Country Herself, your Country and that you belong to her as you belong to your own mother. Stand by her boy as you would stand by your mother.”

Love of country was the single greatest influence upon our Founding Fathers as they formed our nation and our Constitution. But their love of country was not something they sought, it developed freely within each Patriot and love of country inspired each in his own way.

Love of country propelled George Rogers Clark down the Ohio to Kaskaskia and then across the frozen wilderness to capture Fort Sackville and Vincennes in 1779, securing the Ohio Valley for America.

Love of country led Daniel Morgan to gather a company of stalwart Virginia riflemen and lead them to Boston soon after the “shot heard round the world” was fired at Lexington and Concord and continue on to his memorable victory at Cowpens.

Love of country caused Nathanael Greene to leave his successful merchant business and Caty and the children and take up arms for a righteous cause and drive Cornwallis from Georgia and the Carolinas.

Love of country influenced John Adams, the Puritan Patriot from Boston, to forego his prosperous law practice and travel to Philadelphia and the First Continental Congress in 1774 to start the march towards nationhood, stating “Sink or swim, live or die, survive or perish, I am with my country…You may depend upon it.”

And it was love of country that inspired George Washington, one of the wealthiest men in the colonies and arguably the man with the most to lose, to risk it all to lead a fledgling army in a war that seemed unwinnable. Later, when the nation he had helped bring forth was struggling under the Articles of Confederation, Washington again came to her aid to lead the Constitutional Convention and guide us as we learned how to govern in a Constitutional republic. The Indispensable Man did all this for love of country.

So why should love of country matter to us today? We must recognize that it birthed our country, it grew our country, and, without it, we could lose our country.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation.

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Guest Essayist: Scot Faulkner
Two Treatises of Government by John Locke, first edition published in 1689, title page dated 1690.

Essay Read By Constituting America Founder, Actress Janine Turner

 

“They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, in a speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775

When and how should citizens confront abuses of power by their government?

This is a fundamental question that has shaped political discourse for centuries.

Patrick Henry, and the other colonial leaders who galvanized opposition to the predations of George III, drew upon English legal precedents and Enlightenment philosophy. They built their rebellion against tyrannical overreach on foundations laid by their English ancestors.

There has always been conflict between those who desire unbridled power and those they govern. Often this conflict was settled through force of arms. On June 15, 1215, it was settled by force of law.

Rebelling English nobles forced King John to sign a “Great Charter of Freedoms,” now known as the Magna Carta. The Charter became the basis for English Common Law and the laws of most English-speaking nations, particularly the United States.

While the Magna Carta focused on individual rights and the legal system (such as trial by jury), Clause 61 empowered citizens to rein in overreaching government. It created a Council of 25 barons to monitor and enforce King John’s compliance with the Magna Carta. This included controlling feudal payments to the Crown, and by implication how the Crown spent “public” funds and governed. Clause 61 included real sanctions: If John did not comply with the provisions of the Magna Carta, “the 25 barons were empowered to seize the King’s castles and lands until, in their judgement, amends had been made.

King John colluded with the Pope to undermine the Magna Carta, but his successors reissued it and it became a formal part of English law.

During the 13th through 15th centuries, Magna Carta was reconfirmed at least 32 times. The first item of parliamentary business was a public reading and reaffirmation of the Magna Carta.

The Stuart line of kings challenged the four-hundred-year Magna Carta balance of power to their peril. King Charles I asserted he would not be reined in by Parliament. This led to civil war and his beheading in 1649. During the post-Civil War Restoration, Charles II adopted a more passive approach to governing. However, James II ignored his elder brother’s compliance with Parliamentary restrictions which led to his being overthrown during the “Glorious Revolution” of 1688.

Parliamentary ascendancy, and ultimate permanent dominance under a “Constitutional Monarchy,” was buttressed by philosophical publications. These writings gave broader context to how power must be reined in and how it should be done under law.

In 1680, Henry Care published English Liberties. It established individual rights as bestowed at birth, not by government. Care formally asserts,

“each man having a fixed Fundamental Right born with him as to the Freedom of his Person and Property in his Estate, which he cannot be deprived of, but either by his consent, or some Crime for which the Law has Imposed such a Penalty as Forfeiture.”

He describes the balance of a reined-in government, “qualified Monarchy, where the King is vested with prerogatives sufficient to support Majesty; and restrained from power of doing himself and his people harm.”

Care supported his philosophical doctrine with a compendium of foundational political documents. He made the Magna Carta central to history and to the contemporary legitimacy of individual freedom and control of government overreach. English Liberties became very popular in British reform (Whig) circles and widely read among leaders in the American colonies.

Even more popular among colonial thinkers and activists was John Locke’s Two Treatises of Government published in 1689.

Locke’s Second Treatise describes the importance of a civilized society based on natural, God given, rights. It supports the social contract theory of the governed consenting to limited government in exchange for a secure and stable environment in which individual activity and commerce can thrive. It became the primary conceptual work defining traditional 18th and 19th Century Liberalism.

Locke’s Second Treatise was frequently cited in Colonial debates about George III’s taxes and other punitive measures that comprised the King’s overreach and over reaction to colonial freedom.

Locke describes the balance of power between an executive (or monarchy) which is a “Power always in being that must perpetually execute the law” and the legislature which is the “supreme power of the Common wealth…governments are charged by the consent of the individual, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.”

Locke promotes the proposition that a full economic system could exist within the “state of nature.” Property predates the existence of government. Society should be dedicated to the protection of property. He expanded on Care’s “social contract” theory and explains how the “consent of the governed” may be withdrawn when power is abused, thus serving to rein-in government overreach.

The philosophy of Two Treatises is echoed throughout the Declaration of Independence. Thomas Jefferson wrote: “Bacon, Locke, and Newton – I consider them as the three greatest men that have ever lived, without any exception, and as having laid the foundation of those superstructures which have been raised in the Physical & Moral sciences.”

The foundations of the Magna Carta, English Common Law, and the writings of Care and Locke birthed our nation. They guide and inspire citizen oversight and empowerment to this day.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Guest Essayist: Andrew Langer

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Congress shall make no law… abridging the freedom… to petition the Government for a redress of grievances.” – United States Constitution, Amendment 1

A key element in America’s quest for independence was the ire that certain colonists felt at being taxed without representation (an overly simplified view of decades of frustration at a variety of policies imposed by the British Crown on Colonial America without the consent of the citizens of the colonies). Part and parcel of this was the difficulty the citizens had in presenting those grievances to the crown (or parliament), and the perception that those who did voice concerns or opposition were singled out for punishment by the government.

So as the Constitution was being drafted, and further constraints were being placed on the power of government via the Bill of Rights, the founders included language in the First Amendment ensuring that citizens would retain a right to so petition the government when they were aggrieved—with a corresponding assurance found in the Fifth Amendment, that when such substantive petitioning is made, “due process” is accorded to the petitioner i.e., that a fair and just process is made available to the person or persons petitioning.

When most people consider this, they think about the right of individuals to advocate or otherwise speak their minds before legislators, i.e., to offer their opinions on legislation. But in an era in which policy is increasingly being delegated to the Executive Branch, it is important to examine how this right, or civic duty, is protected within the context of the “administrative” state.

When Congress passes a law, it is then up to the Executive Branch to interpret and enforce that law, to “administer” it, in other words, and thus the “administrative” state. The more vague that law might be (and sometimes not so vague), the greater leeway an agency has to interpret that law.

For example, Congress passes the Clean Water Act in 1972. In that law, they make it illegal to pollute a navigable water of the United States.  Because Congress failed to define words or phrases like “pollute” or “navigable” or “water of the United States,” they left it up to the Executive Branch to define them.

The right to petition then plays a singular role in this. The agency presents its proposal for how to define terms or, more broadly, how they plan on interpreting and enforcing any piece of legislation, and it then opens a process whereby the public can comment on their proposals.

This process is government by a law known as the “Administrative Procedure Act” (APA). The APA was passed by Congress in 1946 in order to standardize the petitioning/commenting process across the federal executive branch. Prior to that point, each agency had the discretion to create its own process, something that could make overly complicated the ability of citizens to exercise their right to petition for redress.

Now, with few exceptions, the process by which someone can “comment” on a “rulemaking” is the same regardless of whether someone is filing that comment with the Occupational Safety and Health Administration (OSHA), the Department of Health and Human Services (HHS) or the Department of the Interior. A “rulemaking” is the standard term whereby an agency goes through the process or creating or amending the regulations that have been created out of congressional legislation. A “comment” is just that, the opinion filed by a person or group regarding that regulatory proposal.

At its most basic level, the process works this way: either Congress passes a new law, or amends a law, or the agency wants to make changes to existing policies, and they announce this in a daily publication called The Federal Register. They offer their proposal in something called a “Notice of Proposed Rulemaking” or, less frequently, an even earlier step called an “Advanced Notice of Proposed Rulemaking,” and tells the public how they can comment on those proposals.

Anyone can file a comment—and it has never been easier to do so.  Most agencies utilize an online portal called Regulations.Gov to both announce proposals and solicit for comments, and comments can be submitted online with a matter of clicks.

It is a system that the founding fathers would have enthusiastically applauded. Though many would have been horrified at the concentration of power in the Executive Branch, the idea that any citizen could, with the touch of a button, voice their substantive concern about a policy proposal would have heartened them at the same time. They just would have been concerned that not more people were aware of this.

As part of the APA, agencies are required to answer such “petitions” (when they are substantive) in the publication of their “final rule” i.e., the finalized regulatory policy—either demonstrating where they have made changes to the proposal in accordance with those substantive comments, or explaining why they didn’t make such changes. Failure to do so opens the regulation to court challenges, on the grounds that the new rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”

Even better, the APA doesn’t require that the citizenry wait until the agency makes a regulatory proposal in order to have changes to a rule made. Another aspect of the manifestation of the right to petition for the redress of grievances within the APA is the right to petition a regulatory agency to open up a rulemaking—again, with the agency being required to respond if they decide to not go through a new rulemaking process.

While the APA’s rulemaking process applies to nearly all agencies, agencies within the national security and defense spheres are generally recognized to be exempt, though some will engage in this “notice and comment” process when they have policy changes that they know will be controversial or otherwise of tremendous interest to the public.  Likewise, transactional decisionmaking and contracting are not open to this APA’s process (though citizens always have the right to comment on such issues with those agencies).

What is worth noting is that the deliberative process of the APA can be frustrating, especially to policymakers, and the citizenry needs to be on guard for when agencies attempt to sidestep the APA. Increasingly, agencies are turning to what they claim are quasi-rulemakings—smaller proceedings that these agencies claim are not subject to the full APA notice-and-comment process. These agencies create guidance documents and interpretation letters purporting to carry the full force of regulatory law, but aren’t subject to the full vetting that a rulemaking allows.

The Competitive Enterprise Institute refers to such activity as “regulatory dark matter”—and while in January of 2017 the President created an executive order to substantially rein in regulatory dark matter, the following administration undid that executive order almost immediately upon taking office in 2021.

Thankfully, Congress is becoming ever more aware of the problem of regulatory dark matter, and is working to hold the executive branch accountable.

In the end, given the size and scope of the modern administrative state in the U.S., the notice and comment process under the APA is of vital importance, and emblematic of the enduring importance of the right, or civic duty, to petition our government for a redress of grievances.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Guest Essayist: Chris Burkett

Essay Read By Constituting America Founder, Actress Janine Turner

 


The New England Primer
was an educational book, first published in the colonies in the 1690s. For over 100 years, it was used by parents to teach their children to read. Even more than that, the selections of readings – which included plays and poetry – in the primer were meant to give lessons that taught children the importance of morality and virtue. The book was especially popular in New England colonies, where Americans had been enjoying a large degree of political independence from Great Britain and personal freedom in their individual lives. The importance of civic virtue in a republic, as taught by the lessons in the primer, were described by several prominent New Englanders at the time of the American Founding.

Samuel Williams, a professor at Harvard College, wrote about the importance of education in The Natural and Civil History of Vermont in 1794. “Among the customs which are universal among the people, in all parts of the state,” Williams wrote, “one that seems worthy of remark, is, the attention that is paid to the education of children.”[1] Williams continued:

“The aim of the parent, is not so much to have his children acquainted with the liberal arts and sciences; but to have them all taught to read with ease and propriety; to write a plain and legible hand; and to have them acquainted with the rules of arithmetic, so far as shall be necessary to carry on any of the most common and necessary occupations of life.”

In addition to be useful in their daily lives, this education was also meant to shape them into being good citizens.

“All the children are trained up to this kind of knowledge: They are accustomed from their earliest years to read the Holy Scriptures, the periodical publications, newspapers, and political pamphlets; to form some general acquaintance with the laws of their country, the proceedings of the courts of justice, of the general assembly of the state, and of the Congress, &c. Such a kind of education is common and universal in every part of the state.”

This education produces “plain common good sense” as well as “virtue, utility, freedom, and public happiness,” all of which are especially important among citizens in a free society. This view of the purpose of education was also expressed by an anonymous author in a Boston essay titled The Worcester Speculator No. VI in 1787. “If America would flourish as a republic,” he wrote, “she need only attend to the education of her youth. Learning is the palladium of her rights—as this flourishes her greatness will increase.”[2] The author continued:

“[I]n a republican government, learning ought to be universally diffused. Here every citizen has an equal right of election to the chief offices of state. … [E]very one, whether in office or not, ought to become acquainted with the principles of

civil liberty, the constitution of his country, and the rights of mankind in general. Where learning prevails in a community, liberality of sentiment, and zeal for the public good, are the grand characteristics of the people.”

As proven by the effectiveness of The New England Primer, the Worcester Speculator especially emphasized the usefulness of literature for inculcating virtue and morality in students. “If we would maintain our dear bought rights inviolate,” he wrote, “let us diffuse the spirit of literature: Then will self-interest, the governing principle of a savage heart, expand and be transferred into patriotism: Then will each member of the community consider himself as belonging to one common family, whose happiness he will ever be zealous to promote.”

Benjamin Rush of Pennsylvania also wrote about the purpose of education in ways very similar to that of New England. In his A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, Rush described the “influence and advantages of learning upon mankind.”[3]

I. It is friendly to religion, inasmuch as it assists in removing prejudice, superstition, and enthusiasm, in promoting just notions of the Deity, and in enlarging our knowledge of his works.

II. It is favorable to liberty. A free government can only exist in an equal diffusion of literature. Without learning, men become savages or barbarians, and where learning is confined to a fewpeople, we always find monarchy, aristocracy, and slavery.

III. It promotes just ideas of laws and government.

Rush was particularly concerned with the effect education – especially through the teaching of history – should have on the citizen in a free republic. “He must watch for the state as if its liberties depended upon his vigilance alone,” Rush wrote, “but he must do this in such a manner as not to defraud his creditors or neglect his family.” Rush continued:

“He must love private life, but he must decline no station, however public or responsible it may be, when called to it by the suffrages of his fellow citizens. … He must love character and have a due sense of injuries, but he must be taught to appeal only to the laws of the state, to defend the one and punish the other. He must love family honor, but he must be taught that neither the rank nor antiquity of his ancestors can command respect without personal merit. … He must be taught to love his fellow creatures in every part of the world, but he must cherish with a more intense and peculiar affection the citizens of Pennsylvania and of the United States.”

The lessons in morality and civic virtue these authors found most important in a free republic were promoted well by the fundamental education students received through The New England Primer well into the eighteenth century.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Samuel Williams, The Natural and Civil History of Vermont, 1794, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-2.

[2] The Worcester Speculator, No. VI, 1787, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

[3] Benjamin Rush, A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, 1786, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

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Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

The direct and essential connection among education, civic virtue, and good republican government was a self-evident truth for many late-18th-century American political and religious leaders. There was far less agreement, however, as to what exactly constituted virtue, to what extent “the people” were capable of exercising civic virtue, and if one could count on virtue to restrain political leaders, either because the leaders themselves would possess a sufficient measure or because the people would use theirs to keep the leaders in check. During the debates in 1787 and 1788 over the adoption of the new federal constitution, civic, or public, virtue was a frequent topic of discussion. To opponents of the proposed government, it was axiomatic that, however virtuous the people might be, they would not be able to control corrupt factional leaders in a far-away central government. Supporters, in turn, scaled heights of flattering rhetoric to extol the strength of republican virtue among the American people.

Virtue might be the coin of the realm for good government in the minds of American republicans of the time, but there was no consensus about its proper alloy. To New Englanders, such as Adams, their Puritan heritage saw virtue in private frugality and sobriety, and public virtue in service and sacrifice for the common good. Moreover, public virtue necessarily arose from private virtue. “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” John Adams wrote to the historian Mercy Otis Warren in April, 1776. Moreover, republican government was essential to “true Liberty.”

However, man, being fallen, lacked virtue by nature. Virtue had to be taught, but that was a difficult project. Education, though necessary, was not sufficient. Coercion must always be kept near at hand. As John Adams wrote to Thomas Jefferson in October, 1787, “I have long been settled in my own opinion that neither Philosophy, nor Religion, nor Morality, nor Wisdom, nor Interest, will ever govern nations or Parties, against their vanity, their Pride, their Resentment, or Revenge, or their Avarice, or Ambition. Nothing but Force and Power and Strength can restrain them.”

It should be noted that Adams, like many others of the founding generation of American republicans, distrusted pure democracy. In a letter in April, 1814, to the Southern agrarian philosopher John Taylor of Caroline, he wrote, echoing classical political thought,

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty.”

There were limits to the degree to which all people could be trained to civic virtue, limits which inhered in man’s corruption through the passions and in the frailty of the human mind to control them.

For Southern agrarian republicans, private virtue, even if successfully inculcated in the people, could not guarantee civic virtue in the halls of government. Adams’s assertion, “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” might well be true as far as it went. However, as John Taylor of Caroline wrote, “By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” The New England solution of using the strong hand of an intrusive government to control private vices was unpalatable to the Southern agrarian class. Instead, they agreed with James Madison in The Federalist No. 51, that there was a “need for auxiliary precautions.”

Those auxiliary precautions included a structure of divided powers where “ambition must be made to counteract ambition.” Good republican government could be fostered by relying not on the public virtue of either political leaders or a civically militant people, but on embracing the reality of conniving and power-hungry politicians whose mutual jealousies would check each other. In similar manner, political factions, that bane of good republican government, being driven by self-interest, would jockey for influence in constantly changing coalitions. Among factions, none would become entrenched, as there were no permanent allies or enemies, only permanent interests, to borrow from Lord Palmerston’s policy description of 19th-century British international relations.

National republicans, such as Alexander Hamilton and George Washington, rejected a fundamental premise that underlay other conceptions of civic virtue. Rather than treat virtue and passions or self-interest as antithetical, and fusing public virtue to private virtue, national republicans simply redefined that relationship. Some private vices were rooted in self-interest, such as the desire for fame, honor, or even wealth, but they could be harnessed to produce great public benefit and, therefore, should be considered civic virtues. Government could create incentives for persons to engage in such “good” passions to produce great public benefit.

Nor were all members of the American elite without doubt about the scope of virtue among the American people or about their capacity to attain a sufficient measure of it. John Adams, as prolific a writer on the connection between virtue and good republican government as lived at the time, warned in a letter in June, 1776,

“The only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a greater Measure, than they have it now, They may change their Rulers, and the forms of Government, but they will not obtain a lasting Liberty.—They will only exchange Tyrants and Tyrannies.”

Whatever their differences about the meaning of virtue and about the capacity of private virtue to produce sufficient public virtue, the expositors of virtue politics generally agreed with Aristotle that education and training in private virtue were necessary to its practice. For most of them, only the broad distribution of land ownership rivaled virtue in promoting and protecting liberty and republican government. Thus, education to virtue was an essential task, even if the outcome was uncertain and incomplete. Education had to be grounded in religion and morality, as those were the sources of virtue. The Northwest Ordinance of 1787, perhaps the greatest peacetime achievement of the Confederation Congress, codified this premise:

“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.”

President George Washington in his lengthy Farewell Address, published in September, 1796, gave a succinct rhetorical overview of the connection among religion, morality, virtue, and good republican government:

Of all the dispositions and habits which lead to political prosperity, religion and morality     are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens….And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government….

Promote then, as an object of primary importance, institutions for the general diffusion of knowledge.”

There was cause for optimism, as the American population had a high rate of literacy compared to that even of European countries. “Ours are the only farmers who can read Homer,” a self-satisfied Thomas Jefferson boasted in a letter to St. John de Crèvecoeur in January, 1787. Jefferson is well-known for his efforts in the founding of the University of Virginia in 1819, for the design of which he also developed architectural plans. His educational activism was not limited to creating a university. As early as 1785, in his Notes on the State of Virginia, Jefferson laid out a plan to educate younger children of both sexes for three years at public expense, with higher grades open to the boys of parents who could afford the tuition and to a limited number of other boys selected on the basis of their intellectual capabilities. In Jefferson’s somewhat indelicate language to modern ears, “By this means twenty of the best geniuses will be raked from the rubbish annually, and be instructed, at the public expence, so far as the grammar schools go.” His ambitious plan was not realized in any form in Virginia until after the Civil War.

Along with the general goals of imparting knowledge for its own sake and for practical pursuits, Jefferson saw education as a necessary process for republican government. Perhaps his best-known aphorism regarding the importance of education appeared in a letter he wrote to Colonel Charles Yancey in January, 1816, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” The antidote to such a doomed expectation was education. “The qualifications for self government in society are not innate. They are the result of habit and long training,” Jefferson wrote to Edward Everett in March, 1824.

Other famous Americans echoed these sentiments. As supposedly worldly and skeptical as he was, Benjamin Franklin nevertheless advised, “A Bible and a newspaper in every house, a good school in every district—all studied and appreciated as they merit—are the principal support of virtue, morality, and civil liberty.” James Madison declared that the Constitution required “sufficient virtue among men for self-government.” Otherwise, “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” The old Son of Liberty, Samuel Adams, opined in a letter to James Warren in 1779, “If Virtue & Knowledge are diffused among the People, they will never be enslav’d. This will be their great Security.”

None of the founding generation appear as convinced of the importance of education and religion to virtue and of virtue to liberty preserved through republican government as Samuel’s cousin John Adams. Despite his occasional doubts and pessimism, Adams was a staunch virtue republican. His writings are filled with quotable passages about the subject. A few will give the essence of his thoughts. Perhaps his best known, expressed in a letter in October, 1798, to officers in the Massachusetts militia, is “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” This sentiment, embraced the then-common belief that the American experiment in self-government, more than aristocratic or monarchic systems, relied on virtue widely diffused among the general population, or at least among those who would have the privilege to vote or to hold public office.

In the same letter in 1776 in which Adams expressed concern about the state of virtue among his fellow Americans, he also wrote,

“Statesmen my dear Sir, may plan and speculate for Liberty, but it is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

To complete the causal chain, one may point to his 1765 Dissertation on the Canon and Feudal Law, where he asserted, “Liberty cannot be preserved without general knowledge among the people.”

These quotations are not merely a string of disjointed musings. The writers put practical efforts behind their firm and constant beliefs, beliefs shared by Americans generally. Jefferson’s contributions to education have already been noted. Adams was the principal drafter of the historically important Massachusetts Constitution of 1780. That charter declared that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ….” Article V formally encouraged the development of publicly-funded primary and grammar (secondary) schools. To justify that effort, the section began, “WISDOM and knowledge, as well as virtue, diffused generally among the body of the people, [are] necessary for the preservation of their rights and liberties ….”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Andrew Langer
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Since the earliest days of the American founding, a bedrock principle of our republic has been the concept that government is an essential element in protecting and preserving individual rights. In the Declaration of Independence, principal author Thomas Jefferson wrote, “to secure… rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Building on this precept, in Federalist 51, James Madison talked about the tension between the necessity of government in protecting individual rights, but the need for the governed to work to constrain the powers of government:

“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.”

Our republic is built on a simple, yet powerful, concept: we are endowed by our creator with certain “unalienable” rights.  We cede small measures of those rights to government in the form of powers, in order for the full-measure of our rights to be protected.

This leads to a fundamental axiom: whenever government is enlarged, individual rights are diminished. You cannot reconcile liberty with anti-liberty.

This gives us not only the basic structure of the federal constitution, but most state-based constitutions as well. The Articles of the United States Constitution lay out the powers of government—i.e., what measure of rights we have ceded to the government in the form of powers. The first eight amendments within the Bill of Rights represent further constraints on those powers in order to protect individual rights.

But then the last two amendments in the Bill of Rights, Amendments 9 and 10, make further declarations regarding the balancing of rights versus the powers of government.

The Ninth Amendment makes it clear that the rights of citizens aren’t limited to what is “enumerated” in the Bill of Rights, that their rights are essentially infinite, while the Tenth Amendment underscores this idea that the powers of government are created by the people giving up some measure of their rights—and anything not “delegated” to government is “reserved” by the people.

Further, while a New Deal-era Supreme Court dismissed limitations on federal power in cases like US v. Darby, even that court had to admit that when it comes to the Tenth Amendment, it states, “a truism that all is retained which has not been surrendered.” US v. Darby, 312 US 100, 124 (1941)

This tension underscores the fundamental beauty of our system—we are not a pure democracy (something our founders were rightly skeptical of).  As the saying goes, “democracy is two wolves and a sheep deciding what to have for supper.”

We recognize that while the people can vote to make particular laws, those laws can only exist within the powers the people have delegated to government and they cannot be violative of the rights retained by the people. So while one group of people, even a majority of the people, might demand that government impose restrictions on certain kinds of unpopular speech, the First Amendment makes it clear that such restrictions would be unconstitutional (and one can say that the entire purpose of the First Amendment is to protect “unpopular” speech. “Popular” speech requires no such protection!).

How, then, do we assess this balance between the rights of people and the powers of government?

It starts with a basic inquiry.  All “just” law is born out of the intersection of the exercise of individual rights. One’s right to wave their hands around in a wild interpretative dance (the right to free expression) is limited the moment those hands cross the bridge of someone else’s nose, and violate their right to be secure in their person, free from harm. And when those rights come into conflict, it is the party that is more-aggrieved that the law is supposed to protect (and the law is supposed be more weighted on behalf of those less-able to advocate for themselves).

This presents our society with the need for “balancing tests” to determine where that line ought to be drawn: how is the right to free speech balanced against someone’s right to now be lied about (a harm to their reputation)? Or how is someone’s right not to be harmed by government’s force balanced against the rights of people in a community to not be harmed by that person’s violent actions?

When the public, either through legislation or via the courts, calls for a new law, a new balancing test, the Supreme Court has made it clear that such laws, such decisions, need to be made in a way to be the “least restrictive” way of achieving the government’s goals. This way the rights of the individual are still protected to the maximum extent possible.

While there remains considerable debate as to whether such balancing tests are a good thing, or whether there is harm in the long run from a series of ad hoc inquiries into that balance, in the end it is important to remember that the Constitution sets out essential bedrock principles in that regard. All that is not surrendered is retained, and we should remain vigilant each and every time we look to enlarge the power of government.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
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Guest Essayist: Chris Burkett
Signing of the Declaration of Independence by John Trumbull, displayed in the United States Capitol Rotunda.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

August 1, 1776, Samuel Adams said in his Speech on American Independence,

“When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.”

These words of Samuel Adams justifying the pursuit of American independence represent a view among patriots in Boston that rejected hereditary monarchy in favor of representative or republican government. Adams founded his arguments upon a belief that the legitimate purposes and limitations of civil government could be discerned from an understanding of the laws of nature and natural rights. This view of government, however, had been developing and spreading in the public mind – especially in Boston – for well over a decade prior to the Declaration of Independence.

Bostonians heard these arguments with growing frequency in sermons at their places of worship after the British began to impose oppressive taxes and regulations in the 1760s. Abraham Williams, for example, a Congregationalist pastor in Sandwich, Massachusetts, incorporated a teaching on the laws of nature in his Election Sermon in 1762.[1] Mankind needs government, Williams preached, in order to secure the blessings that God has bestowed upon them. “[W]hen Men enter into civil Societies, and agree upon rational Forms of Government,” Williams said, “they act right, conformable to the Will of God, by the Concurrence of whose Providence, Rulers are appointed…The End and Design of civil Society and Government, from this View of its Origin, must be to secure the Rights and Properties of its Members, and promote their Welfare.” Williams taught that rulers, therefore, must do good, not harm to their subjects. “ In all Governments, Magistrates are God’s Ministers, designed for Good to the People. The End of their Institution, is to be Instruments of Divine Providence, to secure and promote the Happiness of Society.”

The truth of this view, Williams argued, was conclusively demonstrated by the laws of nature. “The Law of Nature (or, those Rules of Behaviour, which the Nature God has given Men, the Relations they bear to one another, and the Circumstances they are placed in, render fit and necessary to the Welfare of Mankind),” Williams continued, “is the Law and Will of the God of Nature, which all Men are obliged to obey.”

Pastor John Tucker of Newbury, Massachusetts, continued to build on this argument in an election sermon in 1771, adding that according to the Laws of Nature, governors rule by the consent of the people. “All men are naturally in a state of freedom,” said Tucker, “and have an equal claim to liberty. No one, by nature, nor by any special grant from the great Lord of all, has any authority over another. All right therefore in any to rule over others, must originate from those they rule over, and be granted by them.” The idea of rule by consent through a social compact also implied that are just limits to what government may do, and also obligations that government must perform.

“Whatever authority therefore the supreme power has, to make laws, to appoint officers, etc. for the regulation and government of the state, being an authority derived from the community, and granted by them,” Tucker concluded, “can be justly exercised, only within certain limits, and to a certain extent, according to agreement.”

In his 1776 sermon titled “On the Right to Rebel against Governors” – another election day sermon in Boston – Samuel West argued that, according to the Laws of Nature, rulers who act contrary to God’s will that the rights of the people be secured from harm may be – and in fact should be – justly resisted and opposed by citizens. “[T]yranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government,” West preached, “and directly contrary to natural law, which is the true foundation of civil government and all politic law. West continued:

Consequently, the authority of a tyrant is of itself null and void; for as no man can have a right to act contrary to the law of nature, it is impossible that any individual, or even the greatest number of men, can confer a right upon another of which they themselves are not possessed; i.e., no body of men can justly and lawfully authorize any person to tyrannize over and enslave his fellow-creatures, or do anything contrary to equity and goodness. As magistrates have no authority but what they derive from the people, whenever they act contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people.”

West’s argument that rulers who act without consent and contrary to the good of society are illegitimate aligns with many of the same arguments Samuel Adams made in his speech on independence. Adams’ message was widely agreed to in part because it was an argument Bostonians had been hearing and working toward putting into practice for well over a decade. It was a view that would be carried beyond Massachusetts as Americans in other states fought to win an then maintain American independence from British rule.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] This and the following sermons are available from https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

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Benjamin Franklin’s editorial cartoon entitled “Join or Die” depicting protection and unity of the colonies, May 9, 1754, Pennsylvania Gazette

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

One of the purposes of the Constitution of the United States, according to its Preamble, is “to form a more perfect Union.” It was a long road, however, for that Union to be more perfectly established as under the Constitution in 1787. Before the Constitution, the thirteen original states had agreed to a “firm league of friendship” through a compact known as the “articles of Confederation and perpetual Union.”

In July of 1776, the thirteen states engaged in an act of unity by unanimously declaring themselves “free and independent states” no longer under the political authority of Great Britain. Prior to that, in 1774, the thirteen American colonies took the first official steps toward becoming a formal Union through the Articles of Association, which established the Continental Congress and put them on the path to independence.

The pace at which the states moved from being colonies under the authority of the British Crown, to “free and independent states,” and then to the United States of America seemed to quicken and intensify under the pressure of events during the American Revolution and Revolutionary War. But for decades prior, many Americans had been attempting to establish a formal union between the British Colonies in America, primarily for purposes of mutual defense and the protection of British economic interests among the American colonies. These early efforts ultimately made it possible for the states to formally unite as the United States of America. It was not an easy road, however, as many colonies saw their habits, manners, and economic interests as quite different from those of the other colonies. Pulling these vastly different peoples together as one would be a long, arduous task.

One man who made great strides in uniting the colonies for purposes of mutual defense was Benjamin Franklin. In his Autobiography, Franklin writes of a plan of Union he had proposed in 1754. Anticipating an approaching war with France (which did eventually become the French and Indian War of 1754-1763), the British authorized a congress of commissioners from the colonies to convene in Albany, New York to discuss defensive preparations. Franklin took the opportunity to draw up a more extensive plan by which the colonial defenses would be administered by a general government of the Union.

“I projected and drew a plan,” Franklin wrote, “for the union of all the colonies under one government, so far as might be necessary for defense, and other important general purposes. … By this plan the general government was to be administered by a president-general, appointed and supported by the crown, and a grand council was to be chosen by the representatives of the people of the several colonies, met in their respective assemblies.”

Ultimately Franklin’s plan was rejected by the colonial assemblies, because under it the British retained too much political authority over the colonies, and by the British, because it seemed to grant too much independence and self-government to the colonies. Later, in 1788, Franklin would write,

“I am still of opinion it would have been happy for both sides of the water if it had been adopted. The colonies, so united, would have been sufficiently strong to have defended themselves; there would then have been no need of troops from England; of course, the subsequent pretense for taxing America, and the bloody contest it occasioned, would have been avoided.”

Despite the failure of Franklin’s Albany Plan of Union in 1754, it had an important impact on the public mind of American colonials. Franklin, as a well-known and highly respected public figure, was now identified as the leading advocate of colonial unity, inspiring others to consider the possibility of formal union in the future. Furthermore, to promote the Albany Plan, Franklin introduced one of the most important symbols of the American Revolutionary period in his famous “Join, or Die” slogan under the image of a snake cut into thirteen pieces.

Franklin designed the image and published it in his widely read newspaper The Pennsylvania Gazette on May 9, 1754. Almost two decades later, as the Acts of the British Parliament became more unjust and oppressive in the eyes of American colonists in the 1770s, Franklin’s “Join, or Die” image was revived and inspired many people to join with the patriots, thus making possible the Union that eventually emerged from the American Revolution.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Republic or Democracy?

A distinction with a difference to the American Revolution.

People often use the term “democracy” when referring to the United States. The distinction between a republic, which is technically what we are, and a democracy seems lost on those who intermingle the terms as if they were synonyms. If you note that we are not a democracy, but a republic, you risk being mocked as strict constructionists overly wedded to technical definitions and unwilling to acknowledge the importance of popular sovereignty and the will of the people in our system.

This is unfortunate, as the question of whether we are a democracy or a republic is an important one, complex, and reliant on clear definitions of words and their use. Strictly speaking, the United States is a representative Republic, not a democracy. The distinction has a difference. It greatly influenced the American Revolution, and arguably saved the future Republic from ruin in its darkest days.

First, some definitions. Merriam-Webster (MW) defines democracy, a noun, as “a government by the people” characterized by “rule of the majority,” and as “a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[1] This, of course, does a pretty good job of describing what most of us believe our government is. We the People are sovereign, and we exercise that power through elections. So far so good.

As for “republic” the definition is similar, but with several important additional elements. Republic is also a noun, meaning (according to MW), “a government having a chief of state who is not a monarch and who in modern times is usually a president,” and “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.”[2]

From these definitions it is clear why there might be some confusion. A representative republic uses “democratic means” to manifest the consent of the governed. We vote for representatives, who vote on measures. Voting is democracy in action, but that does not make the United States a democracy. The measures that our representatives vote on are constrained by law and the Constitution. We do not have pure democracy or “rule by the majority” because we have constitutionally protected rights that cannot be voted away, operate under rule of law, and have, till recently, limited government with limited powers. We also have, however, an expanded voting population that is not limited by aristocracy, wealth, property ownership, or gender. Any citizen, over 18 years of age, can vote. One could say, therefore, that the United States is a democratic representative Republic.

While some might wish to believe so, the founders did not invent the concept of consent of the governed, nor was America the first democracy or republic. Discussion of such concepts had been going on for centuries and republics existed prior to the American Revolution. What the American founders did do was expand the definition of a republic so that it gave more power to the popular will of the people. They were merging, more completely, the idea of a law-based government with the concept of consent of the governed. While in retrospect we see their efforts as woefully incomplete, for the time it was a revolutionary step towards popular sovereignty. Many doubted such an expansion of representation could work over such a large population or territory.

The original text of the United States Constitution never mentions the word democracy, and only mentions republic as a form of government once in Article IV, Section 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government…”). Interestingly, that clause refers to the states, and not the federal government itself. Throughout the text the founders refer to the United States as the “union” or as the “United States” but never a republic or a democracy. The Declaration of Independence does not use either term at all.

That said, the structure laid down in the Constitution contains the elements that MW described, including a “chief of state,” and that power lies with a body of “elected officers and representatives” who vote on the laws that govern the nation. All these officials govern according to law.

That is a Republic, no doubt.

When asked by “Mrs. Powel” upon the passage of the Constitution in 1787 what we had created, Benjamin Franklin famously replied, “a Republic, if you can keep it.”[3]

It is in the phrase “if you can keep it,” however, where we find the true impact of the distinction between republic and democracy. As Richard R. Beeman, Ph.D. writes “we find ample evidence that democratic revolutions do not inevitably lead to national harmony.…We see that the expression of the ‘popular will’ can create a cacophony of discordant voices…In far too many places around the world today, the expression of the ‘popular will’ is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments.”[4]

What Franklin was concerned about, what he was so prescient about, was the difficulty in preserving the union. That concern was not an idle one, as the Revolution had proven. To keep the union together required a structure that limited conflict and cooled the passions of the mob yet provided ample enough rights and liberties to both the citizen and the to the former colonies to make them support and adhere to the union. Again, quoting Beeman, “the question that has plagued all nations aspiring to democratic government ever since: how to implement principles of popular majority rule while at the same time preserving stable governments that protect the rights and liberties of all citizens.”

In 1776 a stable union did not exist. What did exist was a loose confederation of militia forces and citizens from the thirteen colonies, operating under an ill-defined structure to which their commitment continually wavered. Support for the revolution was not, by any means, universal within these colonies, and the debate between revolution and compromise with Britain raged. To preserve the effort, the founders knew they had to promise both protections from mob rule and protections for popular sovereignty. That was not a trivial endeavor.

Alexander Hamilton wrote of the challenge in a letter to John Jay in November 1775. In that letter he addressed the “passions of men” which provided for a “great danger of fatal extremes.” Hamilton wrote:

When the minds of these are loosened from their attachment to ancient establishments and courses, they seem to grow giddy and are apt more or less to run into anarchy…. In such tempestuous times, it requires the greatest skill in the political pilots to keep men steady and within proper bounds…[5]

Hamilton was concerned about conflict between New York and New England, which threatened a united stance vis-à-vis England. To control intra-colonial conflict, he argued against too much popular sovereignty, i.e., too much democracy. He recognized the need to hold the passions of men at bay, and the skill needed to do that while continuing to keep the support of the colonies.

As the American Revolutionary War against Britain intensified, George Washington was plagued by irregular support from both the colonies and the Continental Congress. His ability to avoid catastrophic defeat is legendary. What perhaps was his greater brilliance was the ability to hold the forces together, keep the states from fighting each other, and channeling the passions of his fighting forces away from each other and towards the enemy. As his letter to the colonies from Valley Forge attests, the distributed nature of the revolutionary coalition put the future of the war in great jeopardy. “In a word, the United and respective exertions of the States cannot be too great, too vigorous in this interesting work, and we shall never have a fair and just prospect for success till our Troops (Officers & Men) are better appointed and provided than they are or have been.”[6]

Washington knew very well that a citizen force of volunteer militiamen, responding only to popular will, while appealing to the revolutionary impulse, was no substitute for a centrally commanded, resourced, trained, and managed force of professional soldiers. Once launched, support to the war had to be controlled by a chief executive and protected by a Congress of representatives whose laws mattered and lasted. Counter to popular legend, it was not the minutemen who won the war. Washington could never have achieved victory had he remained subject to the democratic vagaries of thirteen colonial assemblies guided only by majority rule. “Military necessity required American leaders to change their perceptions of standing armies and challenged their republican ideals of volunteer, part-time military service…ultimately it was the Continental soldiers that would secure victory…”[7]

That the colonies agreed to the creation of the Continental Army is a critical component of the success of the revolution. It is also remarkable given the antipathy they held against standing armies. James Madison, years later during the debates over the Constitution, exposed that antipathy, stating that a “standing military force, with an overgrown Executive will not long be safe companions to liberty,” and that the “means of defense against foreign danger, have been always the instruments of tyranny at home…. armies kept up under the pretext of defending, have enslaved the people.”[8] Yet, despite that view, such a force was authorized by the fledgling republic, saving the effort and leading to victory.

Today, when a riot or mass protest occurs, people in the crowd can often be heard chanting, “this is what democracy looks like.” In a way they are correct, which is why we are a representative Republic.

John Adams famously wrote, in a letter to John Taylor in 1814, “…Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” In that same letter, he wrote, “the Athenians grew more and more Warlike in proportion as the Commonwealth became more democratic.”[9] The founders, students of history and great thinkers including those of ancient and classical history, knew the distinction. That they did, saved the new nation.

Our founding was saved by the skill of our “political pilots” to craft a compromise between popular will and the rule of law. We are democratic, but we are not a democracy. We the People are those whose consent is required, but the Constitution is the Supreme Law of the Land.

We would have never made it otherwise.

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. His studies focus on improving health outcomes through food assistance policy. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He now works as a personal trainer and works to improve health and fitness through both his work and study. Jay served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He holds a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and four grandchildren.

[1] https://www.merriam-webster.com/dictionary/democracy

[2] https://www.merriam-webster.com/dictionary/republic

[3] Mrs. Powel was not just a random woman on the street. She was an influential and important member of society, close in association with George Washington. Read more of her interesting story here: https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/elizabeth-willing-powel/

[4] https://constitutioncenter.org/education/classroom-resource-library/classroom/perspectives-on-the-constitution-a-republic-if-you-can-keep-it

[5] https://founders.archives.gov/documents/Jay/01-01-02-0099

[6] https://www.gilderlehrman.org/sites/default/files/inline-pdfs/t-03706.pdf

[7] https://www.battlefields.org/learn/articles/militia-minutemen-and-continentals-american-military-force-american-revolution

[8] https://teachinghistory.org/history-content/ask-a-historian/24671

[9] https://founders.archives.gov/documents/Adams/99-02-02-6371

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Other impacts of the Protestant Reformation derive directly from the teachings of John Calvin (1509-1564), a Frenchman by birth who spent most of his life in Geneva, Switzerland. The distinguishing characteristic of Calvinist Protestantism, as presented in his Institutes of the Christian Religion (1535), is the doctrine of predestination, meaning that God has predestined or foreordained some people (called the “elect”) for salvation and others for damnation. This is part of eternal law and, as such, there is nothing anyone can do about it. It is an unchangeable decision made by God, not a matter of the potential believer’s free will. Knowing if one is among the elect is a problem, however. The psychological insecurity this caused was severe.

The German sociologist Max Weber (1864-1920) published The Protestant Ethic and the Spirit of Capitalism in 1905. Written as a response to Karl Marx’s theory of economic determinism, Weber wanted to show that history could have a prime mover other than economics, namely religion, and argued that Calvinists searched for certainty of salvation in a God-given calling (a job or career), unceasing hard work, and the suppression of physical pleasure. In other words, one could know one was among the elect by working hard and saving and investing rather than spending one’s money and enjoying one’s self. This has come to be known as the Protestant or Puritan work ethic.

The argument continues that the Puritans brought this work ethic with them to North America and that it permeated the entire culture.[i]

Prof. Davis calls the Protestant or Puritan ethic “the beginning of the American dream,” saying

Political, social, and economic life in the late twentieth century bears scant resemblance to the Puritan way. Yet the religious doctrine of the Puritans had a profound influence on a central characteristic of our tradition – the American dream. For modern Americans, that dream is typically one that involves success measured in terms of material wealth. . . . To all appearances that dream of success has no connection with the religious views, values, and aspirations of the Puritans. It is possible, nevertheless, to uncover the seeds of the modern individual’s pursuit of private wealth in the seventeenth-century Puritan’s quest for salvation.”[ii]

Puritans on both sides of the Atlantic embraced the ideas of the covenant or social contract (government based on consent of the governed), natural rights, and resistance to unjust authority (which itself was a natural right). Before they disembarked from the Mayflower in 1620 the Pilgrims wrote and signed the Mayflower Compact, thereby creating the first written social contract in history. It was first published in London in 1622 and reads as follows in modern English:

In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&.

Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.

In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620.”

Twenty-one years later our Puritan forefathers saw the need for a delineation of rights and adopted the Massachusetts Body of Liberties in 1641. This “was the first attempt in the colonies to restrain the power of the elected representatives by appealing to a fundamental document that lists the rights and duties of the people. The document . . . combined the early American covenanting tradition of the Mayflower Compact with an appeal to the common law tradition that crossed the Atlantic from Britain. The Massachusetts Body of Liberties contains ninety-eight sections. . . The most enduring part . . . is the preamble and the first seventeen sections . . .” The preamble reads as follows:

The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both.

We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent.

We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches, and civil state to be respectively impartially and inviolably enjoyed and observed throughout our jurisdiction forever.

Space limitations preclude including the 17 sections here but they can be accessed at https://teachingamericanhistory.org/document/the-massachusetts-body-of-liberties/.

It is interesting to see how these ideas made their way back across the Atlantic to England. In 1644 a Scottish Presbyterian by the name of Samuel Rutherford published a book in London titled Lex Rex which contained all these ideas. The Puritan Revolution or English Civil War led by Cromwell lasted from 1640 to 1649  and gave birth to Thomas Hobbes’ Leviathan, first published in 1651, which was based on the natural right to life and created a powerful state whose legitimacy derived from the consent of the governed to protect it.

This was followed by John Locke’s Two Treatises of Government which were published  in 1689 at the time of the Glorious Revolution and the English Bill of Rights. Locke proposed that government emerges from the consent of the governed to protect the natural rights of life, liberty and property.

These ideas were picked up by the authors and signers of the Declaration of Independence in 1776.

“The American Revolution might thus be said to have started, in a sense, when Martin Luther nailed his 95 theses to the church door in Wittenberg. It received a substantial part of its theological and philosophical underpinnings from John Calvin’s Institutes of the Christian Religion and much of its social theory from the Puritan Revolution of 1640-1660, and, perhaps less obviously, from the Glorious Revolution of 1689. Put another way, the American Revolution is inconceivable in the absence of the context of ideas which have constituted Christianity. The leaders of the Revolution in every colony were imbued with the precepts of the Reformed faith.[iii]

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

[i] Sanford Kessler, “Tocqueville’s: Christianity and the American Founding.”  The Journal of Politics, v. 54 #3, August 1992, pp. 776-792.

[ii] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies. Prentice Hall, 1996,  p. 22. Emphasis added.

[iii] Page Smith, quoted in Amos and Gardiner, p. 3. Emphasis added.

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Christianity in the Roman Empire was first persecuted, then tolerated, and later adopted as the official religion. The latter development was to the long-term detriment of the faith because, as the Church adopted the structures and procedures of Roman imperial government, it became ever more corrupt, as had the Roman government itself during previous centuries.

The details of this process are beyond the scope of this essay, but suffice it to say at this point that by 1517 a young German monk by the name of Martin Luther (1483-1546) decided change was needed. He, therefore, wrote and tacked his 95 theses on the church door in Wittenburg and launched what came to be the Protestant Reformation, thereby fracturing western Christianity forever.

Professor Sue Davis correctly described this momentous event as follows: “When Martin Luther . . . posted his ninety-five theses on the door of the castle church at Wittenberg in 1517 he initiated a revolution in politics as well as religion.”[i]

The relevance of the Reformation to the American political system can be understood as follows. First, the Reformation divided a Europe that had followed one central faith for centuries into more than two distinct groups in that there was not one Protestant church/faith/denomination but four, to be followed by more later. These four were the Lutherans, the Calvinists, the Anabaptists and the Anglicans in England.

These four groups not only differed from Catholicism, they differed from each other. It was, therefore, unfortunately inevitable that conflict would break out between them. On the continent this took the form of the Thirty Years’ War (1618-1648) between German Catholics and Lutherans. There were religious civil wars in France between Catholics and Huguenots (French Calvinists). In England it was the Puritan Revolution/English Civil War, 1640-1649, between Anglicans and those called Puritans who wanted to reform the Church of England along Calvinist lines. This resulted in the regicide of King Charles I and the establishment of the Protectorate of Oliver Cromwell in 1649.

These wars had two significant impacts on what was to become the United States. First, many Europeans tired of the seemingly endless slaughter and religious persecution and desired to escape, thereby emigrating to North America and populating the English colonies.[ii]

Second, after flirting with bringing their sectarian conflicts with them, our forefathers decided to do otherwise, ultimately making religious freedom a part of the United States Constitution in its First Amendment. The American tradition of separation of church and state can be traced directly back to the conflicts spawned by the Protestant Reformation.

In addition, the Protestant Reformation forced a fundamental change in political philosophy. The Magna Carta and Aquinas’ Treatise on Law were minor tremors but the Reformation was a major earthquake in that it articulated a right of resistance to unjust authority.

Romans 13 had been the basis of governmental authority in both the church and state for centuries. Remember that Jamestown had been founded in 1607 and Plymouth in 1620, and that the King James translation of the Bible was published in 1611. The first seven verses of Romans 13 in that translation read as follows:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.

For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing.

Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.

These powerful words formed the basis of the divine right of kings theory and, in part, the basis of the Pope’s authority in the Church. How could Luther resist the Pope and Church without disobeying Romans 13? He could do so when obeying a higher authority (God) required him to.

According to Luther, it is a sin to obey any authority that forces or tries to force people to do that which is ungodly, unjust, unrighteous, unlawful or, in other words, wrong. A Godly person simply cannot do such things without sinning. As Luther said, “Hier stehe ich; ich kann nicht anders.”

About 150 years later this became “Resistance to tyrants is obedience to God.” The British government was violating God’s law and the Americans had not only the right but the duty to resist. And they did.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

[i] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies.  Prentice Hall, 1996, p. 10.

[ii] I acknowledge that some came to the New World for personal and economic reasons rather than for religious and political reasons.

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Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

Driving through Connecticut, you’ll see license plates with the words “Constitution State” inscribed at the bottom of the plate. But wait! Wasn’t the Constitution drafted in Pennsylvania, known as the Keystone State? And wasn’t Delaware, known as the First State, the first state to ratify the Constitution? So why is Connecticut called the Constitution State?

Connecticut did play an important role in the drafting of the United States Constitution, proposing the Connecticut Compromise, also known as the Great Compromise, breaking the impasse created by delegates who favored proportional representation by population and opposed by delegates who favored equal representation by state. Certainly a justifiable reason for Connecticut to call itself the Constitution State, for without that important compromise, a Constitution may never have been agreed upon by delegates from both large and small states.

However, that was not the reason for the adoption of the motto “Constitution State.”  John Fiske, a historian born in Hartford in 1842, stated that the Fundamental Orders of 1639, a social compact created among three towns in what later became the colony of Connecticut, was the first Constitution created in the United States.  The preamble to the document states that, to “maintain the peace and union of such a people, an orderly and decent Government should be established according to God.”

Ordered liberty, defined as “freedom limited by the need for order in society,” is a concept well known by our Founding Fathers. The roots of ordered liberty can be traced back thousands of years. Religious liberty was the motivation for the Pilgrims who landed at Plymouth Rock in 1620; all of them knew their Biblical history of freedom, anarchy, enslavement, totalitarianism, secession, and rejection.

Among other Biblical examples, they may have considered the Book of Nehemiah.  After the fall of Judah in 586 BC, the Israelites were exiled to Babylon. Beginning in 538 BC, groups of Israelites began returning to Jerusalem, which had been destroyed. Over the subsequent 100 years, the city had no effective government, no militia, and the protective walls of the city lay in ruins. In 432 BC, Nehemiah, an Israelite serving the Persian King in Babylon as Cupbearer, had become frustrated hearing from Israelites of the conditions in Jerusalem and received permission from the King to lead a group to Jerusalem to restore order. He had no expertise in construction management, the politics of government, or military tactics, yet, he quickly took command after arriving in Jerusalem and led the citizens to complete the wall of the city, to organize a formal government, and to organize a militia to defend the city.

Recognizing the need for ordered liberty in their new settlement, the Pilgrims, before landing at Plymouth Rock, drafted a compact for the new village they were about to create near current-day Boston; that document, the Mayflower Compact, reflected the Pilgrims’ commitment to God and to the English King.

Soon thereafter, the Massachusetts Bay Colony was chartered by King Charles I in 1629. In 1630, an English lawyer, Roger Ludlow, arrived in Massachusetts and settled in Dorchester. He quickly became involved in Massachusetts political life and helped draft laws of the Massachusetts Bay Colony. However, after only five years in Dorchester, he and other Pilgrims, dissatisfied with religious conflicts in Massachusetts, left Massachusetts to establish a new religious community in what later became the Connecticut Colony. Ludlow settled in Windsor and others settled in the villages of Wethersfield and Hartford, all very close to each other. The three villages were self-governing, but had to unite to fight the Pequot Indians.

Recognizing the need to unite more formally, the three towns, led by Ludlow’s legal expertise, drafted the Fundamental Orders, a formal compact to establish the principles for an orderly confederation-style of government for the three towns. In a sermon that encouraged Ludlow to create the text of the Fundamental Orders, the Rev. Thomas Hooker, a founder of Hartford, dynamic preacher, and inspiration for the Fundamental Orders, said that “The foundation of authority is laid in the free consent of the people. As God has given us liberty let us take it.” Hooker is considered by some to be the father of American democracy. His statement regarding the free consent of the people may have been the first expression in the colonies of a key principle that, more than 100 years later, would find its way into our nation’s founding documents.

Unlike many social compacts at the time, the Connecticut document recognized no allegiance on the part of the colonists to England, but in effect set up an independent government. The Fundamental Orders were intended to be a framework of government more permanent than a compact, and in essence, a constitution. Simeon E. Baldwin, a former Chief Justice of the Connecticut Supreme Court, defended Fiske’s view that the Fundamental Orders of 1639 was the first Constitution created in the United States by stating that

“never had a company of men deliberately met to frame a social compact for immediate use, constituting a new and independent commonwealth, with definite officers, executive and legislative, and prescribed rules and modes of government, until the first planters of Connecticut came together for their great work on January 14th, 1638-9.”

Whereas the Mayflower Compact was designed for a single community, the Fundamental Orders was designed for three communities, further evidence that it was a Constitution, much like the later United States Constitution designed to bring unity among 13 colonies. Also, some features of the Fundamental Orders prefigured the United States Constitution, even if not in exact form. The Orders provided for yearly elections conducted in accordance with Direct Democracy format, appropriate for smaller communities. An annual election was held, during which a Governor and six Magistrates were elected to serve a one-year term of office. Each town also elected two Representatives to a unicameral legislature which met each September in a legislative session. This prefigured the Representative Democracy to be devised in 1787, although the latter resulted in a bicameral legislature. Freemen had a right of petition; and a method was devised to tax each town to raise funds as required for administration of the government. Liberty of speech was emphasized in the Orders and “unseasonable and disorderly speakings” were discouraged. The office of the Secretary of State was officially established in the Fundamental Orders of 1639 and has continued to exist since that time, the oldest Office of the Secretary of State in the United States.

It wasn’t until 100 years later that the Connecticut legislature acted upon Fiske’s opinion about the Fundamental Orders being the first Constitution created in the United States. In 1959, the legislature officially designated Connecticut’s nickname to be The Constitution State. In anticipation of the upcoming bicentennial of the founding of the United States, in 1973 the Connecticut legislature mandated that Connecticut’s license plates should display the state slogan the assembly had adopted 14 years earlier.

Interestingly, Roger Ludlow, the primary architect of the Connecticut Fundamental Orders, grew weary of the challenges of colonial life, and returned to England in 1654, where he died and is buried.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Sources:

Neh 1-Neh 7 NABRE – I. The Deeds of Nehemiah Chapter 1 – Bible Gateway

Microsoft Word – DocsOfCTGov.doc

Register and manual – State of Connecticut : Free Download, Borrow, and Streaming : Internet Archive

Roger Ludlow – Wikipedia

Are We the Constitution State? – Connecticut Explored (ctexplored.org)

Why is Connecticut Called the Constitution State? (unitedstatesnow.org)

History of Connecticut – Wikipedia

Windsor, Connecticut – Wikipedia

Mayflower Compact – Wikipedia

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Guest Essayist: Joerg Knipprath
Independence Hall, Philadelphia, Pennsylvania

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In The Federalist No. 6, Alexander Hamilton sought to refute the claim that commercial republics, such as the thirteen original united states, do not go to war with each other, and that, therefore, there was no threat of eventual disunion to be feared from the looser structure of the Articles of Confederation. He cited numerous historical examples, from ancient Greece to more modern times, to challenge that comforting assertion. Hamilton urged, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” His approach was characteristic of many discourses and arguments in The Federalist. James Madison frequently referred to the history of ancient Greece, while Hamilton repeatedly looked to the fate of the Roman Republic and to the history of English constitutional practice. Other antagonists engaged in similar mode of argumentation in the debate over the fate of the proposed Constitution of 1787.

Indeed, that tactic was not limited to the debates over the Constitution. For example, John Adams extensively discussed the history of Italian republics in his multi-volume work on contemporary state constitutions, A Defence of the Constitutions of Government of the United States of America, written from 1786 to 1788. After all, history is recorded human experience. The lessons that history might teach are drawn from the often-painful experiences and frequently tragic responses of those who went before us. The need to examine those experiences and debate their lessons was particularly acute when the undertaking was a new political order, Novus ordo seclorum, as the new motto placed on the Great Seal of the United States by the Confederation Congress promised. As Adams wrote to an acquaintance in connection with the publication of Defences, “They [the Italian republics] are the best Models for Americans to Study, in order to show them the horrid precipice that lies before them in order to enable and Stimulate them to avoid it.”

While history is the record of experience which subsequent generations can use as a primer in guiding their affairs, tradition (or custom) is the collective manifestation of that experience. It is “how things are done here.” Tradition sometimes is rejected because it is outdated for modern conditions, or at least appears to be so. But before rejecting tradition, it is wise to remember the precautionary principle captured in G. K. Chesterton’s Fence, an admonition best summarized as, “Do not remove a fence until you know why it was put up in the first place.” Tradition allows us to live in a social community without the chaos and inefficiency of having to learn anew each day how to organize complex human relationships.

The use of tradition to guard against rash, irrational, or oppressive political action has a long heritage. Reliance in ancient Roman republican constitutional practice on the mos maiorum, the tradition of the forefathers, sought to restrain arbitrary actions by ambitious politicians who might threaten the stability of the republic and the well-being of its citizens. Violations of tradition might have disastrous consequences. In Sophocles’s Oedipus Cycle, the Theban princess Antigone attempted to bury her dead traitorous brother in accordance with the ancient tradition rooted in divine commands. In doing so, she defied King Kreon’s decree to let the body be torn apart by animals. The deadly consequences of that decree for Antigone and for Kreon and his family is the stern lesson taught by the dramatist.

Another literary example is in Homer’s Iliad. The downfall of Troy results from the violation of the ancient Greek tradition of hospitality (xenia) by the Trojan prince Paris in running off with Helen, the wife of his host, the Spartan king Menelaus.

A more recent case in point is the Great Proletarian Cultural Revolution instigated in the 1960s in Red China by Chairman Mao. He urged radical Red Guards to destroy the “Four Olds,” old ideas, culture, customs, and habits. The disastrous result for the Chinese people was an exemplification of the chaos, misery, and suffering when the bonds of tradition are sundered, and societal fences are torn down irrationally.

American writers of the Founding appealed relentlessly to tradition to justify their actions. Their claims that the British government was violating their ancient rights as Englishmen by enacting statutes, such as the Stamp Act, might have been dubious politically and self-interested economically. Their references to Magna Charta might have been strained as a matter of history. Still, those arguments reflected an attitude Americans maintained throughout the period that theirs was a “conservative” reaction against dangerous constitutional usurpations that went against the very reason for government, namely, to protect human flourishing.

In the same manner, during the debates on the Constitution of 1787, the new charter’s supporters repeatedly rejected the argument that it was a radical anti-republican proposal. Instead, the writers of The Federalist Papers, particularly James Madison, claimed that the new document was built on the Articles of Confederation, with some modifications needed to correct the earlier charter’s most glaring deficiencies. Madison’s claim might have been in tension with the approach adopted early by the Philadelphia Convention of writing a new document rather than proposing amendments to the Articles. It might contradict some of his own positions in that collection of essays. But it was an argument frequently repeated in the state conventions. Indeed, the preamble to the Constitution itself declares that the object was to form a “more perfect Union,” not to create one.

The accumulated wisdom of those who have gone before us, which is reflected in living traditions, plays a particularly prominent role in law. “Law” is associated with constancy, predictability, and knowability. We speak of “laws” of physics, which means that the associated phenomena manifest themselves universally and regularly, that we can predict specific results from their applications, and that we can understand them through observation and reason, often expressed through the language of mathematics. Universal “law” in the context of human action is more speculative, but not entirely so. Discovering such law is predicated on observation and reasoned interpretation primarily of the experiences of people within one’s own culture at different times, but also of those of people in other cultures. Such universal prescriptions of “right” conduct, whether called natural justice, natural law, divine law, or something else, animate not just particular political decrees and legislation but also customs which direct how one should comport oneself more generally.

“Natural law” in that sense is a construct primarily of metaphysics, but also has clear connections to religion. It is an application of tradition to matters of government and politics, but it also has an inherent moral content, rooted in an external source. Consider, for example, the words of Saint Paul in his letter to the Romans that the Gentiles, who do not have the Mosaic law, nevertheless can in their nature act in accordance with the law because it has been placed on each person’s heart by God and is exercised through conscience.

Although natural law has an inherent moral content that exists independently of human practice, that content is best gleaned through investigation of how “things are done” over time and consistently, in other words, experience reflected in tradition. As Aristotle declared in Politics, “observation tells us that every state is an association, and that every association is formed with a view to some good purpose.” The manner in which something operates successfully over time is evidence that it acts in accordance with its true nature or essence.

In jurisprudence and juristic practice, the force of tradition is expressed in one form through the doctrine of stare decisis (“to stand by things decided”), the presumptive adherence to precedent in judicial decisions that promotes the stability and predictability which are the attributes of law. For example, a determination by the Supreme Court of what a provision of the Constitution means is binding on the lower courts. But even in matters heard by subsequent panels of the Supreme Court, the earlier Court’s holding is unlikely to be disturbed. Although this is not an invariable rule, the longer and more frequently that earlier precedent has been followed, the less likely the Court is to disregard it in a similar subsequent case. Many are the paeans that various justices have penned to the doctrine of stare decisis, although the cynic might say that the doctrine lasts only as long as it fits the author’s conception of the “right” result in a particular case. Adherence to precedent allows the courts to guard against the “dangerous innovations in the government,” the function to which Alexander Hamilton pointed in The Federalist No. 78 as the core purpose of judicial review of the constitutionality of legislation.

Because the object of the ethical state is to provide the conditions for human flourishing, those political arrangements which are most successful at that endeavor are the best. Human law is useful to provide the order needed for individual flourishing within a community. But not just any law, only law directed towards that end. The philosophic speculations of Aristotle about the limits imposed by natural justice on the human lawgiver, and the intellectually rich and politically significant investigations of “natural law” by philosophers from the classical Cicero to the medieval scholastic Thomas Aquinas, to the more modern Francisco Suarez and Hugo Grotius address ways to establish an ethical basis for ordinary human law and a proper balance between liberty and order, individual and community.

“Order” can mean many things. Fundamentally, the word conveys stability, rules, and limits. Tradition, law, and order are essentially bound. The concept of natural law is founded on the idea of an orderly universe governed by stable laws of physics and, regarding human action, universal rules of morality. The preeminent expositors of natural moral law, the European scholastics of the Middle Age, lived and wrote in a highly ordered society, where everyone had a designated place in that feudal order. Moreover, it was understood that human society itself existed in a universal order governed by God.

The advent of modernity rejected the strict structural approach of a universal order of which each person was a part. Instead, the focus became on voluntary association and consent as the basis of society, and on individual natural rights, rather than duties and rights derived from one’s place in the “natural” order of things and persons. The problem with a focus on individual will and consent as the basis for individual action is that it invites atomization, subjectivism, moral relativism, and nihilism, concerns vividly raised many centuries ago by Plato in his discussion of the “democratic man” in The Republic. Unbridled liberty is chaotic and threatens to veer into license, as there exist no external standards that can claim inherent legitimacy based on higher moral authority or the moral force conveyed by tradition. Each person becomes a moral standard only onto himself or herself.

Yet the need remains for structure and stability in an orderly society, lest the relations among people devolve into a competition defined solely by power, resembling a Hobbesian state of nature of a war of all against all. The solution proposed by various “left” writers, from Rousseau to Marxist-Leninists of various stripes, of a government where the rulers embody a stylized “general will” of the collective in place of the expression of individual wills inevitably has led to dictatorship and oppression. To have that necessary stability, yet foster individual flourishing, there must be, as various Supreme Court opinions have pronounced, “ordered liberty” whose fundamental principles are protected under the Constitution. The difficulty, of course, lies in striking that balance, of achieving practically what otherwise is only an aspirational slogan.

The Framers of the Constitution and other Americans of that era understood all of this quite well. John Adams and the New Englanders came to this knowledge and conviction easily, based on their Puritan culture. Hard-headed and practical statesmen, such as Alexander Hamilton and George Washington, understood this from life experience in political and military conflict. Even those drawn to more utopian ideas and more naive idealism, such as Thomas Jefferson, were brought down to earth by revulsion at the excesses of the French Revolution set in motion by radical ideologies. Liberty and order, change guarded by tradition, were the guiding principles of the Founders, informed by the lessons of history and by their own experiences.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Our Founding Fathers did not create a government or craft a constitution to serve government’s interests or even their own narrow interests. They created a government that focused on securing the liberty of the American people and that strictly limited and checked the power of the federal government. They had a great deal of experience with government that existed for the primary purpose of advancing the interests of those who already had tremendous political power.

They had experienced the tyranny of the British Crown. In the Broadway play “Hamilton,” King George sings, “And when push comes to shove, I will send a fully armed battalion to remind you of my love” and “when push comes to shove, I will kill your friends and family to remind you of my love.” While those exact words were not likely uttered by King George, that was what he did in practice. It also reveals the way so many rulers treated their subjects throughout history.

Our Founders specifically rejected this model of abusive and unlimited government. Virtually every government in recorded history either started out, or became first and foremost about increasing and preserving its own power, influence and prestige at the expense of its subjects. Rarely has government been focused on the citizen’s freedom and opportunity. That may be the rhetoric used to obtain or retain power, but it has rarely been the actual focus of government.

Every dictator in history has made promises of using the power that he sought for the benefit of the people. But virtually none of them have actually done it. It has always been a talking point, but not an action point. Whether it was Mao or Lenin, Hitler or  Mussolini, Castro or Chavez, or the Ayatollah, they all promised to create a more equal and just society, and to right past wrongs. But, of course, history records that they magnified and multiplied the wrongs and made society far worse. They created societies of increased brutality, misery, and poverty.

In contrast, America’s Founders wrote a constitution that limited the power of government — even though they knew that they would likely be the early presidents, cabinet secretaries, congressmen and senators. In other words, they wrote a constitution that limited their own power. That proves they were not cut from the same cloth as most of the rulers we read about in history books. They formed a government designed to limit and check governmental power, but keep the people as free as possible from government’s arbitrary edicts and mandates.

Some argue that one of the weaknesses of our Constitution is that it is difficult and sometimes cumbersome to get things done. But that wasn’t by accident. It was by design. Our Founders understood that government’s power to do evil and to compromise and abridge the natural rights of its citizens was far more significant than the likelihood that government power, if left unchecked, would be used to benefit the citizenry or preserve their freedoms.

So our Founders wisely placed limits on their own power. They did this because they wanted to create a society where the freedoms and the opportunities available to the citizenry were virtually unlimited. They did not see themselves as rulers and American citizens as their subjects. They saw themselves as having been temporarily entrusted with limited powers to govern, not rule; and they saw Americans as citizens, not subjects.

George Washington, the president of the constitutional convention where our Constitution was written, debated and passed, and our nation’s first president, refused to be called by the titles that many of the kings and powerful were called in Europe. He said “No” to being called His Highness, His Excellency, His Mightiness, His Elective Majesty, among others. He said his title should be “Mr. President.”

At that time, those of power and wealth had titles — Lord, Duke, His Grace, etc. In contrast, a person of common station, with no real societal power, was referred to simply as Mister. And that is the title that George Washington chose to emphasize that the government they were forming wasn’t there to benefit those who held office, but to guarantee freedom and opportunity to its people.

But it wasn’t merely George Washington who rejected the historical political power model of Europe. The Founders as a group wanted to build a society whose foundation included the principles of self-government, but that also didn’t subject our basic rights to the popular vote. Simply stated, the Bill of Rights makes it clear that even if the vast majority of Americans don’t like what you’re saying or writing, you have the right to say it or write it.

Even if the majority dislikes you, you have the right to due process and a fair trial if you’re accused of a crime. Even if the government wants your property and claims to need it for the public good, it may not take it from you without paying you for its value. The Bill of Rights, properly understood, is not a statement of rights as much as it is a firm prohibition against government and the majority trying to abridge our God-given rights. So our Founders crafted a government designed to empower the people through majoritarian processes, but also protected our rights — placing them beyond the power of a popular vote or the power of government to abridge.

If we think about the type of constitution that most people throughout history who have aspired to power would write, we would see few limits on their power and a great deal of limits on the people and their rights. But our Founders were very different and that made a huge difference in the sort of nation the United States of America became.

It was John Adams, our nation’s second president and a crucial Founder, who said in a letter, “We ought to consider, what is the end of government, before we determine which is the best form.” [1] And the Founders did precisely that. They thought about what they wanted America to become — a land of freedom and opportunity for its citizens — and carefully crafted a constitution to accomplish that goal. This is proof positive that our Founders were very different from most of history’s politically powerful figures.

Our Founders understood the fundamental importance of limiting the power of government and leaving the people free to govern the details of their own lives. As James Madison said in the Federalist Papers, Number 51,

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 the next place, oblige it to control itself.”

Throughout history, governments had whatever powers they could get away with exercising — including genocide and murder of the masses. But our Founders designed a government that would be the foundation for a civil society of order and peace, but anywhere beyond that, government was forced to limit itself and its actions.

This has made all the difference and launched America to greatness. This approach made Americans the freest, most prosperous people in the world. People clamor to come to America from all over the globe because they see it as a shining city on a hill and as a land of opportunity. When the power of the government is constitutionally limited, the freedoms and opportunities of the people are maximized and the people thrive rather than merely survive.

Our Founders got it right — they didn’t build a government to benefit themselves or make government all-powerful. They carefully crafted a constitution that made Americans free, protected their rights, and made opportunity a key feature of the nation. That makes our Founders unique in history and we owe them a debt of gratitude.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

[1] John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, April 1776. https://teachingamericanhistory.org/document/thoughts-on-government-2/

Further reading:

Papers of John Adams, volume 4, III Thoughts on Government, Massachusetts Historical Society

https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-04-02-0026-0004

The Works of John Adams, vol. 4. Part of The Works of John Adams, 10 vols. A 10 volume collection of Adams’ most important writings, letters, and state papers, edited by his grandson. Vol. 4 contains Novanglus, Thoughts on Government, and Defence of the Constitution. https://oll.libertyfund.org/title/adams-the-works-of-john-adams-vol-4

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Guest Essayist: Adam Carrington


Essay Read by Constituting America Founder, Actress Janine Turner

 

 

What are principles? We speak of them often in politics, history, philosophy, and other fields of study. We praise those who have them, or at least those with which we agree, and criticize those who lack them altogether.

Simply put, principles articulate a standard. This standard carries a certain authority, providing a measure by which to judge thoughts, words, and deeds.

We need principles to answer questions regarding the thoughts, words, and actions of ourselves and our fellow human beings. We want to know whether they are true or false, just or unjust, advantageous or not. Principles help us to know better what is and what should be.

First principles, then, answer not just any questions. They are first in two ways. One, they come first chronologically. We must address them before we can move on to other subjects dependent upon them. Second, first principles deal with the most important matters. In politics, they address the fundamental concerns of and set the essential standards for a political community.

The American Founding was an exercise in articulating, debating, and implementing political first principles. The Continental Congresses did so in debating with England and declaring independence. The Convention of 1787 in Philadelphia did so in crafting the Constitution to replace the Articles of Confederation. And state ratifying assemblies all engaged in debate and decision regarding this document, resulting in its ratification.

We should know the underlying questions and resulting principles animating these discussions, documents, and decisions. First, the Founders discussed who should rule: one king, a few aristocrats, or the people. This question itself rested on another, namely whether or not all humans were inherently equal and thus the place of consent in legitimate rule. It consequently touched on the institution of slavery, race, the role of women in society, and more.

Second, the Founders addressed the right ends or goals for rule. Do governments exist for the good of the ruler or of the governed? Should laws merely protect from harm or inculcate virtue? Where do rights ultimately come from, social convention, human statute, or natural law? These matters also required addressing linked issues such as the purposes of human life, the limits of education, and the relationship between religion and politics. It demanded a reckoning on the good and bad of human nature.

Third and finally, the Founders considered how to structure and run government. This point depended heavily on the answers to the first two sets of questions. Who ruled and for what purposes dictated much regarding the institutions and processes a just government involved. But those sets depended for their efficacy on this one. Government must be good at its job and limited only to that job. How the Constitution structured lawmaking and law enforcement mattered immensely to how well America’s governments would realize their intended goals and reflect the country’s ultimate rulers. Should we divide political power among state and national governments, thereby establishing a system of federalism? On what principles would that division be made and maintained? What about within particular governments? Should we have a separation of powers among independent institutions and, if so, based on what functions of political action? Moreover, what should the lawmaking process involve? How should we select judges? These and more the Founders debated and decided on the intellectual and practical road that led to our Constitution’s creation, ratification, and implementation.

In returning to this history and these principles, we must remember none of it started in 1787 or even 1776. The Founders partook of a discussion and a history stretching back throughout recorded human history, from Ancient Greece and Rome to Medieval Christendom and post- Reformation England. They knew this history and reacted to it in their own thoughts as well as deeds. In addition, they did not all perfectly agree with each other, whether about that history or about what should be done in their own time. Their debates helped refine the resulting principles, institutions, and practices that make up our history and continue to add definition to our own time.

Over the course of this series, we will explore the roots, debates, and reasoning of America’s first principles. Thus, we will enter the great discussion in which they made such a lasting and magnificent contribution. We will see something essential about our past and our present. In the process, we will learn better how to take these principles and apply them for our future. Please join us on that journey better to know our Constitution, our country, and ourselves.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Guest Essayist: Joerg Knipprath
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.


The United States Constitution is the product of a process which attempted to address perceived inadequacies of the Articles of Confederation in dealing with practical problems of governance. Its writers sought to provide practical solutions, shaped by their experiences. On that matter, it was irrelevant whether the Philadelphia Convention technically acted outside its charge from the states and the Confederation Congress and produced a revolutionary new charter, which argument James Madison disputed in The Federalist, No. 40, or whether the Constitution was a mere extension of the Articles and “consist[ed] much less in the addition of NEW POWERS to the union, than in the invigoration of its ORIGINAL POWERS,” as he averred in essay No. 45.

There are numerous devices in the Constitution to frustrate utopian schemes. Most of them are structural. The drafters understood that utopian schemes were more likely to succeed in smaller and more homogeneous communities. Madison in The Federalist, No. 10, identified the problem as one of faction, where members of a community joined by a common passion to gain power. Derived from the natural inequalities among human beings, factions are a foreseeable part of society. While democracies are most susceptible to control by an entrenched faction, small republics are not immune. The danger somewhat abates across a state but is least likely to occur in the nation and within its general government. As he explained. Vividly:

The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.

Madison continued along the same vein in essay No. 51, “In the extended republic of the United States, and among the great variety of interests, parties, and sects, which it embraces, a coalition of the majority of the whole society could seldom take place upon any other principles, than those of justice and the general good …. And 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.” [Emphasis in the original.]

In Madison’s view, emergence of a permanent majority faction was more concerning, as minority factions would be controlled through majority voting. Fortunately, the diversity of religious, economic, ethnic, and customary influences creates shifting alliances among various factions, none of which would become an established majority at the national level. This creates a protective moat for society against dangers from radical policies which one faction might seek to impose on the country. In addition, the structural balance of formal constitutional powers between the national government and the states, further prevents any utopian faction in one state from readily spreading to another. This “federal” structure is enhanced by what Madison considered to be the adoption within the Constitution of the principle of subsidiarity, that is, that most political matters would be handled at the lowest level of political units, rather than by Congress.

In essay No. 51, Madison also explained another protection against a radical utopian faction gaining hold of the national government, the separation of powers. That separation consists of two parts in the Constitution, namely, provisions which guarantee to each of the branches a degree of immunity and independence from the other, as well as provisions which create a blending and overlapping of functions and require the different branches to collaborate to create policy. Examples of the first group of provisions are the control each branch of Congress has over its membership and the immunity of its members from prosecution for debates in Congress; the President’s privilege to withhold information from the other branches protected under, among other sources, the “executive power” clause; and the Supreme Court’s tenure during “good Behavior.” Examples of the second are the Congress’s power of the purse, the requirement that both chambers agree to the same legislation, the President’s qualified veto over legislation, and the Court’s power of judicial review. These protections help guard against rash policies and, as Alexander Hamilton phrased it in The Federalist, No. 78, “dangerous innovations in the government, and serious oppressions of the minor party in the community.” Moreover, many state constitutions incorporate similar principles of separate, yet overlapping, powers.

Leaving aside the unelected judiciary, the selection process for these positions supports the protection against radical utopian factions. Much of the operation of the political system under the Constitution, as distinct from its substantive powers, is ultimately founded in the federal system of states. Madison addressed the complex interrelationship between national and federal characteristics of the Constitution in The Federalist, No. 39. The people elect the House of Representatives, and representation is apportioned among the states on the basis of population, which are “national” characteristics. However, the states respectively determine the qualifications of the voters through their control over the electoral franchise for their own legislatures. Moreover, each state is guaranteed at least one seat, so even the population basis of the House is qualified by the existence of the states. The Senate is organized on the basis of the equality of the states in their corporate political capacities, a “federal” characteristic, and members originally were elected by the state legislatures. The president is selected by a body which is based on allocations of electoral votes among the states through a combination of population and state equality. Moreover, these electors are selected by the state legislators. As Madison explained in essay No. 39, the eventual election of the president was expected to be made by the House of Representatives, but on that occasion voting by state delegations.

The state-centric nature of these operative aspects of the constitutional structure helps diffuse power among various constituencies within a state and among different states. House members today are typically elected in single-member districts, whose constituents might be quite diverse from district to district. As originally envisioned, presidential candidates were selected by electors through a national, or at least regional, frame of reference. With the advent of modern political parties and the demographic changes over the past century, the president today is elected by a national constituency. Still, having to gain the endorsement of one of the two major political parties by having to appeal to different types of constituencies complicates the efforts of a radical faction’s candidate to gain sufficient power to orient the nation’s policies in a utopian direction. Political pragmatism and compromise is the inertia within the system.

One might add to these constitutional rules others of a more institutional origin. One such device which protects against utopian projects by a majority faction is the Senate’s “filibuster” rule. Another is the collection of arcane parliamentary procedures in the houses of Congress which can be used to derail or moderate legislation. Yet another is the committee structure and, at least in the past, the seniority system for chairmanships when powerful committee chairmen could frustrate the demands of the majority.

The problem with this presentation of a system of machine-like operation under clear constitutional rules that create a carefully-calibrated balance among various political actors, all while allowing government to function, yet protecting minority rights and guarding against dangerous utopian tendencies, is that it flatters irrationally. Seeing the political system only through the technical functioning of the rules is slanted and presents what one might call a “utopian” view. In fact, a hard look at the current system is needed to see how differently it operates.

At the level of national versus state governments, both consume a vastly greater percentage of Gross Domestic Product than a century ago, never mind two centuries ago. The national government’s share in particular has increased manifold. The national debt is at a record peacetime high in relation to GDP. The current use of debt by all levels of government would make the schemers in the state governments of the 1780s blanch. Congress today uses its legislative powers over interstate commerce, taxing, and spending to intrude into the most local and personal activities. Madison’s explanation in essay No. 39 of The Federalist that the national government’s jurisdiction extends to only a few enumerated ends, while the states have “a residual and inviolable sovereignty over all other objects” seems quaint and quizzical. Indeed, the very concept of residual state sovereignty has been neutered through Congress’s use of its taxing and spending powers, just as the Anti-federalists predicted and Hamilton attempted to refute in essays No. 32 and 33 of The Federalist. Prodigious government grants of money are a lifeline for much academic research, and those funds are readily applied to advance utopian projects by their recipients. As to legislation at the state and local levels, the ubiquity of laws far surpasses that of the earlier time, a product perhaps of a more complex society or the fact that legislating has become a full-time occupation for many politicians today.

As to the separation of powers, the contrast between the Constitution’s text and the operation of the system is if anything, starker. The proliferation of “alphabet agencies,” unencumbered by doctrines of separated functions, make rules, enforce them, and adjudicate violations of those rules in formally civil, but functionally criminal, proceedings. Those rules, adopted by generally unaccountable “independent” commissioners, administered by career functionaries, and virtually immune from judicial challenge, constitute the vast majority of the American corpus juris. There has been significant research into the political tactic of “regulatory capture,” whereby private entities, be they businesses, unions, or ideological “NGOs” (Non-Governmental Organizations) effectively take control of regulatory agencies. The danger with the last of these is that they often pursue utopian agendas behind the label “public interest,” rather than the more prosaic economic benefits to which the first two usually direct themselves.

There has been a concomitant expansion of executive power. The growth of the White House budget for various in-house offices, agencies, and directors which often parallel the domains of the formal constitutional departments, yet are independent of them, is one measure. As well, vast delegations of authority by Congress to the executive branch occurred as early as the Woodrow Wilson administration. The Supreme Court took some desultory steps against such delegations during the 1930s. Justice Felix Frankfurter warned about the expansion of executive power in his concurrence in Youngstown Sheet & Tube v. Sawyer, the famous Steel Seizure Case in 1952. Yet the Supreme Court has not struck down such a delegation in nearly a century. Some of this delegation, as well as broad ritualistic claims of inherent executive authority, arose in connection with war or other emergencies. Unsurprisingly, those powers continued during peace. A claim of discretionary power to act in emergencies inevitably produces more claims of emergencies. As shown by quite recent history, similar displays of broad executive power and uncontrolled administrative governance are part and parcel of state and local systems, as well.

As to constitutional barriers to utopianism provided by the electoral structure, or institutional barriers through the filibuster, one must wonder about their continued efficacy. Gerrymandering of districts has produced many “safe” partisan districts, where primary elections control the eventual outcome. Primary elections—or local party caucuses—attract the most ideologically committed participants. Such gerrymandering has been blamed for the election of candidates committed to ideologically pure, but practically harmful, utopian policies.

The mobility of American society and the advances in communications technology and entertainment have challenged Madison’s basic assumption about the diversity of interest groups rooted in different geographical areas. The electorate has become much more homogeneous and “national,” so that a nation-wide electoral majority might degenerate into an ideological faction similar to what Madison described was the danger in a local democracy. Candidates, too, are less dependent on the moderating influences of party organization. One need only to consider the emergence of billionaire-politicians and celebrity-politicians who can use their money or status to capture a party’s nomination and, subsequently, the office, without the support of the party’s established apparatus. Institutional restraints, such as the filibuster, have been weakened and are threatened with elimination, which would further undermine protections against a bare majority faction in Congress imposing utopian projects on the country.

Madison dismissed the dangers of a minority faction controlling Congress because of the “republican principle” of majority vote. But a minority faction driven by utopian fervor is much more likely to coalesce than a majority, and Madison’s faith in the vote is too blind to that danger. It has long been established that an ideologically committed organized minority can control an unorganized majority in politics or otherwise. The large economic or psychological benefits of a policy to the members of the minority outweigh the proportionally smaller costs to each member of the majority. With the increased and hidden power of unelected entities described earlier, the danger becomes more acute. One example should suffice: Before his inauguration, President-elect Donald Trump challenged leaked, unsubstantiated claims by American intelligence agencies that Russia had hacked the 2016 election. Senator Charles Schumer then warned President Trump, “You take on the intelligence community—they have six ways from Sunday at getting back at you.” Schumer was not alone in that prognosis. The specter of the hidden intelligence apparatus undermining the president in pursuit of an ideological objective has been raised many times over the past decades and is in direct conflict with the constitutional order.

In similar manner, the doctrine of judicial review has increasingly been used to advance constitutional novelties. The Constitution provides a formal amendment process, based on broad super-majoritarian approval that is, in Madison’s description, partly federal and partly national. It requires broad consensus in Congress and among the people or legislatures of the states. There has also developed an informal amendment process which retains elements of popular approval and consensus. For example, when Congress passes a law, the president signs it, and there is no successful constitutional challenge brought to the law in the courts, continued and open adherence to that law by the people over time makes that law’s political essence part of the constitutional fabric. A similar development occurs if a significant number of states pass laws respecting a particular matter of state control, if those laws do not conflict with a clear constitutional provision. A constitutional challenge to such well-established laws years later ordinarily should be rejected, because, as Hamilton stated, the purpose of judicial review is to prevent sudden popular passions from passing laws which violate established constitutional rules and threaten individual rights.

In that sense, judicial review is “conservative.” Judicial review is not intended to have five unelected judges decree a novel constitutional order by overturning long-established laws. That is the function of lawmakers in legislatures or constitutional conventions. Yet, the Supreme Court at times has taken on that function by discovering fanciful, previously unheard-of constitutional meaning in ambiguous clauses. These discoveries typically reflect the views of a narrow socio-political elite more than those of the citizenry at large. An ideologically committed minority faction is thus able to impose its utopian vision on the majority.

One can easily come up with more examples of current functional weaknesses and dysfunctions in the constitutional system described by the writers of The Federalist. The Anti-federalists broadly predicted many of the current developments, although it is to be doubted that their proposals, to the extent they had any, would have worked better to preserve the republican nature of the original order. Nor is it to be understood that all changes are necessarily bad. One might well agree with the social benefit of some of the constitutional innovations from the Supreme Court, yet be concerned about the way in which those changes came about. One might accept that some of the actions of the unelected agencies have been for the public good, yet worry about the threat to republican self-government posed by the bureaucratic state of self-declared “experts.” One might favor certain policies enacted into law by Congress, yet question the desirability of a system which increasingly micromanages life from thousands of miles away.

There are many ominous signs which suggest that we have lost our republican form of government as envisioned by the Framers. What we have left, it often appears, are certain trappings and rituals, much as happened with the Roman senate and other republican institutions during the Roman Empire and beyond. Perhaps the classic expositors of republics were right, that such a form of government cannot exist over a large area with many diverse groups of people. Perhaps Madison’s faith in the representative system was shaped by an implicit acceptance of the Aristotelian assumption that self-government was possible only in a community small enough that one could speak of “friendship.” There was much debate among classic writers about the size limits of community. One person did not make a polis. With 100,000, one no longer had a polis. At the time of the Philadelphia Convention, the largest state, Virginia, had a population over 800,000, including slaves. The next largest, Pennsylvania, had under 500,000. The debate over proper-sized districts for the House of Representatives, the most “republican” part of the government, settled the number at 30,000 residents per representative. The Anti-federalists challenged this ratio as too high and unrepublican by pointing out that in Pennsylvania’s state legislature, the ratio was one representative for each four to five thousand residents. Madison replied in essay No. 55 that the House of Representatives would only deal with national matters which do not require particular knowledge of local affairs or connection to specific local sentiments. Today, each congressional district approaches the then-population of Virginia, and the Congress regularly passes laws which have profound local effects. Whether or not Aristotle was correct about the precise limits of “community,” surely it beggars belief to say that today’s congressional districts are republican in anything but name.

Long tenures in office were another danger, according to republicans. The Articles of Confederation limited the number of terms a member of Congress could serve. The Constitution does not. Hence it is common for representatives to spend decades in office, which results in part from the difficulty of ousting incumbents in large districts gerrymandered to protect them. It is problematic to claim that such effective life tenures are “republican.”

Another important role in republican systems is played by various non-governmental social associations, such as the family, religious institutions, unions, and charitable groups. The 18th-century Anglo-Irish philosopher and politician Edmund Burke centered his theory of constitutional stability on the vitality of such institutions, which represent tradition and continuity and thereby guard against radicalism and turmoil. Burke was quite familiar to Americans for his vindications of their political claims before and during the Revolutionary War. He contrasted the stability of the English constitutional system with the situation in France. He was horrified by the violence of the French Revolution which grew from its utopian radicalism. It is inevitably the object of totalitarian governments to destroy or subjugate such intermediary institutions which threaten the power of the state over the people.

One must consider, then, some uncomfortable topics. To what extent has the American family structure been undermined by divorce, single parenthood, and various incentives created through the welfare state? How significant are religious institutions in the life of Americans today compared with preceding generations? With the exception of public employee unions, how significant are labor unions today? The same question must be asked about the vitality of local business associations and related service clubs, which played such significant roles in communities in the past.

The great Northwest Ordinance of 1787 declared, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” This goal reflects the inculcation of private virtue which the different groups of American republicans agreed were a necessary basis for the preservation of republican government, even if some argued that it was not a sufficient basis. Are educational institutions fulfilling their task of teaching the heritage, morals, and substantive knowledge upon which the founding generation staked the success of their republic, or has the radicals’ long march through those institutions corrupted that mission?

Is the current dynamic of identity politics leading us to a dangerous tribalism which tears the social bonds necessary for a stable and peaceful community? If factions are the bane of republican systems, will the stress of this anarchic impetus ultimately lead to a collapse into the tyranny which the Anti-federalists feared?

If freedom of the press is needed for “republican form of government,” are the media providing useful information to the public or at least performing their self-appointed task of bravely and indiscriminately “speaking truth to power”? Or have they become so ideologically blinded to convince themselves of the righteousness of their quest to indoctrinate the public, that they have vindicated Thomas Jefferson’s indictment of the press in his 1807 letter to John Norvell, “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle….The man who never looks into a newspaper is better informed than he who reads them, inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors.”

Many of these dysfunctions were spawned by utopian schemers who without thought or hesitation cast aside rules and institutions forged in human experience. They failed to heed G.K. Chesterton’s warning in his parable of the fence built across a road not to tear it down until one clearly understands why it was erected in the first place.

As explored over these 90 sessions, the Constitution’s drafters constructed a framework of republican government and the means to preserve it. The structural components of the system, functioning as intended, assist that task. However, the Framers understood their own fallibility and the fragility of their creation. The Constitution is just a parchment. To give it life requires the attention of a civically militant citizenry committed to the preservation and functioning of its parts. That is the politics of the true “living constitution.” And, as has been said, politics is downstream from culture. The French philosopher Joseph de Maistre pungently observed, “Every nation gets the government it deserves.” Although his comment was about Russia, it would have particular relevance for a republic. Likewise, in his famous aphorism, Benjamin Franklin did not just say to Mrs. Elizabeth Powel that the convention had produced a republic. He added, wittily but ominously, “if you can keep it.” The question is whether the American people continue to be up to the challenge.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Essay #1 – INTRODUCTION

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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.

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Essay #3 – Principle of regard for history, order, and tradition.

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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.

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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.

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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.

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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.

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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.

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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them.When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.

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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.

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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.

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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.

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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

  • Principle of Citizenship and Love of Country by Tom Hand, Creator and Publisher, Americana Corner; West Point Graduate; Serves on the Board of Trustees, American Battlefield Trust and the National Park Foundation’s National Council.

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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

  • Principle of Peace Through Strength by Robert Brescia, Board Director, Past Chairman, Basin PBS Television; Top Leadership Roles in Education, Corporate Business, Nonprofit, and Defense; Twenty-Seven Years of Public Service as an Airborne Ranger Cavalry Soldier, NCO, Commissioned Officer, U.S. Army; Appointed by Texas Governor Greg Abbott, State Board for Educator Certification.

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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

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Essay #21 – Principle of Creator-endowed unalienable rights.

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Essay #22 – Principle of natural law as the foundation for constitutional law.government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.

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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.

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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.

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Essay #26 – Principle of self-governing. “Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #27 – Principle of decision making by the majority within a constitutional framework.

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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.

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Essay #29 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

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Essay #30 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.

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Essay #31 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.

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Essay #32 – Principle of meritocracy.

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Essay #33 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

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Essay #34 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

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Essay #35 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.

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Essay #36 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.

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Essay #37 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power.Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.

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Essay #38 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.

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Essay #39 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.

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Essay #40 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.

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Essay #41 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.

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Essay #42 –Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

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Essay #43 –Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.

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Essay #44 – Principle of justice for all.

  • Principle of Justice for All by Andrew Langer, President, Institute for Liberty; Chairman and Founder, Institute for Regulatory Analysis and Engagement.

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Essay #45 –Principle of equal justice under the law.

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Essay #46 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

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Essay #47 –Principle of due process of law.

  • Principle of Due Process of Law by James C. Clinger, Professor Emeritus of Political Science, Murray State University; Past President, Kentucky Political Science Association.

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Essay #48 – Principle of innocent of any crime until proven guilty.

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Essay #49 –Principle of freedom of a person under the protection of habeas corpus.

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Essay #50 –Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.

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Essay #51 –Principle of no unreasonable searches or seizures.

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Essay #52 –Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.

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Essay #53 –Principle of a Grand Jury indictment of capital crimes before a person may be held to account.

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Essay #54 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.

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Essay #55 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections.There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #56 – Principle of free, fair, independent elections involving preservation of the electoral college.

Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College by Tara Ross, Nationally Recognized Expert on the Electoral College, Author of Why We Need the Electoral CollegeThe Indispensable Electoral CollegeHow the Founders’ Plan Saves Our Country from Mob RulePrager University video, Do You Understand the Electoral College?

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Essay #57 – Further on principle of representative government only under authority of the American people.

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Essay #58 –Principle of establishing justice through the rule of law.

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Essay #59 – Principle of one nation under God.

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Essay #60 – Principle of maintaining freedom and independence through an armed citizenry, right to protect one’s person and property by the personal keeping and bearing of arms. “to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

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Essay #61 – Principle of peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

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Essay #62 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

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Essay #63 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #64 – Principle of strong defense capability to protect the United States against the danger and severity of treason.

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Essay #65 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

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Essay #66 – Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People

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Essay #67 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.

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Essay #68 – Principle of individual free enterprise.

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Essay #69 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals.That property will ever be unequal is certain. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #70 – Principle of freedom of speech in a marketplace of ideas.

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Essay #71 – Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money. “And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

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Essay #72 – Principle of making personal contracts.

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Essay #73 – Principle of free market trade, industry, innovation and competition.That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792.

Essay #74 – Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence. “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own… That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.” Property, an essay by James Madison, March 29, 1792.

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Essay #75 – Principle of freedom of the press. “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

  • Principle of a Free Press by Patrick Garry, Professor of Law, University of South Dakota; Author, Limited Government and the Bill of Rights.

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Essay #76 – Principle of keeping the fruits of one’s own labor. “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

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Essay #77 – Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor

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Essay #78 – Principle of Freedom of Religion.Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

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Essay #79 – Principle of freedom of assembly.

  • Principle of Freedom of Assembly by Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park.

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Essay #80 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

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Essay #81 – Principle of a nation’s longevity upon consisting of public and private virtue. Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #82 – Principle of Constitutional Limits on the United States Government To Tax. “How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion or force. “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #84 – Principle of Free Thought and Speech. “The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

  • Principle of Free Thought and Speech by Tony Williams, Author of six books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow.

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Essay #85 – Principle of distinguishing between purpose of federal, and governments of the states: maintaining the Union while preventing federal encroachments on the states and individual Americans. Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton, Speech, Compromises of the Constitution, June 20, 1788..

 

Essay #86 – Principle of secure borders.

  • Principle of Secure Borders by Guest Essayist: Kevin Portteus, Professor of Politics, Director of American Studies, Lawrence Fertig Chair in Politics, Hillsdale College.

 

Essay #87 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.

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Essay #88 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.

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Essay #89 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and , dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

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Essay #90 – CONCLUSION

Guest Essayist: Christopher C. Burkett, Associate Professor of History and Political Science; Director, Ashbrook Scholar Program, Ashland University.

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Principle of constitutional limits on the United States government to spend taxes collected from the people with prompt payment of public debt.

90-Day Study 2023

Essay #1 – INTRODUCTION

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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.

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Essay #3 – Principle of regard for history, order, and tradition.

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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.

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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.

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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.

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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.

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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.

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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them.When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.

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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.

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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.

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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.

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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

  • Principle of Citizenship and Love of Country by Tom Hand, Creator and Publisher, Americana Corner; West Point Graduate; Serves on the Board of Trustees, American Battlefield Trust and the National Park Foundation’s National Council.

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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

  • Principle of Peace Through Strength by Robert Brescia, Board Director, Past Chairman, Basin PBS Television; Top Leadership Roles in Education, Corporate Business, Nonprofit, and Defense; Twenty-Seven Years of Public Service as an Airborne Ranger Cavalry Soldier, NCO, Commissioned Officer, U.S. Army; Appointed by Texas Governor Greg Abbott, State Board for Educator Certification.

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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

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Essay #21 – Principle of Creator-endowed unalienable rights.

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Essay #22 – Principle of natural law as the foundation for constitutional law.government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.

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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.

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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.

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Essay #26 – Principle of self-governing. “Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #27 – Principle of decision making by the majority within a constitutional framework.

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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.

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Essay #29 – Principle of constitutional law and a foundation of a virtuous and moral people.

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Essay #30 – Principle of one nation under God.

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Essay #31 – Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

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Essay #32 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

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Essay #33 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.

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Essay #34 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.

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Essay #35 – Principle of meritocracy.

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Essay #36 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

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Essay #37 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

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Essay #38 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.

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Essay #39 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.

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Essay #40 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power.Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.

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Essay #41 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.

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Essay #42 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.

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Essay #43 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.

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Essay #44 – Principle of establishing justice through rule of law – guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing, eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law. “…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #45 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.

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Essay #46 – Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.

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Essay #47 – Principle of justice for all.

  • Principle of Justice for All by Andrew Langer, President, Institute for Liberty; Chairman and Founder, Institute for Regulatory Analysis and Engagement.

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Essay #48 – Principle of equal under the law.

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Essay #49 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

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Essay #50 – Principle of due process of law.

  • Principle of Due Process of Law by James C. Clinger, Professor Emeritus of Political Science, Murray State University; Past President, Kentucky Political Science Association.

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Essay #51 – Principle of innocent of any crime until proven guilty.

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Essay #52 – Principle of freedom of a person under the protection of habeas corpus.

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Essay #53 – Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.

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Essay #54 – Principle of no unreasonable searches or seizures.

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Essay #55 – Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.

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Essay #56 – Principle of a Grand Jury indictment of capital crimes before a person may be held to account.

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Essay #57 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.

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Essay #58 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections.There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #59 – Principle of free, fair, independent elections involving preservation of the electoral college.

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Essay #60 – Further on principle of representative government only under authority of the American people.

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Essay #61 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.

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Essay #62 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.

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Essay #63 – Principle of maintaining freedom and independence through an armed citizenry, right to protect one’s person and property by the personal keeping and bearing of arms. “to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

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Essay #64 – Principle of peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

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Essay #65 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

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Essay #66 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #67 – Principle of strong defense capability to protect the United States against the danger and severity of treason.

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Essay #68 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

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Essay #69 – Principle of distinguishing between purpose of federal, and governments of the states: maintaining the Union while preventing federal encroachments on the states and individual Americans. Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton, Speech, Compromises of the Constitution, June 20, 1788.

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Essay #70 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.

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Essay #71 – Principle of secure borders.

  • Principle of Secure Borders by Kevin Portteus, Professor of Politics, Director of American Studies, Lawrence Fertig Chair in Politics, Hillsdale College.

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Essay #72 – Further on principle of private property ownership to protect liberty and encourage commerce, independence, personal growth and wealth without a requirement of royal or other position of gain. “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own… That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.” Property, an essay by James Madison, March 29, 1792.

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Essay #73 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals.That property will ever be unequal is certain. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #74 – Principle of individual free enterprise.

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Essay #75 – Principle of money with intrinsic value and standards of weights and measures, printing money. “And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

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Essay #76 – Principle of making personal contracts.

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Essay #77 – Principle of free market trade, industry, innovation and competition.That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792.

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Essay #78 – Principle of keeping the fruits of one’s own labor. “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

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Essay #79 – Principle of defending liberty and rights in property through the fruits of one’s own labor.

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Essay #80 – Principle of constitutional limits on the United States government to tax. “How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

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Essay #81 – Principle of freedom of speech in a marketplace of ideas.

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Essay #82 – Principle of free thought and speech. “The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion nor force. “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #84 – Principle of freedom of the press. “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

  • Principle of a Free Press by Patrick Garry, Professor of Law, University of South Dakota; Author, Limited Government and the Bill of Rights.

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Essay #85 – Principle of freedom of assembly.

  • Principle of Freedom of Assembly by Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park.

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Essay #86 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

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Essay #87 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

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Essay #88 – Principle of freedom of religion.Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

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Essay #89 – Principle of a nation’s longevity upon consisting of public and private virtue. Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #90 – CONCLUSION

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Guest Essayist: Chris Burkett


History furnishes plenty of examples, especially in the Nineteenth and Twentieth Centuries, of revolutions that attempted to create Utopian societies. From the French Revolution, which attempted to completely recreate society in every way in the name of equality, to the Russian Revolution, which attempted to recreate the human mind by erasing all concepts of the “private” and the “individual,” these Utopian experiments all have one thing in common: they either ignore or reject the idea of unchanging human nature, or claim that human nature is malleable or perfectible and can be reinvented. The American Founders would argue that this is why they have all failed, or will fail, in the end.

To be sure, the Founders understood from their own experiences and actions that change – and sometimes revolution – is necessary to bring about political, social, moral, and economic progress to make life better and more just for human beings. But the Founders had the prescience to see the danger of being too radical and abandoning all tradition and experience for the sake of some untested visionary idea of a perfect society. James Madison, in The Federalist No. 14, urged his fellow Americans to be open to the new – one might say “experimental” – aspects of the proposed United States Constitution. “Hearken not to the voice,” Madison wrote, “which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.” On the other hand, Madison acknowledged that there are some wholly new aspects of the proposed form of government. “But why,” he continued, “is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” To embolden his fellow citizens to attempt this experiment, Madison appealed to the example of the American Revolution itself:

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course.

Alexander Hamilton, in The Federalist No 31, also wrote on the need to combine a degree of boldness with prudence in revolutions. “Caution and investigation are a necessary armor against error and imposition,” Hamilton wrote.

But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. … The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured.

Though the Founders understood the need for “experimentation” in order to make society better, they also understood that such experiments must be undertaken with a kind of prudence and judicious awareness of the realities and limitations imposed by human nature. In The Federalist No. 10, James Madison addressed those who believe that faction can be eliminated entirely from society, and reminds them that the causes of faction are rooted in human nature. To achieve a truly faction-free society, one must either eliminate or change human nature, which, in either case, would require a tyrannical government to accomplish. Madison reminded us again in The Federalist No. 51 that human nature should temper our expectations for establishing successful Utopian regimes. “But what is government itself,” Madison asked,” 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 The Federalist No. 37, Madison reflected on how the Constitutional Convention in 1787 combined political innovation tempered with prudence and a due regard for experience to create the proposed Constitution. The mode in which the Constitution was written – by a body of 55 delegates from twelve states over the course of three and a half months – was itself an experiment in constitution making. Madison observed, “The novelty of the undertaking immediately strikes us. … The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.” Madison conceded that the proposed Constitution was not perfect; nor would it establish a perfect form of government. But Madison argued against letting the perfect be the enemy of the good, and acknowledged that the imperfections arose, in part, from the realities of human nature and of imperfect human beings. As Madison wrote:

Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.

Hamilton echoed this sentiment as well in The Federalist No 85. Hamilton addressed those who would reject the proposed Constitution because it was imperfect. “‘Why,’ say they, ‘should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?’” Hamilton’s response invoked, again, the realities of human nature:

I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?

In summary, to paraphrase Hamilton from The Federalist No. 6, though it is reasonable for us to aim at progress through prudent change and experimentation, one must be far gone in Utopian speculations to believe that human beings can ever achieve a completely perfect society. History has vindicated the Founders’ advice on this through many examples of Utopian experiments that have resulted in tyranny, oppression, and death for many people.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

Guest Essayist: Joerg Knipprath


Utopianism appears to be inbred in the human brain—the desire for the perfect life, however a person might define that. Parents tell children to “follow their dreams.” Adults, too, often follow suit. Examples abound, from the ‘49ers of the California Gold Rush, to the “drop-out” hippie communes of the 1960s, to current athletes and entertainers. From print publications to electronic media, the protagonists of many stories—fictional or true—are those who “followed the beat of their own drum.”

This human trait is admirable and is something which marks us as more intellectually complex than brute animals. Aristotelian understanding of “happiness”—eudaimonia—is that quest for a fulfilled and flourishing life, to be “truly human.” One might never fully attain that state, or, Aristotle advises, one might not fully comprehend it until one is close to death. Even the failure of such a quest, though, can teach valuable lessons. A person might end the journey to become a singer, once she realizes that the agitation among the neighborhood’s cats stem from the sounds she emits. Instead, perhaps a new dream to become a talent agent forms to motivate her. Looked at another way, even if her utopian vision fails completely, it likely affects only her and perhaps a few around her.

By contrast, utopianism at the level of societies is much more dangerous to human flourishing. At that scale, failure, such as the collapse of a polity, affects multitudes in a profoundly existential manner. The ship of state requires a calm hand at the wheel. Phronesis, the classical virtue of practical wisdom, must control, not utopian passion. The statesman must have the clear ability to make the moral and practical choices which conduce best to the well-being of the community.

Still, there lurks the unsatisfied yearning to achieve, or to return to, the perfect society. It is the psychological desire to return to a Garden of Eden and a state of perfect innocence. From a Neo-Platonic perspective, which influenced the writings of St. Augustine and other early Christians, this yearning might reflect the human soul’s longing to attain union with the ultimate Good, or God.

Writers since ancient times have dabbled in philosophic creation projects of ideal societies. Plato’s 4th-century B.C. Politeia (The Republic), his prescription for a government run by a “guardian class” of philosopher-kings, is an early example. Thomas More’s 1516 book Utopia about an ideal society dwelling on an idyllic island, is another. More recently, Karl Marx’s writings about the process of historical transition which ultimately would end class strife through the establishment of a classless, communist society, dazzled many acolytes. Common to these three particular works, it should be noted, was opposition, in some manner or another, to private property. Another commonality was a degree of hostility to the traditional nuclear family structure.

At least the first two of these works are not necessarily to be taken at face value. The revolutionary changes which would be necessary to establish Plato’s ideal republic conflict with fundamental philosophic views he expressed in other writings. Moreover, he was quite clear about the inevitability that the project would fail due to the passions which are part of human nature. His work is a warning at least as much as it is a blueprint.

More’s work is satirical through and through, from the book’s title (a play on two similar sounding Greek words meaning no place—Utopia—and perfect place—Eutopia), to the names of various places and persons within the work, to the customs of his island’s denizens. It was satire of English society, but also a warning about societies unmoored from Christian ethics.

Along with utopian philosophies have come utopian projects. The Plymouth Rock Colony of the Pilgrim Fathers in 1620 was organized initially along communist principles of land cultivation. The disastrous economic consequences from that brief, two-year experiment threatened the very existence of the colony. Fortunately, the misstep was soon corrected. A similar fate awaited Robert Owen’s utopian “socialist” colony New Harmony, Indiana, which turned from a prosperous religious settlement when sold to Owen in 1825 to an economic shambles by 1828. The religious predecessor had also held property in common, but within a tightly-knit religious community. Owen’s associates lacked any strong bonds of community. As one contemporary commentator noted, “There are only two ways of governing such an institution as a Community; it must be done either by law or by grace. Owen got a company together and abolished law, but did not establish grace; and so, necessarily, failed.” He might have added one additional approach, the use of relentless force.

Often, these utopian communities are driven by a fervent vision of a new type of society founded on religious principles. They seek to create an earthly community close to God. Besides the Pilgrims, the Shakers and other charismatic groups come to mind. Others, like the Owenite socialists are motivated by more secular ideologies. Sometimes, an odd brew of messianic zeal and political ideology is blended, as in the “apostolic socialism” of Jim Jones’s People’s Temple in Guyana. These groups eventually adapt their dogma to the complexities of human nature and the real-world challenges of social living, as the Pilgrims and the Latter Day Saints did. Or, they disintegrate, as was the fate of the Owenites and the Shakers. Tragically, some come to a violent end under the thrall of a toxic “prophet,” as did the unfortunates of the People’s Temple.

Another factor which contributes to the instability of utopian projects is the scale of the venture. The communities previously mentioned were comparatively small. The Aristotelian ranking of associations from the family to the clan to the polis encompasses ever greater numbers. As those numbers increase and the members’ relationships to each other become more distant, the bonds become looser. Human nature is, essentially, selfish. Self-interest is not necessarily bad. Killing an attacker to save one’s own life has long been recognized as the most fundamental of natural rights. However, another human characteristic, more developed than in lesser species, is altruism.

Altruism, and one’s willingness to incur burdens for the benefit of another, is most pronounced in regards to those whom we “know.” The bonds of love are strongest towards immediate family members. They are also present, but less intensely, towards the extended family. Beyond that lie the still significant bonds of friendship about which Plato and Aristotle mused at length. Aristotle considered the highest form of friendship that which is maintained not for what one might get out of it, but, instead, what is done for the benefit of the other. He also considered friendship as the key measure of proper self-government in the polis. At some point, however, the number of residents within the community might grow too big for the mutual interactions required to maintain friendship. As that number grows, the psychological tension between self-interest and true altruism inevitably favors the former.

For example, a “communist” approach to work and reward can succeed within a family, perhaps even an extended one of longstanding relationships. Trouble arises when the relationships are not familial. To eliminate this inequality of sentiment, utopian societies seek to undermine or abolish the family and other voluntary affinity groups, which itself is doomed to fail and simply accelerates the group’s collapse. A large utopian society, whose members are not bound together by religion or by rules derived from long-established customs which reflect the traditional ordering within stable communities, requires increasingly brutal force to maintain commitment to the utopian project. Pol Pot’s devilish regime in Cambodia nearly half a century ago is a notorious example of this, as memorialized in the chilling movie The Killing Fields.

No matter how intellectually promising and rationally organized the effort is, human nature and passions will derail the utopian project. Plato laid the problem at the feet of eros—passionate love and desire—which upends the controlled marriage and mating program his ultra-rational utopia required. Among the rulers, nepotism and greed manifest themselves. It is hardly shocking that Fidel Castro acquired a wealth of nearly $1 billion at the time, all the while exhorting the unfortunate subjects in his impoverished nation to sacrifice for la Revolución. The inevitable failings of the system set off a hunt for scapegoats, those wreckers who do not show the requisite zeal and who harbor counterrevolutionary or other heretical views.

Within societies which are not openly pursuing some political or religious utopia, there may nevertheless be strong currents of utopianism. In our time and place, the extreme emphasis on risk avoidance is a utopian quest. It has resulted in a bloated legal and administrative apparatus as smaller and more remote and dubious risks are targeted. Economic and social costs are ignored as a health and safety security state takes shape. Those who dissent from the secular millenarian orthodoxy are liable to be marginalized or cast aside like religious heretics. Individual rights of association, religion, providing for oneself and one’s family, and bodily autonomy are subject to the guesses and whims of unelected credentialed “experts.” Yet these measures, when pursued robotically for some ideal beyond what practical wisdom would advise, fail or produce only marginal benefits, often at great cost. Even if they are abandoned, the damage has occurred.

In a related manner, there has been a decades-long quixotic quest to create emotional placidity. While not socially harmful if done on an individual, voluntary basis, compelled “treatments” have been a favorite of ideologues to deal with dissenters. The Soviet Union was infamous for its psychological analyses steeped in Marxist utopianism and its use of political dissent as “red flags” of psychological “deviance.” But the problem festers closer to home, as well. From state-applied electric shock therapy and lobotomies in the past, to the modern approach of psychotropic drugs, a therapeutic totalitarianism has been spreading. Those who dissent, especially parents who balk at such drug use or at school “safe zone” counseling done behind their backs, are liable to find themselves ridiculed or worse.

The delegates to the Philadelphia Convention were educated in classic writings and western history. They were not naïfs about human nature or politics. They understood lessons from the failures of regimes and the dangers of utopian projects, as did their opponents in the debate over ratification. Moreover, their own experience from the Revolutionary War, the Articles of Confederation, and service in their state governments had inured them to utopian speculations. Illustrative of the skepticism is a letter Alexander Hamilton wrote even as the struggle for independence still hung in the balance in 1781, “there have been many false steps, many chimerical projects and utopian speculations.” He noted that the most experienced politicians were Loyalists. He was registering his complaint about the lack of political sophistication among his co-revolutionaries in the conduct of the war, the adoption of the Articles, and the drafting of state constitutions.

That is not to say that the supporters and opponents of the United States Constitution lacked political and philosophic bearings. Most had a sense of what they wished to achieve, set within a coherent broader philosophic framework. The historian Forrest McDonald, in his far-reaching and detailed analysis of the framing of the Constitution, classifies the delegates into two groups, “court-party nationalists” and “country-party republicans,” analogous to the British Tory and Whig parties, respectively. Among the best-known such nationalists were Washington, Hamilton, Benjamin Franklin, James Wilson, Gouverneur Morris, and Robert Morris. Among the notable republicans were Elbridge Gerry, George Mason, Luther Martin, and Edmund Randolph. Others were more difficult to label. McDonald places James Madison in between the two groups and somewhat harshly judges the latter “an ideologue in search of an ideology.” He claims that by temperament Madison thought matters through to the detail and preferred “the untried but theoretically appealing, as opposed to the imperfections of reality.” Yet, he also concedes Madison’s willingness to abandon politically untenable positions as needed.

A third group, whom McDonald considers arch-republican ideologues, did not attend for varied reasons. They included Thomas Jefferson, John Adams, Sam Adams, Richard Henry Lee, and Patrick Henry. Some of these outsiders and other opponents of the Constitution presented more consistently “principled” arguments, but it is always easier to attack someone’s work than to provide a comprehensive and workable alternative.

None of the groups at the convention had a majority. Moreover, they were not ideological in the modern sense of positing a single abstract moving cause for all human action in the private and public realms. The closest might be the idea that humans act from self-interest. But there was nothing like Marxist economic determinism or Freudian psychoanalysis or current Marxism-derived Critical Race Theory. The various broader theories of government delegates favored still resulted in differences which must have seemed intractable, at times. Some delegates left out of frustration that their ideas about the proper constitutional order were not sufficiently realized.

But most held on and difficult compromises were eventually reached. Even the matter which deadlocked the convention for weeks and threatened more than once to tear it apart, namely the structure of Congress and the mode of representation, ultimately was resolved mostly in favor of the small states through Roger Sherman’s Connecticut Compromise. So was the controversy over Congress’s powers. The small-state proposal of an enumeration of specific powers supplemented by an enabling clause was adopted over a more national position favored by Madison that Congress would have power to address all issues which affected the nation where individual states would be “incompetent to act.” The slavery question was generally avoided. The concept was simply euphemized, rather than expressed. Specific issues, such as the fugitive slave clause and the three/fifths clause to apportion representatives and direct taxes were borrowed from the Northwest Ordinance of 1787 and a failed amendment to the Articles of Confederation. Whatever might have been the hearts’ desires of various philosophically committed members, compromise prevailed. The result was a system which was partly federal and partly national, as Madison laid out the particulars in Number 39 of The Federalist.

As remarked in previous essays, the authors of The Federalist emphasized the influence of experience, not idealism, on the convention’s deliberations, and the process of compromise, not purity, which resulted in a plan suited to the practical demands of governing. Aside from Hamilton’s noted aphorism in Number 6 of The Federalist, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries,” the authors repeatedly drew on experience under the Articles of Confederation, the state constitutions, and earlier European and ancient systems. That was, of course, also what the convention had done. In Number 38, Madison mocked the variety and inconsistency of objections and their often vague and general nature. While his sarcasm disparages the constructive and systematic efforts of opponents such as the “Brutus” essays by New York’s Robert Yates, Madison’s specific examples illustrate the spirit of pragmatism at the convention. He declared “It is not necessary that the [Constitution] should be perfect: it is sufficient that the [Articles are] more imperfect.” In Number 41, he acknowledged, “…that the choice must always be made, if not of the lesser evil, at least the GREATER, not the PERFECT good; ….” [Emphasis in the original.]

Perhaps the best summation of the pragmatism which steered the delegates as they proceeded with their work was voiced by Benjamin Franklin. He rose on the day of the final vote and implored his colleagues, “Thus I consent, Sir, to this Constitution. Because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good….I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: James C. Clinger


The year 1776 was notable not only for the Declaration of Independence, but also for the publication of a notable work of scholarship that represented a dramatic change in not only the economic systems of the world but also the shape of the governmental arrangements of the United States, Britain, and other nations. An Inquiry into the Nature and Causes of the Wealth of Nations, by a Scottish academic, Adam Smith, was published at about the same time that the Continental Congress, thousands of miles away, considered a resolution to declare independence from Great Britain.[i]

Smith’s work is today largely considered an economic monograph extolling the virtues of capitalism, but in its own day its contribution was somewhat different. The word “capitalism” was not in wide use at that time. “Economics” was not considered an identifiable academic discipline or focus of study. Smith’s university teaching career was largely concerned with what was then called “natural philosophy.” In the Wealth of Nations, Smith suggested the free exchange of goods and services could promote not only material wealth, but also improve human well-being in a more general sense.

In making these arguments, Smith took the opportunity to attack human contrivances that thwarted free exchange. Slavery and colonialism were also criticized, and an extensive critique of the economic thinking and practices known as mercantilism became a central focus of the book.   Mercantilism was a fundamental basis for colonial rule, and the opposition to mercantilist practices was part of the justification for the American Revolution. Similarly, the breakdown of mercantilism as a defensible basis for imperial control of territory led to British willingness to permit its colonies to gain their independence.

Mercantilism was an economic system that contended that national wealth was promoted by government interventions to encourage trade and investment in certain industries and enterprises. In particular, mercantilist advocates believed that the government should conserve national reserves of gold (and sometimes silver), which were used in international trade for goods and resources that could not be found within a nation. If a country controlled colonies, purchases could be made without using gold, thus sparing reserves that could be used for essential international transactions. The colonial power would dictate the permissible terms of trade in which its colonies could participate, usually compelling the colonies to trade only with the mother country or with other colonies within the same empire. Transactions with other countries would be forbidden or subject to very high tariffs.

Before the revolution, the American colonials chafed at the terms of trade dictated by the British. In 1774, the British imposed the Intolerable Acts as a punitive measure in response to the Boston Tea Party and other protests. The protests in the American colonies were largely demonstrations against some of the taxes (e.g., the Stamp Act) and the exclusive monopolies over many import enterprises given to the East India Company. That same year, the First Continental Congress enacted the Articles of Association as a trade boycott against the British. Many American colonial enterprises, including that owned by John Hancock, circumvented British trade restrictions by doing business with Dutch firms and other colonies. In the Declaration of Independence, two of the complaints prominently noted were the claims that the British were “cutting off our Trade with all parts of the world” and “imposing Taxes on us without our Consent.”[ii] These complaints were common among colonial people throughout the world, not only within the British Empire but within the colonies of all the imperial powers.

After the revolution, the Founders made strategic choices that affected the international trade practices that the new nation would follow.   Tariffs and trade restrictions were still permissible, but procedural constraints limited their use. Within the United States Constitution, the Founders established a particular process by which taxes, including tariffs, would be enacted. Only Congress could approve taxes, and all money bills would originate in the House of Representatives, the only offices at that time filled through popular election.[iii] Foreign entanglements presumably could be minimized by the requirement that all treaties must be approved by a two-thirds vote of the present members of the Senate.[iv] The Senate was filled with representatives of the states originally chosen by the legislatures of the states. The requirement that a two-thirds vote of the members of the Senate consent to a treaty guaranteed that any treaty that took effect would have broad support among the various states. A measure that had the support of a simple majority of the general population would not be sufficient. A super-majority of the members of the representatives of states in the Senate was required. It is important to note that the equal representation of states in the Senate is one aspect of the Constitution that was regarded so essential that it could never be changed through constitutional amendment.[v]

British colonialism continued long after the American Revolution, but its economic underpinnings gradually eroded over time. Shortly after the end of the Napoleonic wars, Britain imposed a high tariff on imported agricultural products. This was reversed in 1846 with the repeal of the so-called “Corn Laws,” beginning a general trend toward freer international trade and away from protectionism.[vi] There was a short-term return to protectionist practices in the 1930s after the United States enacted the Smoot-Hawley Tariff Act, but Britain returned to a freer trade position after World War II.[vii]

Suffrage within Britain expanded throughout the nineteenth century, and the British found it harder philosophically to defend its dictating of the terms of trade with its colonies without granting them a voice in their own affairs. These denials of both economic and political freedoms seemed particularly unfair when the colonized peoples differed racially, ethnically, religiously, and culturally from the British. In fairness, it should be said that the British, more so than many imperial powers, did permit colonial peoples to elect the members of their representative assemblies and to retain the use of their native languages in schools and government offices.[viii] In general, the British colonies fared better economically than the colonies of many other European nations.[ix]

In terms of geographic territory, the British Empire reached its peak around 1920, but it had already loosened its control over many of its colonies and some, such as the United States, had already gained their independence. After World War II, many British colonies and protectorates separated from British control, even though most remained within the British Commonwealth. The Bretton Woods Accord established the American dollar as the primary currency to be used in international exchange. The British faced pressure from both its allies and from international organizations, such as the United Nations, to decolonize. New international economic institutions, such as the General Agreement on Tariffs and Trade and its successor organization, the World Trade Organization, encouraged trade liberalization. A few pieces of territory remain British colonies in far-flung parts of the globe, but the old empire has been dismantled as the economic and political basis for its existence has disappeared.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[i] Smith, Adam, and Edwin Cannan. The Wealth of Nations. New York, N.Y.: Bantam Classic, 2003.

[ii] Declaration of Independence

[iii] United States Constitution, Article I, Section 7

[iv] United States Constitution, Article 2, Section 2

[v] United States Constitution, Article V

[vi] O’Rourke, Kevin H. 2000.  “British Trade Policy in the 19th Century: A Review Article.”  European journal of Political Economy 16:: 829-842.

[vii] de Bromhead, Alan, Alan Fernihough, Markus Lampe, and Kevin Hjortshøj O’Rourke. 2019. “When Britain Turned Inward: The Impact of Interwar British Protection.” American Economic Review 109 (2): 325–52.

[viii] Lange, Matthew, Tay Jeong, and Charlotte Gaudreau. 2022. “A Tale of Two Empires: Models of Political Community in British and French Colonies.” Nations & Nationalism 28 (3): 972–89.

[ix] Lange, Matthew, James Mahoney, and Matthias vom Hau. 2006. “Colonialism and Development: A Comparative Analysis of Spanish and British Colonies.” American Journal of Sociology 111 (5): 1412–62.

 

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Guest Essayist: Jay McConville


“I can scarcely contemplate a greater calamity that could befall this country, than to be loaded with a debt exceeding their ability ever to discharge.” (Anti-federalist Papers, Brutus No. VIII, 1789)[1]

Many Americans have a warm spot in their hearts for the British, by which they usually mean the quaint English people in the television shows they watch. For example, BritBox, the subscription service that features United Kingdom (UK) television shows, reported over 1 million U.S. subscribers by the first quarter of 2022, after only five years of operation.[2] Blessed with a rich history, a culture that often exudes sophistication, and a command of the language that (unfortunately) escapes most Americans, the UK is regarded highly by most Americans as our friend, our partner, and our kindred spirit in culture and world affairs. We share a language and history, of course, as the original U.S. states were British colonies. That early relationship was fraught with conflict, so our positive current alliance is better traced to our partnership fighting tyranny in World War I, II, and the Cold War. Many Americans also trace their lineage to the UK, or one of its former colonies or territories, so this tiny island nation is a favorite vacation spot for Americans. One British Airways survey found that “[t]hree in ten Americans said the UK is their favourite country and one in seven said they would move to Britain if they had the chance.”[3]

Yet the little nation that Americans love so much was once the most powerful, fierce, dominating, and wealthy empire on the earth. In fact, “by the end of the 19th century, the British Empire comprised nearly one-quarter of the world’s land surface and more than one-quarter of its total population.”[4] The number of current countries that were once part of its colonial empire are too numerous to list here, but included varying levels of control over much of Canada, Australia, New Zealand, India, Pakistan, Singapore, Kenya, Hong Kong, and South Africa just to name a few. The empire was built on economic adventurism, naval power, military domination, and colonial control. It developed over several hundred years, accelerating when the British led a coalition to defeat Napoleon at Waterloo in 1815. It was later victorious in both World War I and II, ending competition for European hegemony from their industrial rival Germany. Yet colonial revolts, including the independence of India in 1947, proved too much to sustain and by 1956, with the Suez crisis, the empire was in full collapse. With the return of Hong Kong to China in 1997, the once great empire was no more.

Why this occurred is the subject of many books, movies, and academic papers. Boiled down, however, the decline can be traced to the consequences of an extended empire, the costs of maintaining military forces in those lands, unsustainable debts, and the eventual loss of the privileged economic position of the British pound sterling. In summary, the UK had failed to notice or heed the warnings Brutus provided to the United States, encapsulated in the quote above.

Brutus, an anonymous American writer opposed to the adoption of the United States Constitution, was the nom de plume used by the author (or authors) of the Anti-federalist Papers. These papers paralleled the Federalist Papers, arguing against adoption, fearing the federal government was being set up as too powerful. While, as we know, the Constitution was eventually adopted, the Anti-federalists did much to influence its final form, and Brutus’ papers provide, even to this day, important reminders of the dangers of a too-powerful central government.

What do the Anti-federalist Papers of Brutus tell us about what happened to the British Empire, and how do those warnings apply to the United States today?

While the Anti-federalists had many concerns, the most germane to these questions are those articulated in Brutus No. VIII. That paper, published in 1789, continued the argument that the Constitution’s “necessary and proper” clause (Article I, Section 8) gave the federal government too much power. That article begins, “The Congress shall have the power” and then lists the enumerated powers of the federal government. The Anti-federalists believed that clause meant, as per Brutus in the earlier paper “Brutus No. VI” (1787), the federal government “had no other limitation than the discretion of the Congress” and this could, in the future, “destroy all the power of the state governments.”[5] Germane to these questions then, are the enumerated powers that give the national government the ability to raise, borrow, and spend money, and specifically to maintain standing military forces. Brutus warned that these unlimited powers threatened the economic future of the country and the sovereignty of the people. Such an exclusive power would amount to “unlimitted authority and controul over all the wealth and all the force of the union.” Standing armies, he argued, drain the nation’s resources, and since they held allegiance to the military command and not the Constitution, might, in a crisis, overthrow an elected government. He quotes a British Member of Parliament (“Mr. Pulteney”[6]) to summarize the concern: “I have always been, and always shall be against a standing army of any kind; to me it is a terrible thing, whether under that of a parliamentary, or any other designation; a standing army is still a standing army by whatever name it is called…” (Brutus No. VIII)

True, in the end, the British Empire was not brought down by a military coup, but instead by the economic burden of their global military responsibilities, including efforts to maintain their extended colonies and the cost of two world wars. These expenditures drained the treasury and turned the once powerful nation into a debtor – just as Brutus had warned America’s Founders could happen here.

Riding on its military might, the British Empire had at one time enjoyed economic dominance unparalleled in history. The British pound sterling was the world’s primary “reserve currency” in the 19th and first half of the 20th century. This gave the British huge economic advantage, as their currency was held in large quantities by governments and banks across the globe. Those who wished to conduct international trade had to buy British pounds to pay foreign entities, make international investments, and participate in other global economic activities. But a reserve currency is also called an “anchor” currency, as it is chosen due to the economic stability of the nation that issues it. That stability relies on the ability of that nation to pay its debts. Exhausted by war and the military cost of its empire, the pound sterling lost that status to the U.S. dollar in 1944, when allied leaders decided to link world currencies to the U.S. dollar. At the end of World War II, British debt had reached 200 percent of its Gross Domestic Product (GDP). This debt, worsened by poor economic policies and domestic spending, eventually led to Britain seeking debt relief from the International Monetary Fund in 1976. The WWII loans from the United States were only paid off in 2006.[7] After WWII, the United States, which had limited its military adventurism (with notable exceptions) up to that point, had eclipsed the British Empire.

Of note, while there was no coup, viewers of the TV show “The Crown” and history buffs also know that one – this time in 1968 and in response to the ongoing and precipitous decline of the empire – was nearly initiated by a group of British military, business, and political interests led by Lord Mountbatten[8], who had held multiple high positions in the British military, including first sea lord, admiral of the fleet, chief of the United Kingdom Defense Staff, and chairman of the Chiefs of Staff Committee[9]. While, thankfully, that did not happen, planning for it had commenced. By 1968 the Empire was through.

Fast forward to today, and we see that Brutus’ concern is once again important to consider here in the United States. America now holds the privileged position as the world’s top reserve currency. The U.S. dollar accounts for 59 percent of reserves held by central banks across the world, which is mostly held in cash or U.S. bonds. Nations across the globe use the U.S. dollar to conduct international financial activity, which accrues great benefit to our economy. Yet, the debt for those bonds exceeds $13 trillion[10] and the total U.S. National Debt stands now at nearly $31 trillion, or $243,000 per taxpayer and 123 percent of our GDP.[11]

It is hard to imagine anyone wants to follow the example of the British Empire, yet our military costs have continued to grow year after year, including massive expenditures for bases around the world, and most recently involvement in the Global War on Terror and conflicts in Iraq and Afghanistan. We are now, additionally, a primary funding source of Ukrainian resistance to Russian aggression, committing $54 billion.[12] The 2023 National Defense Authorization Act, which passed the House in July 2022, included a record $850 billion in total defense spending. (The Senate received the bill in August 2022.[13])

This is in addition to the high levels of domestic spending on such programs as Medicare, Medicaid, Social Security, various transfer programs, as well as funds for operating the departments of the federal government. The President’s budget request for 2023, still being considered by Congress, is over $5 trillion. That request includes over $300 billion in interest payments on the national debt alone, a burden that is rising rapidly and which will continue to do so for the foreseeable future. One Congressional Budget Office (CBO) report estimated that the U.S. taxpayer will pay over $8 trillion in interest on the debt between 2023 and 2032.[14] That is just interest, not principle, and equals over $25,000 for every one of America’s 325 million inhabitants.

The question is whether we can continue to maintain this level of debt spending, or whether, in the words of Brutus, Congress is well on the way to creating a “national debt, so large, as to exceed the ability of the country ever to sink.” (Brutus No. VIII). Should we continue down that path, the ability to meet this debt will eventually come into question. Should we, like the UK, damage the full faith and credit that the world holds in our ability to do so, and we lose our reserve currency dominance, the repercussions could be severe. It is something that we need to think carefully about.

In the words of Brutus, “I take it for granted, as an axiom in politic, that the people should never authorise their rulers to do any thing, which if done, would operate to their injury.”

Most Americans cannot imagine a massive decline in our world position, nor that this nation is at any risk from a coup or revolt against the federal government. One is reminded, however, of the wise words of Ronald Reagan, who, like Brutus, warned us that freedom and liberty are not the default for any nation. “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”[15]

There have been many efforts to reign in the power of the Congress to borrow and spend, whether on domestic programs or military forces. The Balanced Budget Amendment to the Constitution, one that Brutus would no doubt support, is proposed year after year, and almost passed in 1995 and 1997, failing to achieve the required two-thirds majority by just one vote.[16] It failed again in 2011. The amendment threatens the ability of Congress to exercise the power that most concerned Brutus, and thus the very people who it controls will have to agree to it for it to pass. Power is seldom, if ever, relinquished voluntarily. So far, that has not happened, and spending continues apace.

Brutus was prescient in his warnings about the central government’s power to accrue debt. The British Empire provides an example of what can happen when a strong central government takes on military and foreign affairs commitments that make that debt unsustainable. So far, the United States has been able to handle its debts and remains an economic powerhouse. The question that is yet to be answered is whether we will maintain this position in the future, and what will happen if we do not.

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He holds a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and three grandchildren, and are expecting a fourth in September.

[1] “Brutus VIII.” New York Journal 1789-06-15 : Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 335-38. Print, as featured in ConSource: https://www.consource.org/document/brutus-viii-1789-6-15/

[2] Thiede, Joshua (2022). BritBox Eyes American Expansion, but Plans to Avoid Content Becoming ‘Transatlantic Pudding’. The Streamable (29 June 2022). https://thestreamable.com/news/britbox-eyes-american-expansion-but-plans-to-avoid-content-becoming-transatlantic-pudding

[3] Kitching, Chris (2014). Brits? You’re all uptight, obsessed by tea, the royals and family trees, say Americans… and no, we can’t understand Geordie accents either, DailyMail.com (5 October 2014). https://www.dailymail.co.uk/travel/travel_news/article-2781088/What-Americans-think-Britains-revealed-survey.html

[4] Augustyn, Adam ed. (n.d.) British Empire: Dominance and dominions. Britannica online https://www.britannica.com/place/British-Empire/Dominance-and-dominions

[5] “Brutus VI.” New York Journal 1789-06-12 : . Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 110-17. Print., as quoted in https://consource.org/document/brutus-vi-1789-6-12/20191125163602/

[6] Actually, William Pulteney, a prominent British Member of Parliament who served in the early 1700’s.

[7] Wikipedia (n.d.) History of the British National Debt, retrieved from https://en.wikipedia.org/wiki/History_of_the_British_national_debt#cite_note-Ferguson,_Civilization,_p309-9

[8] BBC (2019). Lord Mountbatten: Did Prince Philip’s uncle attempt to lead a coup against Harold Wilson’s government? History Extra, BBC History Magazine and BBC History Revealed (29 November 2019). https://www.historyextra.com/period/20th-century/lord-mountbatten-did-prince-philip-uncle-attempt-lead-coup-harold-wilson-government-crown-true/

[9] Britannica (2022). Louis Mountbatten, 1st Earl Mountbatten, Britannica online, (21 June 2022). https://www.britannica.com/biography/Louis-Mountbatten-1st-Earl-Mountbatten

[10] Best, Richard (2022). How the U.S. dollar became the world’s reserve currency. Investopedia, (24 June 2022). https://www.investopedia.com/articles/forex-currencies/092316/how-us-dollar-became-worlds-reserve-currency.asp

[11] US Debt Clock.org, retrieved 18 August 2022 from https://usdebtclock.org/

[12] Hennis, Ade (2022). The U.S. has sent billions of dollars in aid to Ukraine – Breaking it all down. Market Realist (11 August 2022), https://marketrealist.com/p/how-much-money-has-the-us-sent-to-ukrainie/

[13] United States Congress, H.R.7900 – National Defense Authorization Act for Fiscal Year 2023, 117th Congress (2021-2022), retrieved 18 August 2022 from https://www.congress.gov/bill/117th-congress/house-bill/7900

[14] Interest costs on the national debt set to reach historic highs in the next decade, May 31, 2022, Peter G. Peterson Foundation, blog, retrieved from https://www.pgpf.org/blog/2022/05/interest-costs-on-the-national-debt-set-to-reach-historic-highs-in-the-next-decade

[15] Reagan.com (2018). Ronald Reagan Freedom Speech. Reagan.com, (31 August 2018), retrieved August 18, 2022 from https://www.reagan.com/ronald-reagan-freedom-speech

[16] Govtrack (n.d.). H.J.Res. 1 (104th): Balanced Budget Amendment, https://www.govtrack.us/congress/votes/104-1996/s158 and Istook, Ernest (2011). Considering a Balanced Budget Amendment: Lessons from History, Heritage Foundation, https://www.heritage.org/budget-and-spending/report/considering-balanced-budget-amendment-lessons-history

 

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Guest Essayist: Thomas Bruscino


Relating the American experience to the rise and fall of empires is trickier than it looks. Empires are complicated morally and historically—none more so than the British Empire—and the United States has its own complicated understanding of its relationship with empire.

“Empire” is no longer a morally neutral term. Most people these days believe “empire” is something universally or exclusively bad. And why wouldn’t people believe that? While it is true that the simplistic Marxist critique of imperialism as late-stage capitalism has had much to do with the bad rap for empires, that does not let empire off the hook. Part of the reason the Marxist view took hold was because most empires have been rapacious and exploitative, if not genocidal. Nowhere was that more evident than in the scramble for Africa, when European powers carved up the continent with little effect but suffering and despair for the local populations. Similar results of empire could be seen throughout the Americas and Asia.

However, not all empires are created equal. Even if we agree all empires are in general bad, some empires are way worse than others, just as some bad empires have had some positive effects. In Monty Python’s The Life of Brian, the Middle Eastern radicals sarcastically ask, “What have the Romans done for us?” The question eventually turns to: “Apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, [and peace], what have the Romans ever done for us?”

The line is funny because it is an unexpected contradiction in truths. But it could also be read as a commentary by British actors on the post British empire world. This is not the place to sort out the net positives and negatives of the British empire, nor to explain why the empire eroded over the course of the twentieth century. Here it is only to recognize that the British empire did help bring a measure of order and stability to the international system that certainly was not good for all, but was also more liberal and beneficial than the alternative empires of the time.

In the years around World War II, the British gave up their empire, leaving the question of who would provide order in the international system. During the Cold War, the United States and the Soviet Union competed over who would fill that gap. Interestingly, neither side called themselves an “empire.” In fact, both sides accused the other of imperialism.

The Soviet fall left the United States as the world’s great superpower, and responsible, in some measure, for providing order and stability lest some other, more pernicious power rise and impose a less favorable order on the world. Americans have struggled with what to do in that role. The country has not hesitated to intervene all around the world, often with lethal force, but it has consistently shied away from picking up an explicitly imperial mantle. Even when the United States joined the European and Japanese imperial scrambles around the turn of the twentieth century, Americans, including expansionists like Theodore Roosevelt, generally avoided the word “empire” for describing their foreign policy ambitions.

Frustrated by America’s inconsistency as a great power, some contemporary critics have encouraged the United States to embrace its role as an explicit empire for good. Eager to make their point, the critics have appealed to the language of the Founders, who often did use “empire” to describe the American experiment.

But that is too simple. The Founders used “empire” in specific ways. In many cases, they meant it roughly as a synonym for the country. Federalist 1 stated that the proposed Constitution was about, “the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

When the Founders did use empire to describe the expansion of the United States, they added important modifiers. Thomas Jefferson’s was the most famous, “we should have such an empire for liberty as she has never surveyed since the creation: & I am persuaded no constitution was ever before so well calculated as ours for extensive empire & self-government.”

Note the common theme. This “most interesting” of empires, this “empire for liberty,” was unique because it was about self-government and freedom internally. If “empire for liberty” sounds now like an oxymoron, that is because it always was. It was an experiment, a new type of empire, built around trying to balance the necessary and inevitable tension between exerting great power and modeling freedom. To make it work, and to revise historian Walter McDougall’s framing, described in his book, Promised Land, Crusader State: The American Encounter with the World Since 1776, the promised land always required the crusader state, and crusader state had to remain the promised land.

It is the inheritance of that tenuous balance that has made subsequent Americans uncomfortable with the word “empire.” That is a good thing. The ugly empires of the nineteenth century clearly were not, and were not trying, to be promised lands of freedom. Without that constraint those empires overreached and fell.

The power and influence of the United States in the world has always strived to be something different. Whatever else that can be said about American expansion and intervention overseas, and there is plenty of room for critique, it has most often been constrained by Americans themselves. Whether through idealistic objectives set by governments in power, contentious domestic politics, or the vocal opposition of small minorities or brave lone voices, the United States has never expanded or intervened without the reminder that such activities threaten the soul of America itself. “She might become the dictatress of the world,” John Quincy Adams said in his famous address on July 4, 1821, but “She would be no longer the ruler of her own spirit.”

From Canada and Mexico, Cuba and the Philippines, Vietnam, and all the way to Afghanistan and Iraq, that reminder has always been there, embedded by the Founders in the American system, meant to constrain all-too-human ambitions of domination. If the United States is to avoid imperial overreach, its people must continue to remember that America’s “glory is not dominion, but liberty,” and always reach accordingly.

Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.

The views and opinions presented are those of the author and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.

 

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Guest Essayist: Andrew Langer


The beauty of the American Constitution, as originally conceived, was that its authors recognized the inherent dangers of concentrated power at the highest levels of governance, and created a structure that both constrained the federal government’s powers while at the same time enumerating that the balance of those powers would be retained by state governments (and, by extension, local governments, since most local governments are creations of state governments), and the people.

The American Founders did this because they recognized that the bulk of public policy decision making was best left to levels of government that were closer to the people—those levels of government better understood problems in individual communities and local governments, and governance, were more easily controlled by citizens within those jurisdictions.

But in the wake of World War I, also known as “The Great War” or the “War to End All Wars, there came a call for greater international cooperation by governments, if not some kind of outright “global government” and out of those calls came, first, the League of Nations, and then, after the League of Nations failed to prevent World War II, the United Nations.

The First World War was commonly referred to as “The Great War” because of the war’s truly devastating scale—in terms of both lives lost, and people injured, as well as the impact it had on infrastructure. In fact, across the globe, you can still see the impact the war had on the surrounding environment. As a result, there was a call by leading nations to create some kind of instrument of global cooperation, and disarmament, to prevent just that kind of war from happening again: a “League of Nations.”

And the League of Nations met with limited success, in spite of the fact that the United States didn’t join even with President Woodrow Wilson’s advocacy for just such a league. But because the league failed to grasp geopolitical realities, such as what the sanctions on a post-World War I Germany might have on that nation’s ongoing politics, that body failed to prevent the Second World War from occurring.

It was during World War II that the concept of the United Nations was born—with the cooperation of the United States, Great Britain and the Soviet Union. In 1945, as the war was drawing to a close, the leaders of the Allied powers agreed that following the war’s end, that such a body would be developed. In June of 1945, just after Germany surrendered, the UN Charter was created. In October of 1945, two months after Japan surrendered, the Charter was made real.

To be clear, the United Nations is not a “world government” though there are some who would like it to be. Clark Eichelberger, a 20th century peace activist and advocate for both the League of Nations and the UN, wrote in the Annals of the American Academy of Political Science in 1949 that:

“World government has evolved and will evolve through the United Nations… the United Nations is the beginning of the process we need.”

But in the last seven decades, despite great efforts on the part of some to make a global government manifest, this has not occurred. The UN has no power to tax, no power to directly regulate. Any interference in inter-governmental disputes or in civil conflict can only come with either the agreement of local governments, or, in rare occasions, with the decision of voting members of the United Nations.

When it comes to involvement of the United States, the U.S. relationship with the UN is similar in most respects to how the deals are made with most foreign agreements, i.e., through the Constitution’s treaty powers.  Essentially, from a constitutional perspective, the involvement of the U.S. in the UN is not dissimilar from other bilateral, between the U.S. and one nation, or multilateral, between the U.S. and more than one other nation, international agreements.

In fact, the only way for the United States to be “legally obligated” to cooperative policy decision making by the UN is for Congress to ratify whatever policy United States diplomats are considering signing or have signed. While those obligations are to our partners at the UN, the “legal” portion of it has to do with the agreement the U.S. government has with its people i.e., to only be bound, internationally, through ratified treaties.

This is because those international agreements, once ratified, become U.S. law, and enormously difficult to disentangle once put into place.  Take the North American Free Trade Agreement (NAFTA), for example. Though not an agreement through the UN, it bound U.S. trade policy for decades, and became enormously difficult to reform, despite the negative impacts many in the United States were seeing.

In contrast, the Kyoto Protocols on climate, a climate policy agreement negotiated via the UN, was never ratified by the U.S. Senate. Many in the U.S. had deep and abiding concerns about the impact the policy obligations of Kyoto could potentially have on the U.S. economy. So, while the United States, under President Bill Clinton, signed the Kyoto Protocols, and there were many things that the Clinton administration could do to advance the goals of Kyoto (because of the size of the administrative/regulatory state and the powers that the Executive Branch has in terms of interpreting or re-interpreting existing federal environmental laws), the United States was not bound by the Kyoto protocols, as they would be within a treaty.

Central in all of this is the issue of “sovereignty.” By definition, when the United States, or any nation for that matter, enters into a treaty, they are giving up some measure of that nation’s sovereignty in favor of international cooperation usually as a result of the combination of negotiation and compromise.

As was demonstrated by the withdrawal of Great Britain from the European Union, multinational cooperative governance can have huge implications for individual member nations and their citizens—something British Prime Minister Margaret Thatcher had warned about when the EU was created. The further removed from the local population that government control becomes, the more onerous the burdens those governments can impose. With that comes a real difficulty in forming policies that reflect what local populations need and takes steps to protect those populations from harm.

It could be said that Prime Minister Thatcher was echoing the concerns raised by her predecessor in office, Winston Churchill, who, despite being instrumental in the creation of the UN, had concerns of his own.  As reported by the New Republic in 1949:

“Churchill, as he confessed at The Hague in May, 1948, never accepted the concept of the United Nations. He feared the consequences of ‘a system where there was nothing between the supreme headquarters and the commanders of the different divisions and battalions.’ He wanted a world organization made up of representatives of regional associates.”

Thankfully, given protections that the U.S. Constitution affords, the people of the United States can rest assured that their sovereignty will be protected from a United Nations becoming the kind of multinational governmental behemoth that the EU became.

This is due, in no small measure, to the United States Constitution’s mandates about the Senate’s advise and consent role in terms of treaty ratification—if the foreign relations team of a U.S. president were to fail at their job or to be seriously compromised in some measure in terms of international negotiation, and as a result the U.S. were to give up a great deal of its independence, its sovereignty, it is left to the Senate to ensure that the interests of the people of the United States are protected, and that the agreement should not be ratified.

It is important to also note that Congress has a vital role to play in terms of internationally cooperative military activities. The UN has no standing army, another aspect of its existence that makes it fall short of a “world government.” It relies on its member nations in order for it to engage in any military action, usually under the auspices of “peacekeeping.”

The President is obligated to inform Congress of any military action that falls short of a “war”—and the President has 90 days before Congress must take action on whether to continue such operations.

In terms of ongoing “peacekeeping” operations, such as those that occurred in the Balkans during the 1990s after the collapse of the Yugoslavian government, Congress also has the power to give or deny funds to such efforts. If Congress doesn’t want U.S. military personnel involved in a specific peacekeeping mission, then Congress can specifically block the Executive Branch from spending funds on that mission.

In terms of the relationship between the United States and the United Nations, the obligations of the U.S. are not entirely different than any other treaty-governed relationship that the U.S. may be obligated to.  The issues of sovereignty and compromise remain the same—and the relationship between the executive branch and the legislative branch in terms of the power to negotiate and the power to ratify are maintained.  But, as always, it remains left to the people to ensure that both branches protect the interests of the American people in the long term.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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Guest Essayist: Chris Burkett


In the previous essay we saw the causes in the Twentieth Century that led to the creation of international organizations such as the League of Nations and the United Nations Organization. In this essay we look at why the American Founders and Framers would counsel a prudent caution against unlimited commitment to and reliance on international organizations for dealing with foreign affairs.

First, the Founders would remind us that, in committing our national resources to promoting the good of the world community through international organizations, we must not lose sight of the fact that our government has a paramount obligation to secure the rights and vital interests of the United States and its citizens. These are what James Madison called “the permanent and aggregate interests of the community” in The Federalist No. 10. This fundamental obligation of our government is expressed in the Declaration of Independence, which claims “that to secure these rights” – the natural rights of life, liberty, and the pursuit of happiness, among others – “governments are instituted among men.” The Preamble to the United States Constitution reaffirms the fundamental purpose for which our government was designed; the American people ordained our Constitution to “secure the Blessings of Liberty to Ourselves and our Posterity.”[1] The American Founders would therefore caution against the view – as held by leaders such as Woodrow Wilson – that America’s highest obligation is to put our immediate interest aside in order to promote the good of the world community, an end that is most effectively achieved through our commitment to international organizations.

Some of the American Founders might have conceded the idea that international organizations could be useful to bring nations to a more common understanding of what justice among nations should be like. However, they would also caution that reliance on international organizations for this purpose could potentially lull us into abandoning the necessary discernment, vigilance, and prudence of determining the motives and measures of other nations – and possibly even the willingness to resort to force when necessary for our defense. A reliance on international organizations could beguile us into believing that all nations now behave rationally and can be trusted to resolve problems by dialogue alone. In other words, reliance on international organizations can give us the comfortable feeling that we have reached “the End of History,” and that modern nations have evolved beyond the motives and means of the Twentieth Century. However, plenty of real-world examples – the Russian invasion of Ukraine, for example – show the naivete of this view. Furthermore, we might be tempted to forget that The United Nations is made up of nations with governments or regimes that are fundamentally hostile to the principles of justice upon which the United States was founded. Alexander Hamilton, writing as Publius in The Federalist No. 6, reminds us that so long as human beings are capable of being “ambitious, vindictive, and rapacious,” and so long as governments are administered by human beings, there will always be nations inclined to go to war for a variety of reasons. As Hamilton writes:

The causes of hostility among nations are innumerable…Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class … have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.

Even commercial republics and democracies – though founded on the principle of popular rather than monarchical rule – are prone to conflict amongst themselves. Alexander Hamilton might say, therefore, that “one must be far gone in utopian speculations” to assume that nations would actually put aside their own interests and govern cooperatively through the United Nations Organization for the good of the whole. Such an assumption would be dangerous and potentially destructive to the “permanent and aggregate interests” of the citizens of the United States.

The third concern the Founders might caution us about is that in committing the United States to the authority of international organizations, we might inadvertently relinquish our domestic sovereignty and our political independence from other nations. We might also lose our liberty as a nation to decide things like what our real obligations are to other nations, and when, how, and why we should act when dealing with foreign policy issues. These considerations are what led the U.S. Senate to vote against membership in the League of Nations in 1919.

This is a lesson President George Washington learned very well in the 1790s. The United States had signed a treaty of mutual defense with France in 1778; however, as the French Revolution turned into terror, the new French regime claimed that the treaty obligated the United States to assist them in their war against monarchical regimes throughout Europe. The treaty threatened to embroil the United States in a European war, effectively stripping the United States of its political independence and the liberty of choosing when, and when not, to go to war. From this example, Washington learned several lessons that should caution us against over-commitment to treaty-based international organizations today. “It is our true policy to steer clear of permanent alliances with any portion of the foreign world,” Washington wrote in his Farewell Address. “Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” Washington understood that maintaining our political independence and national liberty is vital so that “we may choose peace or war, as our interest, guided by justice, shall counsel.”

It is vital to maintain this political independence so that government may best choose how to fulfill its fundamental Constitutional duty of securing the rights and liberties of its citizens. This leads to a final word of caution regarding American commitment to international organizations. The American people, through their Constitution, have vested control over foreign affairs in Congress and the President. Congress, for example, is vested with the power of declaring war, and the President is vested with the authority to act as Commander in Chief of the country’s military forces. Because the American people have granted these powers, they have entrusted the American government with the responsibility of dealing with foreign policy issues for the security of our rights. According to the U.S. Constitution, however, the American people did not authorize our government to “delegate” that responsibility or those powers to another governing body, including international organizations – especially ones comprised of nations that abhor the very principles of justice for which the United States stands.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Emphasis added.

 

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Guest Essayist: Chris Burkett


The United Nations Organization was officially established in 1945, but its conception arose much earlier. In the early Twentieth Century there was a growing worldwide movement calling for an international organization to work out military and arms limitations agreements among the “civilized” nations of the world – namely, European nations.

In the aftermath of World War I, the League of Nations was finally established with the lofty goal of preserving world peace. In reality, its purpose was to bring together the “democratic” (i.e., “civilized” or “historically advanced”) nations to work together regarding territorial disputes and colonial possessions through negotiation rather than resorting to war. However, the United States Senate rejected membership in the League of Nations on the grounds that it would strip our nation of some degree of its domestic sovereignty and its independence in choosing foreign policy actions. The League limped ineffectively through the 1920s and met with several failures in the 1930s, including failure to prevent the Japanese invasion of Manchuria and the Italian war in Ethiopia. The League of Nations closed down with the outbreak of World War II in 1939 and officially disbanded in 1946.

Franklin Roosevelt, however, revived the idea of an organization of United Nations for the purpose of waging the war against the Axis Powers. President Roosevelt and British Prime Minister Winston Churchill drafted the text of the Declaration by United Nations in 1941, and the following year it was signed by the United States, the United Kingdom, the U.S.S.R, the Republic of China, and twenty-two other nations. The official UN Charter was approved by 51 member states in San Francisco in April 1945, just after Roosevelt’s death.

As with the League of Nations, the object of the United Nations was to allow countries to settle international disputes through discussion rather than war. Near the end of World War II, Roosevelt seemed to believe that such a forum would be useful and necessary to continue peaceful cooperation between the United States and the U.S.S.R. This was reaffirmed under President Harry Truman after World War II as tensions began to develop between the two countries and eventually developed into the Cold War. The Soviet Union, however, used the United Nations for political posturing against Western “capitalist” and “colonial” nations. Still, some Americans believed that the United Nations was a vital tool for allowing dialogue between the Western nations and the Soviet Union as a means to avoid nuclear conflict.

Many Americans were inclined to withdraw from foreign affairs after World War II, but the developing atomic threat from the Soviet Union and specter of sprawling communism inclined the United States back toward active engagement in world affairs through the United Nations. The United States joined the UNO because, unlike under the League of Nations, participation is UN policies is, for all intents and purposes, optional; this means that no nation permanently gives up its domestic sovereignty or its independence in choosing foreign policy actions. On the other hand, this means that the United Nations has no real “teeth” in terms of coercive power; member states comply or not from a kind of international “peer pressure” in order to save face. For example, the UN’s International Court of Justice issues judgments in international disputes in accordance with its understanding of international law, but its decisions are binding only on those nations that recognize its authority and jurisdiction. This is one cause of the general ineffectiveness of the United Nations in preventing conflict in its nearly eighty years of existence. Its lackluster record is also a result of the structure of the UN’s Security Council, which consists of fifteen member states – five permanent members (China, France, Russia, the United Kingdom, and the United States) and ten non-permanent members. Each of the five permanent member states has an absolute veto power and can immediately block any proposed policy (see Essay #20 on the defects of the United Provinces of the Netherlands).

The American Founders would have some words of caution about involving the United States in international organizations such as the League of Nations and the United Nations, which we will discuss in the next essay.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: David B. Kopel


In 1949, after more than 20 years of fighting, the Chinese Communist Party overthrew the Republic of China. The party’s chairman, Mao Zedong, became dictator, and ruled until his death in 1976. Mao’s regime was the most murderous in history. His regime killed over 86 million people—more than Hitler and Stalin combined.

In 1966 Mao initiated “The Great Proletarian Cultural Revolution.” It started as a campaign against the more pragmatic elements of the Chinese Communist Party—such as leaders who a few years before had forced Mao to retreat from an agricultural collectivization program, the Great Leap Forward, that had caused the deadliest famine ever.

Incited by Mao, the Cultural Revolution began with the most privileged students—the children of the top communist party officials—at the top universities. They rioted, rampaged, and looted, first on-campus and then beyond. They started by killing or torturing teachers, and then moved on to the general public. Soon, the rage mobs of ultra-Maoists spread nationwide. Anyone’s home could be invaded and looted, and anyone could be murdered or tortured. The police were forbidden to interfere—or even to fight back when the mobs assaulted the police.

As the Cultural Revolution continued, things got even worse. The Cultural Revolution ended only when Mao died.

The Americans who created the United States Constitution could not know about the tyrants who would arise in the twentieth century. They did know of bad men who had tried to seize absolute power, such as Julius Caesar in the Roman Republic, or King James II of England. Yet the worst of English kings or Roman emperors were mild in comparison to the totalitarian Mao regime.

The American “people did not establish primarily a utility-maximizing constitution, but rather a tyranny-minimizing one.” Rebecca I. Brown, Accountability, Liberty, and the Constitution, 98 Columbia Law Review 531, 570 (1998). This essay describes some of the provisions of the U.S. Constitution that aim to thwart absolutism and totalitarianism. The information about China under Mao is based on David B. Kopel, The Party Commands the Gun: Mao Zedong’s Arms Policies and Mass Killings, Chapter 19.D.3 in Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace & Donald E. Kilmer, Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers, 3d ed. 2022), pp. 1863-1966. Additional citations are available therein.

The Preamble to the Constitution states:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The principles and the results of the Mao regime were the opposite. For example, starting in 1972-73, the people were ordered to condemn the “reactionary” ideas of Confucius, such as “the people are the foundation of the state,” and “depositing riches in the people.” As described below, the Mao regime cultivated injustice, domestic violence, the welfare of the ruling class at the expense of the people, and the eradication of liberty. The regime did “provide for the common defense” in the sense that China was not invaded in 1949-76, other than in some border clashes with the Soviet Union.

The U.S. Constitution creates three distinct and independent branches of government:

“All legislative powers herein granted shall be vested in a Congress of the United States.” Art. I, §1.

“The executive power shall be vested in a President of the United States of America.” Art. II, §1.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Art. III, §1

Under the U.S. Constitution, the three branches of government check and balance each other, as power is set against power. In a communist regime, there are no checks on the party’s will. All political power belongs to the party. Under Mao, “at the top, thirty to forty men made all the major decisions. Their power was personal, fluid, and dependent on their relations with Mao.” Andrew J. Nathan, Foreword, in Li Zhusui, The Private Life of Chairman Mao xi (Tai Hung-Chao trans. 1994).

“The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Senators are to be elected every “six years” and the President every “four years.” Art. I §§2-3; Art. II §1.

There have been no elections since the Chinese Communist Party (CCP) seized power in 1949. Although the party calls the nation it rules the “People’s Republic of China,” the name is a lie. In a “republic” where “the people” rule, the people elect government officials. In the People’s Republic of China, the party rules because the military keeps the party in power. It is reasonable to infer that the CCP knows that if free elections were held, the CCP would lose.

Particular types of “power” are granted to each of the three branches of government. Arts. I §8, II §§2-3, III §2.

The three branches of United States government are granted certain powers by the people. The branches of government may exercise the particular powers expressly granted by the Constitution, as well as some incidental powers that are implied by the express grants. No branch of government, and not even the U.S. government as a whole, has all possible powers.

A communist regime claims unlimited power over everything. Mao acknowledged no legal limit on himself. The practical limit was the difficulty of one man imposing his absolute will on hundreds of millions. The Cultural Revolution was Mao’s method for eliminating everything and everyone that impeded his power.

Congress creates law by passing a “bill,” in compliance with certain procedures. Art. I §7.

The Mao regime was not based on law. As Mao told the very sympathetic American journalist Edgar Snow, “We don’t really know what is meant by law, because we have never paid any attention to it!” Li Cheng-Chung, The Question of Human Rights on China Mainland 12 (1979) (statement to Edgar Snow 1961).

During the 1950s, there were some efforts to create normal legal codes, but these were abandoned once the Great Leap Forward into full communism began in 1958. In contrast to the Hitler regime, which issued many statutes and regulations, the Mao system relied mainly on edicts from the communist leadership, the Party Center. There were many exhortative propaganda campaigns based on slogans.

The party-controlled national newspaper, the People’s Daily, was read to peasants and workers in frequent, mandatory political instruction meetings, which often consumed the rest of the day after work. In effect, the latest article in the People’s Daily was the official source for people to learn how to behave without getting in trouble with the authorities. As different factions within the CCP gained ascendency, the edicts changed frequently. So doing what had been mandatory on Monday could be punished on Friday.

“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.” Art. I §9.

When a court issues a writ of habeas corpus, whoever is holding an individual prisoner must appear in court and prove to the court that the detention of the prisoner is lawful. In communist regimes, there is no recourse for individuals who are arbitrarily imprisoned or sent to slave labor camps.

Neither the federal government nor the states may enact any “ex post facto law.” Art. I §§9-10.

In other words, a criminal law cannot retrospectively punish an act that was lawful at the time it was committed. Just the opposite under Mao and all communist regimes. For example, in the 1956 Hundred Flowers period, people were encouraged to frankly express their views about perceived shortcomings of the CCP. Later, persons who had done so were imprisoned or sent to slave labor camps.

Likewise, during the first several months of the Cultural Revolution, young people from all over China were given free train tickets to see Chairman Mao speak at mass rallies at Tiananmen Square in Beijing. This was an exception to the normal rule that a person could not travel away from his or her village.

A few years later, when factional politics within the CCP had changed, 3.5 million people who had attended one of the 1966 rallies were given other free tickets: one-way transportation to forced labor in the countryside.

Throughout the Mao era, people were often punished for acts that had been lawful at the time, such as expressing non-communist political opinions in the 1930s.

“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II §1.

The President’s salary and expense accounts are set by Congress. Mao, in contrast, treated himself to whatever he wanted. In Beijing he lived in the former palace of the emperors, with his own private swimming pool and beach. He had fifty more fortified palaces around the country.

The special Giant Mountain (Jushan) farm supplied fine foods daily to the portly Mao and the others at apex of the CCP food chain. When Mao was away from Beijing, which was most of the time, daily airplanes delivered food from Jushan. The élite CCP leadership in the provinces had similar arrangements for special food, while the masses starved.

Mao enjoyed the company of many beautiful young concubines, procured for him by government employees.

During the Cultural Revolution, everyone had to buy a book of his sayings, Quotations from Chairman Mao Zedong, popularly known as “The Little Red Book.” Mao decided that he was entitled to royalties from all the forced book sales, and he became the first millionaire in Communist China.

As explained by a former vice-president of communist Yugoslavia, all communist governments eventually replace the old wealthy class with a new class of reactionary despots. Property that was nationalized in the name of “the people” becomes the property of the most privileged at the top of the inner party, the “all-powerful exploiters and masters.” Milovan Dijilas, New Class: An Analysis of the Communist System 47 (1957). The same point is made in George Orwell’s book Animal Farm (1945).

“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II §4.

The constitutional system of elections makes a president removable by the people every four years. In addition, a president may be removed during his term if he is impeached by the House and then convicted by the Senate. In 1974, President Richard Nixon resigned when facing certain impeachment and conviction because of his crimes, including the coverup of an attempted burglary, directed by Nixon’s staff, of the Democratic National Committee office at the Watergate office complex.

But there was no way to remove Mao, even when, as in the Great Leap Forward or the Cultural Revolution, the majority of the people, and even the majority of the CCP elite, thought that he was leading the nation into ruin. Like a bad Roman Emperor, Mao could only be removed by force.

In 1971, Mao began plotting to get rid of defense minister Lin Biao. Lin’s son began organizing a coup against Mao. The plan was to bomb Mao’s train in September 1971, when he would be returning from a trip to southern China to shore up support from the army generals there for Mao’s plan to remove Lin.

But Mao, knowing he was widely hated, often changed his travel plans at the last minute, as a security precaution. This time, the last-minute change saved his life. Lin Biao and his family tried to flee to Mongolia, dying in a plane crash on September 13, 1971.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Art. III §1.

“The trial of all crimes, except in cases of impeachment, shall be by jury.” Art. III §3.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” Amendment VI.

The U.S. Constitution guarantees the right to jury trial, with fair trial procedures, such as the right to counsel, public proceedings, and the right to cross-examine witnesses. Federal judges hold their positions until they choose to retire, and they cannot be removed for political reasons.

Under Mao, “judicial reform” purged judicial officers and ensured that a puppet judiciary would never err on the side of lenience against dissidents. Courts ceased to exist as independent finders of fact. They became administrative processing units for predetermined sentences. Entirely under the thumb of the CCP, judges merely pronounced the severe sentences that CCP officials had already decided. In cases where the law was not clear, judges were required to follow the Central Party line. According to the CCP official newspaper, People’s Daily, the accused were “presumed to be guilty. . . . Giving the accused the benefit of the doubt is a bourgeois weakness.”

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Amendment I.

No government-established religion, and free exercise of religion

As soon as the communists seized power, they began suppressing some religious organizations and bringing the rest under state control. Religious organizations could exist only as entities subordinate to and directed by the CCP. Soon, the government began to attempt to exterminate religion entirely. While atheism was the official communist belief, the party recognized that religion made people harder to control, as the faithful recognized a higher power than the CCP.

Today’s China is little different. Tibetan Buddhists, Uighur Muslims, and Falun Gong face the worst persecution. Christian denominations are allowed to exist only as state-controlled entities.

Mao despised religion. When Tibet’s Dalai Lama visited Mao in Beijing in 1954, Mao told him, “I understand you well. But of course, religion is poison. It has two great defects: It undermines the race, and secondly it retards the progress of the country. Tibet and Mongolia have both been poisoned by it.” Dalai Lama, My Land and My People 117-18 (2006).

Mao always wanted to be the center of attention. He didn’t like the Chinese national anthem, March of the Volunteers, which had been adopted by the CCP in 1949. It had originally been a song for people of all political persuasions who fought the Japanese invasion of China of 1933-45. During the Cultural Revolution, Mao put the national anthem author in prison, where he died. Although Mao did not formally change the national anthem, for almost every occasion that the national anthem would be played, Mao made the state media (the only media) instead play a song about him, The East Is Red.

“The East Is Red (Dongfang hong):
From China comes Mao Zedong.
He strives for the people’s happiness,
Hurrah, he is the people’s great saviour!
Chairman Mao loves the people,
He is our guide to building a new China.
Hurrah, lead us forward!”

For schoolchildren, a soon-to-be pervasive new song was composed in 1966: “Father is dear, mother is dear, But not as dear as Chairman Mao.”

Under German regime of the National Socialist German Workers Party (“Nazi” for short), people were required to say “Heil Hitler” rather than “Good morning” or “Hello.” The same became true with “Long Live Chairman Mao”—literally, “Chairman Mao ten thousand years” (Mao zhuxi wansui). One man was executed for saying that Chairman Mao would not actually live ten thousand years.

With Mao’s blessing, the military (the “People’s Liberation Army,” PLA) began establishing a new religion for China. Starting in the latter part of 1967, most nonwork time was taken up by mandatory nightly assemblies where people had to discuss their personal behavior in light of Mao Zedong Thought. Then came the 1968-69 campaign of “Three Loyalties” and “Four Boundless Loves” that everyone was supposed to feel for Chairman Mao.

Statues and shrines of Mao were erected everywhere. Busts or pictures of Mao were mandatory home religious items.

Although there was good money to be made, painters often declined the opportunity to paint a Mao icon, since the artist would be scrutinized and punished for the slightest inadvertent sign of insufficient veneration.

Upon arising in the morning, everyone had to face their home Mao shrine and “ask for instructions.” The day ended with “reporting back in the evening.” Mao replaced the “kitchen god” of Chinese folk culture. In other aspects Mao was portrayed as the sun god.

Life was structured around Mao and his words. Before every meal, people had to say grace: “Long live Chairman Mao and the Chinese Communist Party.”

Maoist life encompassed the body as well as the mind. Instead of normal sports, the new exercise routine was “quotation gymnastics”—a set of group exercises in which participants shouted Mao quotes related to the motions. For example, in the third set of exercises, the leader would yell “political power grows out of the barrel of a gun.” The exercisers would make nine thrusting and stabbing motions with imaginary bayonets.

Even more common were “loyalty dances,” in which individuals or groups stretched their arms to show their “boundless hot love” for Mao, sometimes worshipping him as the sun. The PLA enforcers labeled any nonparticipant in the Mao rites as an “active counterrevolutionary.”

People began reporting miracles such as healing of the sick and attributing them to Mao. Communist temples were erected, based on the historic model of ancestral temples. When buying a Mao item in a store, one could not use the common word for buying, mai; instead one would use the polite verb actress Jiang Qing, previously reserved for the purchase of religious items.

Freedom of speech and freedom of the press

When the communists were fighting to overthrow the Republic, they promised freedom of speech for everyone. As soon the Communists seized power, all nongovernment newspapers were closed.

All radios were confiscated, so no one could hear news from the outside world. The confiscation of radio transmitters ensured that people could not communicate with each other at a distance.

All mail was surveilled, and the contents were put in the secret files that the government kept on everyone.

Once people saw what communist rule was like, many people burned their book collections, because possession of a book—even an apolitical book—that was not based on communist ideology might result in the owner being labeled a “counterrevolutionary” and sent to a slave labor camp.

During the Cultural Revolution, the rage mobs pillaged libraries and burned books in huge outdoor bonfires, reminiscent of similar book burnings in Nazi Germany. The Nazi book burners mainly targeted books by Jewish authors, but Mao’s mobs were more ambitious. Any book that was not communist—such as books of ancient poetry—was put to the torch. Many rare historic manuscripts were destroyed.

Mao’s fourth wife, the former actress Jiang Qing, took a special interest in the performing arts. In China, opera had always been entertainment for the masses (as it was in the United States in the nineteenth century) and not solely for a highly educated audience (as it is in the U.S. today). Madame Mao banned all classical works of performing art. The only works that could be performed were post-1949 “model” pieces of crude communist propaganda. That amounted to five operas, two ballets, and one symphony. In the privacy of her palaces, Madame Mao enjoyed a much broader selection of entertainment, including private screenings of Western movies.

During the Cultural Revolution, simply being educated, or an intellectual, or able to speak a foreign language could be cause enough to be killed, tortured, or put into forced labor.

From about March 1968 to April 1969, even the most mundane conversation had to be centered on Mao. If a peasant walked into a store, the clerk was supposed to say “keep a firm hold on grain and cotton production,” and the peasant would reply “strive for even greater bumper crops.” If the customer was a student, the clerk would say “read Chairman Mao’s books,” and the student would answer “heed Chairman Mao’s words.” As one historian observes, “The Cultural Revolution is perhaps the time in the twentieth century when language was most separated from meaning. . . . If you do not mean what you say, because what you say has no meaning beyond the immediate present, then it is impossible to imbue language with any system of values. . . . This led to the overall moral nullity of the Cultural Revolution during its most manic phase.” Rana Mitter, A Bitter Revolution: China’s Struggle with the Modern World 209 (2004).

Or as George Orwell wrote about a fictional totalitarian government very similar to communism, “The intention was to make speech, and especially speech on any subject not ideologically neutral, as nearly as possible independent of consciousness.” George Orwell, Appendix: The Principles of Newspeak, in 1984 (1990) (1949).

Right to petition the government for redress of grievances

Of course there was no such right in Mao’s China, especially during the Cultural Revolution. Sending the government a critical petition would lead to every signer being imprisoned, tortured, sent to slave labor camp, or executed.

At the beginning of the Cultural Revolution, Wang Rongfen, who was studying German at the Foreign Languages Institute, observed the similarities between Mao’s first Cultural Revolution rally for a crowd at Tiananmen Square and Hitler Nuremberg rallies. She sent Chairman Mao a letter: “the Cultural Revolution is not a mass movement. It is one man with a gun manipulating the people.” He sent her to prison for life. In prison, she was manacled full-time, and the manacles bore points to dig into her flesh. She had to roll on the floor to eat. She was released in 1979, three years after Mao’s death, with her spirit unbroken.

Right of Assembly

The textual right of assembly is related to the implied right of association. As the U.S. Supreme Court has recognized, the right of association is implied by the other First Amendment rights, and is necessary to their exercise.

Under the CCP, no associations could exist except those under government control. No assemblies on political matters were allowed, except those demanded by the government.

But when Premier Zhou Enlai died in January 1976, huge, spontaneous, and unauthorized crowds assembled to mourn him. The crowds considered him relatively less totalitarian and oppressive than Mao. Unlike the Tiananmen rallies of the early Cultural Revolution, which originated from the top down, the crowds that gathered to mourn Zhou expressed people power. “The country had not witnessed such an outpouring of popular sentiment since before the communists came to power in 1949.” Li Zhusui, The Private Life of Chairman Mao 611 (Tai Hung-Chao trans. 1994).

While there were demonstrations at over 200 locations throughout the country, the flashpoint was in Beijing’s Tiananmen Square, which saw the largest spontaneous demonstration ever in China. On April 4, Tomb-Sweeping Day (Qing Ming), a traditional day for honoring one’s ancestors, an immense crowd gathered at the Monument to the People’s Martyrs in Tiananmen Square. Erected in 1959, the monument honored Chinese revolutionary martyrs from 1840 onward.

That night, the Tiananmen assembly was attacked by the Capital Militia Command Post (a/k/a the “Cudgel Corps”). According to one report, it later took hundreds of workers to scrub off all the blood.

“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.

The Second Amendment ensures that the government will never have a monopoly of force. As Americans knew from recent history in Europe and from ancient history, people who were first disarmed were often tyrannized later.

The Chinese Communist Party was aware of similar lessons of history. In a 1938 speech, Mao explained, “Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party. . . . According to the Marxist theory of the state, the army is the chief component of state power. Whoever wants to seize and retain state power must have a strong army.” Problems of War and Strategy (Nov. 6, 1938).

In 1949, one of the new regime’s “first acts” was “to confiscate weapons.” Jung Chang & Jon Halliday, Mao: The Unknown Story 424 (2005). Homes were inspected to “search for forbidden items, from weapons to radios.” Frank Dikötter, The Tragedy of Liberation: A History of the Chinese Revolution 1945-1957, at 45-46 (2013).

By ensuring that all the people could be armed, the Second Amendment aimed to ensure that the militia would be drawn from all people. If the government were allowed to disarm people, then instead of a general militia of the people, there would be a “select militia” of the government’s favorites and toadies. At the Virginia Convention for ratifying the U.S. Constitution, George Mason had warned that a select militia would “have no fellow-feeling for the people.” (June 14, 1788).

As the U.S. Supreme Court noted, in England, the despotic Stuart kings in the seventeenth century had used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Further, said the Court, the Second Amendment was enacted in part to assuage fears that the U.S. government “would disarm the people in order to impose rule through a standing army or select militia.” Id. at 588.

Under Mao, a select militia was the instrument for forcing most of the population into de facto slavery. In the 1958-62 Great Leap Forward, the select militia became the instrument that caused the deaths of over forty million people from famine.

In a nation of over 600 million people, the select militia comprised fewer than 2 percent of the population. Unlike in the American system, militia arms were not personally owned but were usually centrally stored and guarded.

According to a political refugee interviewed in Hong Kong in the 1950s, in a farm commune of 15,000 families, there would be about 1,500 militiamen, chosen from the politically correct, who would have rifles. Of these there was “a further selection of 150 super-reliable men whose rifles are always loaded.” Suzanne Labin, The Anthill: The Human Condition in Communist China 104 (Edward Fitzgerald trans., Praeger 1960) (1st pub. in France as La Condition Humaine en Chine Communiste (1959)). “Otherwise ammunition is kept at a central armoury guarded day and night by special police armed with machine-guns. As an extra precaution the personnel of this guard is changed every two months.” Id. A hundred and fifty always-armed males could control 15,000 families.

“They would turn out to be crucial in enforcing discipline, not only during the frenzy to establish communes, but throughout the years of famine that lay ahead.” Frank Dikötter, Mao’s Great Famine: The History of China’s Most Devastating Catastrophe, 1958-1962, at 182 (2010). “[L]ocal militia were a critical ingredient in the CCP’s consolidation of power in the countryside.” Elizabeth J. Perry, Patrolling the Revolution: Worker Militias, Citizenship, and the Modern Chinese State 182 (2007).

“The militia movement and a small corps of trained fighters brought military organization to every commune. All over China farmers were roused from sleep at dawn at the sound of a bugle and filed into the canteen for a quick bowl of watery rice gruel. Whistles were blown to gather the workforce, which moved in military step to the fields. . . . Party activists, local cadres and the militia enforced discipline, sometimes punishing underachievers with beatings.”

Dikötter, Famine, at 50. “Militiamen spearheaded the countless mobilization campaigns that were the hallmark of Mao’s rule. They enforced universal participation by all members of the factory or village, dragged out or designated targets of struggle [persons targeted for persecution], and monitored mass meetings.” Perry, at 191.

A case study of the remote village of Da Fo, located on the North China Plain, details the operation of the select militia. There, guns had been confiscated in 1951 (later than the general confiscation in 1949, perhaps because of the village’s isolation). Over the course of the war against the Japanese invasion and then the final phase of the civil war (1945-49), the high-quality leaders of the Da Fo communist militia had been moved elsewhere, to positions of greater responsibility. The militiamen left behind were the dregs of society. “Villagers remember them as poorly endowed, uneducated, quick-tempered, perfidious hustlers and ruffians who more often than not operated in an arbitrary and brutal political manner in the name of the Communist Party.” Ralph A. Thaxton, Jr., Catastrophe and Contention in Rural China: Mao’s Great Leap Forward: Famine and the Origins of Righteous Resistance in Da Fo Village 329 (2008).

There were no rules against them exploiting or coercing peasants. To the extent that the national government provided subsidies, the militia took them. The Da Fo militia had 30 guns and kept the crop fields under a four-man armed guard day and night, to prevent peasants from obtaining food.

“The militia was a repressive institution, and Mao needed it to press the countless rural dwellers who were resisting disentitlement by the agents of the people’s commune.” Id. “These men were practically the perfect candidates to tear apart civil society and destroy human purpose. . . . [T]hey had a lot in common with the Khmer Rouge in Cambodia, with Ceauşescu’s militias in Transylvania, and with the Janjaweed in the Darfur region of Sudan. In rural China of the late 1950s, as in these other killing field environments, such men were backed by state power.” Id. at 330.

The militia and the communist party cadres carried large sticks they used to beat the peasants. The frontline enforcers were under orders from their superiors to administer frequent beatings, and those who failed to do so were punished. “A vicious circle of repression was created, as ever more relentless beatings were required to get the starving to perform whatever tasks were assigned to them.” Dikötter, Famine, at 299.

Without the select militia, “surely the famine’s death rate would not have been so high.” Thaxton, at 331. Because of the select militia, peasants suffered “socialist colonization, subhuman forms of labor, and starvation.” Id. at 334.

Tibet

The Chinese Communist army invaded eastern Tibet in 1949 and central Tibet in 1951. At first, they ruled relatively mildly, while they worked hard at building a transportation infrastructure for permanent military occupation. But in 1956, the Chinese announced gun registration, which the Tibetans accurately foresaw as a step towards gun confiscation. In 1957, the CCP demanded that Tibetans surrender all their firearms.

Tibet was a universally armed nation. Every man was expected to have a firearm and be proficient with it. The Tibetan Buddhist monasteries had large arsenals. Even the poorest beggar would at least have a large knife.

As the Dalai Lama later recalled, when he heard about the gun confiscation order, “I knew without being told that a Khamba [Eastern Tibetan] would never surrender his rifle — he would use it first.” Roger Hicks & Ngakpa Chogyam, Great Ocean 102 (1984) (authorized biography).

The historically fractious Tibetan tribes united in a national resistance movement, the Chushi Gangdruk. For a while, they drove the Chinese out of most of Tibet, and liberated hundreds of thousands of square miles.

Yet although the Tibetan volunteers were, man-for-man, vastly superior fighters to the Chinese conscripts, the Chinese eventually wore down the Tibetan resistance through sheer force of numbers, just as centuries before barbarians in Europe had overwhelmed the Roman Empire’s legions.

The Tibetan resistance movement did make it possible for 80,000 Tibetans, including the Dalai Lama, to escape to India and Nepal, where they have kept the Tibetan Buddhist religion alive, free of CCP domination, and have continued to inform the world about the CCP’s colonialism and genocide in Tibet.

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

Unlike some of the bad monarchs in England and France, Mao did not force families to let soldiers live in their homes. Rather, Mao forced people to live in soldiers’ homes, as prisoners under constant armed guard.

Starting in the Great Leap Forward, the government seized all farmland and forced people into communal labor. In many communes, families had to leave their homes, live in sex-segregated barracks, and eat in mess halls. Husbands and wives were allowed one short conjugal visit per week. This was consistent with Marxism, which boldly demanded “Abolition of the family!” Karl Marx, Communist Manifesto 24 (Samuel Moore & Friedrich Engels trans. 1888) (1848).

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV.

Starting in 1955-56, the CCP ordered that people allow home inspections at any time. This was part of a household registration system that also required people to reside in the registered place permanently, unless they were given government permission to move. People could travel only when issued a permit, had to register when staying somewhere else overnight, had to register their own house guests, and had to report on the content of conversations with guests.

All postal mail could be secretly opened by the government, its contents recorded in the government’s secret files on every person, to accumulate material for potential later use against the writer.

During the Cultural Revolution, Mao’s mobs, the “Red Guards,” searched house-to-house for concealed arms, books, religious items, gold coins, and evidence of disloyalty. If something was found, the victims were tortured. “Every night there were terrifying sounds of loud knocks on the door, objects breaking, students shouting and children crying. But most ordinary people had no idea when the Red Guards would appear, and what harmless possessions might be seen as suspicious. They lived in fear.” Frank Dikötter, The Cultural Revolution: A People’s History, 1962-1976, at 86-90 (2016). Many people pre-emptively destroyed their books and artwork, lest the Red Guards discover them. Ordinary thieves posed as Red Guards to get in on the looting.

“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Amendment V.

The prohibition of “double jeopardy” means that if a person is tried for alleged crime and acquitted, the government cannot prosecute the same person a second time for the same offense. This was irrelevant under Mao, since persons who were accused were always convicted the first time.

While the Fifth Amendment forbids compelled self-incrimination, self-incrimination was mandatory under Mao. If an arrested person did not confess to whatever crimes she was accused of, she would be tortured until she did.

The Takings Clause means that government must pay compensation when it takes a person’s property. But under Mao, property could be taken at any time. Some people had no property at all. For example, starting with the Great Leap Forward in 1958, the peasants forced to live in barracks on the collective farms were not allowed to own even a spoon.

The communists had won the revolution in part because they had promised to give land to the peasants. The communists did so in the years immediately after the revolution. Then starting in 1958, the land was taken by the government. The peasants were turned into serfs—forbidden to leave the land and forced to labor under armed guard to produce crops, most of which the government would take without compensation.

In the Cultural Revolution, Mao’s rage mobs roamed the streets, attacking women for bourgeoise behavior such as wearing dresses or having long hair. Poor street peddlers, barbers, tailors, and anyone else participating in the non-state economy were attacked and destroyed. Many of them were ruined and became destitute.

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

The system of bail allows a person who has been arrested for crime to be released from jail pending trial, if the person posts a bond to ensure that he will appear in court for trial. Under communism, once a person is arrested, the person may simply “disappear,” never to be seen in public again.

While the Eighth Amendment prohibits torture, torture was a common tool of the Mao regime. Soon after the communists seized power in 1949, their “land reform” program encouraged peasants to torture and then kill small farmers and landlords. If Mao decided that a high-ranking official was now an enemy, he would have the official tortured in front of an assembly of the communist elite.

In the Cultural Revolution, Mao’s rage mobs roamed the streets with leather belts with brass buckles, which they used to beat their targets senseless, often inflicting severe injury. Sometimes the victims were forced to lick their blood up from the street. Any pedestrian could be accosted by Red Guards, ordered to recite quotations from Chairman Mao, and then tortured on the spot for not having memorized enough of them.

The Cultural Revolution also brought a savage campaign of genocide and torture of the minority Mongol population, living in north-central China. Ethnic minorities in other border regions received similar treatment.

A new round of purges began in 1969 and ran through 1971, based on a supposed “May Sixteenth” conspiracy from 1966. This was the date that a circular had announced the creation of the Central Cultural Revolution Group, which would publicly unleash the Cultural Revolution several days later. Supposedly, May 16 was also the debut of a secret plot against Premier Zhou Enlai. Although Zhou was himself a member of the Central Cultural Revolution Group, there were others in the group, including Mao’s wife, who hated him and plotted against him. Whatever the intrigue at the top, the persecution of “May Sixteenth elements” did not target Madame Mao but instead large numbers of people who had no plausible connection to any conspiracy; they were tortured into confessing to having joined a conspiracy that they had never heard of before they were arrested.

Meanwhile, in rural areas, where the Cultural Revolution was less intense, the local militias, aware of all the killing and torture going on in the towns and cities, decided to demonstrate their loyalty by going on their own spontaneous murder and torture sprees.

The victims were not participants in Cultural Revolution politics. Rather, the targets were the “Four Types”—who since 1949 had always been easy targets for attack. These included former landlords, anyone who had owned a small business before the revolution, anyone who was claimed to be a noncommunist, and any “bad element” who had supposedly deviated from the CCP orthodoxy of the moment.

Victims were typically denounced in public show trials that everyone in the village had to attend. Some victims were executed in plain sight to spread terror. Execution methods involved firearms, beating and torturing people to death (always common under Mao), or imaginative procedures, such as marching victims off a cliff.

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

“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.” Amendment X.

The U.S. constitutional system is based on the sovereignty of the people. The people delegate some powers to the federal government, via the Constitution. The Ninth Amendment makes it clear that the Bill of Rights is not an exclusive list of the people’s retained rights. The Tenth Amendment affirms that the people and their state governments retain all powers that were not delegated to the federal government.

Under communism, the people have no “retained” rights or “reserved” powers. The omnipotent sovereign is the communist party. Under Maoism, the only purpose of human existence was to serve Mao.

Dave Kopel is Research Director of the Independence Institute; an Adjunct Scholar with the Cato Institute, in Washington; and adjunct Professor of Constitutional Law at the University of Denver’s  Sturm College of Law. His website is www.davekopel.org. He is a regular panelist on Colorado Public Television’s “Colorado Inside Out” and a columnist for the Reason magazine on the Volokh Conspiracy law blog.

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Guest Essayist: Chris Burkett


Mao Zedong’s bloody “The Cultural Revolution” led to the violation of life, liberty and property for millions of people. Though Mao claimed this was a revolution to promote communism and purge China of capitalism, it was also a manifestation of the kind of tyrannical faction that James Madison and other Framers of the United States Constitution warned about.

Mao’s Revolution was grounded upon a rejection of the tradition that human beings have natural rights as individuals, substituting instead the idea that people are, can, and should be simply “programmed” to behave as government desires with the right kinds of physical and psychological measures. According to Maoist ideology, human beings have absolutely no natural rights – including the right to life and property – that must be respected.

The American Founders, including Federalists and Anti-federalists, foresaw the kind of unspeakable horrors that could be unleashed when the idea of individual natural rights is rejected and abused by government or powerful leaders. As Anti-federalist Brutus wrote, Americans deeply believed that “all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows…This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.”

Brutus understood very well that human beings, when entrusted with power, are prone to abuse that authority for their own purposes. “Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty,” Brutus wrote. “This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers.” Brutus points out that the state constitutions at the time provided many of these “barriers” in the form of “due process of law” as protection for the individual natural rights of citizens.

For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself—the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel.

Constitutional barriers also protected the individual natural right to private property. As Brutus writes, “For the purpose of securing the property of the citizens, it is declared by all the states, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”[1]

Federalist James Madison also believed that for government to be just it must protect the individual right to private property. In The Federalist No. 10, Madison wrote about how the different kinds and degrees of property people acquire, hold, and use are a reflection of human nature. “The diversity in the faculties of men, from which the rights of property originate,” Madison wrote, makes it difficult, if not impossible, for government to impose by force a universal uniformity of opinion (as Mao had attempted to do in the Cultural Revolution). “The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”[2]

For James Madison, “property” meant more than just ownership of material things and goods, such as “a man’s land, or merchandize, or money.” In a larger sense, Madison wrote:

[A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.[3]

Just as the physical property one owns is acquired through physical labor, the opinions we hold – especially our religious opinions – are the products of the labor of our minds. And Madison, like Thomas Jefferson, believed that the human mind is made free by nature – or, as Jefferson put it, “Almighty God hath created the mind free.”[4] To violate the rights of property in either sense – as Maoist ideologues attempted to do during the Cultural Revolution – is to deny the natural freedom of the human mind.

Anti-federalists and Federalists understood that one of the best means for preventing abuses of natural rights is to find a way to prevent all political power from being held in the same hands. As Brutus wrote, “When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.”[5] Federalist James Madison 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.”[6] As we have discussed in earlier essays, Madison and the Federalists believed that the best way to keep power diffused was to separate powers through a combination of modes of election, qualifications for office, and different terms in office for the various branches of government. All of these constitutional barriers – from mandatory due process of law to the manner in which powers are separated – help to provide checks against the kinds of actions taken by Mao and his Revolutionaries with regard to violations of the individual natural rights of life, liberty, property, and religious liberty, and make the kinds of bloody “purges” of the Cultural Revolution less likely under a well-constructed Constitution.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Brutus II.

[2] The Federalist No. 10.

[3] James Madison, “Property,” 29 March 1792.

[4] Thomas Jefferson, “A Bill for Establishing Religious Freedom” in Virginia, written 1779, enacted 1786.

[5] Brutus XVI.

[6] The Federalist No. 47.

 

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Guest Essayist: Chris Burkett


In 1966, Mao Zedong launched what was known as “The Cultural Revolution.” This bloody period in China’s history lasted for more than a decade. Mao’s objective in calling for the revolution was to purge the People’s Republic of China of the bourgeois and capitalist elements that had allegedly infiltrated the government and produced a series of failures and setbacks in the communist nation’s development. In reality, it was an attempt by Mao, who was Chairman of the Communist Party of China, to reclaim social and political control in the country.

Mao created several radical groups to wage war against conservative and traditional groups within China. Groups of “Red Guards” went on the offensive to destroy precious artifacts in an effort to eliminate all memory of traditional Chinese culture. This also included attempts to eliminate all remaining traditional religious belief in the country, as it had been based, to a certain extent, on the idea that religious opinions were private and personal. To accomplish this, many historical and religious sites were destroyed by Mao’s revolutionaries.

Mao also called for the taking of all remaining private property from his “cultural” (i.e., political) enemies. In order to “cleanse the class ranks,” many people were sent to “the countryside” to work in “reeducation camps” (that is, concentration camps far removed from the eyes of people in the larger cities, at which hundreds of thousands – possibly millions – of people were tortured or killed). The Cultural Revolution finally ended with Mao’s death in 1976.

The terrible abuses of natural rights during Mao’s “Cultural Revolution” remind us of the importance of the United States Constitution, which explicitly guarantees the due process of law before anyone can be deprived of life, liberty, or property. The Constitution also enshrines the fundamental idea of individual freedom, perhaps most importantly in the First Amendment’s protection of religious liberty. And the separation of powers, and checks and balances written into the Constitution, make it less likely that any single so-called “Great Leader,” such as Mao, can carry out such brutal schemes of oppression and widespread murder. In the next essay, we will look at the wisdom of the Federalists and Anti-federalists affirming the importance of these ideas.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: Jeanne McKinney


Reeling in the remarkable victory of breaking free of Britain’s tyranny, America’s leaders had a duty to preserve their hard-won independence. The American Revolution had set about in motion the notion that the “People” should have a voice in their own government, in their own destinies. The idea of individual rights and protection of those rights by a system of laws and guarantees was a breaking, out-of-the-box plan. Never-in-history had a government like that been constructed. The delegates (many who were Founding Fathers) attending the Philadelphia Constitutional Convention of 1787 set about to do that. They wrote the Constitution.

James Madison wrote the document, yet there was input from other Founding Fathers. This patriotic group of leaders included Thomas Jefferson and John Adams. Jefferson had authored the Declaration of Independence, and John Adams put his pen to the Defense of the Constitution of the Government of the United States of America. Patrick Henry provided input supporting the inclusion of the Bill of Rights.

Did any of these delegates want any chance of their America to be overrun by tyranny again? Absolutely not. They were familiar with tyrannical regimes of the past and surely noted their failures. They also had to envision any oppressive absolute power ideologies that the future may usher in.

“Rebellion to tyranny is obedience to God” wrote Thomas Jefferson.

“Tyranny is a constant in human history,” says Walter R. Newell in his book “Tyrants.”

Newell analyzed three forms of it, writes author Peter Leithart.  https://www.patheos.com/blogs/leithart/2016/03/three-forms-of-tyranny/

“Garden Variety” tyrant (most common in ancient history). Men who claim ownership of an entire country to use for “their own pleasure and profit and to advance their own clan and cronies.”

“Reforming tyrant.” These individuals are “unconstrained by law or democracy.” Honor, wealth, and power are their obsession. They act to improve their society by the unobstructed exercise of their unlimited authority. Think Alexander the Great, Julius Caesar, Nebuchadnezzar, Louis XIV, Napoleon etc… In a position of absolute power, they used violence for specific aims.

“Millenarian tyrant” is Newell’s third class of tyrants, pens Leithart. Here lies modern-day globalists that are fueled to impose an oppressive “millennial blueprint” on the masses in which the individual “will be submerged in the collective and all privilege and alienation will be forever eradicated.” Think Robespierre, Stalin, Hitler, Mao Tse-Tung, Pol Pot, Gaddafi, and modern-day jihadist terrorists.

These types of tyrants are masters of the veil of illusion. They are experts in the craft of propaganda. They appear “to raise up the downtrodden, to end exploitation, to create a society in which men would no longer use their fellow men as tools for their own enrichment or domination,” says Warren H. Carroll in his book, “70 years of the Communist Revolution.”

Just look at fall of democracy in Afghanistan in August 2021. The country now lies under a brutal tyrannical regime. The Taliban promises to eradicate any former law or policy that does not conform to their interpretations of strict religious Sharia law. Their interpretations of Islam are their own, using a religious shroud to justify evil beheadings, the stoning of women, and random executions in front of families. This band of violent insurgents who overran the seat of government in Kabul, claim their death-marked regime is ‘what the people want.’ Now, the Afghan people have no voice. All the news stations in Afghanistan (as of the date of this writing), are under Taliban control for propaganda purposes.

For twenty years, American troops stopped the terrorists’ plans, helping to protect Afghanistan’s form of democracy. Afghan people experienced pockets of freedom like never before. They had a chance to vote, for girls to attend schools, and for their voices to be heard. Now, Afghan citizens live in fear and many in hiding, left behind while the world watched, aghast, as the Taliban executed a lightning -quick campaign towards power. Yes, an unprotected country can be toppled in merely weeks.

Tyrants blind people to the truth of who they are, which is an elite ruling class who holds all the cards. They demand you suppress your own individual interests and limit achievement for the “good of the nation.” “They” know what’s best for you even when it is not.

Hitler’s fascist Germany did not ‘know best.’

Although Hitler had not revealed the full extent of his totalitarian aims before he came to power, as Führer (“Leader”) of the Third Reich, he attempted not only to control all political power but also to dominate many institutions and organizations that were previously independent of the state, such as courts, churches, universities, social clubs, veterans’ groups, sports associations, and youth groups. Even the German family came under assault, as members of the Hitler Youth were told that it was their patriotic duty to inform on anti-Nazi parents. (Britannica)

His government was marked by a radical authoritarian dictatorship, that imposed stringent government controls on the economy and oppressed opposition. Fascists reject free and competitive elections. Instead, Hitler sported an aggressive nationalism to his Nationalist Socialist German Workers’ Party (Nazi) party, poisoned by extreme racism. Yet, Hitler brainwashed followers justifying his evil violence with lies of being a superior race. He created a police state to handle those who opposed; his own countrymen were killed and tortured.

Hitler’s regime conducted the most prolific and inhuman genocide of the Jewish people in history. His raging Anti-Semitism spurred the Holocaust and will forever haunt generations of the earth. Hitler forced his way to absolute power, to become a murderous madman marked by the notorious sign of the swastika. In the end, it all came tumbling down and he fell from Aryan god and fascist king to a shriveling coward hiding in his underground bunker who took his own life.

America’s Founding Fathers emplaced critical safeguards in the governing Constitutional documents preventing any tyrant from using the law of the land to gain absolute power.

The American quest for stability, security, and liberty.

“If you want something you have never had, you must be willing to do something you have never done.” – Thomas Jefferson

Tyranny will never provide stability, because oppressed masses will eventually rebel. As the Founders created the Constitutional structure for a newly formed republic called America, they set about to assure a balance of power in the governance. This helped facilitate a secure and stable system of operating within a framework of laws that ensured individual liberties and rights. The United States Constitution was ratified by 11 of the original states in 1778 and by all 13 original states by 1790. The Bill of Rights was ratified in 1791.

The first three articles establish the three branches of government, Executive, Legislative, and Judicial. Articles four through seven of the Constitution describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes. (National Archives)

https://www.archives.gov/founding-docs/constitution/what-does-it-say

In this 3-part governmental environment – there could be no Hitler without an overthrow of the republic. It could come in the form of a swift coup or the slow, but steady integration of oppressive ideologies. Our Founders knew well the feel of imperialism, yet had not experienced socialism, communism, fascism, or radical Sharia law. They were inspired, forward-thinking men in revolutionary times, out to eradicate tyranny in any form to occupy their land of inheritance.

Modern-day socialists and communists set out to break and degrade the laws of the republic nation, one by one. Those who decry the Constitution as invalid or outdated are traitors and enemies of America. The concept of freedom will never be outdated.

The Constitution: A steely defense against tyranny.

Anyone with a mind to implant tyranny over the American people will hit a military wall trying to do away with or overthrow the Constitution…American men and women who wear the uniform and go to war swear an oath to protect and defend the revered United States document.

The Oath of Enlistment (for enlisted):

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

The President of the United States swears an oath to “preserve, protect, and defend” the Constitution, which is the solid foundation our government stands upon. Members of Congress are similarly bound to uphold the Constitution. Yet, we see it happening every day, as “factions” threaten the early delegates’ great plan for a free self-governing people.

James Madison, Alexander Hamilton, and John Jay wrote the Federalist papers, a collection of 85 articles and essays to promote the ratification of the United States Constitution. In #10 of the Federalist papers, Madison discussed the “factions” that pose a threat to a republic.

Factions, Madison explained, are groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions out for political power put their own interests first, not the common good.

Then Madison acknowledged that “the public good is often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

Failed regimes remind and warn. 

According to Hitler, democracy undermined the natural selection of ruling elites and was “nothing other than the systematic cultivation of human failure.” Joseph Goebbels, Hitler’s minister of propaganda, maintained that the people never rule themselves and claimed that every history-making epoch had been created by aristocrats. (Britannica)

America denounces Goebbels’ obvious lie with 232 years of an enduring constitutional republic creating a nation others look up to and many try to copy.

An enduring question for Americans is this: How do we protect ourselves from tyranny?

These wayward political pundits ignore the failures of the Fascists, Communists, Marxists, or radical Islamists that have tried to conquer the world. It is vital to fix Congress to restore the Founders’ ideal of a republican government. We must stop the crushing of individual exceptionalism and the degradation of guaranteed rights and protections. There must be a halt to anti-constitutional propaganda, and violators of constitutional law must be prosecuted.

What all tyrants of history fail to recognize is the power of the human will. Individual will is given by God to all mankind to make his own choices. Our wills do not savor being suppressed by others who sit on thrones, the Oval Office, or Congress who think they ‘know best’ for everyone and peddle ‘sameness.’ For that alone, the writers of the Constitution have adhered to the designs of God. They gave the American people the opportunities to grow the individual, to expand great potential, to gain knowledge, and to magnify the human experience.

Freedom can only exist in a framework of laws that supports it. The Constitution, if followed, will continue to prove itself on the world stage to survive the attacks of tyranny, which continue to threaten.

Jeanne McKinney is an award-winning writer whose focus and passion is our United States active-duty military members and military news. Her Patriot Profiles offer an inside look at the amazing active-duty men and women in all Armed Services, including U.S. Marine Corps, Navy, Army, Air Force, Coast Guard, and National Guard. Reporting includes first-hand accounts of combat missions in Iraq and Afghanistan, the fight against violent terror groups, global defense, tactical training and readiness, humanitarian and disaster relief assistance, next-generation defense technology, family survival at home, U.S. port and border protection and illegal immigration, women in combat, honoring the Fallen, Wounded Warriors, Military Working Dogs, Crisis Response, and much more. Starting in 2012, McKinney has won multiple San Diego Press Club “Excellence in Journalism Awards,” including eight “First Place” honors, as well as multiple second and third place recognition for her Patriot Profiles published printed articles. Including awards for Patriot Profiles military films. During the year 2020, McKinney has written and published dozens of investigative articles in her ongoing fight to preserve America the Republic, the Constitution, and its laws. One such story was selected for use in a legal brief in the national fight for 2020 election integrity.

 

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Guest Essayist: Winfield H. Rose


Thanks to the grace of God, the United States is descended from the English political tradition. The last verse of Robert Frost’s poem “The Road Not Taken” comes to mind: “I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I—I took the one less traveled by, And that has made all the difference.” This applies to countries as well as people, and here the two roads are absolute monarchy and constitutional monarchy.

England chose the less-traveled road of constitutional monarchy and “that has made all the difference.” This goes back to the Magna Carta of 1215, the accession of King James I in 1603, the Mayflower Compact of 1620, the English Civil War of 1640-1649, the regicide of King Charles I in 1649, the Glorious Revolution of 1688 and the English Bill of Rights of 1689. In the midst of these very important events was the founding of Virginia, the first permanent English colony in the New World, in 1607, and then Plymouth colony in 1620, eventually to be followed by the other eleven.

These events have in common these principles: (1) the power of the king or government is not absolute but subject to law; and (2) the legislature is the law-making body of the realm and holds the power of the purse.

Fearing for his life, King James II fled to France in December, 1685 whereupon Parliament declared an abdication, that is, the throne was vacant. Parliament then functioned as a constitutional convention by drafting and adopting the English Bill of Rights of 1689 and inviting Mary, the elder daughter of James II, and her Dutch husband William of Orange to assume the throne as joint monarchs subject to the conditions stipulated in the Bill of Rights. Mary and William agreed and did so. This is called the Glorious Revolution, and indeed it was glorious because at this time England became a constitutional rather than an absolute monarchy.

Accordingly, the English government henceforth was divided into three interlocking, interdependent parts: the Crown, the Lords Temporal and Spiritual, and the people represented by the House of Commons.

Charles de Secondat, Baron de Montesquieu was a wealthy, intelligent and energetic Frenchman born near Bordeaux on January 18, 1689 during the reign of Louis XIV and at the very time the Glorious Revolution was unfolding in England. In 1728 he left France to travel abroad. After visiting Italy, Germany, Austria, and other countries, he went to England, where he lived for two years and was greatly impressed with the English political system.

After his return to France in 1731 he began work on his masterpiece, The Spirit of the Laws, one of the most important and best-known works ever written on political philosophy, published in 1748. This book is a comparative study of three types of government: republic, monarchy and despotism, and it is clear he detested despotism.

Montesquieu’s Book XI is titled “Of the Laws Which Establish Political Liberty With Regard to the Constitution” and reads, in part, as follows: “ . . . constant experience shows us that every man invested with power is apt to abuse it,  . . . To prevent this abuse, it is necessary … that power should be a check to power. . . . When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be subject to arbitrary control; for the judge would be then the legislator. Were it joined with the executive power, the judge might behave with violence and oppression.

“There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (emphasis added)

It should be clear, then, that, while John Locke was the intellectual father of the Declaration of Independence, Montesquieu was the intellectual father of the United States Constitution. The twin principles of separation of powers and checks and balances permeate it from beginning to end. This includes not only the national government itself but all the state governments and the principle of federalism which defines the relationships between them.

In the 47th Federalist Madison says, “The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”

Madison fully develops the idea in his 51st Federalist: “ . . . 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 defense 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.  . . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” (emphasis added)

The economic situations in the United States and Germany in the early 1930s were uncomfortably similar while the political situations were, though similar in certain respects, different in others. Both countries were suffering from an economic depression with high unemployment and high inflation, plus the hopelessness and despair that went with them. Germany was alienated not only from its administration in office but also from its entire political system, and there was much unrest.

The American people were substantially alienated from their administration in office but not from their entire political system. It was, however, on trial. There was no guarantee it would survive. No one knows what might have happened if Franklin Roosevelt had not been elected in 1932 but he was elected and, as Washington was not Napoleon,  Roosevelt was not Hitler.

There were several important differences between the United States and Germany at this time. One was that the American political system based on Montesquieu’s principles of separation of powers and checks and balances had been in operation for 140 years and had solidified into a strong tradition. Those holding positions in the three branches were dedicated to those principles and  that tradition and were not egomaniacs interested in one-man rule.

We remained on the road less traveled, thank God, but Germany did not. Their tradition was authoritarian, one-man rule and they reverted to it—and made it infinitely worse and more evil—on January 30, 1933, when Hitler took power. Ideas and traditions matter.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

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Guest Essayist: Winfield H. Rose


How the catastrophe of Nazism occurred in Germany remains a question for the ages. It had no single cause, but resulted from a unique conjunction of traditions, events and personalities.

Christianity had existed in Germany for centuries. The Germans had a great civilization based on literature, philosophy, architecture, music and science. But they also had a strong military/warrior tradition going back at least to the Battle of the Teutoburg Forest in 9 A.D. This slaughter of Roman troops was one of the worst military defeats Rome ever suffered and established the Germans as fierce fighters.

The Thirty Years’ War (1618-1648) following the Protestant Reformation caused great loss of life and virtually destroyed Germany. Two centuries were needed for Germany to recover. A great tragedy of this period is the discrediting of European Christianity. Protestants and Catholics did not come to love and respect one another as brothers and sisters in Christ.  After killing each other by the thousands, they decided Christianity and its values were no longer relevant and cast them aside. This was facilitated during the next two centuries by the emigration of many German Christians to the United States, thereby making the remaining population less religious and more secular.

As bad as the religious wars of the 17th century were, England and France retained their national identities whereas Germany did not. For two centuries the national identity of Germany was, at best, unclear and, at worst, lost – except in the minds of two men, one a politician and one a musician. Richard Wagner the musician was born in 1813 and Otto von Bismarck the politician was born in 1815 while the Congress of Vienna was meeting. Both desired German restoration and worked to achieve it.

Three short, successful wars under “iron” Chancellor Bismarck in the 1860s and 1870s enabled him to unite Germany politically and found the autocratic Second Reich in 1871 under Kaiser Wilhelm I. After Bismarck’s dismissal and death, it became even more autocratic under Kaiser Wilhelm II.

Thus, in contrast to France, Britain and the United States, there was no democratic tradition in Germany. German culture included an extreme deference to authority and to authority figures. When Adolph Hitler (1889-1945) established his own one-man rule, Germans were used to it.

The 19th century saw the wars of the charismatic conqueror Napoleon Bonaparte (1769-1821), the philosophers Georg Wilhelm Friedrich Hegel (1770-1831), Karl Marx (1818-1883) and Friedrich Nietzsche (1844-1900), and the composer Richard Wagner who died in 1883. All these except Marx, who was so radical he was expelled from the country, contributed to the strange mix that was to become National Socialism.

Hegel used the term “alienation” to describe a profound disconnect between what we see as real and what we desire as ideal and wish to be real. The greater the disconnect (dissonance, difference), the greater the alienation. It includes unhappiness, sorrow, grief, depression, anger, rage and, very importantly, a compulsion to seek remediation.

To remedy alienation, Hegel exalted the state over the individual and glorified Germanic civilization as the culmination of history, thereby advancing the secularization of society and encouraging and solidifying the natural human ethnocentrism and racism of the German people.

One could say Wagner took up where Hegel left off. Wagner’s musical dramas are set in a mythical, distant and glorious past which has been lost and begs to be restored. What Bismarck did politically, Wagner did culturally – and that was to create a German state (Reich) for Germans.

Nietzsche’s part in this tragic progression was the ideas of “transvaluation of values,” “beyond good and evil,” “God is dead” and “Superman.” The first three terms jointly mean the rejection of Judeo-Christian and Greco-Roman (Western) civilization and values, the rejection of divine and natural law and the redefinition of good and evil (evil is good and good is evil).

Nietzsche differed from Hegel in that, while Hegel thought German civilization was the best possible and the best ever seen, Nietzsche regarded it with scorn and contempt, calling it a “supreme abortion (miscarriage)” which needed to be replaced with a master race of Ubermenschen or “Supermen” who would be as superior to present humans as present humans were to apes. Thus, Nietzsche removed the moral and ethical restraints of civilization and thereby enabled the German people to descend into barbarism in pursuit of mythical glory.

It cannot be determined exactly how much of this history and philosophy Hitler actually knew and understood, but it is safe to say he grasped the basics. Nietzsche had a younger sister who set up a small museum in his memory. There is a picture of Hitler visiting that museum and admiring a bust of Nietzsche (Dagobert D. Runes, Pictorial History of Philosophy, New York: Philosophical Library, 1959, p. 301). It is well known that Wagner was Hitler’s favorite composer and that he frequently played Wagner’s music on a phonograph. Wagner was intensely anti-Semitic and did not accept Jews as true Germans; neither did Hitler, as is well known.  Add to this the popularity of eugenics and social Darwinism and you have a very toxic civic culture.

World War I and its aftermath put the final pieces in place for the rise of Hitler. Hitler himself served in the war and was wounded. He was obsessed with Germany’s defeat and restoration.

The abdication of the Kaiser required by President Woodrow Wilson created a severe leadership vacuum in Germany. The Allied wartime blockade of Germany’s North Sea ports was continued to June 1919, thus disrupting spring planting and worsening Germany’s already dire famine.

The Treaty of Versailles was a disaster. Germany was not allowed to participate and the war guilt and reparations clauses were especially onerous, thereby giving Hitler rallying cries of which he later made extensive use. At its signing, French Marshal Ferdinand Foch said, “This is not peace. It is an armistice for 20 years.” He missed it by three months.  The Weimar Republic which followed and its constitution were seen as imposed by foreign powers and therefore illegitimate.

Inflation was severe. It was said that, before the war, you took your money to shop in a purse and brought your goods home in a wagon but, after the war, you took your money in a wagon and brought your goods home in a purse. The significance of the postwar German economic collapse cannot be overstated.

Hitler exploited the economic collapse of the 1920s but was also “lucky,” if that’s the right word, insofar that there was a model leader in nearby Italy who, according to the conventional wisdom of the day, was showing the world how the postwar European catastrophe could be overcome.  That leader was “Il Duce,” Benito Mussolini, who came to power in 1922 and became Hitler’s prototype autocrat.

The failed “Beer Hall Putsch” of 1923 provided another stroke of luck for Hitler. While he could have been incapacitated or executed, he was imprisoned only for a few months, a short time but long enough to dictate Mein Kampf.

Yet the most vile aspect of Hitler’s reign was his scapegoating of, German Jews. Human beings are always tempted to avoid accepting responsibility for our failures; they are always, people tend to think, the fault of someone else. And Hitler was the worst temptation. Jews and anti-Semitism had existed in Europe for centuries. They had been blamed for outbreaks of the plague and other calamities, so why not, Hitler thought, blame them for Germany’s present troubles?

Finally, Hitler had great oratorical ability and used it to bring all these factors together into the mass movement known as National Socialism (Nazism). Germany had fallen apart and saw itself as the ravished victim of evil forces. Hitler offered change, hope, order, prosperity and restoration. The German people were quick to climb on board but, to their eternal grief and shame, eventually learned they had made a Faustian bargain with the devil. Their slogan was “Ein Volk, ein Reich, ein Fuehrer,” one people, one empire, one leader, but what they got was defeat, destruction and everlasting infamy.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

Guest Essayist: Andrew Langer


We are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings — on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Ann Arbor, MI, May 22, 1964

In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.

We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.

In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the United States Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (emphasis added)

Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).

But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The Founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.

Constitutional author (and later president) James Madison said this in Federalist 41:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.

In 1831, he also said, more plainly:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.

A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.

Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it is an “item in or related to commerce” or it is subject to federal spending because it “promotes the general welfare.”

Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and bring greater equity in social service programs.

Problematically, LBJ formed a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.

Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.

Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.

Had they allowed for greater public input, someone might have pointed out what the Founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.

And private charities provide more effective services because they not only have a vested interest in the outcomes, that vested interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far removed from the local communities is far worse.

The end result is twofold:  faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.

Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it resulted in a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.

The Founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending and the power that would accrue with it. Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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Guest Essayist: Patrick Garry


Numerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.

Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.

Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.

The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.

Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.

Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.

Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.

The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.

 Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Guest Essayist: Tony Williams


The average government textbook explains that the American constitutional order has three branches of government: legislative, executive, and judicial which make up the reason for the three branches of government in the foundational principle of separation of powers. Drawing on Enlightenment thinker, Montesquieu, James Madison wrote in Federalist #51 that it was “admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”

The Founders feared that tyranny would result when the separation of powers was violated and one branch of government became too powerful.  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Scholars have used the terms imperial presidency, imperial judiciary, and imperial Congress to describe a dangerous accumulation of power in one of the branches.

All of this constitutional analysis should remind us that an unofficial fourth branch of government—the administrative state, or simply, the bureaucracy—amassed an incredible amount of regulatory power throughout the course of the twentieth century and into this century. Indeed, if one were to examine a chart of all the regulatory agencies, it would be hard to find an area of American daily life that is not regulated in dozens of ways throughout the day.

The reason for the regulatory agencies makes a certain amount of sense in an advanced industrial society and economy. All Americans want to fly in safe airplanes, drink clean water, and know what they are eating.

The administrative state began in the late nineteenth and early twentieth century with similarly good intentions. Corruption was rife as trusts had undue influence in Congress and the state legislatures. Reformers wanted to create more non-partisan governance with the creation of a civil service freer from the spoils system of the two parties.

Most importantly, the progressives at the turn of the century sought to change the nature of American government from the Founders. Legislative politics and the separation of powers principle, they believed, was too messy and often an impediment to regulating an advanced industrial economy. They wanted rule by objective administrative experts who would apply their academic and scientific expertise for rational, efficient government resulting in progress and an ordered society.

The result was a great expansion of the administrative state. The Interstate Commerce Commission, Food and Drug Administration, and the Federal Trade Commission were only some of the executive agencies that Congress created to regulate and rationalize the economy and society during the Progressive Era. President Woodrow Wilson and Congress continued this trend during World War I with several wartime agencies to manage mobilization efficiently.

The New Deal in the 1930s saw a dramatic increase in regulatory power of the federal government. Among these were numerous executive agencies Congress established during the Great Depression to achieve FDR’s goals of relief, recovery, and reform. These were consistent with the progressive vision of rational and orderly rule by experts. The Federal Communications Commission, National Labor Relations Board, and the Securities & Exchange Commission were only some of the agencies comprising the New Deal administrative state.

The Supreme Court initially thought the administrative state was running amok. In Schechter v. U.S. (1935), the Court ruled that the National Industrial Recovery Act was unconstitutional in part because Congress had delegated too much authority to the executive branch and violated the separation of powers. However, FDR appointed several justices to the Supreme Court, and it soon endorsed the administrative state for decades. In the 1984 Chevron decision, the Court went so far as to assert that courts should defer to administrative agencies interpreting their powers in congressional laws.

During the 1960s and 1970s, the Great Society and administration of President Richard Nixon created more executive agencies to regulate additional parts of the economy and society. The bureaucracy was greatly expanded with a wide variety of anti-poverty agencies and environmental agencies such as the Environmental Protection Agency. The administrative state became so large and powerful that one of the factors in the rise of the modern conservative movement culminating in the ascension of Ronald Reagan to the presidency was the promise of cutting the size of the federal government and thus the bureaucracy.

The rise of the bureaucratic administrative state was problematic for a number of reasons. First, it dramatically increased the scale and scope of federal government well beyond that envisioned by the Founders. Second, it substituted rule by the people and their representatives in Congress for rule by unelected experts in the executive branches. Third, at times, administrative agencies were allowed to set their own rules, enforce them, and decide and rule on disputes thereby amassing the power of all three branches of government.

James Madison and the Framers of the United States Constitution were right to separate the powers of America’s government into three branches. They understood that an accumulation of too much power in a single body would endanger liberty and republican government by violating the principle of a separation of powers as an important check on human nature.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

 

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Guest Essayist: Gary Porter
Pres. Theodore Roosevelt in 1904. He influenced Pres. Woodrow Wilson & other progressives to follow. All three 1912 Democratic presidential election candidates claimed to be progressives.


At a Townhall meeting in Hayward, California in 2010, then Congressman Peter Stark conceded: “Yes, the Federal government can do most anything in this country.” This statement would be shocking news to the likes of James Madison, Thomas Jefferson, George Washington, even “big government” Alexander Hamilton. A government which can “do most anything” is certainly not the government the Framers tried to create in 1787. If Congressman Stark was right, the “limited and enumerated powers” government that Madison believed they had designed no longer existed. If a limited government no longer exists in the United States, there has to be a reason, a cause for such a dramatic change.

The cause, in one word, is “progressivism.” Progressives have worked diligently, mostly quietly, to bring us to the point where “the Federal government can do most anything in this country,” and particularly where the federal court system is willing to elevate the progressive political agenda to the status of constitutional law.

This is not intended to be a comprehensive essay on progressivism, books, books and more books are devoted to that subject; but to proceed we must have a common understanding of what progressivism is and what progressives believe with which to compare to the principles of the United States Constitution.

prə-grĕs′ĭ-vĭz″əm, noun, “A political ideology that favours progress towards better conditions in society.”[i]  “As a political movement, progressivism purports to advance the human condition through social reform based on advancements in science, technology, economic development and social organization.”[ii]

Who doesn’t want to better the human condition? to improve our standard of living? Who would object to such a lofty goal? If that is the goal, how does a society work toward bettering its social, economic and humanitarian conditions? “The devil’s in the details.”

“In the United States, progressivism began as an intellectual rebellion against the political philosophy of Constitutionalism as expressed by John Locke and the Founders of the American Republic, whereby the authority of government depends on observing limitations on its just powers. What began as a social movement in the 1880s[iii], grew into a popular political movement referred to as the Progressive era; in the 1912 United States presidential election, all three U.S. presidential candidates claimed to be progressives.”[iv]

The winning progressive of the 1912 presidential election, Woodrow Wilson, is credited with coining the phrase “Living Constitution,” which holds that the Constitution must be reinterpreted frequently to keep it “relevant” to modern times. But to fully understand progressivism’s effect on the presidency, we must go back to America’s first acknowledged progressive President: Theodore Roosevelt.[v] Roosevelt’s approach to presidential power was that“[t]he executive power [is] limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under it constitutional powers.”[vi] In other words, there are no limitations to presidential power except those specifically mentioned in the Constitution or acts of Congress. To Roosevelt, the Constitution vested the President with near unlimited power.

But Roosevelt and progressives who followed him ran into twin obstacles: the U.S. Constitution and the principle of majoritarianism. The Constitution created a limited-and-enumerated-powers government and required respect for the law, law created by legislative majorities. Majoritarianism requires 51 percent or better support for a policy to become law. Progressives have never been in a majority in the United States – only a small percentage of Americans, about 12 percent of American adults, [vii] today consider themselves “progressive.” But progressives have one trait in abundance: an unwavering belief they are right, and patience for the “long fight.”

Their first objective was to dismantle the restrictions placed on the federal government by the Constitution, and then, knowing that would not be sufficient, to mold the federal judiciary, particularly the Supreme Court, into a body willing to look beyond the law in favor of societal “progress,” a court system willing to follow the philosophy of Supreme Court Associate Justice Thurgood Marshall: “You do what you think is right, and let the law catch up.”[viii] Until recently, they had succeeded famously in both respects.

What do Progressives believe? Although there are political parties called “Progressive” in other countries, notably countries where socialism is ascendant, there is no Progressive Party in the United States. Wikipedia identifies the Democratic Party as the current embodiment of progressivism in the United States.[ix] But within the Democratic Party there are “classical liberal,” moderate democrat, environmental and other factions. Progressives, while making great inroads, are still a minority. Research by Elaine Kamarck at the Brookings Institution in 2018 found that 44 percent of Democrats identified as a “progressive,” compared to 29 percent in 2016 and 26 percent in 2014.[x]

Bottom line: there is no single acknowledged platform or list of progressive beliefs. But here’s my view after considering multiple sources.

Utopianism. If there is one thing that distinguishes progressivism from other forms of political philosophy, it is an unflinching belief in the perfectibility of man and society. Human society has myriad problems; but progressivism holds that they can all be solved if we simply work together – and implement the solutions progressives have come up with. Mankind is innately good and those infrequent deviations when men and women do wrong should be handled carefully and gently – incarceration is usually a last resort (unless politics get involved; witness the January 6th prisoners).

Atheism/Agnosticism. Although a progressive form of Christianity has reportedly emerged in the last few years (focusing on the so-called “Social Gospel”), progressives typically have no use for God, divine revelation, divine providence, or the concept of original sin.

Universalism/Globalism. Progressives believe a single, one-world government is the perfect vehicle to bring about progressive ends as quickly and efficiently as possible.

Statism. Progressives view government as a tool, perhaps the best tool to achieve the perfect society. While they tout “freedom from government interference” they do not hesitate to use the power of government to achieve their societal ends.

Collectivism/Cooperation. Progressivism holds to a diminished view of individualism and private property, replaced by the need for everyone to cooperate to achieve progressive goals, to include forced “cooperation” if necessary.

Historicism. Historicism is a belief that history must be understood in context, and if the proper progressive-anointed context is not present in the traditional way of teaching certain history, the history must be re-interpreted in the “correct” context (the 1619 Project being the perfect example).

Enhanced Group Rights, Diminished Individual Rights. A diminished view of free speech, for example, replaced by limitations on speech in pursuit of “harmony,” “non-offensiveness” and an obsession with “disinformation.” British police arrested someone recently because their repost of a post on Facebook caused someone “anxiety.”[xi]

Social Justice. “Social Justice” is measured by equality of outcome rather than equality of opportunity. Social Justice is of paramount importance to the progressive, and the full strength of government should be employed to achieve it. “Too much economic and political power is concentrated in too few hands.”

Living Constitution. As has been quoted, progressivism is at least partially a response to constitutionalism, the idea that a written constitution both empowers and limits the power of the government it creates. But progressives do not abandon the Constitution altogether when they encounter its limits, they simply re-interpret the document to remove the limits. “Progressivism insists that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution.”[xii]

A typical response of a progressive to being told that something can’t be done for constitutional reasons was voiced in 2010 by Speaker of the House, Nancy Pelosi: “If the gate Is closed, we will go over the fence, if the fence is too high, we will pole vault in.”[xiii]

Use of the Courts

In a 1912 speech, Theodore Roosevelt complained that the courts often obstruct the will of the people in an unproductive manner. I’m not sure which “people” Roosevelt was talking to, but if you believe this, how do you overcome it? You populate the courts with progressive judges and justices. When you can’t seem to get the Supreme Court to see things your way, you employ a little “arm twisting” such as the famous “Court Packing” threat of FDR.

Perhaps the most compelling proof that progressives see the court as the mechanism for enacting policy preferences which don’t stand a chance in the democratic process was the recent “full-court press” used to try to prevent the confirmation of three conservative justices to the Supreme Court. But even this theater was over-shadowed by the apoplectic reactions that followed the Dobbs decision, in which a conservative-majority court returned the issue of abortion to the democratic process in each state. This, predictably, has led to demands to “pack the court” and return the court to the progressive policy-factory it once was.

Use of the Public Schools

Progressive educator John Dewey, typically called the “father of modern public education,” wrote: “I believe that education is the fundamental method of social progress and reform… a regulation of the process of coming to share in the social consciousness; and that the adjustment of the individual activity on the basis of this social consciousness is the only sure method of social reconstruction.”[xiv] (Emphasis added.) Today, it is safe to say, progressives dominate the U.S. public school systems.  They control the curriculum, administration, library book selections and of course the actual teaching that goes on in most classrooms. According to the Center for American Progress, the public school system is graduating more progressives each June.[xv]

The Constitution’s Challenges to Progressivism

Originalism. There is no question that the Founders intended the Constitution to be interpreted as they understood it. In an 1824 Letter to Henry Lee, James Madison insisted that:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for its faithful exercise.”

Thomas Jefferson’s view was similar:

“On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

“But the Founders didn’t have to contend with the global threat of climate change” is the frequent retort today. “Certainly, the Constitution must be adapted to deal with this modern threat.” So, who best to “adapt” the Constitution to modern conditions? Why, nine unelected judges in black robes, of course. We certainly can’t leave such an important issue to democracy now, can we?

Checks and Balances. Leaving aside the myth that the Framers created three “co-equal” branches of government,[xvi] the framers did imbed certain safeguards against a single branch of government assuming unwarranted power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”[xvii] Unfortunately, many of these “checks and balances” have been systematically disassembled by the Supreme Court. For a list of the court decisions which have essentially shredded the Constitution’s limits on governmental power see here or read: The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Separation of Powers. This doctrine is another traditional restraint on the accumulation of unintended power which has been at least partially dismantled by the Supreme Court. The 1989 decision in Mistretta v. U.S. found that:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (Emphasis added.)

In other words, the non-delegation of powers doctrine held by John Locke and others of the Founding Era would be ignored, the people not consulted, and Congress simply given this ability to delegate. Making matters worse was the opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[xviii] The Supreme Court declared that federal courts should defer to the decisions of Executive Branch agencies when those agencies interpret the guidance in a statute if the “agency’s answer is based on a permissible construction [emphasis added] of the statute.” Some of these unsupported agency rules are challenged in court and overturned, and Congress has the power to overturn them as well, but a legal challenge is an expensive process, a quarter of a million dollars or more, so not every improper rule is challenged.

The Failures of the Progressive Vision

Progressivism came about as a challenge to constitutionalism. It should be clear by now that progressivism and constitutionalism simply cannot coexist; one must yield.

The basic problem with progressivism is that there is no end state, no way to tell whether progressive policies have worked; until the nebulous, undefinable state of “perfection” is reached, there can be only a steady, monotonous march onward toward “progress.”

Progressivism has brought us a federal government that can regulate every aspect of business, whether it deals with interstate commerce or not; a Code of Federal Regulations exceeding 180,000 pages; $2 Trillion in additional costs to U.S. businesses due to regulation compliance, a cost passed on to customers of those businesses; 4,500 plus federal crimes (compared with four in the original Constitution); the unwarranted taking of private property; in short: a government “that can do most anything in this country.”

Constitutionalism yielded during the Warren Court years and made somewhat of a comeback during the Rehnquist Court. What is disturbing to progressives now is the prospect of a new conservative court rolling back the “progress” progressives have made over the last 40-60 years. If there is reason for hope for constitutionalism today it lies in the present Roberts Court, placed during the Trump administration, with a 6-3 conservative to progressive balance. If the court can survive the progressives’ “full-court press” to change this balance, America might begin to see more of the progressive agenda to dismantle the original intentions of the United States Constitution, dismantled in the years ahead.

For further reading:

Progressivism

America Transformed: The Rise and Legacy of American Progressivism, 2021, by Ronald Pestritto.

Excuse Me, Professor, Challenging the Myths of Progressivism, 2015, Lawrence W. Reed.

Progressivism, A Primer on the Idea Destroying America, 2014, by James Ostrowski.

Plundered, How Progressive Ideology is Destroying America, 2012, by Michael Doffman.

How Progressives Rewrote the Constitution, 2006, by Richard Epstein.

The Progressive Era, Liberal Renaissance or Liberal Failure, 1965, Arthur Mann, ed.

The Supreme Court

Supreme Disorder; Judicial Nominations and the Politics of America’s Highest Court, 2020, by Ilya Shapiro.

Judicial Tyranny, 2014, by Mark Sutherland.

Storm Center, the Supreme Court in American Politics, 2011, by David Obrien.

Packing the Court, The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009, by James Burns.

The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Men In Black, How the Supreme Court is Destroying America, 2005, by Mark Levin.

Courting Disaster, How the Supreme Court is Usurping the Power of Congress and the People, 2004, by Pat Robertson.

The Tempting of America, 1990, by Robert Bork.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] The American Heritage® Dictionary of the English Language, 5th Edition.

[ii] https://en.wikipedia.org/wiki/Progressivism

[iii] Some writers identify the Progressive Era as 1880 to 1920; I contend the Progressive Era never stopped.

[iv] https://en.wikipedia.org/wiki/Progressivism

[v] Roosevelt was President from September 14, 1901 to March 4, 1909.

[vi] Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10

[vii] Accessed at https://news.gallup.com/poll/141218/americans-unsure-progressive-political-label.aspx Note, 54%of respondents were “unsure” whether the progressive label fit them.

[viii] https://www.azquotes.com/quote/914008

[ix] https://en.wikipedia.org/wiki/Progressivism#Progressive_parties_or_parties_with_progressive_factions

[x] https://www.npr.org/2018/10/29/659665970/as-more-democrats-embrace-progressive-label-it-may-not-mean-what-it-used-to

[xi] https://citizenfreepress.com/breaking/man-arrested-for-causing-anxiety-on-facebook/.

[xii] Bradley D. S. Watson, accessed at: https://amgreatness.com/2021/08/11/how-progressives-rewrote-american-history/

[xiii] Nancy Pelosi, accessed at: https://www.speaker.gov/newsroom/if-the-gate-is-closed-we-will-go-over-the-fence-if-the-fence-is-too-high-we-will-pole-vault-in

[xiv] John Dewey, My Pedagogic Creed, School Journal vol. 54 (January 1897), pp. 77-80

[xv] https://www.americanprogress.org/article/public-opinion-snapshot-millennials-are-a-progressive-generation/

[xvi] It is an irrefutable fact that the powers of the Congress eclipse those of either of the other two branches.

[xvii] James Madison, Federalist 47.

[xviii] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

 

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Guest Essayist: Will Morrisey


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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Guest Essayist: Joerg Knipprath


At the 1896 Democratic Party convention in Chicago, a former Congressman from Nebraska, William Jennings Bryan, gave a stirring oration in favor of the party’s “pro-silver” political platform. Filled with passion and a near-revolutionary fire, the speech concluded with a warning to those who wanted the United States to maintain a gold standard for the dollar, “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.” Bryan underscored this patently religious analogy by posing at its conclusion with his arms outstretched like someone nailed to a cross. The convention erupted in pandemonium. The ecstatic reaction of the delegates resulted in the “Boy Orator of the Platte River” receiving the party’s nomination for president of the United States at age 36, the youngest major party nominee ever. He became the Democrats’ presidential standard bearer twice more, in 1900 and 1908, again the only major party nominee to do so. He lost each time.

In addition to the Democratic Party nomination, Bryan received that of the more radical, mostly rural-based Populist Party, which favored federal government intervention in the economy. The Populists split after the 1896 election, with most supporters voting for Democrats, while others, typically urban workers, drifted to the Socialist Party. Although historians have long debated the direct influence of the Populist Party on the Progressive movement of the turn of the 20th century, there are clearly identifiable connections between them in regards to economic and political reforms. One difference, however, is in their class identification. The Populist movement was working class and agrarian. The Progressive reformers were upper-middle class urbanites, many from the Midwest. Related to that difference was the greater support for Progressivism among intellectuals and “scribblers,” which produced a more coherent political program and a stronger ideological framework. Ultimately, this produced far greater political success for the Progressive agenda—and more lasting repercussions.

As that passage from the “Cross of Gold” speech suggests, Bryan had a strong evangelical and Calvinist bent. He had a religious conversion experience as a teenager and in his entire life remained a theological conservative who preached a social gospel. His resort to religious imagery and apocalyptic language was not uncommon among Progressives. Theodore Roosevelt could thunder to the assembled delegates at the Progressive Party convention in 1912, “We stand at Armageddon, and we battle for the Lord,” as his enraptured supporters marched around the hall, singing “Onward, Christian Soldiers” and similar spirited hymns.

Those Progressives who were more skeptical of religion nevertheless had similarly messianic visions of reform which would deliver the country from its ills and lead to the Promised Land. The forces for change would be a democratized political structure invigorated by mass participation; a concerted program to attack the root causes of societal dysfunctions, from poverty to alcohol, narcotics, gambling, and prostitution; laws to prevent exploitation of the large urban working class; and, most fundamental, a rational system of policy-making controlled by a strong executive and a stable bureaucracy of technological and scientific experts. As presidential nominee Woodrow Wilson announced in his campaign platform in 1912, “This is nothing short of a new social age, a new era of human relationships, a new stage-setting for the drama of life.” Certainly nothing picayune or transitory about that!

The first of those goals was accomplished over time with the popular election of Senators through the 17th Amendment, and through the adoption by many states of the initiative and referendum process, primary elections for nominations for public office, more expanded “home rule” for localities, and non-partisan elections for local offices. Further, the half of American women excluded from the franchise received it through the 19th Amendment, adopted in 1920. On the other hand, by the late 1920s, the Progressives’ nativism eliminated the previous practice in a number of states of letting non-citizen immigrants vote.

The second came in the form of state laws against vice. Lotteries became illegal. Prostitution, which was ubiquitous at the turn of the 20th century typically in the form of brothels, was already against the law; those laws began to be enforced more vigorously. Another of America’s periodic movements to ban alcohol got under way. Because state laws often proved unable to control interstate markets of vice made possible through easier modes of transportation, the federal government became involved. Narcotics were regulated through taxation under the Harrison Narcotics Tax Act of 1914. The interstate transportation of lottery tickets was prohibited in 1895 through a federal law upheld by the Supreme Court in Champion v. Ames in 1903. The Mann Act, or White Slave Traffic Act of 1910, prohibited taking a woman across state lines for immoral purposes. That law was upheld by the Supreme Court in Hoke v. United States in 1913 and extended to non-prostitution private dalliances in Caminetti v. United States in 1917. After 27 states declared themselves “dry,” and others adopted “local options” to prohibit alcohol, temperance groups, especially those connected to upper-middle class women’s organizations, succeeded in having the 18th Amendment adopted in 1919. That national ban on production, sale, and transportation of alcohol for drinking was quickly followed by enabling legislation, the Volstead Act, that same year.

The third area of social reform was advanced through the adoption of maximum hour laws, minimum wage laws, unionization protections, and anti-child labor laws around the turn of the 20th century. Some such efforts, especially by Congress, initially came a cropper before the Supreme Court as violations of the United States Constitution. They fared better during the next wave of Progressivism under President Franklin Roosevelt in the 1930s.

The fourth, a government and society directed by an unelected technocratic elite of policy-making experts, lay at the heart of the Progressive movement. It proved to be a long-term project. To understand the “Progressive mindset” requires a closer examination of two men, Woodrow Wilson and Herbert Croly. There were other influential intellectuals, such as Walter Lippmann (who wrote A Preface to Politics in 1913, among many other works) and Brooks Adams (who was a grandson of President John Quincy Adams and wrote A Theory of Social Revolution that same year), but Wilson and Croly were renowned.

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few. For human progress to flourish, he postulated the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background (his father and grandfather having been Presbyterian ministers), he embodied the caricature of a Puritan divine. Those traits also made him a perfect Progressive.

Before becoming president of the United States, Wilson was a professor at Princeton University, later becoming its president. He also was elected governor of New Jersey. During his academic tenure, he wrote several influential books which set forth his criticisms of American constitutional structure. His proposed solutions cemented his bona fides as a Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. Indeed, so enamored was Wilson of German philosophy and university research that his wife, Ellen, learned the language just to translate German works of political science for him.

Wilson enthusiastically embraced the nascent ideology of the State. He characterized that entity as organic and contrasted it with what he described as the mechanical nature of the Constitution with its structure of interacting and counterbalancing parts. As he wrote in Constitutional Government in 1908, “The trouble with [the Framers’ approach] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”

The “organic” State tied to the people in some mystical union must not be shackled by a fusty piece of parchment with its artifice of checks and balances. An entirely new constitutional order must be created that reflects the inevitable ascendancy of the State in human affairs. If that was not a realistic option due to reactionary political forces or sentimental popular attachments, the parchment must be broadly amended. During Wilson’s first presidential term, constitutional amendments to authorize a federal income tax and to elect Senators by popular vote were approved.

Beyond formal amendment of the Constitution, the various components of the government had to be marshaled into the service of Progressivism. Thus, Congress must pass far-reaching laws that increase state power at the expense of laissez-faire individualism. The result was a series of federal regulatory laws in union-management affairs, antitrust, child labor, tax, and—through the creation of the Federal Reserve system—banking. That activism was replicated in many states. The era of big government had arrived.

As usual, the Supreme Court took longer. Though the Court upheld various particulars of Progressive legislation, the organic theory of the state was not embodied forthrightly in its decisions until the later New Deal years and the post-Second World War emergence of the “Living Constitution” jurisprudence. Adherents to the Progressive deification of the State, then and now, have sought to remake judicial doctrine by untethering it from formal constitutional structure in favor of ideological dogma. Their efforts have focused on an expansive interpretation of Congressional powers, disregard of the prohibition against excessive delegation of power to bureaucracies, and a transformation of the Equal Protection Clause into a contrivance for “positive” equality. On that last point, success has been slow in coming. But since every political entity necessarily has a constitution, for Progressives it is beyond cavil that their “organic state” requires a progressive living constitution, one that prioritizes social justice and secures equality of condition. Exempting, perhaps, the governing elite.

That left the Presidency. Wilson’s early work, Congressional Government from 1885, reflected his contempt for American separation of powers and urged constitutional change to a parliamentary-style system with centralized power and an expanded federal bureaucracy. He dismissed the president as a mere “clerk of the Congress.” Over the next two decades, his perceptions about the Presidency changed significantly. Wilson regarded the administrations of Grover Cleveland and Theodore Roosevelt as exemplary. His last major work, Constitutional Government, published in 1908, focused on the Presidency as the engine for change.

Wilson’s eventual views of the Presidency were thoroughly 20th century. He treated the formal constitutional powers of the office as minor matters and regarded its occupant as increasingly burdened by obligations as party leader and as executor of the laws and administrator of Congressional policies. That burden had become impossible for a single man, a refrain frequently heard before and since. This fact of political life would only become more pressing with the inevitable—and welcome—evolution to a more powerful and controlling State.

Therefore, a president will and must leave the performance of those duties increasingly in the hands of subordinates. The appointment of trusted officials was more important than the selection of wise men of different opinion to give him counsel, as George Washington did, or of leaders of prominent factions within the party coalition, as was the practice of, among others, Abraham Lincoln. Instead, as Wilson wrote, presidents must become “directors of affairs and leaders of the nation,—men of counsel and of the sort of action that makes for enlightenment.”

Theodore Roosevelt’s “bully pulpit” construct of the Presidency was the new model. The traditional chief executive dealt with the congressional chieftains to influence policy as it emerged within those chambers in response to the broadly-felt needs of the times. Instead, the modern president would bypass the ordinary channels of political power and appeal to the public to shape policy to his creative vision. Wilson wrote, “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit….” This Nietzschean conception of the Presidency as a vessel for its occupants to exercise their will to power is quintessentially fascist. The focus on the charismatic and messianic leader as the ideal of government and the vehicle for progress to a utopian just society is a hallmark of American progressivism to this day and has also characterized the more virulent forms of collectivism. There are telling appellations:  Il Duce Mussolini, Der Fuehrer Hitler, Vozhd Joe Stalin, El Líder Castro, and North Korea’s Kims (Great Leader, Dear Leader, and Respected Leader). All convey the same meaning. Personality cults inevitably accompany Progressive-style leaders.

Wilson’s descriptions of the Presidency and the reality of political practice had a core of truth, lest his prescriptions not be plausible. To get to those prescriptions, however, he set ablaze many constitutional straw men. Though he paid lip service to the Constitution’s framers’ sagacity, he understated their practical appreciation of the office. Alexander Hamilton wrote several Federalist Papers that extolled the need for energy and accountability in the Presidency which he argued were furthered by the Constitution’s structure of the unitary executive. Through his Pacificus Letters, Hamilton became the foundational advocate of a theory of broad implied executive authority on which later presidents relied, including Wilson’s model, Theodore Roosevelt. George Washington shaped the contours of the Executive Branch by his actions within the purposely ambiguous contours of presidential powers under the Constitution. There were serious debates in the Washington administration about the nature of the president’s cabinet and the constitutional relationship between the president and the officers, debates that were generally resolved in favor of presidential control over those officers.

Wilson decried what he saw as a lack of accountability in the Constitution’s formal separation of powers. Yet it was his system where the president is “above the fray,” while little-known and uncontrolled subordinates carry out all manner of critical policies without, allegedly, his awareness. Events over the past two years have amply demonstrated the flaws of rule by credentialed, but unaccountable “experts” at all levels of government. Their decrees, too often based on misunderstood or even fabricated “evidence” and produced in a closed culture implacably hostile to dissent, affected Americans in profound economic, psychological, and social ways. Long-cherished individual rights were brushed aside, selectively, by this pretended clerisy through appeals to the greater health of the society and the common good, appeals which were frequently shown not to affect the behavior of the elite elect. All the while, politicians sought to deflect responsibility onto those bureaucrats.

Herbert Croly was perhaps the most important intellectual of Progressivism, next to Wilson. That seems odd, given the tortuous language and convoluted emotive passages that characterize his work. The Promise of American Life, published in 1909, is Croly’s most significant contribution to public debate, one that supposedly so influenced Theodore Roosevelt it is said to have been the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election. Whereas Wilson dealt with constitutional structure and politics, Croly focused on political economy.

In Promise, Croly described himself and his vision as Hamiltonian. But it painted as “Hamiltonian” something that Alexander Hamilton would have foresworn. Croly argued for organization of the economy through coordination among large nationalized corporations, powerful and exclusive labor unions, and a strong and activist central government. This was the classic corporatist model of “rationalizing” the economy. It embraced the essence of fascist political economy and, with some tinkering, of socialist and Progressive systems. Whereas Hamilton proposed to use government incentives to unleash the entrepreneurial and inventive spirit of Americans to create wealth which ultimately would benefit all, Croly wanted the national government to throttle such entrepreneurial opportunity in favor of large entities, enhance the powers of the few, and use public policy to legislate a welfare state for the poor. However, haphazard social welfare legislation would be inadequate. As noted, the program had to be comprehensive of the whole of society. Independent small businesses, as elements within traditional American republicanism, were the bane of Progressive true believers in mass organization. Theirs would be a coalition of the wealthy few, an administrative elite, the working class, and the mass of poor against the broad middle.

Another book, Progressive Democracy from 1914, extended Croly’s Progressive canon. It rested on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that would be the inevitable evolutionary end of Progressive politics. It posited the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress. Hence, Croly insisted, the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Unlike the societal realities of the late 18th century which had produced American republicanism in the form of representative government within a federal structure, “In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”

The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved of leftists of all stripes. At least in theory. However, Croly considered reforms such as the initiative, referendum, primaries, and popular election of Senators to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”

There were, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs which could accomplish that policy: “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words: A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning,” long associated with manifestos of the American Left. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics, often to hide physical limitations. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.

In that “good” form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a structure constrained by the text and the received traditions of fundamental law, government would be limited only by vague measures of its policies’ popularity.

Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly—and Wilson— recognized, legislatures would not be up to the task of supervising such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people. True, it might be a dictatorship of the technocratic elite, but it would be a benevolent one, we are assured, always loyally and selflessly laboring for our weal.

But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. If Woodrow Wilson identified the State as an organism governed by the biological laws of Darwin, those laws raised some uncomfortable topics. Evolution and change are the constants of such a system; evolution requires adaptation to change. But in the State, unlike nature, adaptation could not be left to chance but must be directed rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason.

In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”

While Croly proposed that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson and unlike William Jennings Bryan, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. Therein is mirrored one of the traits commonly attributed to the progressive intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Andrew Langer


In the previous essay, the Stalinist era of Soviet history was juxtaposed against the concerns of the Founders as discussed in the Federalist Papers. In this essay, that same era is examined within the context of the United States Constitution as adopted and ratified, and to look at the “failures” of the Stalin regime vis a vis America’s system of constitutional governance.

But it might be a mistake to call Stalin’s reign “a failure,” per se. Certainly, it was a failure insofar as the adherence to democracy or the protection of individual rights. One can also say that aspects of Soviet policy as compared to the revolutionary goals of improving the lives of “the people” were abject failures.

But in terms of doing what Stalin and his comrades were intending to do regarding creating a state in which power was concentrated in the hands of a few? They were brutally successful at that. In fact, it was only Stalin’s death in 1953 at the age of 74 that brought an end to his proximate reign, and it was the chaotic aftermath in the wake of Stalin’s death (and the power struggle that ensued) that brought some reforms to the Soviet Union. It wasn’t any greater adherence to some kind of principle of individual rights and limited government.

Keeping in mind that the Soviet Union did have a series of “constitutions”—including one in 1924 and another in 1936, as Stalin had truly consolidated his power. While these constitutions claimed to guarantee some measure of rights (as well as outlining a series of social and economic entitlement programs), they left intact other political machinations guaranteeing one-party rule and the concentration of power in the hands of very few.

In fact, it was after the passage of the Soviet Constitution of 1936 that some of the bloodiest, most-horrifying years of Stalin’s reign began. The so-called Great Purge not only swept up millions of innocents, it also swept up many of the architects of the 1936 Constitution itself!

Two of the most-basic differences between our constitutional system and the Soviet system are the adherence to basic concepts of due process rights, as well as the assurance of open debate and the protection of dissenting views. The denial of both within the Soviet Union allowed for the government to use the military and secret police to brutally repress conflicting views as well as killing and imprisoning millions more in both secret prisons as well as a system of forced-labor prisons known as the “Gulag.”

The head of the secret police under Stalin, Lavrentiy Beria, was noted for saying, “Show me the man and I’ll show you the crime.”

In other words, we don’t need due process or a rule of law. If we want to arrest someone or otherwise suppress dissent, we can simply make them disappear by accusing them of a crime, and because we don’t need to actually prove that crime, they can be taken away.

It is worth noting that two American socialist activists, John Reed and Emma Goldman, both of whom were eager supporters of the 1917 Revolution (and were attempting to bring similar revolutionary fervor to the United States), became privately disillusioned with the direction of the post-Soviet era under first Lenin and then Stalin—most notably because of the lack of democracy in practice and the suppression of dissent.

Under the American system, power is diffused, checked and balanced.  Under the Soviet system, especially under Stalin, power is concentrated—and the politics of the CPSU (Communist Party Soviet Union) ran through every element of daily life, with the Politburo (a central committee of the highest-ranking members of “The Party”) making policy and dictating that policy through the ranks of the Soviet bureaucracy.

Setting aside the secret police, at the time known as the NKVD (and later the KGB), the politics of communism (and adherence to party doctrine) also played a role in military command.

Under our system, the military is meant to be entirely free from the political machinery of our system—our military personnel are supposed to advance on their own merit, the military is an instrument of policy, and the guidance of that policy is balanced between the legislative and executive branches. The President is Commander-in-Chief, but only Congress can declare war, for instance.

During the Soviet era, not only was the military largely under the direction of the Premier (the Soviet leader, also known as the General Secretary) and the Politburo, but each individual unit was given a “political officer,” known as a “Zampolit,” who would ensure that Marxist-Leninist dogma was injected into military affairs, as well as recommend advancement or punishment for military members depending on their adherence to that dogma.

It is also worth noting that the abuse of power by the NKVD and the interference by the Politburo in military affairs led to Field Marshal Gregoriy Zhukov’s support of Nikita Khrushchev in his bid for power following Stalin’s death, since Zhukov was deeply concerned for what might happen should Beria, the head of the secret police, gain greater power under Stalin’s successor, Georgy Malenkov.

In the end, it is not only our Constitution, but the perspective in how we approach government and governance in the United States, that fundamentally sets us apart from any communist or socialist system—whether under Stalin or Krushchev or Brezhnev, or in Maoist China or Castro’s Cuba or North Korea led by a Kim.

We approach governance from the perspective that rights are naturally occurring in man and that power flows from the citizenry to the government, whose powers are carefully enumerated and tightly constrained. These other systems believe that government grants rights to their citizens, and that absent action by that citizenry, it is assumed that the government retains all power to act.

There were no checks on power in Stalin’s USSR—millions died or suffered as a result of it.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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Guest Essayist: Andrew Langer
Interior, Gulag Museum in Moscow, used during the Great Purge under Joseph Stalin’s reign killing millions of innocents.


The reign of Joseph Stalin as the leader of the Soviet Union from 1922 until his death in 1953 made real just about every fear the Federalists and Anti-federalists discussed regarding concentrated power and government run amok during the debates over the adoption and ratification of the United States Constitution.

Through the entirety of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay were constantly debating the balancing of interests, and the push/pull between a central government strong enough to both defend the nation of several states and address the common needs of those states, yet not so powerful as to run roughshod over the rights of those states and the residents therein.

Interestingly enough, the fact that our Founders were able to so openly debate the nature of the early American experiments in governance is completely alien to what occurred in the post-revolutionary transition from the formerly tsarist Russia into the Soviet Union first under Vladimir Lenin and then under Stalin.

Unlike the open debates of our Founders, and the reliance on the consensus-building governance of the American political system (built, as it was, on the examples of the liberalized British system), when the Tsar was overthrown and the soviet government established in Russia, the Bolsheviks immediately set-out to remove or otherwise neutralize opposition voices and consolidate power—and did so using a combination of military power and adopted post-tsarist secret police that could use force and intimidation to back-up any effort at domination.

So while Jay, Madison, and Hamilton could agree and disagree with one another in very public discussions, and the three of them could have ongoing conversations regarding the elements of the Constitution with their allies and opponents, Stalin’s system left it up to a handful of men to, literally, dictate the course of the Soviet Union in the years (and then decades) after the Russian Revolution of 1917—and then support their decisions with either direct military force or the force of their secret police, the NKVD.

The post-Revolution Bolsheviks had outlawed alternative political parties (even alternative factions of socialism, like the “Mensheviks,” the other dominant socialist viewpoint in during the 1917 Revolution), the dissemination of information was through the central government, and a vibrant system of “informing” on ones fellow Soviet citizens was created, in which people could be arrested upon the scant denouncing of their neighbors—or because the denounced said or did something that the central government did not like.

In Federalist 46, Hamilton summed up the general fear of constitutional skeptics in the late 18th century:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition… That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.”

Interestingly enough, Madison had answered his own question earlier in Federalist 46 when he wrote:

“The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted.”

But for a nation in which power is concentrated in the hands of very few, where dissent is suppressed beyond the point of imprisonment, and where that power is undergirded with both direct military force and the anxiety produced by the specter of secret police, there is no opportunity for “plans of resistance” or any concerted correspondence.

Worse, “dissent” could take many forms—and not even have to be proved, in order for punishment to be meted out. Stalin used his military to massacre civilians and put political pressure on Soviet republics and non-republic satellite states. And between Stalin and the head of the NKVD (the Secret Police), Lavrentiy Beria, millions more were simply “disappeared.” Beria is famous for the quote, “Show me the man and I’ll show you the crime,” a statement that will be discussed in the essay on Stalin and the protections guaranteed in the U.S. Constitution.

The Founders were rightly skeptical of what could happen when government power was not hemmed in by lawful constraints—and what happens when people are not able to debate and exercise true dissent. The warnings debated in the Federalist Papers were made manifest in the brutality of the Soviet Union’s Stalinist era and, frankly, through the oppressions of Nikita Khrushchev and Leonid Brezhnev, and other socialist leaders.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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Guest Essayist: J. Eric Wise


The Red Army from the time of its formation through its incarnation as the Soviet Army and to the time of its collapse was forever fighting wars. From 1917 to 1922 the Red Army fought numerous civil wars for Soviet dominance of Russia, as well as the Polish-Soviet War to mop up the residual Polish state following the First World War.

But by 1922, the Soviet communists realized that a large army taxed the ambitions of the new Soviet state and so reduced the Red Army to a standing army of 800,000.

Leader of the Soviet Union, Joseph Stalin, would take this small army and build it to a strength of 29 million at the end of the Second World War. This massive army would after the Second World War become the Soviet Army which would be reduced to a leaner 11 million man army.

As the burden of maintaining a large land army grew, the Soviet Army shrunk to between 2.8 and 5.3 million. The final collapse of the Soviet Union occurred when the cost to the people of the Soviet Union of maintaining and equipping this army left them without consumer goods and in some cases necessities.

What is the key lesson of Stalin’s expansion of the military?

The first lesson, one supposes, is that war is not merely an instrument of the state but an instrument of the military. Stalin’s Soviet Union was perpetually at war. The Red Army battled Ukrainian insurgents, and was involved in the Spanish Civil War, the war in China, and fought with Japan. Before joining the Allies in the Second World War, the Soviet Army invaded Poland, partitioning it with Germany, and invaded Finland, with worse than mixed results. By the time of the German invasion of Operation Barbarossa, the Red Army was 6,000,000 men or more of whom a majority of whom were captured or killed by the invading army. The Red Army and then the Soviet Army served as a base of power for Soviet tyranny. And war was a means for the Red Army and the Soviet Army to demonstrate their importance to tyrannical power.

What can we as Americans learn from it?

Following the First World War, the United States promptly de-mobilized. The material prepared for war was scrapped and the United States Army was quickly reduced to a small corps of officers and enlisted men around which a larger army of citizen soldiers could later be built.

When the Second World War arrived, on December 7, 1941, the United States Armed forces numbered about 1.8 million. Four years later, in at the end of the war in 1945, the United States armed forces numbered approximately 12 million.

Following the Second World War, the United States armed forces were again demobilized, and by 1950 the core strength of the United States Army was about 600,000 men. With mobilization for the Korean War and the Vietnam War the armed forces of the United States numbered between 2.6 and 3.5 million. And following the Cold War the United States armed forces came down in strength to about 1.5 million men, the level it has remained for almost three decades.

President Dwight Eisenhower warned in his farewell address of a growing “Military-Industrial Complex” which threatened the liberties and prosperity of Americans. He meant that the military and the industries that supplied it had become their own interest group in American politics. The military and the industries supporting it promoted policies, and yes, wars, which served the interest of the military and the interests of power.

Abraham Lincoln, in his Lyceum Address, noted that “We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory…” He meant, among other things, that the United States is blessed to have a territory protected by two oceans and to have very little in the way of neighboring military threats.

It was this territorial advantage, as was noted in Federalist 29, which allowed the United States unlike European powers, to dispense with standing armies.

It is important to take pride in the patriots that serve our country in uniform. It is equally important to not conflate that pride with an empty nationalism that needlessly feeds a large military, a lesson Joseph Stalin teaches us.

Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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Guest Essayist: Stephen Tootle


World War I, known as the “Great War” by contemporaries, tested whether a Constitution written in the 18th century could handle problems presented by the 20th. President Woodrow Wilson found himself frustrated by the constraints put upon him by the Founders—just as the Founders intended. By limiting the powers of the executive branch and creating structures rooted in pluralism, the foundational wisdom baked into the United States Constitution limited President Woodrow Wilson’s attempts to undermine and undo our political, diplomatic, and constitutional traditions. Although the executive branch has broad authority in foreign policy and during wartime, its powers are not limitless. Those constitutional limits became even more important when a war was global in scope and America had a President who resisted them.

President Wilson came into the presidency hostile to the idea of enacting the Constitution as written or intended.[1] Unlike any previous President (save perhaps Andrew Jackson when grumpy), Wilson believed that the only limit on presidential power was “his capacity” and that his control of foreign policy was “absolute.”[2] After his election in 1912, he could test those theories in earnest. When the Great War began in 1914, Wilson thought he had discovered a way to use the war to transform the world for the better.

According to Wilson, all wars could be prevented with a world association to protect borders, ensure government control of arms manufacturing, and prevent aggressive war for territorial gain.[3] Believing that he could create world peace, Wilson stretched his constitutional wartime powers to their limits. His administration imprisoned political opponents, censored authors, closed newspapers, commandeered whole sectors of the industrial and agricultural economy, and planned for a future peace agreement at odds with our history, politics, culture, and Constitution.

Wilson’s plan (according to him) required the mandate of the American people in the 1918 congressional elections. With that in mind, he explicitly attacked his opponents and asked Americans to “sustain” him and “say so in a way which it will not be possible to misunderstand.”[4] They answered, but their answer did not sustain him. Republicans took both houses of congress.

Undaunted by this rejection, Wilson negotiated the Treaty of Versailles and went to the Senate for its ratification. Congressional hearings revealed the unworkability and radicalism of the treaty. Americans had some common-sense questions about ditching their traditions. Would Americans be obligated to automatically fight and die in wars anywhere and everywhere to protect any border? Would the people and Congress no longer have a say in the declaration of war? Would foreign nations have sovereign authority over American foreign policy? Could foreign nations preclude the United States from maintaining military preparedness or anticipating threats? Would an international body interfere with the individual rights of Americans? As in any debate, good points mixed with frivolous and absurd ones as the politicians with varying interests delayed ratification. The treaty may have been ratified if Wilson had consented to protecting the Constitution, but he would not.  Wilson had said he would “consent to nothing” and that “the Senate must take its medicine.”[5] But that was simply not the case. Under the Constitution, the Senate would have its say.

President Wilson could command armies and negotiate the peace treaty, but the Constitution and its adherents ensured that he could not rule as a king or a dictator. The legislature—reflecting the conflicting interests and passions of the American people—used their constitutional powers to prevent Wilson from enacting his plans. In his last days in office Wilson lamented, “Men thought I had all the power. Would to God I had such power.”[6]

Modern readers may recoil at the abuses of the Wilson administration during the war, but someone with a broader global perspective should understand that the proper question should be, “Why were they not worse?” The pluralism inherent in our Constitution does not prevent evil from existing in the world—doing so would require

abolishing freedom– but it does check the spread of evils. Would-be dictators claiming the righteousness of their causes will always claim it is worth it to sacrifice our commitment to pluralism in the service of a grand solution to a grand problem. Our Founders understood that perfection in governance is an impossibility, but as Wilson’s example shows, even the would-be dictators can have their abuses limited. Despite Wilson’s machinations to the contrary, the Constitution limited his ambitions and left the United States standing firmly on its old foundation while the Old World Order collapsed.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/the-new-freedom/

[2] https://nationalsecurity.gmu.edu/wp-content/uploads/2019/03/Constitutional-Government-Chapter-III_-The-President-of-the-United-States.pdf

[3] Walter McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776, (Boston: Houghton Mifflin Company, 1997), 132.

[4] Woodrow Wilson, in John Morton Blum, Woodrow Wilson and the Politics of Morality, (Boston: Little, Brown and Company, 1956), 154-155.

[5] McDougall, 142.

[6] McDougall, 145.

 

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Guest Essayist: Thomas Bruscino


Federalist Papers 6 and 7 are at first glance an odd place to go when it comes to explaining the onset of World War I. Their topic is the threat of internal war among the states absent the adoption of the unified federal republic in the Constitution. But the fundamental principles expressed, especially that the “causes of hostility among nations are innumerable,” will resonate with generations of World War I students who have tried to catalogue the many causes of the Great War.

Publius’s point is that independent states will disagree about much and eventually fight over something. That was especially true in the semi-united states, with their close proximity to one another, the unclaimed and disputed lands to the west, their uneven economic power, and their shared and unshared debts. What is worse, in order to get an advantage in these disagreements, the states might enter into smaller alliances with each other or with European powers, thus becoming “prey to the artifices and machinations of powers equally the enemies of them all.”

Even the broadly democratic and commercial nature of the states would not help, despite the claims of “visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.”

If true, asserts Publius, then that should be true of all states, not just republics. But it wasn’t true. “Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice?”

There they are in Federalists 6 and 7, the many causes of the Great War laid out in principle: security and proximity, economic competition, domestic politics, imperial rivalries, confusing alliance politics, and honor and passion (in monarchies and democracies alike). Publius even anticipated and rejected the arguments of people like Ivan Bloch and Norman Angell that rational calculations about the destructiveness of warfare, especially in the interconnected modern economic world, would or should forestall war.

Given these great truths, Publius argued that the best hope for stopping war among the American states was to unite them under the proposed federal constitution. It did not always work—rebels literally drew states into a war against the nation. But it mostly worked. The overwhelming majority of the disputes among American states have not led to war.

Which leads to another question: was the proposed solution viable for the rest of the world’s nations? Did they just need to be gathered together in some sort of “Confederative Republic” to ensure peace?

In principle, maybe, and the principle is as far as Publius goes for the wider world. The Federalist Papers focused on the principles behind the best government for the United States, and on this issue they weren’t even sure the federal republic would work, let alone for the far more divided wider world. The Constitutional system Publius proposed was exceedingly fragile. That is why the principles elucidated in the rest of the Federalist Papers went far beyond the causes of war between states.

Perhaps that truth best resolves the seeming paradox of how Woodrow Wilson, an explicit critic of the Constitutional system, came to advocate for a seemingly Publius-like worldwide “Confederative Republic” in the League of Nations. Wilson wanted lasting peace among nations, and he believed that it was only possible if nations gathered together under a cooperative worldwide government of sorts. On its face, it appears that Wilson agreed with the principles of the Federalist Papers, but only on this narrow issue. But the Founders believed that the American Constitutional Republic only had a chance of preserving peace among the states if all of the principles undergirding it, those expressed across the Federalist Papers, remained in place.

Which brings us to Federalists 74 and 75, on the treaty making power of the president under the Constitution. For reasons explained in those documents, the executive needed a strong role in making treaties. As is often the case in the Federalist Papers, Publius argued for more expansive federal, and in this case, executive, power. But that was only because the countering argument gave exclusive power to the legislature. Publius never imagined that treaty making, or any other power, would go exclusively to the executive. There must be balance, or the whole fragile experiment would collapse.

This balancing principle, so essential to the Federalist Papers and the Constitution, Wilson could never abide. He wanted the power for himself. In this instance above all others, his reach exceeded his grasp. The Senate did not approve his treaty. The United States never entered the League.

The American decision to reject the League has been treated as a missed opportunity to preserve the fragile peace earned at Versailles. But Wilson was the master of his vision’s undoing, precisely because in envisioning the League he rejected the principles of the Federalist Papers. His League was not a balanced constitutional republic, but rather an oligarchy with the trappings of democracy, requiring the enlightened leadership of a few great men. First among those men, of course, would be Woodrow Wilson himself.

The League of Nations never had a chance to maintain peace, not because the United States foolishly rejected Wilson’s new utopian vision, but because the balanced American constitutional system saw it for what it was: an unbalanced system simultaneously so offensive to sovereign states and utterly toothless as to magnify all the worst rivalries among nations. It was the Old World Order made worse, with monarchies replaced by totalitarian dictatorships. Publius, in all of the Federalist Papers, knew better than to try that. Would that Woodrow Wilson have listened.

Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.

The views and opinions presented are those of the authors and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.

 

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Guest Essayist: Joerg Knipprath
Domenica del Corriere, Italian newspaper, drawing by Achille Beltrame depicting Gavrilo Princip assassination of Archduke Franz Ferdinand of Austria & his wife Sofie, in Sarajevo, Bosnia, June 28, 1914.


Supporters of the proposed United States Constitution of 1787 frequently warned that there was no mechanism under the Articles of Confederation to prevent what they saw as the inevitable commercial rivalries between the states from escalating into armed conflict. Such rivalries had begun to appear through protectionist trade laws enacted by various states. Another event was the dispute between Virginia and Maryland over fishing and navigation in Chesapeake Bay and the Potomac River. The end, the Federalists charged, would surely be the dissolution of the union into some number of quarreling confederations.

The Anti-federalists had several responses. First, Number IX of the Articles authorized Congress, on petition by any state, to provide for the appointment of a court to resolve any conflict between that state and another. Second, they pointed to the Mount Vernon Conference of 1785 which had settled those very divisive claims between Virginia and Maryland. Third, they declared that it was fanciful to claim that republics, especially those with commercial relations as close as those within the Confederation, would go to war with each other. The history of republics wagered against such eventualities, they asserted. As William Grayson, a moderate opponent of the Constitution, put forth at length before the Virginia ratifying convention, the states were bound by mutually reinforcing commercial bonds and interests. He sarcastically described the Federalists’ panicky and hyperbolic claims as predicting that Pennsylvania and Maryland would attack like Goths and Vandals of old, and that “the Carolinians, from the south, (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children!” Such specters were “ludicrous in the extreme.” Others repeated Grayson’s contentions even more forcefully, often combined with sneering attacks on the writers of The Federalist.

Alexander Hamilton, among others, rejected Grayson’s dismissal of the danger. In essay No. 6 of The Federalist, he asserted that immediate national interests, including economic advantage, are more likely to precipitate war than more general and remote objects, such as justice or dominion. He asked rhetorically,

“Have republics in practice been less addicted to war than monarchies?…Are not popular assemblies frequently subject to the impulses of rage , resentment, jealousy, avarice, and of other irregular and violent propensities?…Has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power and glory? Have there not been as many wars founded upon commercial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?”

It was as to these questions that Hamilton invoked the guide of experience for answers.

That experience he found in the history of Sparta, Athens, Rome, and Carthage. All of them he classified as republics, the last two as commercial republics. He detailed the numerous ruinous wars in which they engaged. Moving forward in time, he then indicted the commercial republic of Venice for its wars in Italy and the 17th-century commercial Dutch Republic for its wars with England and France. Britain came in for scorn as particularly bellicose for commercial advantage. Worse yet, Hamilton charged, the king was at times dragged into wars he did not want, by “the cries of the nation and importunities of their representatives,” so that there have been “almost as many popular as royal wars.” He singled out wars for commercial advantage between Britain and France and Britain and Spain. One of those wars between Britain and France overthrew a network of alliances which had been made two decades earlier. He acidly asked, “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

In addition to commercial incentives for war, Hamilton pointed to personal motives of rulers and other prominent individuals, or to intrigues hatched by influential advisers, as prompting wars between republics. Thus he blamed the Peloponnesian War, so disastrous to Athens, on the personal motives of the great statesman Pericles. England’s ill-advised war with France Hamilton assigned to the machinations of Henry VIII’s chief minister, Cardinal Wolsey, and his pursuit of political influence.

Whatever the merits of Hamilton’s predictably slanted analysis of specific historical events, his message was that political theory disproved by experience is not a sound basis for public policy. A more recent scenario which fit his skepticism about pacific republics was the Great War from 1914 to 1918, which led to the collapse of the 19th-century European political order and to revolutionary political and social change. The antagonists were the Central Powers of Germany, Austria-Hungary, and Ottoman Turkey against the Triple Entente of Britain, France, and Russia. The latter group was eventually joined by Italy, Japan, and the United States. Of the major participants, Germany, Britain, France, and the United States were commercial and industrial powerhouses. They were also outright republics or had sufficient political power vested in parliamentary bodies to qualify as quasi-republican constitutional monarchies. Each also had substantial overseas territories, Britain by far the most. Of the rest, Russia and Japan were rising industrial and commercial nations. In particular, Germany and Britain had considerable commercial interaction, but it likely was exactly that commercial and colonial competition which the British saw as a threat. The prewar German naval buildup did nothing to calm British nerves.

There was also a complicated system of alliances which emerged shortly before the war. This reshuffling of international arrangements changed the dynamics of the relatively stable post-Napoleonic international order in Europe which had even survived disruptive processes of unification in Germany and Italy and disunion in the old Austrian Empire. True, there had been revolutionary tremors and limited wars, such as between Prussia and Denmark, and Prussia and Austria, and the Franco-Prussian War of 1870-71. Skillful diplomacy, in particular by the German Chancellor Otto von Bismarck, had prevented any conflict of an existential nature from arising. Bismarck had isolated France after 1871 through alliances with Russia, Austria-Hungary, and Italy, first through the Three Emperors’ League, and then through the Triple Alliance of 1882 and the Reinsurance Treaty of 1887. Relations with Britain were preserved through family relationships and Britain’s preoccupation with her empire overseas. He had also smoothed frictions between the rival empires, Russia and Austria-Hungary, through the Congress of Berlin in 1878, and among various colonial powers through a conference in the same city in 1884.

Even after Bismarck was forced out of office, it appeared that strengthened international legal norms would prevent wars. International arbitrations settled disputes. Two Hague Conventions, the London Naval Conference of 1909, and the London Conference of 1912 convinced “the right kinds” of Europeans that large-scale war was anachronistic. The foreign offices of the various governments, staffed with forward-looking and educated internationalists, surely would extend the great-power stability of the 19th century’s Concert of Europe. Ignored was that these multinational conferences and conventions left some number of participants dissatisfied and nursing grudges. This was particularly true for the Balkan countries. While trying to establish their independence from the crumbling Ottoman Empire, they warred with the Turks, the Austro-Hungarians, and each other and resented their fates being controlled by larger powers. Over time, these perceived affronts to national honor during a time of heightened national consciousness overrode the rational self-interest served by commercial considerations. Moreover, various treaties and diplomatic agreements overlapped and indeed conflicted with each other. Alliances increasingly shifted around, which begot international uncertainty during an age of domestic demographic changes, increasing political militancy, and unequal industrial and technological prowess.

This new system of alliances had another potentially destabilizing element. It allowed the relatively weaker participants to act like big players on the international stage, counting on their more powerful allies to back them up. Instead, the bravado and exaggerated sense of national honor of less important states dragged the major powers into a disastrous conflict. Everything changed when a Bosnian Serb nationalist, supported by secret nationalist societies and Serbian military intelligence, assassinated the reform-minded presumptive heir to the Austrian throne, Archduke Franz Ferdinand, and his wife in Sarajevo, Bosnia, on June 28, 1914.

After some delay, during which it was hoped that the assassination might become just another deplorable act that would result in an appropriate punishment for the captured perpetrators, the Austrians responded. Having received some halting assurances from the German government that they would back Austria-Hungary’s response to Serbia, the Austrians sent an ultimatum to the Serbs. Serbia only partially accepted the Austrian demands, mobilized its army, and briefly sent troops into Austro-Hungarian territory. In quick response, Austria began partial mobilization of its army and, on July 28, 1914, declared war on Serbia.

At this stage, the conflict might yet have become another limited skirmish. But the Russian government, some of whose ministers had been informed of the plot ahead of time and whose military intelligence likely helped the plotters, had promised the Serbs that Russia would come to Serbia’s aid against any attack by Austria-Hungary. When Austria-Hungary began partial mobilization, Russia within two days ordered full mobilization of its forces. Fearing the large number of Russian troops, Austria-Hungary in turn mobilized fully. Germany, coming to her ally’s assistance, did likewise on July 31, 1914. At the same time, Germany issued a demand of neutrality to Russia. When Russia failed to acquiesce, a state of war existed on August 1. France, pursuant to a treaty with Russia from 1892, had rejected German demands for neutrality and had ordered a general mobilization the previous day. On August 3, 1914, Germany declared war on France. Britain, pursuant to her treaty obligations to France under the Triple Entente of 1907, declared war on Germany on August 5, 1914, after the latter ignored Britain’s demands for withdrawal from occupied Belgium. Italy, as was her wont during 20th-century wars, initially refused to stand by her treaty obligations to Germany and Austria-Hungary and eventually switched sides to the Entente.

The war took on a dynamic of its own. Occasional peace feelers went nowhere, in part because of objections by military leaders. There was, however, another equally significant hurdle, namely, political opposition based on the respective publics’ sentiments that their sacrifices demanded something more than a muddled armistice. It must be remembered that the war initially was very popular and welcomed with an almost giddy celebration of patriotic zeal by the citizenry of the combatants. Hamilton’s observation about monarchs having “continued wars, contrary to their inclinations, and sometimes contrary to the real interests of the state” due to public pressure, was being realized.

The Great War, infelicitously dubbed “the war to end all wars,” ended in the collapse of the Ottoman, Russian, German, and Austro-Hungarian monarchies. It also severely damaged the British and French empires around the world. The revolutionary chaos it unleashed and the national resentments its end ignited soon produced totalitarian movements and another world war. The tens of millions killed in those wars and the even higher number murdered by those ideological totalitarian regimes during the 20th century are a grisly monument to man’s potential to do evil, often cheerfully. The war should have put paid to the conceit that the world of human self-interest and passion can be readily subordinated to a legal artifice designed by a cadre of internationalists. Such idealism sounds marvelous in a university faculty lounge or in a graduate seminar in international relations, but, as Margaret Thatcher observed, “The facts of life are conservative.”

As fundamental challenges to the post-World War II United States-led international order have arisen over the past two decades, much debate has erupted over what system will replace it. The current conflict in Europe has once again tested the notion that commercial relations will make war obsolete. Russia has been dissuaded neither by Western economic pressures and commercial ostracism nor the military aid by NATO to Ukraine from taking a course of action which her government and people see, rightly or wrongly, as important to their national identity. One hopes that these broader fundamental geopolitical changes, such as the apparent emergence of a multi-polar international order, do not lead to the type of destruction World War I caused a century ago. But such hopes must rest on diplomacy based on experience, not on smug nostrums about pacific republics or the bonds of commerce.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Samuel Postell


The United States Constitution created many precautions against disunion and faction, but did not provide a failsafe solution; throughout the antebellum period statesmanship, compromise, and institutional development secured union until slavery and secession shattered the union.

As was argued in the last essay, the framers embraced the principle of union and framed a representative system to combat faction and disunion. As the Anti-federalists became increasingly weak after the ratification of the Constitution, Washington’s administration pursued policies to bolster union.

The Constitution created institutions meant to draw the country together and to prevent factions from controlling governmental power as was done under the Articles of Confederation. Publius argued that the Constitution embraced a number of improvements from modern political science to perfect republican government and cement union. The tools from modern political science were enumerated in Federalist 9:

a. The regular distribution of power into distinct departments.

b. the introduction of legislative balances and checks.

c. the institution of courts composed of judges holding their offices during good behavior.

d. the representation of the people in the legislature by deputies of their own election.

e. the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.

However, Publius argued that there were further Constitutional precautions to retain the “excellencies of republican government” and “lessen or avoid” its imperfections. Throughout The Federalist, Publius explains additional precautions woven into the constitutional structure. He points to “auxiliary precautions” to act as a sort of safety net to ensure that the violence of faction is limited if it penetrates any branch of the federal government. The term “auxiliary precautions” echoes an earlier formulation in James Madison’s essay Vices of our Political System written at the behest of George Washington before the Federal Convention. In that essay, Madison argues that the Articles allowed minority factions to overrun the state governments. The essay made the distinction between the great desideratum[1] (creating a sovereign neutral and powerful enough to stop injustice without becoming tyrannical) and the auxiliary desideratum (getting the noblest characters to be elected, rule, and act according to proper motives). Thus, the most important object of the Constitution is the creation of an impartial and limited federal government to secure rights, and a secondary object is to ensure that the system is administered by virtuous citizens. Although Madison argued that creating a limited impartial government was fundamental, the framers believed that no free government could be maintained without proper administration from good rulers. The auxiliary precautions of the Constitution attempt to mitigate the harm that a faction might inflict if it gains power.

As was argued in the last essay, an important aspect of securing an impartial government is distributing and maintaining the partitions of power, which requires that weak branches be fortified and strong branches be weakened. When Publius considers the branch that most needs fortified against, he settles upon the legislative because it was often the legislatures that dominated the state governments under the Articles. In Federalist 48, he arrives at the conclusion that “in a representative republic, where the executive magistracy is carefully limited both in the extent and duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Notice the similarity between Publius’ description of a legislature in Federalist 48 and a faction in Federalist 10. A legislature has a “supposed influence over the people,” it is a joint assembly which gives it the convenience of “concert,” it is numerous and can become impassioned through proceedings, yet it is small enough to make plans to “approach its passion.” In other words, the legislature gives a faction the power to exact its designs if it can properly organize itself. Publius therefore sought to limit it with auxiliary precautions such as a bicameral house with short terms, staggered elections, and two relatively large bodies. Note that Publius’ assessment is almost the opposite of Alexis de Tocqueville’s, who fears a soft despot seizing executive power and capitalizing from the lack of civic virtue among the people.

Despite Publius’ fears about the legislature, throughout Washington’s first term it became clear that the legislature was too weak to organize itself and pursue an agenda; instead of driving legislation, it looked to the president. For instance, in 1791 Congress called upon Secretary of Treasury Alexander Hamilton to help frame economic legislation. The House spent several days debating the propriety of considering Hamilton’s economic plans but did not bother drafting or proposing any of its own. The numerous House of Representatives was so unorganized and heterogeneous that it was not capable of creating any bills to put on the floor for a vote. Perhaps Publius underestimated the natural strength of the legislature in large republics. Did he not understand the distinction between this federal legislature set over a large sphere and encompassing a variety of interests and the state legislatures encompassing small territories with homogenous interests under the Articles?

By Thomas Jefferson’s presidency the congress was no less dysfunctional. It was consensus that Congress was weak and it looked to the presidency or the cabinet to drive federal policy. How different was this arrangement from the oligarchies in the state legislatures Madison criticized under the Articles? How much safer were minority rights from factions under this Constitution where the executive wielded such power?

Why was the Congress so weak? President Jefferson noted that representatives “are not yet sufficiently aware of the necessity of accommodation and mutual sacrifice of opinion for conducting a numerous assembly.” An anecdote puts Jefferson’s criticism a bit more sharply: after Jefferson’s message in December of 1805 was referred to the committee of the whole, it took almost a full session to determine a single resolution. After the message was referred to the Committee of the Whole, a section on harbor defense was approved and turned to committee. The Committee on Defense determined measures, and then on January 23 the report was taken up by the Committee of the Whole. The Committee on Defense decided on a sum for harbor defense, the Committee of the Whole disagreed, then appointed a committee of two to call upon the president for more information. In February the discussion was resumed. The House passed two resolutions: one sum for harbors and one sum for gunboats. A committee was then appointed to draft a bill in accord with these resolutions. On April 15, the committee began its debate on the bill to appropriate the money for harbor defense. The process in 1805 led four different committees to discuss two resolutions for defense over the course of five months: and that was just one plank of a bill, considering one part of the president’s annual message, in just the House of Representatives! James Sterling Young notes that the biggest problem was that “Any legislator had the privilege of bringing forward, at any moment, such measures as suit his fancy; and any other legislator could postpone action on them indefinitely by the simple expedient of talking.”

In addition to institutional problems, the representatives lacked the revolutionary unity common at the time of the Founding. One representative noted, “The more I know of [two senators] the more I am impressed with the idea how unsuited they are ever to co-operate, never were two substances more completely adapted to make each other explode.” On one hand a New England representative claimed of his Southern colleagues that they were “accustomed to speak in the tone of masters” and that the Westerners had “a license of tongue incident to a wild and uncultivated state of society. With men of such states of mind and temperament, men educated in New England could have little pleasure in intercourse, less in controversy, and of course no sympathy.” A Southern representative remarked of his New England colleagues that “not one possesses the slightest tie of common interest or of common feeling with us.” In addition to feelings of discord, there were physical altercations brought about by the pains of living in common boarding houses. An incident is recorded in Miss Shields’ house when John Randolph, “pouring out a glass of wine, dashed it in [Rep. Willis] Alston’s face. Alston sent a decanter at his head in return, and these and similar missiles continued to fly to and fro, until there was much destruction of glassware.”

How were we to call ourselves a republic if the representative branch could not govern themselves at their own tables, let alone within the chambers of Congress? In Publius’ lifetime as in our own, Congress needed to develop institutional tools to overcome its weakness and become a functional branch of government. This was necessary if the ambition of the legislature was to become sufficient to check the ambition of the executive branch and preserve our republican form of government.

Throughout the Antebellum Period, Congress developed institutional tools which allowed it to enact legislation without relying solely on the executive branch for direction. The most important institutional changes from the American Revolution through the Antebellum Period were rules, committees, coalitions, compromise, and statesmanship through oratory. Although I will not have the length to discuss each development in depth, I will cover some of the most important developments in Congress throughout the Antebellum period.

Henry Clay was the most seminal figure in developing the institutional reforms which allowed Congress to assume the role of legislative leader. On November 4, 1811, Clay was elected Speaker of the House on his first day as a member and on the first ballot. He won seventy-five votes, while William Bibb won thirty-eight, and Nathaniel Macon won three. Mary Parker Follett remarks that “Clay was elected more than any other Speaker as leader of the House. Never before and only once since has a member been distinguished with the honor of an election to the chair upon his first appearance in the House.” The caucus that met before electing Clay Speaker was clear about its intentions. One of Clay’s partisans asserted that the House was in need of a Speaker who would “bridle” John Randolph. Another member said that “he (Randolph) disregards all rules.” Another man asserted that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both.” Clay would eventually do both. One of Randolph’s favorite tactics was to bring his hunting dogs to the chamber where he would use them to intimidate other members and cause disruptions when proceedings were not to his liking. One of Clay’s very first acts as Speaker was to institute a rule barring animals from the chamber during business. In 1826 the two men dueled after Randolph insulted Clay, but both missed their marks, and unhurt met each other halfway to shake hands (something that the two could never manage to do politically).

Clay’s early rules were a sign of his prerogative as legislative leader: he believed that the majority in Congress, elected by a majority of the people, should be equipped with the tools to govern. This principle animated him throughout his congressional career, but also required that he attain more power as Speaker to silence the minority. Mary Parker Follett claims that Clay’s leadership aimed at producing order. She writes, “The new principles set forth during Clay’s long service were: first, the increase of the Speaker’s parliamentary power; secondly, the strengthening of his personal influence; and thirdly, the establishment of his position as a legislative leader.” Clay drew criticism as he increased his power but it was also clear that he was capable of passing policies that advanced the country into the boom of the industrial revolution.

The most radical change in the House of Representatives during the antebellum period was a change that still characterizes it today: the creation of standing committees to expedite business and develop policy expertise. Between the War of 1812 and the Civil War, the House increasingly relied on standing committees to debate and amend measures. As this reliance on standing committees steadily expanded, the House’s relationship with standing committees changed: measures were first referred to committee for consideration and only after being reported by committee were they debated by the full House. This expedited the law-making process because the Committee of the Whole allowed any member to debate on any bill and delay the majority; a liberty that the minority would slowly lose through the Clay Speakership. But how much did the committee structure grow during the Antebellum period? At the time of the Founding the House of Representatives had only one standing committee and relied on ad-hoc committees. By 1810 the House had 10 standing Committees. In 1816 the Senate established 12 permanent committees. By the Civil War the House had 39 standing committees and the Senate had 22.

The new developments in Congress ensured that independents like John Randolph would play an increasingly smaller role in policy-making and that coalitions would play an increasingly greater role. Henry Clay believed in a system animated by coalitions because he believed that such a system provided the opportunity for compromise and energy within the legislature. According to Clay, a coalition-led process of deliberation and choice, as opposed to a member-centered process, meant that creating consensus and collapsing distinctions about factious issues would be more common, and policies of pressing concern would be passed expeditiously. However, in organizing the Congress Henry Clay empowered it to act more efficiently. Did this new energetic Congress exceed the limitations Publius intended for the Federal Government?

In the early 1830s John Calhoun argued that the policies enacted by the energetic Congress harmed the interests of the minority; further, he argued that the people of a state should be able to nullify a federal law if its people deemed it oppressive. He argued that the energetic Congress, passing tariffs that harmed southerners and using federal funds for roads that empowered manufacturers at the expense of farmers, had wielded unchecked power to favor Northern interests. He wrote, “The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.” He argued that the state of South Carolina should be able to nullify and ignore the Federal Tariff laws on imports. However, South Carolina never nullified the federal tariff; Andrew Jackson threatened to use the army to collect tariffs and congress passed a Force Bill allowing him to do so, and Henry Clay passed a Compromise Tariff which would reduce the tariff over time to appease the state of South Carolina.

The Southerners deemed tariff laws oppressive, but nothing stoked the flames of disunion more than Congressional action upon slavery in the territories. Although South Carolina never effectively nullified the federal tariff, over the next thirty years the Southern states developed a constitutional theory of secession to combat the power of Congress which they deemed oppressive of their property rights and economic interests. In 1850, Jefferson Davis declared in the Senate, “every breeze will bring to the marauding destroyers of southern rights the warning ‘Woe, woe to the riders who trample them down!’” He argued that Congress had used its power to the detriment of Southern interests, and that they deserved extra protection for slavery or they may secede from the union. Of slavery, he argued, “This is the most delicate species of property that is held: it is the property that is ambulative; property which must be held under special laws and police regulations to render it useful and profitable to the owner.” When Abraham Lincoln was elected, Jefferson Davis argued that Lincoln’s hostility toward the expansion of slavery allowed the Southern states to secede from the union. He argued “Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it.”

As Dr. Eric Sands articulated for this study, in his essay on the Civil War and consequences of secession, Lincoln argued that secession was unconstitutional and threatened the principle of self-government. He argued that there could be no form of republican government if the losers of an election were free to secede in order to avoid the consequences of unpopular political beliefs. He said that the union was Perpetual; he argued that the Constitution intended that the union endure forever, and that the doctrine of secession was contrary to the most fundamental premise of the Constitution.

However, Davis and others argued that over the course of the Antebellum Period, the federal government had expanded its Constitutional power and used those powers oppressively toward the interests of the slave states. Lincoln argued that Davis was wrong; States were not sovereigns under the Constitution, and the common interests of union superseded their individual interest in the expansion of slavery and the protection of slaves as property.

Despite the philosophic differences, it is clear that as Congress lost the ability to collapse differences through virtue and statesmanship, and promote union through compromise, the union was destined to dissolve. The framers admitted that this was the case; that representative self-government relied upon a functional representative branch of government that protected and advanced the interests of citizens. Is our Congress capable of compromise, statesmanship, and advancing our common interests today? Perhaps the tools that quelled disunion throughout the Antebellum period could help solve our congressional crisis today.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

[1] Desideratum is Latin, meaning “thing desired.”

 

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Guest Essayist: Samuel Postell


In his First Inaugural Address, Abraham Lincoln argued that “the Union is much older than the Constitution.” What did Lincoln mean when he spoke of the Union? The Declaration of Independence explains that the Americans were “one people” because they were providentially, philosophically, and hence politically united. In addition to referring to the Americans as one people, it also references the American people using the collective “We.” Furthermore, the document calls itself a “unanimous” declaration of the “united” States of America. The authors saw the separate colonies as previously united, and unanimity implied that they were “of one mind.” In short, the Declaration expressed that the Americans were one people capable of governing themselves. Because the Americans were united as one people and were arbitrarily ruled by another, the Declaration asserts that they have a duty to assert their independence by appealing to their Creator and natural laws of justice. Therefore, the principle of union, the rallying cry of Abraham Lincoln, Daniel Webster, Henry Clay, and George Washington, is one of the bedrock principles of the American founding.

Whereas the Declaration expresses the existence of unity at the time of the founding, many of the Federalist Papers contemplate the importance of a strong or firm union. For example, Federalist 9 asserts in its first line that “A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” Additionally, Federalist 10 asserts that “Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” In other words, at the time of ratification, one of the most salutary effects of the United States Constitution was that it bolstered the existing unity between the American people and thereby combated faction and disunion. As discussed in previous essays, in Federalist 9 and 10, Publius argued that the particular kind of union created by the Constitution was the key to subverting the violence of faction, the primary vice of the political system under the Articles of Confederation.

But union was not only an important principle at the time of the signing of the Declaration and the ratification of the Constitution. The Declaration sets forth “self-evident truths” that are meant to guide the American people through time. The principles explicitly enumerated are “life, liberty, and the pursuit of happiness.” However, in Washington’s Farewell Address he emphasized the principle of “union” as that which secured the principles of the Declaration. In the Farewell Address, Washington counseled the American people: “The unity of government which constitutes you one people is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.” He told the people that “it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.” In other words, Washington argued that union was the principle that secured the self-evident truths for which the Americans had fought in the Revolutionary War. According to Washington, the principle of union was necessary to secure the rights to life and liberty as well as the freedom to pursue happiness. Washington believed that if union failed, then the American experiment failed, and if the American experiment failed, then the prospect of liberty and self-government everywhere was in danger. Therefore, he urged the people to cherish the principle of union.

But why cherish union? Washington believed that patriotism and a dedication to union were necessary to preserve the blessings of the Revolution. For example, when he wrote to a society of Quakers who refused to defend the country in war, he told them that religious liberty was contingent upon the maintenance of the union. He wrote, “We have Reason to rejoice in the prospect that the present National Government, which by the favor of Divine Providence, was formed by the common Counsels, and peaceably established with the common consent of the People, will prove a blessing to every denomination of them. To render it such, my best endeavours shall not be wanting.” In the Farewell Address, Washington argued that the people ought to remain dedicated to the principle of union because “Citizens by birth or choice of a common country, that country has a right to concentrate your affections.” In other words, Washington argued that America was the common country of North, South, East coast, and unsettled West. Patriotism was a necessary virtue for men of all sections and all religious sects. Washington worried the rights for which men fought and died in the Revolution may be short lived without the virtue of patriotism and self-sacrifice for the principle of union.

Furthermore, Publius argued that the Americans were destined to become united. In Federalist 2, Publius argued that “Nothing is more certain than the indispensable necessity of Government.” But what kind of government was necessary? Publius argued that “It is well worthy of consideration therefore, whether it would conduce more to the interests of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies, and give to each the head of each, the same kind of powers which they are advised to place in one national Government.” Publius believed that if the Constitution and the principle of union was rejected, then they would become like the “petty republics of Greece and Italy… kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” Publius foresaw that unless the Constitution be ratified and the principle of union secured, the country would become a loose confederacy like the European Union instead of a firm band of friends. Instead of creating a system of petty republics on the basis of confederacy, Publius argued that the Constitution would create a great republic on the basis of union. The Federalists argued that the constitutional union was fitting because the Americans had a common destiny, a common philosophy, and a common goal.

But why should the sections, which had different and contradictory economic interests, agree to subject themselves to a common government which would wield power? Isn’t it true that one section would, upon election, sometimes be given the opportunity to abuse their fellow country-men in different quarters, comprising different interests? Publius dealt with this problem in two ways. First, he argued that the American people were more similar than different. Second, the principle of federalism allowed the states to embrace their particular interests through state law, while allowing the federal government to legislate according to the “great and aggregate interests” of the country.

Publius argued that among the sections, the people were homogenous in their principles and character, even if they embraced different economic interests across the sections. He argued that Providence had prepared the American people for union. He wrote, “It has often given me pleasure to observe that Independent America was not composed of detached and distant territories, but that one connected, fertile, wide, spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a wide variety of soils and productions, and watered it with innumerable streams for the delight and accommodation of its inhabitants.” Publius also remarked that “Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general Liberty and Independence.” In short, Publius argued that “This country and this people seem to have been made for each other.” In Federalist 2, Publius admitted that among the sections there were “slight shades of difference.” However, he argued that the common character and principles of the Americans trumped the consequential differences of economic interest across the sections. Furthermore, Publius and the Federalists believed that the American people would triumph over their differences through their common councils, given enough time.

However, Publius argued that the principle of federalism allowed for harmony in cases where the diversity of state interests clashed; by limiting the federal government to specific and enumerated purposes, the Constitution embraces the “slight shades of difference” among the states. For example, in Federalist 10, Publius makes a distinction between “local circumstances” and “national objects.” He argued that the representative must balance his attention to the local concerns of constituents and the “permanent and aggregate interests of the community.” He remarked that “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and the particular, to the state legislatures.” In other words, Publius believed that a limited government, embracing the principle of federalism, could unite American citizens in common matters while allowing the citizens of states to legislate according to their particular circumstances, habits, and interests.

But what was the alternative to union? One unpopular alternative among the Anti-federalists was the creation of a confederacy consisting of equal powers for each section of the union. In Federalist 5, Publius argued that the creation of a sectional confederacy was both impracticable and unwise. He predicted that the different sections would become jealous of the most powerful, and would scheme against their neighbors. Rather than cooperation, there would be competition between the sections. Rather than trust, there would be skepticism. Publius writes, “Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed, than by invidious jealousies and uncandid imputations.”

So, what was Publius’ solution to the different passions and interests that tended toward disunion? Publius’ most famous solution is the creation of the extended republic wherein the factions are multiplied, dispersed, and allowed to drown one another out. But also important is the way in which power is divided. The division of power is best explained in Federalist 51, where Publius explains that in the Constitutional system “ambition must be made to counteract ambition.” Publius first sought to quell factious differences by diminishing them through the extended sphere, but then sought to vent factious passions through the system of representation. The Constitution controls the violence of faction in a number of ways (the most important of which is the creation of an enlarged sphere, or a large republic), but here are four general ways the Constitutional system intended to deal with the difficulty of sectional faction by allowing “ambition to counteract ambition”:

  • First, the Constitution divides power between the state and federal government which allows local interests to pursue their ends without interfering with the self-government of other localities. The federal government and local government, each jealous of their powers, will compete for sovereignty through the courts and public forums.
  • Second, when federal legislative power is exercised, it is divided. This means majority factions cannot easily exact their designs because a bill must pass both houses.
  • Third, the Senate’s mode of election and representation are meant to balance the power of more populous states in the House.
  • Fourth, Publius imagined that representatives would “enlarge and refine public opinion” meaning that the representative would be less susceptible to the passions of local or sectional factions.

The Constitutional system successfully combated sectional faction under the pressures of the slavery question and Congress proved capable of balancing factious interests until states from the south rejected the Constitutional system and seceded from the union. In the next essay, I will consider how the Constitution and the Congress successfully combated the tendency toward disunion throughout the Antebellum period.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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Guest Essayist: Eric Sands


The Civil War was the greatest trauma to affect the United States in its history. The horrors of that conflict and the issues it brought to light continue to haunt the nation today and scholars continue trying to make sense of the turmoil that gripped the nation. One of the residual problems left over from that era is the doctrine of secession, or the ability of a state to rescind its membership in the Union and leave by itself or with other states. This, of course, is what eleven states tried to do in 1861 precipitating the bloody, awful war that followed. But is there a “right” of secession in the United States Constitution? How would a right of secession square with prevailing ideas of the Union? What response can be given to states claiming a right to secede from the Union? These and other questions required serious consideration in the 1860s and were answered most clearly by Abraham Lincoln.

The argument for secession begins with a claim that the states are the constitutive elements of the American political system. The states “made” the Union and thus never relinquished their essential sovereignty when the Constitution was formed. Under this view, the states were the parties to the original social contract that gave rise to the Union and thus are the entities that most legitimately judge whether the terms of that contract have been honored. When Southerners began to perceive that the terms of the contract were being violated over the slavery issue in the 1850s, a movement grew for the Southern states to withdraw their consent to be governed and to “peacefully” leave the Union to form their own political organization. In total, eleven states joined this movement and created the essential breach that inaugurated the Civil War.

President Lincoln was thrust into the role of defender of the Union and had to meet the secessionist argument head on. In his First Inaugural Address, Lincoln criticizes the secessionists for putting too much emphasis on the Constitution in articulating their understanding of the Union. According to Lincoln, the Union did not originate with the Constitution. Instead, “the Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.” Finally, the quest for “a more perfect” Union was embodied in the Constitution in 1787.

The Union, therefore, according to Lincoln, was perpetual. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.” The essence of secession is thus suicide, and it is inconceivable that the Founders would have incorporated such a concept into the constitutional system. No association of states could hold together if some of them were free to leave whenever the mood struck them. Moreover, secession would not leave the Union “more perfect;” it would leave the Union less perfect, which is not consistent with the intentions of the Constitution set out in the preamble. Accordingly, it cannot be said that the Founders endorsed something like secession in the constitutional system.

Even more, secession ignores the Declaration of Independence and the first words of the Constitution. The Declaration, when speaking of the need to separate from Great Britain, does not talk about colonies or states doing the separating. The language of the Declaration is that “one people” must separate. Clearly, then, the act of separating is not a function of state sovereignty but an act of popular sovereignty, a Union of people that has been forged in shared struggle and oppression and now seeks to liberate itself from tyranny. Likewise, the first words of the Constitution are not “we the states” but “we the people.” It is the people forming a new government out of their sovereignty, not the sovereignty of the states. The states, of course, are to be partners in this new government and significant roles are delineated to them in the constitutional system. But power is ultimately held by the people, the Union is made up of the people. The people may thus dissolve the Union if they ever chose to do so, but the states may not.

Lincoln reinforces these points in his Message to Congress in Special Session. He calls secession “sugar-coated rebellion” and denies any revolutionary character to it. Instead, it is a “sophism” deriving its “currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State – to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union.” The original thirteen became a Union before completing their separation from Great Britain. And the others came into the union from a condition of dependence. Thus, the reverence given to “states” is based on mist and shadows and does not match this history of the American regime. In short, the states only possess those powers granted to them by the Constitution, and this does not include the power of secession.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College.  He has written a book on Abraham Lincoln and edited a second volume on political parties.  His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

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Guest Essayist: Andrew Langer


“[T]he theory of the Communists may be summed up in the single sentence: Abolition of private property.”  –The Communist Manifesto, Chapter 2

In addressing the inequities of 19th century European society, two German philosophers, Karl Marx and Friedrich Engels, building on the writings of ancient Greek philosophers in creating classless and egalitarian societies and the philosophies undergirding experimental communal living in the 19th century (inspired by philosophers like Charles Fourier), first articulated the political and economic system we now know as “communism” in their “Communist Manifesto.”

At the time of publication of the Communist Manifesto’s first edition (1847), there had been scant movement around the world toward liberal democracy (political systems that value liberty and the protection of individual rights for all citizens)—there had been our own revolution in the United States, liberalization in the United Kingdom, and a series of revolutions in France that had seen the nation swing from monarchy to republic to empire to monarchy, back and forth for decades.

As such, tremendous inequality remained among the populations of most European nations—and, perhaps not ironically, it was the year after the Communist Manifesto was first published, in 1848, that there was a series of revolutions in nations across Europe. In no uncertain terms, they cannot be characterized as communist revolutions, but much more in the vein of classical liberalism, rejecting monarchies and hierarchical societies for those that more highly valued individual rights.

Nonetheless, to the uninitiated, the ideas enshrined in the Communist Manifesto can be tremendously alluring—the idea of a society without classes, where all goods and property are owned in common, where the balance between work and life can be described as “from each according to his abilities, to each according to his needs,” a statement written by Marx in his 1875 work, “Critique of the Gotha Programme.”

The concept of abolishing private property is a pernicious enough sentiment. But coupled with the idea of the community picking and choosing what some individual’s abilities are as well as determining what that individual’s needs are, and you have a political and economic philosophy that, when put into action in a society, inevitably leads to both oppression and poverty.

Bound up in Marx’s 1875 statement is the essence of force and coercion.  Regardless of whether it is the “state” acting (and in Marxist philosophy, the state-centered transition phase between capitalism and communism is “socialism”), or the communistic society, you’re talking about force—the state determines what your “abilities” are, and you are forced to give of those abilities to society at large, regardless of your own feelings in the matter.

At the same time, the idea that the society then determines what your needs are, and that you’re unallowed to own property of your own, means that they can use the heavy hand of coercion to achieve their goals.

Moreover, the abolition of private property hamstrings the ability of a society to achieve economic prosperity and promotes political instability. Richard Pipes in his seminal work, “Property and Freedom,” looked at societies across history and, looking at how those societies protected private property, demonstrated the interrelationship between the protection of private property and the successful longevity of a nation. Peruvian economist and political scientist Hernando DeSoto, in “The Mystery of Capital” engages in something similar, but instead of looking through history, he looks at more recent examples around the world.

If you own your own private property, you can both use it to invest in some entrepreneurial idea, and you can utilize the property itself to support yourself and your family. Because you have a reliance on legal systems to protect that property, you can have hope in your future, and that hope creates that political stability.

The contrast is straightforward: if you don’t protect private property, if your society is centered on coercion and giving up your individual rights to the collective, this leads to oppression and economic stagnation. It is why just about every society founded on the principles outlined in the Communist Manifesto has failed, and others only remain because of brutal oppression or because they’ve adopted certain measures of state-sponsored capitalism.

Our own United States Constitution creates a classless society, starting with the idea that there is total equality among citizens. All of the rights (enumerated and unenumerated) apply to everyone, regardless of income level, race, etc. More importantly, it is predicated on the idea that those rights pre-exist the government, and aren’t bestowed by that government, that the Constitution itself is a restraint on government power and not the other way around.

Bound up in this is the 5th Amendment to the Constitution: “No person shall be deprived of life, liberty or property without due process of law… nor shall private property be taken for public use, without just compensation.”

This is a stark and fundamental departure from Marx and Engels—as opposed to abolishing private property, our Constitution makes it clear that government can only take private property from individuals provided that three things happen:

(1) The property is being taken for a legitimate public use.

(2) That due process is accorded to the property owner.

(3) That if 1 and 2 are adhered to, that “just” compensation is given to the property owner.

Setting aside instances in which these three tenets are abused by government, from a constitutional perspective, this is a clear departure from communist philosophy.

And it undergirds other rights as well. Keep in mind, the several constitutions of the Soviet Union, for instance, protected things like free speech. But since the constitutions of the USSR didn’t protect private property, that right was held cheaply since the state could just confiscate the presses of a critical press and threaten the journalists themselves if they didn’t adhere to the “party line.”

The same can be said of other individual rights: freedom of religion, freedom of assembly, the right to keep and bear arms. Besides outlawing most private gun ownership outright, the state could use their coercive powers to keep these other individual rights “in check.”

By guaranteeing rights, and recognizing that power flows from the people to their government and not the other way around, and that regardless of who you were all adults had the same rights, our Founders created the classless society Marx dreamed of. It was the flawed vision of Marx and Engels that failed, because they didn’t understand how their approach could be fundamentally abused and used to oppress, that spawned a nightmare.

Andrew Langer is President of the Institute for Liberty.

 

 

 

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Guest Essayist: Jay McConville


When I was a boy, I loved baseball. Unfortunately, having been born in Queens, New York, my chosen team was the NY Mets who, at that time, were the laughingstock of the major leagues. I still have faint memories of my father agonizing over their 89 losses in 1968, which, as bad as it was, was their best year since joining the league in 1962. At no time during those years had they finished better than ninth.

Then something amazing happened. In one of the greatest sports upsets in history, the 1969 “Amazing Mets” rose from the depths of the standings to become World Series Champions. I still remember that final game and cheering for all my favorite players. Yet, while they played amazing baseball, credit for the miracle season is most often given to Gil Hodges, the team’s manager. Joining only in 1968, he had quickly established a common vision for the team. His leadership enabled them to overcome their past, silence their critics, and play like champions. As announcer Curt Gowdy said during the last inning of the ’69 series, one word described the Mets: “inspired.”[1] It was Gil Hodges who inspired them, and his common vision put them on the road to success.

“From day one, spring training, Gil Hodges had a plan…He made each and every one of us better,” said outfielder Cleon Jones. Pitching Ace Jerry Koosman added, “Gil Hodges had one set of rules. There weren’t two sets of rules, and we each had to abide by those rules. That was a way of drawing teammates together.”[2] It worked, and the laughingstock team became World Champions.

You might wonder what this story has to do with the United States Constitution. Well, maybe not much. There is one thing, however, that I think it shows. An inspirational vision and a clear mission are critical to the success or failure of any organization. Successful leaders unlock the potential of others by articulating such a vision, one that can be shared by all and that is fair and equal across the board. History also tells us that the wrong vision, the wrong mission, can lead to disaster.

The Declaration of Independence and the United States Constitution established our nation’s vision and mission. The brilliant leaders who crafted those documents united a diverse people, established the most successful nation in history, and changed the face of government forever.

The vision so beautifully articulated in our founding documents was that all men were sovereign over themselves and equal before the law, and that because of this innate human value, governments were instituted among them only by their consent. It was a vision that had been long in the making. Thomas Jefferson, tasked by the Continental Congress to draft the Declaration in June 1776, had studied the writings of the Greeks, the Magna Carta (1215), English Common Law, Coke’s Institutes of the Laws of England (1600-1615), John Locke, and Montesquieu (1689-1755), among others. Like James Madison, John Adams, and the other Founders, he knew the importance of individual sovereignty in guarding against the depredations of the state. The vision in the Declaration was a bold assertion of those rights. “We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their creator with certain unalienable rights…”[3] His phrase “life, liberty, and the pursuit of happiness,” which was lifted from John Locke’s Two Treatises of Government (1690) (“life, liberty, and estate”)[4], established that forever more the individual would be sovereign, protected from the tyranny of government by the fact of his humanity.

While Jefferson did not attend the Constitutional Convention in 1787, that vision was certainly reflected in the Constitution’s checks and balances, controls on federal power eventually acceptable to both Federalists and Anti-federalists alike. The critical nature of these was most famously, and most articulately, laid out in Federalist 51, and James Madison’s famous words: “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. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”[5] Madison, a Federalist, advocated for a strong central government, yet recognized the risk in power being concentrated in the hands of fallible men.

Later, the Bill of Rights was added, providing ten amendments to further clarify the vision of a free and sovereign citizenry. The Anti-federalists insisted that those amendments be included, to document for all time the limited scope of government. This unifying vision survives to this day, enshrined in the due process protections in the 14th Amendment, and reflected in many Supreme Court decisions limiting the government’s reach.

That vision was both positive and unifying, and it brought our young nation together. The then national motto, adopted in 1782, reflected the belief that the individual was the core of the nation. E Pluribus Unum (from many, one) ushered in a dramatic change in the nature of governance. There was no king, no emperor, and no aristocratic class to rule. “We the people” were sovereign and independent, yet also tied together in a common pursuit.

And what was that pursuit? Equal in importance to the vision was a unifying mission: to achieve “a more perfect Union.” This would be accomplished by establishing “Justice,” insuring “domestic Tranquility” providing for the “common defense,” promoting the “general Welfare,” and securing “the Blessings of Liberty to ourselves and our Posterity.”[6] Articulated in the Constitution’s preamble, that is a mission worth serving, and one that hundreds of millions have pledged their lives to.

It is informative to contrast America’s vision and mission to that articulated in another extremely impactful document, the “Communist Manifesto.”[7] First published in London in 1848, it was translated into multiple languages, and, importantly, released in Russian in 1863. Like the United States’ founding documents, the manifesto ushered in a revolution in governance, which took hold first in the Soviet Union in 1917, and then spread throughout the world. While written mostly by Karl Marx, “its economic analysis was strongly influenced by [Friedrich] Engels’s ‘practical experience of capitalism’ in his family’s cotton firm…in 1842-44.”[8] It is therefore important to note that the world was experiencing extreme upheaval during the 1840s. Major social, political, and economic strife fed the development of the text, which explains some of its dark character. The serf societies were ending, farmers were moving to cities in response to the budding industrial revolution, the European aristocracy was losing its power to a rising class of business entrepreneurs, while everywhere workers struggled to find a place in new, rapidly changing, and often soul-deadening, industries. As historian of the manifesto, George Boyer, writes, “despite its enormous influence in the 20th century, the Manifesto is very much a period piece…It is hard to imagine it being written in any other decade of the 19th century.” Regardless, its impact was global and long-lasting. The 1917 Soviet Revolution adopted Marxism as its guiding vision, which eventually led to a rapid expansion of communism in the 20th century.

Yet what was that vision? Was it to inspire great things, like that of the Declaration of Independence and the U.S. Constitution? No, it was not. The Communist Manifesto[9] inspired, in a word, tyranny. A review of some of its text demonstrates why.

First, there was no message of equality of all men. The document focuses on class conflict, and the struggle of one class to destroy the other. “Society as a whole is more and more splitting up into two great hostile camps, into two great classes directly facing each other – bourgeoisie and proletariat.” The mission would only be achieved when “they” (the bourgeoisie) were destroyed.

Second, there was no commitment to individual sovereignty (life, liberty, and especially property) seen in the U.S. documents. “The abolition of bourgeois individuality, bourgeois independence, and bourgeois freedom is undoubtedly aimed at” and “…you reproach us with intending to do away with your property. Precisely so; that is just what we intend.” Gone was the concept of unalienable rights.

Third, the vision did not inspire unity, but instead served as a justification to use raw power to achieve dominance, power that would be wielded by the state. “The proletariat will use its political supremacy to wrest by degrees all capital from the bourgeoise, to centralize all instruments of production in the hands of the state, i.e., of the proletariat organized as the ruling class…”

And finally, the power of the state was to be absolute, and the revolution violent. “Of course, in the beginning this cannot be effected except by means of despotic inroads on the rights of property…”

In contrast to E Pluribus Unum, consent of the governed, equality before the law, protection of individual life, liberty, happiness, and property, and limits on the tyrannical impulses of government, the Communist Manifesto provided vision and mission focused on class conflict, rule by force, destruction of the opposition, the end of property rights and individual rights, all to be instituted by the unlimited “despotic” power of government.

The Victims of Communism Memorial Foundation has done extensive research documenting the damage done by tyrannical communist governments. They cite 100 million deaths at the hands of these regimes over only a 100-year span. Inspired and enabled by the Communist Manifesto, these regimes destroyed societies in a quest of a property-free utopia that was unachievable. In so doing they imprisoned, tortured, banished, and killed over a hundred million of their own citizens, while foisting war and chaos on the world. Thirty years after the fall the Soviet Union, “millions of people worldwide — one-fifth of the world’s population — still live under communist tyranny.”[10]

It has become somewhat fashionable to say that communism, or “socialism,” is a good idea (or theory) that could work if we just implemented it correctly. The Communist Manifesto gives lie to that claim. The vision is destruction, the mission tyranny. The result predictable. How many more need to die before we finally accept this fact?

It is also fashionable to criticize the United States for our failure to live up to our vision and mission. We are beset, and have been since our founding, with a multitude of problems and challenges. Slavery, social upheaval, war and civil war, domestic strife and crime, poverty, natural and manmade environmental disasters, depressions, recessions, and so much more. Have we failed in our mission? I think it is important to remember the 1969 Mets. In that miracle year, they gave up 1,217 hits, including 119 Home Runs, let in 541 runs, batted only .242, struck out 1089 times, and lost 62 Games. Yet they were World Champions.

Our shared mission is to “promote a more perfect union.” The word “more” is important. Our mission is not a utopian dream of perfection, instead it inspires us toward progress. Progress, not perfection. The road may be twisted and rocky, but we are well along it to establish justice, peace at home and abroad, improve the general welfare and pass the blessings of our liberty onto our future generations. Each generation’s task is to make our nation “more perfect.” For all our faults, our unifying vision and mission have set us apart among nations and made us the example for others to emulate.

What we need now is to trust in that vision, not abandon it for one proven toxic and deadly.

We need to rededicate ourselves to creating a more perfect union, not descend into the politics of resentment and strife found in the Communist Manifesto.

As future President, Calvin Coolidge, said in his “Have Faith in Massachusetts” speech in 1914, “We need a broader, firmer, deeper faith in the people – a faith that men desire to do right, …a reconstructed faith that the final approval of the people is not given to demagogues…but to statesmen ministering to their welfare, representing their deep, silent, abiding convictions.”[11]

E Pluribus Unum, Consent of the Governed, All Men Created Equal, and a More Perfect Union.

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He holds a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and two grandchildren.

[1] Team of Destiny – The Final 3 Outs of the 1969 World Series, New York Mets, https://www.youtube.com/watch?v=JyDiuRDf918

[2] The Greatest Season: The 1969 Miracle Mets Trailer, MyMar Entertainment and Media, https://www.youtube.com/watch?v=KSh9XcgVrt0

[3] Declaration of Independence: A Transcription, National Archives, retrieved from https://www.archives.gov/founding-docs/declaration-transcript

[4] Bernstein, William (2004). The birth of plenty: How the prosperity of the modern world was created, McGraw Hill

[5] The Federalist No. 51, [6 February 1788], Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-04-02-0199. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 497–502.]

[6] Constitution of the United States, Constitution Annotated, United States Congress, retrieved from https://constitution.congress.gov/constitution/

[7] Hutchins, Robert Maynard ed. (1989). Great books of the western world: Marx. Encyclopedia Britannica, Inc.

[8] Boyer, George (1998). The historical background of the Communist Manifesto. Journal of Economic Perspectives, Vol. 12, No. 4, Fall 1998, https://www.aeaweb.org/articles?id=10.1257/jep.12.4.151

[9] All quotations from Hutchins (1989), pp. 413-434

[10] Victims of Communism Memorial Foundation, https://victimsofcommunism.org

[11] Coolidge, Calvin (1914). Have faith in Massachusetts. Calvin Coolidge Presidential Foundation,  https://coolidgefoundation.org/resources/have-faith-in-massachusetts/

 

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Guest Essayist: Tony Williams


Even decades after the fall of the Soviet Union and collapse of other communist states, the old canard that communism is a great idea that has never really been tried refuses to be thrown into the dustbin of history along with its failed regimes. Sympathizers with Marxist views cling to this belief despite all contrary evidence over the past century.

To give the view its due, however, the belief rests upon the presupposition that communism has only been introduced into largely agrarian societies rather than the advanced industrial societies rife with the class conflict and consciousness envisioned by German philosopher and communist Karl Marx. Therefore, orthodox Marxism has never truly been introduced by a violent revolution of the oppressed proletariat overthrowing the bourgeoisie. Nevertheless, this is because Marx’s progressive view of history and scientific socialism was simply wrong on several points and his theory had numerous flaws, particularly in its understanding of human nature.

The communists who followed Marxism believed that human nature is good and perfectible, and that human beings were capable of building utopias once oppressive institutions were destroyed and the internal contradictions of capitalism resulted in revolution. The Greek etymology of the word utopia means “no place.”

The American Founders were influenced by ancient and Christian thought that understood human nature to be imperfect (due to vice or sin) but capable of virtue. They consequently established a republican United States Constitution that controlled the government as well as the governed while protecting liberty. Separation of powers, checks and balances, federalism, bicameralism, and regular elections are proof that the Founders sought to limit the vagaries of human nature.

The other mistake of communism is the belief that humans are only shaped by an economic determinism and class conflict. This is an absurd reductionism. Human beings are much more complex creatures and are driven by politics, culture, religion, community, ties of kith and kin, and providing for their families rather than just economic inequality and alienation.

In Federalist #10, James Madison acknowledged that factions formed as a result of differences over property. The divisions over property were based upon “the diversity in the faculties of men” and their passions. He understood therefore that they would always exist. Madison noted that a zeal for political opinions, religious views, and a host of other things in society also divided people.

Madison stated, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”

The answer was that neither of these was desirable. So, Madison offered the alternative of controlling or mitigating the effects of factions by expanding the sphere of the republic and allowing differing views to flourish. Communists instead chose to destroy liberty and sought to force the people to have the same opinions through cult of personalities, cultural revolutions, reeducation and indoctrination, and rewritten history.

Communism has always been imposed by a small revolutionary intellectual vanguard upon a mostly unwilling peasantry. The Russian Revolution, for example, occurred when only perhaps two percent of the population was employed in industry, and Russian Marxist Vladimir Lenin himself was frustrated that the peasantry did not demonstrate any class consciousness. They were often strongly attached to the Tsar and the Russian Orthodox Church. Widespread opposition to the Bolshevik regime in the wake of the Russian Revolution resulted in a bloody civil war that left millions dead and the opposition summarily crushed.

Moreover, communism has never been led by the proletariat after the state “withered away” in Marx’s terminology. Instead, the communists formed one-party dictatorships and police states with unlimited power that were much more oppressive than the regimes they overthrew. Indeed, they unleashed unimaginably horrific genocides. Perceived enemies of the state and their families were executed and thrown into the gulag. Communist states starved people to death by the millions.

Contrarily, one of the main principles of the American Revolution was the transformative concept of popular sovereignty where the people rule. Elites certainly comprised the leadership of the American Revolution in the halls of legislatures and conventions and one cannot ignore slavery, but Founders created a republic in which the people elected representatives and could serve in different levels of government themselves. The Declaration of Independence was anchored in the principle of popular rule and right to overthrow a tyrannical government that violated their rights.

Marxism also got several things spectacularly wrong about humans as economic actors. Most fundamentally, people want to enjoy a higher standard of living and consumer goods rather than wanting to overthrow the free enterprise system. The massive food lines experienced by the people living under communism while party apparatchiks ate caviar in their summer dachas bred a lot more resentment than capitalist inequality.

In advanced capitalist societies, workers have generally enjoyed the protections of the social safety net—such as pensions, 401(K)s, Social Security, unemployment, health benefits—provided by employers and tax-supported welfare states. While these government programs expanded the purposes and scope of government beyond that envisioned by the Founders, they are much less intrusive than communist states. Moreover, industrial regulations have provided workers with numerous safety and health protections. Workers have also organized into labor unions to bargain or strike for better wages, hours, and working conditions or control over the shop floor. All these developments have negated scientific socialism.

Marx wrote the Communist Manifesto during some of the worst ravages of early industrialization including oppressed workers, unsafe and unhealthy conditions in factories and mines, great danger of mutilation and death, widespread environmental degradation, and great poverty and squalor in industrializing societies. In the twentieth century, those problems characterized communist regimes instead of modern capitalist societies. Meanwhile, capitalism has plainly lifted billions out of poverty through dynamic growth, innovation, and widespread prosperity.

Communism was responsible for an estimated 100 million deaths. It suppressed human flourishing in the arts and sciences by extinguishing liberty, created widespread suffering with decrepit economic systems, imposed crushing police states, and destroyed the institutions of civil society. Most of the American Founders understood that such utopian schemes were doomed by their flawed understanding of human nature, self-governance, and civil society. The American founding vision built a constitutional order with self-governance and a healthy civil society that allowed individuals to thrive.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

 

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Guest Essayist: James C. Clinger


The American Constitution was crafted in a deliberate way to prevent the failures of the government under the Articles of Confederation and to stop the harmful events that the Founders could see abroad and throughout history. Of particular concern was the need to empower the president to execute the law in a faithful manner. At the same time, the United States Constitution would limit executive power in order to prevent the rise of a dictator. Such safeguards have not always been found in the constitutions or governmental structures of other nations, and ambitious political figures, such as Napoleon Bonaparte, have taken advantage of every opportunity to amass more and more power, often at great cost to their own countries and also to the detriment of neighboring states.

The Articles of Confederation provided for virtually no executive authority. The American Constitution took another approach, both authorizing executive power but also constraining its exercise with a combination of institutional checks and balances. With the exception of the power to veto bills passed by Congress, which appears in Article I, the bulk of the presidential powers listed in the Constitution are found in Article II. This article is much more brief than the text of Article I, which applies to legislative powers, and approximately half of the text of Article II deals with qualifications for office and the manner of election, rather than powers and duties of the office. Some observers may infer from the small amount of verbiage in Article II compared to Article I that the legislature holds far greater power than the executive. In fact, James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.”[1] Other observers believe that while the actual text of Article II is terse, the specifically listed powers are broad, and additional powers may be implied from those that are explicitly stated. Within Article II, the president of the United States is “vested” with executive power. There has been considerable debate on whether that vesting refers to holding the explicit powers that are later listed, or whether this provides authority to carry out general powers that are deemed to be executive. What “executive” action actually entails is not completely clear. The word “executive” is derived from the Latin words ex sequi, which in English means to follow or to carry out.[2] This suggests that an executive, including a president, is primarily a follower acting on behalf of someone or something else. Nevertheless, many Americans think of the modern president as more of a leader than a follower.

The first powers listed in the first clause of Article II authorize the president to be commander-in-chief of the armed forces of the United States. It also indicates that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”   Notably, the Constitution does not say that the president can tell principal officers what to do. The president is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The president is not given clemency powers for state offenses.

The second clause of Article II authorizes the president “to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” By law, the Congress may “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

These provisions, commonly known as the advice and consent clause, have been at the center of various controversies during American history. The clause indicates that the president may appoint “officers” of the United States, but it does not define what an officer is. Furthermore, while the clause explicitly provides for presidential appointment, it nowhere authorizes the president to remove the appointees that he has appointed.[3] As a practical matter, the federal courts have concluded that the president has at least some removal power implied by the executive powers vested in Article II,[4] but there have been a number of disputes about this question resolved somewhat inconsistently by the Supreme Court in cases such as Myers v. United States,[5] Humphrey’s Executor v. United States,[6] and Seila Law, LLC v. Consumer Financial Protection Bureau.[7]

The Constitution also gives the president the power to “make” treaties, subject to the approval of two-thirds of the senate, but it is not specific about the enforcement of treaties or their termination. During the War of Independence, the United States entered into a treaty allying itself with France. A few years later, after the French Revolution had become brutal and bloody, President George Washington issued a proclamation of neutrality, effectively voiding the treaty. This was controversial in its time, since the Constitution did not seem to authorize that sort of unilateral action, and also because there were many prominent figures in government, such as Thomas Jefferson, who were at least initially sympathetic to the French Revolution. In support of Washington’s action, Alexander Hamilton penned seven letters for publication making the case for the neutrality proclamation. Using the pen name, Pacificus, Hamilton sparred with James Madison, with whom he had written many of the Federalist Papers. Madison, writing under the name Helvidius, was recruited to oppose Washington’s position by Jefferson, who was then serving as secretary of state.[8]

Article II also imposes obligations upon presidents, as well as confers powers. Presidents are required to inform Congress “from time to time” of the State of the Union. The chief executive is also obliged to recommend, for the consideration of Congress, such measures which the president deems as “necessary and expedient.” When Congress is not in session, the president is authorized to call a special session of one or both houses of Congress. The president is also empowered to receive all foreign ambassadors. This has been construed to mean that the president has exclusive authority to recognize foreign governments.

Finally, Article II also demands that the president “take care that the laws be faithfully executed.” This appears to be a broad, encompassing authority and responsibility to carry out federal law, even those that are not supported by the president. While there is some inherent discretion in all enforcement, the president does not have any general authority to dispense with laws enacted by the legislature, as was the case in some monarchical systems.

The Constitution also constrains the chief executive and all other officers by providing for their impeachment and removal for the offenses of “Treason, Bribery, and other High Crimes and Misdemeanors.” This suggests that no executive can flout the law without consequences. It also provides for a means of removing an officer without resorting to a coup or assassination.

Many countries do not so carefully curb the powers of their executives, or they lack the will or the ability to enforce these constraints. In France in 1799, the newly established government, called the Directory, fell to a coup which was encouraged from within. The plural executive body was joined by a bicameral legislature made up of a Council of Five Hundred and a Council of Elders. One director, Abbe Emmanuel Sieyes, plotted a coup that would force out most of the directors and lead to the creation of a consulate, headed by a military leader as first consulate while he exerted actual control. Although not Sieyes’ first choice, the popular and successful General Napoleon Bonaparte was selected to serve as first consul. The general’s brother, Lucien Bonaparte, served as president of the Council of Five hundred, as expected to assist the coup. The coup succeeded in sweeping away the Directory, but Napoleon was not content to serve Sieyes’ interests. Very quickly, Napoleon rather than Sieyes was firmly in control, with no internal dissent permitted.[9]

Napoleon was not curbed by constitutional constraints upon his executive power. He suppressed the critical press and created his own propaganda machine.[10] The emperor was able to use his military to crush internal dissent, stop brigandage, and thwart foreign invasions.[11] Unconstrained by prior legal limitations on his conduct, the emperor designed his own legal system, the Code Napoleon, and imposed it upon his own nation. Ultimately, Napoleon’s own limitless ambition led to his undoing, but not until thousands had died in his pursuit of conquest. Of course, the United States has also had its own constitutional crises, most notably in the Civil War, which also cost much in blood and treasure. But under the Constitution, the United States has been freed of the folly of a dictatorship led by a single tyrant. The Constitution’s limits on the executive have thus far staved off that calamity.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[1] The Federalist Papers, Number 51

[2] Rohr, John A. 1997. “Public Administration, Executive Power, and Constitutional Confusion.” International Journal of Public Administration 20 (4/5): 887

[3] Tillman, Seth Barrett. 2010. “The Puzzle of Hamilton’s Federalist No. 77.” Harvard Journal of Law & Public Policy 33 (1): 149–67.

[4]  Prakash, Saikrishna.  2006.   “New Light on the Decision of 1789,”    Cornell Law Review. 91:1021-1078.

[5] 272 U.S. 52

[6] 295 U.S. 602,

[7] 140 S. Ct. 2183

[8] Young, Christopher J . 2011. “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support.” Journal of the Early Republic 31 (3): 435–66.

[9] Rapport, Michael. 1998. “Napoleon’s Rise to Power. (Cover Story).” History Today 48 (1): 12–19.

[10] Dwyer, Philip G. 2004. “Napoleon Bonaparte as Hero and Saviour: Image, Rhetoric and Behaviour in the Construction of a Legend.” French History 18 (4): 379–403.  See also Forrest, Alan. 2004. “Propaganda and the Legitimation of Power in Napoleonic France.” French History 18 (4): 426–45.

[11] Devlin, Jonathan D.  1990.  “The Directory and the Politics of Military Command: The Army of the Interior in South-East France.”  French History,  4 (2):, 199–223.   See also Brown, Howard G. 1997. “From Organic Society to Security State: The War on Brigandage in France, 1797-1802.” Journal of Modern History 69 (4): 661-695.

 

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Guest Essayist: James C. Clinger


The United States and France had complicated and seemingly inconsistent relations in the years preceding and shortly following the American Revolution. In the 1750s, the American colonists and the British military fought the French in the French and Indian War. But in the 1770s, the French provided invaluable assistance to the American cause in the fight against the British in the War of Independence. During that war, the newly formed United States entered into a treaty allying itself with France, but after another revolution broke out in France in the 1790s, America’s first president, George Washington, issued a neutrality proclamation, effectively negating the treaty.

While the revolution raged in France, American politicians staked out positions of support or denunciation of the increasingly bloody regimes that replaced the government that had aided their cause in the fight for independence. A few years later, a new government and a new powerful figure, Napoleon Bonaparte, ruled over France. His rule made a considerable mark in the United States, for he was responsible for ceding enormous territory to the new nation in what has become known as the Louisiana Purchase in 1803. A few years later, the wars Bonaparte stirred up in Europe carried over to the western hemisphere in what is known now as the War of 1812, in which Americans once again fought the British, the primary enemy of France in that era.

The foreign affairs of these two nations are not so much the focus of this essay as they are illustrations of the implications of domestic events in each nation. During these years, the new nation of the United States and the relatively old nation of France each experienced dramatic changes in their constitutional development. These developments left the United States with an energetic yet institutionally constrained executive leading the government of a federal republic. In France, an emperor dominated the political scene of a unitary state in which the executive controlled both the legislature and the judiciary. This essay will explore how and why two nations with such intertwined histories took such divergent paths.

In 1984, the political scientist, Donald S. Lutz, published an article reporting his findings from research that examined which European authors were most frequently cited in the writings of America’s founders both before and after the revolution. The author most commonly cited was Charles-Louis de Secondat, Baron de Montesquieu, the author of a book published in English under the name The Spirit of the Laws.[1] In that work, Montesquieu developed a modern theory of what we now call the separation of powers. Montesquieu also made a case for an independent and secure court system, not subject to the will of the executive, the legislature, or any particular private interest. Montesquieu had significant impact in the design of the federal constitution, as well as the constitutions of many American state constitutions. He also had considerable influence in Britain. Ironically, his influence in his native France was not as deep or long-lasting as his impact abroad.

The first American national charter, The Articles of Confederation, did not display any interest in a separation of powers. The government established a unicameral legislative body which could, by committee, appoint one of their number as a president with little power.[2] There were no courts for the central government. State courts would handle legal disputes within their states’ boundaries, and the confederation congress would hear cases involving boundary disputes between states.[3] All of this changed with the ratification of the new constitution. While there was some overlap and sharing of functions between the legislative, executive, and judicial branches, to a great extent these institutions were kept separate, establishing a check against the mischief that might temporarily prevail in a single branch. The specific details of those checks will be discussed in the next essay. Suffice it to say now, that the institutional design of the constitution took into account the issues about which Montesquieu had written approximately a half century earlier.

In the Federalist Papers, the design of the United States Constitution was defended before a skeptical audience. James Madison, author of Federalist Paper #38, argued that no matter what flaws could be found in the new constitution, it was surely superior to the Articles of Confederation. In Madison’s words,

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation?[4]

One particularly noteworthy aspect of the new framework was provision for a president heading an executive branch of government. According to Alexander Hamilton, the constitution provided for “energy” in the executive through both the powers assigned to the office and the manner in which the officeholder would be selected. In Hamilton’s words, “The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.”[5] Under the Constitution, there is one chief executive, consistent with the unity principle. The president would serve fixed, four-year terms, consistent with the duration precept. Whether the support for the executive would be adequate would largely depend upon the appropriations of money by Congress. Hamilton believed that the powers vested in the president in Article II of the Constitution were “competent,” although at various times in history this claim has been challenged.

The political transformation of France took a different course. In 1789, while the American constitution was being drafted, France was a somewhat centralized monarchy, but with considerable autonomy exercised in its provinces. A National Assembly served as a constituent assembly, but it was unable to handle some pressing economic and political problems that were growing in the 1780s. The financial costs of war, including the American Revolution, had made the government almost bankrupt, despite the general trend of economic and population growth that the country enjoyed in prior decades. Crops failed in much of France in 1788, and prices for food and many other items spiraled up dramatically. The comptroller general of finances, Charles-Alexandre de Calonne, proposed a substantial tax increase on the upper classes to cover the budget deficit, but the National Assembly refused to approve this proposal, instead calling for the gathering of the Estates-General, which had not met since 1614. The Estates General was a body representing the clergy, the aristocracy, and the commoners. When the Estates General met in Versailles, the Third Estate, representing the commoners, declared itself the National Constituent Assembly and began to write a new constitution. King Louis XVI reluctantly accepted the new body and urged the nobles and the clergy to join it. Behind the scenes, the king sought out armed forces to oppose it.[6]

The new constitution did provide for some separation of powers in which the assembly was preeminent, but the king could appoint and remove his own ministers. The nobles lost their titles and hereditary privileges, and the franchise was extended to most adult men. The provinces lost much of their power to eighty-three newly created departements, which were roughly equal in size and uniform in their organization. Each departement was further divided into districts, cantons, and communes. Originally, each departement elected its own officials, but eventually these units became tools of the central government.[7]

The Assembly declared that all church property was at the “disposition of the nation.” The government then issued bonds, called assignats, that were secured by the value of the land. Later, all property owned by emigrants to France were also declared to be national lands. These securities were tradable, and functioned for a while as a paper currency.   As the volume of assignats increased, so did inflation. By 1790, the Assembly required all sitting priests and bishops to take an oath of submission to the government. The bishops overwhelming refused to do this, but about half of the parish priests took the oath. Many clerics left the country, and about two-thirds of the country’s military officers resigned their commissions. As dissent became more prevalent, the government attempted to control the press. More radical factions began to subvert the role of the elected assembly, arguing that demonstrations, petitions, and public protests were superior methods of expressing the will of the people.[8]

Though his powers were limited, the king was still formally the head of state until August of 1792. The country was facing armed resistance from without and within, and more radical elements were gaining power.  After militants stormed the royal palace in Paris, the Assembly suspended the king. Immediately afterward, more than half of the Assembly’s deputies fled the city. As Prussian troops advanced toward the capital, French troops marched out to face them. With much of the elected government gone and most of the military absent from the city, mobs took over the city’s prisons, held sham trials, and killed over a thousand inmates, almost half the local prison population. A National Convention was held, which had as its first order of business the determination of the fate of the king. The Convention unanimously ruled that the king was guilty of treason, and by a much closer vote ordered his execution. Later his Austrian-born wife, Marie Antoinette, was also sent to the guillotine. With each bloody act, the revolution generated more resistance, and as more officials fled the government, or were imprisoned for their perceived disloyalty, the more radical the remaining officeholders became. Ultimately, some of the more blood-thirsty of the revolutionaries, such as Maximilien Robespierre, fell out of favor and were executed themselves without trial.[9]

After Robespierre’s death, the National Convention designed a new, somewhat more conservative constitution in 1795. This new government had a bicameral legislature and a plural, five-member executive called the Directory. Each director was supposed to serve one-year terms. The short duration of the Directory and the plural nature of its membership were not in keeping with Hamilton’s views regarding an ideal executive branch. The new government was beset with dramatic inflation and serious military threats, as well as challenges from radical dissidents. The legislature ultimately forced out four of the five directors. The new directors looked to form a new kind of constitution to provide stability in 1799. This new constitution provided for three ruling consuls, but only the first held substantial power. The constitution was approved by plebiscite. As first consul, the directors eventually chose a young, military hero who had managed to lead French armies to victory despite a depleted officer corps and a mass of enlisted soldiers who were recruited through a very unpopular conscription process. This person’s name was Napoleon Bonaparte. He was initially named consul, but soon made clear that he wished to exceed his constitutional limits. By 1804, Napoleon was named emperor by several government agencies and subsequently was approved as emperor in a national plebiscite.[10]   Napoleon was to wield more concentrated power than any extant monarch in the world. His rise to power demonstrates both the failure of France’s constitutional design and its commitment to enforce constitutional provisions.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[1] Lutz, Donald S. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” The American Political Science Review 78, no. 1 (1984): 189–97. https://doi.org/10.2307/1961257.

[2] Articles of Confederation, Article IX

[3] Articles of Confederation, Article IX

[4] The Federalist Papers, Number 38

[5] The Federalist Papers, Number 70

[6] Encyclopedia Britannica, French Revolution.  https://www.britannica.com/event/French-Revolution. Accessed July 10, 2022.

[7] Encyclopedia Britannica, Restructuring France.  https://www.britannica.com/place/France/Restructuring-France.  Accessed July 10, 2022.

[8] Ibid.

[9] Ibid.

[10] Ibid.

 

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Guest Essayist: Adam Carrington


World history displays many instances of political rule by one person. We can point to ancient instances such as Julius Caesar or modern ones like Joseph Stalin. Napoleon Bonaparte ranks among the most famous of these men. He rose in the ranks of the French army during the 1790s by showcasing his brilliant military mind on the battlefield. He then expanded beyond a generalship to become France’s First Consul starting in 1799, then its Emperor beginning in 1804. Only his eventual defeat at Waterloo finally stopped his ever-increasing power.

Napoleon’s success in particular may tempt some to support the political rule of one. Unencumbered by others, this man first conquered France, then nearly did so to the rest of Europe. He instituted a legal code in his name that formed the basis for the modern French bureaucracy (and influenced many other governmental systems). One might see his example and think that one man can get much done if given the authority. We may not see Napoleon as acting justly. However, if the right man with the right principles got his power, then he could do much good.

We should resist this temptation. Our American system of government rejected rule by one man or even by one institution filled with men for a reason. Revisiting those reasons reminds us of the wisdom of that choice.

First, we must remember the famous quote of Lord Acton, a Nineteenth century British politician and historian. He declared, “All power tends to corrupt and absolute power corrupts absolutely.” The reason power tends to corrupt is not merely the enticement it holds to do ill. James Madison in Federalist #51 noted that men were not angels. He made sure to include in that appraisal those persons who hold governmental office. Power corrupts because human beings are fallible. They possess in themselves the temptation to abuse authority, to help themselves and their friends while hurting their enemies. The more power they can wield, the harder to resist the allure of using it for nefarious ends. Thus, one might better say that power reveals and nurtures corruption, a point the American Founders understood well and sought to address.

Our system of government does so by taking political power and dividing it in two ways. First, we divide government powers within a government. We call this mechanism separation of powers. We give one institution the power to make laws, another to enforce them, and still a third the authority to interpret and apply laws to legal disputes. The Founders hoped that this system would make for effective government that did good things. They also hoped the system would moderate the excesses of human nature. It would do so less by trying to remake human beings, something the Founders thought impossible and itself a temptation to exercise too much corrupting power. Instead, they hoped that they could channel human ambition, human love for power, in ways that offset one another. The branches would exercise checks and balances on their sister institutions. If one person or group gained too much authority, the others possessed means to keep us from falling into rule by one man or one group of persons.

But the rejection of one-man rule went beyond stopping moral vice from reigning. The Founders understood that brilliant humans come along from time to time. We were blessed during their time with a reservoir of such brilliance beyond a normal generation of human beings. Thomas Jefferson, Alexander Hamilton, and James Madison only scratch the surface of the number of great men who lived, thought, and acted in America’s fight for independence and her subsequent struggle to establish a lasting republic.

However, despite their best intentions, none of the Founders got everything right. They each had blind spots intellectually, as all humans do. Some even had moral ones to accompany the intellectual. However, we suffer little from those blind spots in our form of government. We do not because we do not have one founder. We have many. While some political communities had a first, sole lawgiver, we had the Continental Congresses and the delegates to the Convention of 1787. The Bible says that “iron sharpens iron.” So these men sharpened one another’s ideas, refining them in constructing our principles and our institutions. By that combined wisdom, they built a more just and a more lasting system of government. They did so in a way a Napoleon, ruling alone, could not.

That all said, we did have one man who towered above the rest during our Founding. That man was George Washington. He commanded our armies to victory in the Revolutionary War. He served as the unanimous choice of the country to be our first president. He could have been a Napoleon. He might have established himself as the only ruler of the country, making our system dependent on his person. He did not. Instead, he focused his mighty efforts always to build a system of government. He fought for principles that would outlive him and his generation. And, when he had finished his part of these tasks, he did what many found unthinkable: he gave up power. He returned to his home a citizen while the republic continued to operate without him.

This greatness we never saw in Napoleon. Upon his death, Napoleon is reputed to have said about France, “they wanted me to be their Washington.” In other words, they wanted him to exercise power, then willingly give it up for the country’s sake. This he did not do. It seems his own ambitions made such a choice impossible for him.

Each year, we celebrate our independence on the 4th of July. Let us express our thanks that we did not and do not live under a Napoleon, that we have and continue to reject rule by one person. And let us further celebrate our one indispensable man, the one who ruled and gave up that rule so his country would last. Let us celebrate our anti-Napoleon, our George Washington.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

 

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Guest Essayist: Daniel A. Cotter
Storming of the Bastille 1789 by Jean-Pierre Houël, French Revolution


While the drafting of the Constitution of the United States and the French Revolution overlapped, some of the wisdom and differences in the two revolutions help to explain a U.S. Constitution that is designed to prevent regime failure.

One element different between the two revolutions was geographic. Our American Revolution took place on our soil, far away and across the pond from our monarchy rulers, while the French Revolution took place within the country.

More fundamentally, the desired objectives were different in the two revolutions, and that in turn contributed to the ways in which the American Constitution contained provisions to address. The French focused on replacing or changing the existing government. The Americans, on the other hand, wanted to break away and form a government removed from Great Britain. With that in mind, starting with the Declaration of Independence, through the Revolutionary War, and culminating in the Constitution in 1787, the founding fathers inserted wisdom into the form of government and the United States Constitution to help prevent failures they observed in French government.

Learning also from the shortcomings of the Articles of Confederation, which were ratified in 1781 and remained in effect until the Constitution was ratified in 1789, the designers of the Constitution insisted upon branches and a robust system of checks and balances, something lacking in the French structure. The Federalist Papers #51 makes this of vast importance for consideration of the Constitution (emphasis added):

“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? The 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 the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident 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. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.”

Conclusion

The United States Constitution’s wisdom is shown in many ways, including with the checks and balances that exist in the Constitution. The careful drafting in 1787 has helped to ensure a continued Constitution that has separations of powers built in and that has ensured that, unlike France and the uncertainty of its revolution and subsequent history, our grand experiment continues 235 years later.

Daniel A. Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Guest Essayist: J. Eric Wise


The motto of the French Republic is Liberté, égalité, fraternité, meaning liberty, equality, brotherhood.

What’s not to like?  Pass the baguettes and butter.

It is derived from the motto of the French Revolution, which has a little something extra: Liberté, égalité, fraternité ou la mort.

Now, wait a minute.  That means liberty, equality, brotherhood or death.

The French Revolution distinguished itself in the final category of its motto. No sooner had the First Republic been created than an eruption of accusations of treason, anticlerical sentiment, massacres and public executions took place. Not satisfied to overturn the ruling caste that had governed from Versailles, and the chateaus and churches of France, the revolutionaries set about to kill them.

In France 1793, no less than 16,000 death sentences were handed down, and 10,000 were sent to prison to die there, in most cases without a trial. Ou la Mort became the Terror. Little explanation is needed as to why “ou la mort” is now gone from the national motto.

The United States took a very different path. That is not to say there were not hard feelings. When the fighting ended and the American Revolutionary War came to a close in 1783, some 70,000 loyalists were expatriated to Britain and the remaining North American British colonies in places like coastal Quebec Prince Edward Island, and Nova Scotia.  But they were not killed.

They were not even really persecuted. Always hungry for people, as soon as the loyalists left, the United States made efforts to recruit them back, supposing their industry and connections, harnessed in a spirit of reconciliation, could aid the new nation in finding its feet.

So, we ask ourselves, what was the difference between the French Revolution and the American Revolution that one should culminate in a river of blood and another in practical reconciliation and a compact, the United States Constitution, which has remained the charter of the new nation for 250 years?

The first place to look is the Declaration of Independence. The principles of the Declaration had percolated in American thought for 100 years or more before their expression in that revolutionary document.  As Calvin Coolidge noted in his famous July 4 speech,

“A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker, of Connecticut, as early as 1638, when he said in a sermon before the General Court that—‘The foundation of authority is laid in the free consent of the people.’ ‘The choice of public magistrates belongs unto the people by God’s own allowance.’”

The American Revolution was rooted not in deduction from mere abstract principle but by a process of induction from a practice spanning several generations. No understanding of the principles of equality and rights to life, liberty and the pursuit of happiness could be easily twisted into a murderous rage as would happen in France.

We see this in the words of Federalist #1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The meaning of the abstract principles of the Declaration of Independence was universally understood to impose a requirement of deliberation, not execution of enemies, on the new government. It was so understood because that was the habit of the American people to think of it that way. They would no sooner leave the house without their pants than think to solve a political problem other than by organizing, deliberating and deciding by some method of majority rule.

The new Constitution which was to be adopted constituted a second appeal to necessity. The Articles of Confederation had been, truly, an abject failure. The country was unable to control debtor and creditor contests and its economy was moribund, a victim of both the violence of these disputes and the weakness of its central government.

However, the new nation chose not to turn upon itself and its various perceived internal enemies but to debate over a new Constitution, to be ratified by consent through a new ratification process, that was not contemplated by the Articles of Confederation, and in fact violated its express terms. In Federalist #40, Publius emphasizes the need to alter and abolish the dysfunctional government by a process of consent rather than force.

From this spirit, a new government was brought forth based on the notion of deliberation and consent, structured around mechanisms to harness the baser incentives of men to promote the habits of deliberative government.

When Benjamin Franklin identified the new form as “a republic, if you can keep it” he implied that the continual fostering and renewal of the habits of deliberative government was the spirit of the American Revolution and the essential ingredient for the continued success of the United States.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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Guest Essayist: Tony Williams


At first glance, the American and French revolutions seem to be closely connected in an “age of democratic revolutions.” The sister revolutions seemed to challenge and undermine monarchy in favor of popular self-rule and liberty. More fundamentally, however, the revolutions’ contrasting views of human nature shaped differing political philosophies, regimes, and cultures.

The American Founders’ thinking about human nature and government was guided by differing strains of thought from ancient philosophy, the English tradition, the British Enlightenment, and Protestant Christianity. As a result, they developed a realistic understanding of vice and virtue, sin and goodness. As James Madison wrote in Federalist #51, “What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”

The French revolutionaries followed the thinking of the more radical French Enlightenment and particularly that of Jean-Jacques Rousseau. Rousseau believed that humans were naturally good and perfectible but were corrupted by social institutions including absolute government, the churches, and urban society; human beings would only be free and enjoy their natural equality by tearing down those institutions.

As the Declaration of Independence indicated, the American Founders believed the Lockean idea that humans had natural rights such as life, liberty, and the pursuit of happiness and were capable of governing themselves in a republic. However, their corruptible nature meant that checks and restraints were necessary. As Federalist #51 asserted, “experience has taught mankind the necessity of auxiliary precautions.”

Influenced by the thinking of Montesquieu and by their experience under the Articles of Confederation, the Founders built in numerous auxiliary precautions into their United States Constitution to divide and constrain power and protect against human ambitions and passions. They included the principles of separation of powers, checks and balances, federalism, and bicameralism in constructing their novus ordo seclorum, a “new order for the ages.” But it was a new order built upon the history, experience, and wisdom of the past.

The French revolutionaries created a very different kind of government and consequently had a different outcome. They sought to break with the corrupt government and religious institutions of the past that preserved the privileges and wealth of the royal government, the feudal nobility, and the clergy. The monarchy survived for only a few years after 1789. It was limited by the Declaration of the Rights of Man and then by a republican constitution until Louis XVI was executed in early 1793. The national legislature was a government lacking a system of constitutional separation of powers and other principles. Instead, the one-house legislature served effectively the only branch of government that would surmise the “general will” of an enlightened people.

For statesmen like the British Edmund Burke, who wrote Reflections on the Revolution in France, the outcome was all too predictable early in the French Revolution. The violence erupted almost immediately as revolutionaries tore down the corrupt institutions of the past. The revolution began with the storming of the Bastille on July 14, 1789, attacking that symbol of political repression. Paris quickly became an armed camp while in the countryside, peasants went on a rampage against nobles and their feudal privileges murdering them, burning down their estates, and destroying their titles in the Great Fear that fall.

After closing the monasteries and plundering their wealth, the government made the clergy agents of the state with the 1790 Civil Constitution of the Clergy. In 1792, the revolutionaries broke into jails and murdered thousands of priests, nuns, and nobles in an orgy of bloodshed and drownings.

Hundreds of thousands died in a French civil war when government suppressed revolts in the Vendee, and millions died across Europe when the French revolutionaries went to war to spread the fire of revolution to tear down oppression everywhere.

Finally, Maximilien Robespierre and the Committee of Public Safety guillotined some 3,000 “enemies” in Paris and had as many as 50,000 executed throughout France during the Reign of Terror from 1793-1794. It was not an aberration but rather a logical outcome of the violence directed against the old regime from the start of the revolution.

American Founders and citizens were deeply divided about the French Revolution in the early republic. Most Americans initially praised the French Revolution as an outgrowth of the American Revolution. Toasts were made, parades were held, and tri-color hats were doffed.

However, the American reaction to the French Revolution contributed to the growing political and ideological divisions in the early republic that led to the development of political parties in the United States. Federalists and Democratic-Republicans split over the foreign policy issue.

Thomas Jefferson, who was an observer and sometimes participant in early revolutionary events in France as a diplomat, was the most ardent supporter of the French Revolution. Taken by radical French Enlightenment thinking, he enthusiastically praised the execution of Louis XVI as a “criminal” and wrote his shocking “desolation letter” while turning a blind eye to the Terror.

Jefferson shockingly wrote with no small amount of hyperbole: “The liberty of the whole earth was depending on the issue of the contest….[and] rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and Eve left in every country, and left free, it would be better than as it is now.”

Other Founders were more sober in their assessment. Alexander Hamilton wished, “Would to heaven that we could discern in the Mirror of French affairs, the same humanity, the same decorum, the same gravity, the same order, the same dignity, the same solemnity, which distinguished the course of the American Revolution.”

On the other hand, John Adams had also been a diplomat in France and other European countries during the 1780s and was less swept up in revolutionary currents in France. Adams’ political writings through the 1780s focused on constitutional balance in the separation of powers. As early as 1790, he predicted that the unicameral French legislature “must involve France in great and lasting calamities” since it was rooted in a flawed understanding of human nature and political philosophy.

The American and French Revolutions left a contrasting legacy for the modern world. The American Revolution and the principles of natural rights republicanism and constitutionalism served as an exceptional model for the world. The French Revolution unleashed the forces of secular nationalism that shaped the violent European twentieth century.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Guest Essayist: Andrea Criswell


When in the course of human life, it becomes necessary for a mother to dissolve the political bands between a child and their selfish ways, and to take full responsibility for civilizing her child and assume her powers within her home, the separate and equal station which the Laws of Nature and Nature’s God entitle them, a deep realization occurs, if she is not willing to bring virtue and civility to the next generation, no one will. This is the beginning of a republic, in each home. Ironically, this scenario leads the reader to believe that the mother is our government and the child is her citizens, and yet it is the other way around. The greatest attribute of the Constitution of the United States of America reflects her citizens as the parents, the givers of life, liberty and the pursuit of happiness.

How do people collectively provide for themselves liberty? An infrastructure, a culture valuing self-government is the only way. A republic at the core. As a human bears the image of their Creator in spirit and their parents in physical appearance, a republic mirrors its founders in the design of practical infrastructure as well as the “DNA” of heart and motive. In America, this “DNA” was the balance between tyranny and anarchy. Resembling homeostasis in the body, the boundaries given to the government by the Founders exemplified the potential for health for its people. Such is a republic, who welcomes this balance, not admonishing correction nor romanticizing chaos, experiences health and well-being.

Welcoming balance, the United States Constitution stands as a reminder that homeostasis can be achieved, not effortlessly, but attainable. It requires maturity to sustain the direction and maintain the right course. It requires self-government of individuals. Abstaining from the vices of power, the people directed by the Founders’ words stay the course. Imperfect men, who could not right all wrongs, understood that a virtuous nation required leadership from virtuous citizens. Three men considered, John Adams, Thomas Jefferson, and John Taylor of Caroline, were willing to protect the ramparts against the tyranny of England, for during their lifetime a government was born, one that would require maturing so that all its members, male and female, light skinned and dark skinned, Christian and non-Christian would find freedom on the same soil.

John Adams understood the unique situation in which they found themselves – to choose their own government. He passionately stated, “While I live, let me have a country, a free country.” It was this vision that defined his life. And yet, he was a Federalist, believing that “the greatest dangers to any polity came from unbridled democracy and an unrestrained aristocracy capable of becoming an oligarchy.” (1) He wanted a strong executive branch to steer the nation like a parent. In his “Discourses on Davila,” he recognizes both the need and the concern for ambitious men. As a republic, the people would parent, and yet Adams wrestled with the need for a strong head. Adams believed that America needed ambitious, determined men held in check by humility, to lead.

Thomas Jefferson understood that real power flows from the consent of the governed, as stated in The Declaration of Independence. A government, whose precedent is fundamental law, would simply reflect the will of the people. Without precedent, no other government in history had modeled natural law. So therefore, a prerequisite of government needed to be established, one in which divine law was part of the culture and understood by all. Believing that America needed a limited government, Jefferson’s greatest contribution was precision rhetoric, clearly communicating that the government would be limited through the state constitutions and the ratifying of the Constitution.

John Taylor of Caroline entered public service to uphold republican values. He did not agree with fixed social order, rather in popular sovereignty, the right each man possessed to govern himself. He was most concerned with a decline of virtue because of power, and held character as the sole anchor for the advancement of America. For Taylor, the laws of nature suggested political equality, and therefore all men were created equal. Defending freedom, Taylor focused on ending tyranny through his Anti-federalist semantics. Historically, there are those born to “hold a post” for others, while in their own right still very flawed. To his own demise Taylor profited from slavery, and while he considered it an evil, he did not consider ending slavery as part of popular sovereignty. Holding the post, Taylor believed America needed to be led by the laws of nature, sustaining personal sovereignty, and yet he did not have the revelation of sovereignty for all.

Disregarding the vision of Adams, the precision of Jefferson and the focus of Taylor would be to disregard the imperfect men who helped pen our most perfect document. The providential boundary lines of the Constitution recognize the need for a strong executive, legislative and judicial branch, all three balancing one another, and the Bill of Rights as the reminder that Congress shall not behave like an immature child. Although these men did not end slavery, they helped form the republic that would empower a people to do so. In the words of John Francis Mercer, a delegate to the Federal Convention from Maryland, said on the floor of the Convention, “It is a great mistake to suppose that the paper we prepare will govern the United States. It is the men whom it will bring into the government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.” (2) Remarkable men, upholding a remarkable document, necessary then and now.

Andrea Criswell is a wife and mother of four, who teaches homeschool students in northwest Houston. A graduate of Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes, high school biology and a love for the United States Constitution. 

1. Taylor, James. “John Adams: Life Before the Presidency.” Miller Center, https://millercenter.org/president/adams/life-before-the-presidency. Accessed 20 May 2022.

2. Corwin, Edward S. “Thomas Jefferson and the Constitution.” CORE, https://core.ac.uk/download/pdf/217205672.pdf. Accessed 20 May 2022.

 

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Guest Essayist: Gary Porter
"A republic, Madam, if you can keep it."


Nations rise and nations fall. Some would call this the cycle of life, writ large; others would simply offer that nothing is certain beyond death and taxes, certainly not the perpetuity of a nation. We are 235 years into this experiment in self-government we call the United States, and we’ve outlasted the average age of a republic, barely.[i] Some would thus suggest we are living on borrowed time. Are we? The Roman Republic lasted nearly 500 years (509 BC to 27 BC). Is it likely or even possible that ours will as well?

Alexander Fraser Tytler, aka Lord Woodhouselee (1747-1813) was a Scottish historian and professor at the University of Edinburgh. He identified stages which all societies will inevitably experience. A society will proceed “from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependence; from dependence back into bondage.” Not a very encouraging prediction.

If this is a true prediction of the life of a society (and I don’t suggest it necessarily is) it is tempting to place our American experiment somewhere on this timeline, perhaps we are currently progressing “from abundance to selfishness.” Whether America is “past its prime” has been the subject of debate for quite a while.

Certainly, there are clear signs of decline in America, but is this part of a predictable, inevitable cycle or is this a merely transitory observation?

America’s Founders certainly hoped their work would not be short lived. At the Constitutional Convention, John Dickinson had drafted an address to the delegates – which he appears to have never delivered – reminding them that: “We are not forming plans for a Day Month Year or Age, but for Eternity.” An eternity? Really? Would the proposed new plan of government they had labored over for four months even be given a chance at life? Nine states would have to ratify; would they?

A Republic, if you can keep it,” Benjamin Franklin’s immortal retort, suggests the Founders believed a republic was incapable of “keeping” itself, that human effort was required; but what sort of effort? By whom? How often?  So much uncertainty.

One point they seemed to be in agreement on, one ingredient they believed was necessary for a nation’s longevity was virtue, both public and private. The Founders said this innumerable times in innumerable ways. A sampling:

“…[N]o free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” George Mason, Virginia Declaration of Rights, Section XV [1776].

“Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superiour to all private passions.” John Adams to Mercy Warren, 1776.

“Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government can render us secure. To suppose liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.” James Madison, Speech in the Virginia Ratifying Convention, June 20, 1788.

“[A] free government, which of all others is far the most preferable, cannot be supported without virtue.” Samuel Williams, A Discourse on the Love of our Country, 1774.

“It is certainly true that a popular government cannot flourish without virtue in the people.” Richard Henry Lee to Colonel Martin Pickett, March 5, 1786.

“It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” George Washington, Farewell Address.

But before we go further, let’s ensure we have a common definition of the word “virtue.”

Webster’s 1828 American Dictionary of the English Language, the go-to guide for founding era definitions, contains ten different definitions of “virtue.” The one I believe the Founders most often had in mind, the third in Webster’s list, read:

Moral goodness; the practice of moral duties and the abstaining from vice, or a conformity of life and conversation to the moral law. In this sense, virtue may be, and in many instances must be, distinguished from religion. The practice of moral duties merely from motives of convenience, or from compulsion, or from regard to reputation, is virtue as distinct from religion. The practice of moral duties from sincere love to God and his laws, is virtue and religion. In this sense it is true,”

If this “moral goodness” or “virtue” was so important to the success of a popular government, how was it to be instilled or created in the people?

First, by inspiring it in the people: “The only foundation of a free Constitution, is pure virtue, and if this cannot be inspired into our people, in a greater measure than they have it now, they may change their rulers, and the forms of government, but they will not obtain a lasting liberty.” John Adams, to Zabdiel Adams, 1776.

Second, through the education of children:

Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of people, it shall be the duty of legislators and magistrates … to cherish the interest of literature and the sciences, and all seminaries of them.” John Adams, Thoughts on Government, 1776.

“A Bible and a newspaper in every house, a good school in every district–all studied and appreciated as they merit–are the principal support of virtue, morality, and civil liberty.” Benjamin Franklin.

“It is an object of vast magnitude that systems of education should be adopted and pursued which may not only diffuse a knowledge of the sciences but may implant in the minds of the American youth the principles of virtue and of liberty and inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.” Noah Webster, On Education of Youth in America, 1790.

Since private and publick Vices, are in Reality, though not always apparently, so nearly connected, of how much Importance, how necessary is it, that the utmost Pains be taken by the Publick, to have the Principles of Virtue early inculcated on the Minds even of children, and the moral Sense kept alive, and that the wise institutions of our Ancestors for these great Purposes be encouraged by the Government. For no people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffusd and Virtue is preservd. On the Contrary, when People are universally ignorant, and debauchd in their Manners, they will sink under their own weight without the Aid of foreign Invaders.” Samuel Adams letter to James Warren, November 4, 1775.

Some parents took their educational responsibility quite seriously: “Our Little ones whom you so often recommend to my care and instruction shall not be deficient in virtue or probity if the precepts of a Mother have their desired Effect, but they would be doubly inforced could they be indulged with the example of a Father constantly before them.” Abigail Adams to John Adams, May 7, 1776.

Third, through their churches:

“It is the duty of the clergy to accommodate their discourses to the times, to preach against such sins as are most prevalent, and recommend such virtues as are most wanted. If publick spirit is much wanted, should they not inculcate this great virtue?” John Adams, Novanglus, no. 4.

Virtue was perishable; it needed to be continually “refreshed”: “When we are planning for posterity, we ought to remember that virtue is not hereditary.” Thomas Paine, Common Sense, 1776.

But even the best-laid plans to inculcate virtue in the people were not expected to have complete success, and the design of government must account for this: “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” Alexander Hamilton. “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” James Madison, Speech in the Virginia Constitutional Convention, 2 December 1829. Even the most virtuous among them was to be watched for signs of moral decay: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” James Madison, Federalist No. 57, 1788.

Americans today have lost sight of the idea of virtue; it is not taught in public schools, our government would like to count on it, but seems afraid to even mention the word, and our churches are fast joining the ranks of those who insist all truth is relative including moral truth. Violent crime is generally rising, private property disrespected and voices in the public square are becoming increasingly strident. If John Adams was right, that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other,” there will come a time in this country, perhaps not long off, when the Founders’ Constitution will simply prove ineffective in governing us. There is still time to avoid that outcome, but it will require the conscious efforts of patriots across this great land.

“A people may prefer a free government; but if from indolence, or carelessness, or cowardice, or want of public spirit, they are unequal to the exertions necessary for preserving it; if they will not fight for it when directly attacked; …they are more or less unfit for liberty.” John Stuart Mill

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Alexander Fraser Tytler, aka Lord Woodhouselee, calculated the average term of a republic to be 200 years.

 

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Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.


“Virtue” and “republic” have long been connected to each other among philosophers of politics. The connection was frequently asserted in the rhetoric of Americans during the founding. Indeed, it was while states were writing constitutions that these ideas were more rigorously investigated and an increasingly sophisticated understanding emerged. The most widely read source on the experiences of republics and the importance of virtue was Plutarch’s Lives, which contained the biographies of Greek and Roman statesmen. Many intellectuals also read primary sources, such as Aristotle, Cicero, and Polybius, and interpreters of those sources, such as Machiavelli, Montesquieu, and various 18th century English political essayists. These investigations led to a political conundrum. Most Americans believed that mankind’s actions were driven by base desires, such as avarice, gluttony, and lust. Yet the success of republics had always been said to rest on public virtue, the requirement that the rulers and the people overcome their passion for personal gratification and act for the benefit of the community, “res publica.” Moreover, the wisdom received from ancient writers postulated that public virtue was derived from private virtue. The task became to reconcile this tension between private passions and republican virtue.

Three ideological theories of republicanism emerged, with attendant differences in their conceptions of private and public virtue and the connection between them. These three conceptualizations had significant geographic roots. One was an American version of classic republicanism, which might be called puritan republicanism. It is “positive” republicanism. The proponents looked to the firm hand of government to promote both aspects of virtue, private and public, and to insure their continued interrelation. It was founded in the religious tradition and political experience of New England communities, although its influence was not confined there. One of the best exponents of that tradition and its republican significance was John Adams.

Another was agrarian republicanism, which coalesced somewhat later, and was rooted in the experience of the South, especially its largest and wealthiest state, Virginia. Agrarian republicans also accepted the need rigorously to inculcate private virtue, but they were less optimistic about the conviction that private virtue assured public virtue. At the very least, they were skeptical that sufficient public virtue might be realized among those who would gain political influence. That skepticism was particularly acute when the matter became who would control the distant general government and thus be most removed from effective supervision by the people.

Best, then, not to rely on virtue among the rulers, but to look for other means to limit their ability to cause harm to the republic. If private virtue of the ruler or the people was inadequate to assure public virtue, the rulers’ self-interest must be channeled to serve the public good. James Madison worked out these ideas in his constitutional ideology, which found its way into basic structures in the United States Constitution. Madison was not alone, and he was not the most rigorous expositor of agrarian republicanism. That title goes to John Taylor of Caroline.

A third approach was national republicanism, represented by Alexander Hamilton as its most prominent ideological proponent and George Washington as its leading public figure. In many ways their views complemented those of the agrarians that private virtue was a necessary but also a regrettably flawed guardian of the success of republics. However, there was a crucial difference. Government would have a much more active role in using incentives to create conditions through which republican virtue of the public sort might be fostered. Moreover, republican virtue was not limited to those connected to the land, but extended to those engaged in commercial and even manufacturing enterprises. Hamilton, after all, was not part of the landed gentry, like Adams, or the Southern planter class, like Taylor. National republicanism was based in the emerging commercial centers, especially those of the mid-Atlantic states.

John Adams’s major work on constitutional government and republicanism was A Defence of the Constitutions of Government of the United States of America, a treatise on the emerging American constitutionalism with its emphasis on checks and balances of governmental powers. But Adams was also a prolific writer of letters to numerous correspondents. Many years before he wrote in his 1798 response to the Massachusetts militia, “Our government was made only for a moral and religious people,” he wrote to the chronicler of the period Mercy Otis Warren that republican government could survive only if the people were conditioned “by pure Religion or Austere Morals. Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.” Sounding the theme of positive classic republicanism, he continued, “There must be a positive Passion for the public good, the public Interest, Honor, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real liberty.” [Emphasis in the original.]

In light of man’s fallen nature and his helpless soul’s inclination to sin, a firm hand was needed. Hence, three New England states had an official church, the Congregational Church, heir to the Puritans. Moreover, a Stoic virtue of private simplicity and public duty was cultivated, not the least by intrusive sumptuary laws. Such laws, passed in the name of protecting the people’s morals and sometimes dressed up in broader cloaks of liberty and equality, restricted various luxuries and excessive expenditures on jewelry, clothing, victuals, and entertainment. Adams, in his 1776 book Thoughts on Government, touted the benefits of such laws, “[The] happiness of the people might be greatly promoted by them….Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.”

The historian Forrest McDonald, in his invaluable book Novus Ordo Seclorum, provides details about the constitutional and statutory sources of such laws. For example, Article XVIII of the Massachusetts Bill of Rights urged a “constant adherence” to “piety, justice, moderation, temperance, industry and frugality [which] are absolutely necessary to preserve the advantages of liberty.” Legislators and magistrates must exercise “an exact and constant observance” of those principles “in the formation and execution of the laws.” None other than John Adams had drafted that document in the Massachusetts convention. Other states had similar provisions. At the Philadelphia Convention, George Mason of Virginia sought to grant Congress the power to enact sumptuary laws, but his proposal was defeated.

Adams also lauded laws that resulted in the division of landed estates, because he perceived such laws as promoting relative equality of property ownership. Adams termed it the “mediocrity of property” on which liberty depended. This sentiment, drawn from an ancient republican pedigree, put him in good company with American republicans of other stripes. Indeed, “agrarian republicans” were, if anything, even more militant than Adams in their adoration of land ownership as the bulwark of republican virtue and personal liberty. Thomas Jefferson spoke for most Americans in his 1785 book Notes on the State of Virginia, when he declared that “those who labor in the earth are the chosen people of God if ever He had a chosen people, in whose breasts He has made His peculiar deposit for substantial and genuine virtue.” He expressed similar views in other writings. During the debate over the subsequent Louisiana Purchase during his administration, Jefferson was able to overcome his constitutional qualms with the satisfaction that the United States had acquired sufficient land to guarantee its existence as a republic of yeoman farmers and artisans for many generations hence.

As a theorist of agrarian republicanism, Jefferson was thin gruel compared to John Taylor, a Virginian planter, lawyer, and politician, who served off-and-on as Senator. To distinguish his branch of the family, Taylor is usually referred to by his birthplace, Caroline County. The aphorism “That government is best which governs least,” has often been attributed to Jefferson, although it appears first in Civil Disobedience by Henry David Thoreau in 1849. If, however, one might at least grant Jefferson the same sentiment, this aphorism even better describes Taylor’s philosophy. In particular, his 1814 book An Inquiry into the Principles and Policy of the Government of the United States sets out a systematic philosophy for land as the basis for personal happiness and republican vitality. Land gives its owners sustenance and trains them to self-reliance, which produces independence, which, in turn, is the source of liberty. A key to maintaining that independence is the right to keep arms.

The (mostly) Southern agrarian republicans shared with their (mostly) New England classic republican compatriots a belief that widely-shared land ownership is most conducive to private virtue. However, they parted ways on the connection between private and public virtue as crucial to the survival of republican government. Taylor wrote, “The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” While a republican system, as a whole, is strongest when it rests on a broad base of a virtuous and civically militant citizenry, it is risky to rely only on that condition to produce virtuous politicians. Homo politicus is better known for seeking power for personal gain and influence over others than for personal sacrifice and care for the general welfare. As described by the modern school of “public choice” theory, politicians are self-interested actors, whose actions are best explained by their number one goal, to get re-elected. In addition, the puritan approach of an intrusive government which would police private behaviors raised red flags for the agrarians.

Taylor and other agrarians distrusted government generally, but the more removed from direct and frequent popular control officials were, the greater the danger to the republican form. The good news was that sufficient public virtue could be produced even if, for whatever reason, private virtue was lacking in those who would govern. To that end, it became incumbent on those who framed constitutions to recognize the inherently self-interested nature of politicians and to harness that self-interest through constitutional structures which would simultaneously authorize and limit the power of government officials of all types. Politicians would “do the right thing” not because they were sufficiently trained to private virtue, but because it would serve their own self-interest in preserving their positions.

Taylor’s prescription was not novel. The Scottish philosopher David Hume began his 1742 essay, “Of the Independency of Parliament,” by declaring, “Political writers have established it as a maxim that, in contriving any system of government and fixing the several checks and controls of the constitution, every man ought to be supposed a knave and to have no other end, in all his actions, than private interest. By this interest we must govern him and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.” The works of the charismatic and often controversial Hume were well known to educated Americans.

James Madison expressed these sentiments in a famous passage in Number 51 of The Federalist:

Ambition must be made to counteract ambition. The interest of the man must be

connected to the constitutional rights of the place…. 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. A dependence on the people is, no doubt, the

primary control on the government; but experience has taught mankind the

necessity of auxiliary precautions.

Those “auxiliary precautions” were the structural checks and balances in the Constitution.

Various historians have noted the importance of Taylor’s contributions to American political theory, even lauding him as in some ways the best which America has produced. Although his vision was republican, it may better be characterized as a branch of classical liberalism or liberal republicanism. Note that the term “liberal” does not have the current political connotation. Unlike today’s version, the classic liberalism emerging during that period was directly tied to the individual’s liberty to live free from state-enforced mandates beyond the minimum needed for social stability.

Taylor was not the first skeptic about the classic Aristotelian and Ciceronian connection between private and public virtue reborn in the puritan republicanism of John Adams. The history of 18th-century Anglo-American ideas reveals influential predecessors, such as Bernard de Mandeville and, as mentioned earlier, David Hume. Mandeville wrote his satirical Fable of the Bees in 1705, a famous parody of English politics of the time. In the poem, he describes a thriving colony of bees, where each individual bee seeks to live a life of luxury and ease, a sentiment not disagreeable to Taylor’s Southern planter class. But this prosperous existence comes to an end when some of the bees begin to denounce the personal corruption caused by luxury and to call for a life of simplicity and virtue to be imposed. Many bees die, their hive becomes impoverished, and they live in a hollow tree, “blest with Content and Honesty.” He concludes,

Bare Virtue can’t make Nations live,

In Splendor; they, that would revive

A Golden Age, must be as free,

For Acorns, as for Honesty.

In short, personal vices, such as greed and ambition, generate public virtue of industriousness and prosperity. Similar ideas also infused the writings of an important contemporary of the American founders, the political economist Adam Smith.

Even more than Taylor, it was the adherents of an emerging “national republicanism” who agreed with Mandeville, Hume, and Smith. Although all persons are driven by their passions, not all passions are the same. Some, especially those who already have material riches, might be gripped by a simple desire for fame or honor, or by love of country. Moreover, a properly constructed constitution, produced by those few motivated by such nobler passions, might harness the baser passions of lesser politicians towards the public good. The men who met in Philadelphia for the specific purpose of drafting the Constitution might qualify as men whose primary, if not sole, passions were fame and love of country. For most, no immediate financial gain or personal political success was to be gained. Indeed, contrary to the progressive theory advanced in the early 20th century by the historian Charles Beard that economic self-interest was the driving force behind the Constitution’s adoption, it is well-established that delegates voted in favor of proposals which would, if anything, hurt their financial interests.

Such “good” passions, although they manifested a self-interest, also produced the public virtue necessary for republican government. It produced policies for the general welfare and in the interest of the public. The problem, of course, is that all politicians—and, indeed, bureaucrats of all kinds—routinely claim to be driven by a passion for public service, and that their policy proposals are in the public interest. A multitude of unelected non-governmental organizations and litigious law firms also claim the title “public interest.” Alas, to consider, for instance, who benefits from pay-outs in the typical class-action lawsuit, the reality rarely matches the professed public virtue. One never hears a politician say that a policy, no matter how nefarious and self-rewarding, is done for anything other than the noblest public purpose. Rare even is a politician as honest as the 19th-century New York Tammany Hall leader George Washington Plunkitt. He famously distinguished between “dishonest” and “honest” graft and was frank about his practice of the latter. Dishonest graft meant working solely for one’s own interests. Honest graft was to work for one’s own wealth, while simultaneously furthering the interests of one’s party and state.

The big problem, then, for the national republicans was to constrain those politicians who would in fact hold political offices for a longer time and with less-defined objectives than those who drafted the Constitution. George Washington had long and carefully cultivated the public image of the man driven solely by a passion for honor. Whatever his motives in his private actions, such as, for example, acquiring huge tracts of land, Washington in his public life appears to have been driven by his concern about the public’s perception of him as a man of honor. Forrest McDonald and numerous other historians have painted the picture of a man who might be said to have “staged” his public life. Washington was deeply affected throughout his life by Joseph Addison’s play Cato about the Roman republican statesman Marcus Porcius Cato (“the Younger”). Cato, a committed Stoic, was famous for his unrelenting honesty.

But Washington was a rare specimen of homo politicus. The national republicans’ plan for more run-of-the-mill politicians was similar to that of the agrarians, to rely on one measure of citizen virtue and another measure of constitutional structure to produce public virtue from politicians driven by private passions. Unlike the agrarians, they were convinced that a strong national government must be a part of that structure. On that point Hamilton and at least the 1787 version of Madison could agree. Hamilton and the national republicans parted ways with Madison, and with Jefferson and the more resolute agrarian republicans such as Taylor, by enthusiastically embracing the role of manufacturing and banking in promoting public virtue.

Jefferson’s ideal republic of yeoman farmers and artisans, comprising a large middle class possessed of a rough equality of means, had little room for manufacturers, and none for bankers and other jobbers dealing in phantom “wealth.” Manufacturing, when combined with commerce, the fear went, would necessarily soon lead to two anti-republican results. One was a love for material luxury; the other was a life of drudgery for the impoverished masses. The history of the ancient Roman Republic was a vivid cautionary tale. Taylor and the agrarians accepted the benefit of commerce within their preferred system of political economy, because it facilitated the export of products from the agricultural South and the importation of manufactured goods from abroad. But, in a preview of the South Carolina Nullification Crisis of the 1820s and ‘30s, this required free trade. Like most Southerners, Taylor was a committed free trader and suspicious of any national government regulation of economic matters, especially tariffs.

The agrarians’ fear of manufacturing tied into a general belief among political writers going back to antiquity that political systems evolve and, ultimately, decay. Entropy is inevitable in politics as much as physics. Agriculture may be the most desirable occupation, but, sooner or later, the limited productive land area is fully occupied, as New England was discovering. People would flock to cities where manufacturing would become their occupation. As Adam Smith described the effect on people, “the man whose whole life is spent in performing a few simple operations, of which the effects are, perhaps, always the same … generally becomes as stupid and ignorant as it is possible for a human creature to become ….” This fate stood in sharp contrast to that of the farmer, artisan, and merchant, who must possess broad knowledge and understanding of many activities. If this process was inexorable and made those human brutes unfit to practice private virtues, it also made the demise of the republic inevitable. Even Benjamin Franklin believed in the dangers from this progression, which puts his remark to his interlocutor, “A republic, madam, if you can keep it,” in yet another light. It also explains the urgency which Jefferson and other agrarian republicans felt about the westward expansion of territory and the opening of western land to agricultural settlement needed to forestall this threat to republican governance.

At the conclusion of the passage quoted above, Adam Smith extended a saving hand. After all, he was not opposed to either manufacturing or banking as sources of wealth. The evils of a poor and brutish urban working class would happen, “unless the government takes some pains to prevent it.” Smith had his views of what that might be. In any event, Hamilton, as an enthusiastic believer in Smith’s ideas, agreed that wealth was not fixed, and that even a personal profit motive can contribute to the public welfare. Investing in new processes and useful products and services is a public benefit. Thus, actions of the manufacturer and even the banker exemplify public virtue, whether or not they are driven by self-interest. He, like Adam Smith, believed that private wealth-producing activities qualified as private virtue. While others might not go that far, Hamilton successfully advocated the connection between such activity and the public virtue needed to maintain republican government.

Having established that manufacturing and banking could be “virtuous” in the public sense, there remained the need to foster them in order to ameliorate the conditions of poverty which would threaten republican government. After all, if enough wealth is created for all, “poverty” ceases to be objective and becomes relative. A rising tide floats all ships. At least from a material standpoint, owning a car and various electric and electronic devices today, living in an abode with air conditioning, and having clean water, basic sustenance and medical care, are vastly better than the experiences of past generations.

Hamilton and his supporters believed that their strong national government was the best mechanism to adopt policies which would foster the growth of wealth. Hamilton’s later program in his four reports to Congress between 1790 and 1795 on the public debt, a national bank, and manufactures, laid out in considerable detail his plans to that end. These sophisticated reports were a monument to Hamilton’s intellect and experience applied to the economic problems of the early United States.  They had such potency, and were so hotly contested, that they precipitated the First American Party System of Federalists and Jeffersonian Democratic-Republicans and made Hamilton in effect the dominant figure of American politics in the 1790s.

It should be noted in conclusion that all republicans—classic puritan, agrarian, and national—opposed democracy. Even those delegates and political leaders who at one point had been most favorable towards broad public participation and involvement in politics, were shaken by Shays’ Rebellion in Massachusetts. That event in 1786 had created much tumult and political chaos and was put down by an army raised by the state. It was very much on the minds of the attendees at the Philadelphia convention. Some of the most vociferous detractors of the Constitution as insufficiently “republican” were also the harshest critics of democracy. For them, Shays’ Rebellion exposed the danger of relying on private virtue to provide the public virtue necessary for republican self-government. James Madison spoke for them all when he opined in Number 10 of The Federalist about the inadequacy of democracies to promote public virtue:

[Such] democracies have ever been spectacles of turbulence and contention; have

ever been found incompatible with personal security, or the rights of property;

and have, in general, been as short in their lives, as they have been violent in their

deaths. Theoretic politicians, who have patronised this species of government,

have erroneously supposed, that, by reducing mankind to a perfect equality in

their political rights, they would, at the same time, be perfectly equalized and

assimilated in their possessions, their opinions, and their passions.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Gary Porter
Bill of Rights of the United States Constitution


“For why declare that things shall not be done which there is no power to do?” writes Alexander Hamilton in Federalist 84. “[B]ills 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.”

“The Constitution can stand alone as a ‘Bill of Rights’” was Hamilton’s clear message here. Many of America’s Founders held to that view and the Founders were no slouches, so we would expect to find some substance to the claim. If the Framers indeed designed a United States Constitution of “limited and enumerated” powers, as Madison claimed in remarks during the Virginia Ratifying Convention, where was the fear of government infringement on individual freedoms to be found?

Indeed, in several places in the Constitution we find particular individual rights given explicit protection. For instance, in Article 1, Section 9 we find Congress specifically denied power to create bills of attainder, ex post facto laws and suspend the “Privilege of the Writ of Habeas Corpus.” Similar restrictions against the states are found in the next section of Article 1. The states are further required to protect your right of contract in the same section. In Article 3, we find the fundamental right of trial by jury preserved for “all Crimes, except in Cases of Impeachment.” “All Privileges and Immunities of Citizens in the several States” are guaranteed/protected in Article IV. But what do these consist of? The Constitution gives us no clue and, while the Supreme Court had an opportunity to provide an answer in the past[i] they demurred, so we are left to ponder the extent of this protection. As regards congressmen and congresswomen, a limited form of freedom of speech, at least while engaged on the floor of Congress, is found in Article 1, Section 6, where a companion protection from arrest is also located.

But that is about it as far as specific individual rights protections are concerned in the seven articles which make up the original Constitution. Where is the explicit protection of speech, or religion, of conscience, of the right to keep and bear arms, etc.? Hamilton’s answer of course would be: “where is the government given power in the Constitution to intrude upon any of those rights? The weight of Hamilton’s and Madison’s argument must rest then on the Constitution actually being, and, more importantly, remaining, a limited powers document. It is quite clear from the journals of early Congresses that congressmen routinely considered the Constitution to limit the powers of government.

The 1st Congress refused to approve a loan to a glass manufacturer in Georgetown after some members charged it was unconstitutional. A member in the 3rd Congress (1794) proposed $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. Third-term Congressman James Madison rose to object, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The 4th Congress (1796) turned down a request for relief to the citizens of Savannah, GA, after a fire burned down nearly a third of the city. On his last day as President in 1817, James Madison famously vetoed what today we would call an Infrastructure Bill,[ii] stating: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers [of the Constitution].

Has Madison’s view persisted? The following should be shielded from sensitive eyes.

Beginning principally in the Progressive Era and accelerating in the New Deal Era, the effort to expand the powers of the federal government has enjoyed great success. In 2010, then Congressman Peter Stark of California famously declared that “Yes, the federal government can do most anything in this country.” The picture has not improved much in the last twelve years.

Thanks to decisions in 1936[iii] and 1937,[iv] the Supreme Court gave Congress the power to spend money on anything it could justify in its own “mind” as supporting the general welfare of the United States.  Madison warned in 1792 that this sort of interpretation of the General Welfare Clause would turn the “limited powers” Constitution into an indefinite one subject [only] to particular exceptions.”[v] The 1937 Supreme Court had a different idea and today, Madison’s observation that “Charity is no part of the legislative duty of the government[vi] is considered a quaint relic of a bygone era.

In 1942,[vii] the federal government was given the power to regulate nearly all aspects of business in the U.S. since only a miniscule connection to “interstate commerce” was necessary. In 1968,[viii] the Court cleared the way for Congress to delegate its exclusive law-making power[ix] to executive branch agencies. This has resulted in a veritable flood of “regulations with the force of law” which impact our individual lives in myriad ways and the compliance of which are estimated to add $2 Trillion dollars to the cost of doing business in this country, a cost passed on to you and me in the form of increased prices for goods and services.

The Anti-federalists warned of the immense power being given this new central government,[x] yet I doubt they foresaw the magnitude of the federal power-grab we continue to experience today. Even the addition of a discrete Bill of Rights in 1791, while affording important individual rights protections, has not been enough (what does “shall not be infringed” mean?) Hamilton’s hope that the Constitution could stand alone as a Bill of Rights was hopelessly utopic. A Bill of Rights has proved absolutely necessary, but not alone sufficient to curtail the continuing federal power grab.

In conclusion, for the U.S. Constitution to have stood alone as a protector of individual, God-given, unalienable rights, as Hamilton wished, was in hindsight incredibly naive. One important feature of the original document needed to survive: limited powers, and it didn’t. Various groups with a decidedly different view of the purpose of government, assisted by a Supreme Court which from time to time shared their view, have successfully changed the fundamental nature of our wonderful Constitution from one of limited and enumerated powers to one of near plenary power. Taking advantage of the ambiguity of words and the concept of a “Living Constitution,” these forces have succeeded in creating a government which today intrudes into nearly every aspect of our private and corporate lives. The “demise” of the Tenth Amendment has been widely recognized by both Left and Right.[xi]

What is to be done? Must we simply acknowledge this sea change in the Founders intent to “secure the blessings of liberty to ourselves and our posterity” and learn to live with Leviathan? That is certainly one option – one allowing us to live relatively peaceful if increasingly controlled lives. The other response requires action, commitment and purpose. We must rouse ourselves and our neighbors, educate society to the problem we face and the inevitable endstate should we remain on this path, and proceed methodically to repair the damage to this inspired document. The Supreme Court can be an ally in this project, if an originalist majority can be kept in place long enough to reverse key decisions. But that could take decades, perhaps scores of years. The more logical approach is one the document itself gives us: amendment.

Congress will never take action to reduce the immense power they have been given by the aforementioned SCOTUS decisions; that much, I hope, we can agree upon. But a carefully worded amendment defining “commerce” and placing limits on the interpretation of the Interstate Commerce Clause could. No power-reducing amendments will ever emanate from the Congress and be sent to the states for ratification. So, we face precisely the situation Colonel George Mason of Virginia warned of on September 15, 1787, as the delegates considered the, at that time, single method of amending the Constitution. “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (Madison writes in his Notes), as he (Colonel Mason) verily believed would be the case.” Adopted “nem con” (i.e., unanimously) was a second method of proposing amendments: the states could meet in convention to consider and propose amendments.

It seems to this writer that the solution to the problem of Leviathan is at hand, given us expressly for the situation we now face: congressional intransigence. Will we grasp it or allow individual freedoms to inexorably slip away?

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Notably in what became known as the Slaughterhouse Cases.

[ii] https://millercenter.org/the-presidency/presidential-speeches/march-3-1817-veto-message-internal-improvements-bill.

[iii] United States v. Butler, 297 U.S. 1 (1936).

[iv] Helvering v. Davis, 301 U.S. 619 (1937).

[v] “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

[vi] James Madison, Speech in the House of Representatives, January 10, 1794.

[vii] Wickard v. Filburn, 317 U.S. 111 (1942).

[viii] Mistretta v. United States, 488 U.S. 361 (1989.

[ix] “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

[x] https://mises.org/library/antifederalists-were-right

[xi] https://mises.org/power-market/who-killed-10th-amendment.

 

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Guest Essayist: Eric Sands
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag


The Constitutional Convention has been referred to as the “Miracle in Philadelphia” and there is a great deal of justice to that label. The delegates to the convention faced long odds in reaching compromise on a new form of government. But in many respects, writing the United States Constitution was only half the battle; the delegates then had to get it ratified. This proved to be a difficult task and required the assistance of some of the leading minds in the country to convince the American people to accept the new document.

These proponents of ratification were known as Federalists and included men such as Alexander Hamilton, James Madison, John Jay (collectively known as “Publius”), James Wilson, George Washington, Gouverneur Morris, John Marshall, and Benjamin Franklin. These men were nationalist in their orientation and believed that a stronger national government was a necessary corrective for the defects in the Articles of Confederation. Opposing these Federalists were the Anti-federalists who argued against ratification, or at least counseled serious modifications to the Constitution’s design. Among the most prominent Anti-federalist writers were Patrick Henry, Melancton Smith, and authors writing under pseudonyms such as Cato, Brutus, Centinel, and Federal Farmer. These men advocated for a confederal form of government where most of the power would be held in the hands of the states.

The Anti-federalist arguments generally fell into two categories. The first was pursuing structural changes in the Constitution itself to limit the power of the national government. During the public debates, Anti-federalists raised numerous objections to the Constitution and pointed out that the power being ceded to the national government was a danger, not just to the states, but to the people. The Anti-federalists, for example, argued that too much power was being given to the president and that he could become a monarch. This was especially true given his infinite re-eligibility. The Anti-federalists complained that the Constitution blended powers too much and needed to adhere to a much stricter principle of separation of powers. They feared that the Supreme Court would become an all-power government tribunal and proposed presidential commissions that could overturn bad judicial decisions. Congress’ power was seen as too extensive and needed to be scaled back. Limits needed to be put in place governing Congress’ control over the state militias and federal elections, and there was an overarching fear about how much power Congress might subsume under the necessary and proper clause. Finally, the Anti-federalists harbored deep suspicions that a republican form of government could work over a territory and with a population as large as the United States. Conventional wisdom of the day held that republics could only be successful in a small territory with a small and relatively homogenous population. A republic on the scale of the United States had no historical precedent and the Anti-federalists believed it could not work.

As enlightened as some of the Anti-federalist objections to the Constitution were, structural changes were not in the cards. All the Anti-federalist amendments introduced at the ratifying conventions were defeated. A large part of this defeat was owing to the efforts of the Federalists to get their defenses of the Constitution into print and the larger number of newspapers that supported ratification. However, the Anti-federalists had a second category of arguments that proved far more successful. These arguments revolved around the lack of a bill of rights in the Constitution. The lack of a bill of rights seemed to them to be particularly egregious given how much power was being given to the national government. Thus, in numerous essays, the Anti-federalists complained about a need for specific protections like freedom of speech, press, religion, assembly, petition, and possession of arms. Most of these rights were guaranteed to the people at the state level, so it made little sense that the people’s rights should be less secure at the national level.

Federalists initially countered these arguments in a couple of ways. In Federalist 84, for example, Hamilton argued that the Constitution should be allowed a trial period before alterations were made. There may be several things the American people want to change five or ten years down the road, so make the changes then when a judgment can be made about whether they are necessary. Second, the structure and design of the Constitution already protected rights through separation of powers, checks and balances, enumerated powers, and republicanism. Any attempt to infringe on personal rights would never be able to survive this gauntlet of obstructions. Finally, a bill of rights could endanger rights because it would only include certain specified rights, leaving others unprotected. It would also imply that rights come from government and that it alone chooses which rights to recognize.

Despite this defense of not including a bill of rights in the Constitution, the American people remained unpersuaded, and the Constitution stood a real chance of not being ratified because of this defect. Eventually, however, the Federalists gave in, and several of their most prominent members made promises that a bill of rights would be on the agenda of the First Congress. With this promise in place, ratification moved forward, and eleven states initially joined the Union (Rhode Island and North Carolina did not ratify until later).

The first national elections were a disaster for the Anti-federalists with them winning only a few seats in the House and the Senate. The landslide victory for the Federalists had cooled Federalist opinion about the need for amendments. Some speculated that the promise made to the people could be safely ignored, while others argued that some vague, superficial amendments would likely suffice. James Madison, however, stood up for a bill of rights. Having made a personal campaign pledge to produce a bill of rights to his constituents, Madison made repeated efforts to get the bill on the legislative agenda. When that did not work, he presented a formal proposal of amendments he thought should be introduced into the Constitution. Still, Federalists were not enthusiastic about his proposal and likely would have never allowed the bill to move forward had Madison’s not received Washington’s endorsement, which Washington articulated in his inaugural address. Once the federal revenue system was completed, the Federalists finally got around to Madison’s amendments.

Anti-federalists, though few and far between, used the opportunity to start making their own proposed amendments to change the structure of the Constitution. But they were voted down every time, with antagonism between the two sides becoming so heated that congressmen challenged each other to duels. In the end, Madison’s patience and his willingness to compromise helped move the amendments along. Congress did not adopt all the amendments, and the language of others was altered, but that was the price Madison had to pay to see the amendments submitted to the states. On December 15, 1791, enough states ratified the Bill of Rights to formally make the ten amendments part of the Constitution.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

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Guest Essayist: Tom Hand
Fifth, Second and First Constitutional Amendments with gavel


The first ten amendments to the United States Constitution, better known as the Bill of Rights, are what allow us to enjoy many of the day-to-day blessings of our great country. Freedoms easily taken for granted are enshrined in these revisions to the original document. While the Constitution shaped our government, the Bill of Rights shaped our lives.

These amendments include both individual freedoms such as the right to keep and bear arms, free speech, freedom of the press, and freedom to worship as we please, as well as restrictions on the power of the federal government.

You might wonder why these basic freedoms had to be added to the Constitution after it was created rather than being front and center in the debates at the Constitutional Convention. The reason can be found in considering the mission of the convention.

Specifically, when the Constitutional Convention met in Philadelphia in the summer of 1787, the delegates’ primary goal was to fix the weaknesses in the Articles of Confederation and, thereby, form a system of government that would allow the country to flourish.

Consequently, most of the discussion at the convention focused on the form of government and how it would operate, not on the individual rights of the people. Although the representatives met from May 14 to September 17, no motion to adopt a Bill of Rights for the citizens of the country was introduced until September 12 when George Mason of Virginia did so.

Mason’s suggestion was quickly dismissed and, looking back, it seems surprising that something as crucial as a bill of rights was not subject to lengthy debate. However, we must keep in mind each state already had their own constitution, many of which contained a bill of rights.

As James Madison noted in his essay Federalist 46, the new federal constitution did not eliminate those rights granted by the states. Since personal rights already existed at the state level, Madison argued there was no need for the federal government to guarantee them as well.

From a more practical standpoint, the delegates needed to get home. They were not full-time politicians who made their living on the government payroll. They were mostly doctors, lawyers, businessmen, and farmers. Time away from home cost them money and, quite naturally, after being in hot, steamy Philadelphia for four months, they did not want to extend the convention for several more weeks to discuss such a contentious topic.

Soon after the proposed Constitution was circulated to the state legislatures for approval in late 1787, it came under criticism for several perceived faults, but primarily for its lack of a bill of rights. The group opposing the new Constitution became known as “Anti-federalists” and were led by Elbridge Gerry of Massachusetts and George Mason.

Gerry published a widely circulated letter, dubbed “Hon. Mr. Gerry’s Objections,” in which he stated his reasons for not supporting the new Constitution. As he saw it, “the liberties of America were not secured by the system” and it was flawed “without a bill of rights.”

Alexander Hamilton responded in Federalist 84 that “the constitution is itself in every rationale sense, and to every useful purpose, a bill of rights.” He added that by ratifying the Constitution “the people surrender nothing, and as they retain everything, they have no need of particular reservations.”

There was also concern that, by listing only certain rights, it could be implied that those were the only ones guaranteed by the new Constitution and any others not mentioned were not. In other words, explicitly stating any rights might actually reduce our freedom.

Although the proposed document was quickly ratified by five states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), it bogged down in other state legislatures primarily due to the absence of a bill of rights. In Massachusetts, the impasse was broken when Anti-federalists, led by John Hancock and Samuel Adams, agreed to ratify the proposed Constitution on the condition that a bill of rights would soon follow.

The Federalist minorities in the Maryland and Virginia assemblies facing similar opposition, also agreed to establish a bill of rights rather than risk delaying the ratification of the Constitution. This spirit of compromise kept the process moving.

On June 21, 1788, New Hampshire became the ninth state to approve the proposed Constitution. As a result, Congress formally ratified it on September 13, 1788, with an enactment date of March 4, 1789. One hurdle had been cleared.

The challenge now was to craft a bill of rights that would be acceptable to the thirteen states. James Madison of Virginia, an early opponent of a bill of rights and a member of the House of Representatives, eventually changed his position on the matter and led the effort to develop one that would satisfy the Anti-federalists.

Madison’s initial effort recommended nine changes to the body of the new Constitution rather than additional articles. However, the Federalists saw this attempt to modify the original text they had so recently ratified as a mistake. They argued these changes might undermine the credibility of the new document.

Instead, the House of Representatives, swayed by the arguments of Roger Sherman, agreed to place all amendments at the end of the Constitution. On September 25, 1788, after much debate, the House and Senate jointly agreed to twelve proposed Articles as additions to the document and forwarded them to the states for their approval.

On December 15, 1791, Articles Three through Twelve were ratified by Congress and became the first ten Amendments to the Constitution, our Bill of Rights. Interestingly, Article Two dealing with Congressional pay raises was not approved until 1992 as the 27th Amendment and Article One dealing with the number of seats in the House has never been approved.

So why should the Bill of Rights matter to us today?

Quite simply, life as we know it in the United States of America would not be the same without the rights stated in our first ten amendments. Try to imagine a country without religious freedom or the right to say what we want. Or a place where the government could search your home without cause or deny you due process of law.

The Bill of Rights matter to all of us every day we live in this great country of ours. We must know and understand our rights as Americans, or we can never hope to preserve them. It is truly our shared responsibility.

If you want to learn more about your Bill of Rights, I suggest reading Akhil Reed Amar’s book The Bill of Rights. Published in 1998, this book is an excellent account of our Bill of Rights, including the history behind their creation, how the interpretation of them has evolved, and how they are linked to one another.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Guest Essayist: Gary Porter
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.


Shay’s Rebellion was a “wake-up” call for all Americans. The armed closure of a duly constituted court was a drastic step. But these were drastic times. The war with Britain, though favorably concluded for the Americans, had left the economies of the states in shambles. The Confederation Congress found itself powerless to intervene. By the summer of 1786, farmers were unable to find a market for their crops or meet their tax obligations; without hard cash they were unable to make their mortgages or loan payments. The courts, with little recourse but to uphold the law, were foreclosing on farmers who only a few short years before had been fighting for their country’s independence. On August 31, 1786, ex-Revolutionary War Captain Daniel Shays, now himself a bankrupt farmer, lead an armed mob to the Northampton, Massachusetts court and forced it to close. But Massachusetts was not alone: Pennsylvania’s James Wilson observed that “The flames of internal insurrection were ready to burst out in every quarter.”  Mutinies of soldiers in New York, New Jersey and Pennsylvania fed the anxiety. Political cartoons began to appear in American newspapers mocking Congress. Leading men began calling for amendments to, or even replacement of, the Articles of Confederation.

In April 1786, Rufus King wrote to Elbridge Gerry: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”[i]

Three years before, Henry Knox had complained to Gouverneur Morris: “As the present Constitution is so defective, why do not you great men call the people together and tell them so; that is, to have a convention of the States to form a better Constitution.”[ii]

Finally, the pleas for change were heard, there would be a “Grand Convention” to “fix things” once and for all. Alexander Hamilton and James Madison were elated. Their quiet work behind the scenes had paid off.

In Hamilton’s view “The fundamental defect is a want [lack] of power in Congress.”[iii] He had tried numerous times to have the Articles amended, to no avail. George Washington complained of “a half-starv’d, limping Government.”[iv]

Madison was determined not to waste the opportunity the convention afforded. First, he would place the Articles under his scholar’s microscope and identify each of its defects. Madison was in a unique position to undertake this analysis: he had represented Virginia from 1780-1783 in the Confederation Congress and had seen from that vantage its inherent weakness. Following this, he had served the next three years in the Virginia Assembly, seeing the problems caused by the Articles from that perspective. Returning once again to a seat in the Confederation Congress in the Spring of 1787, Madison sat down at his desk before setting out for Philadelphia and wrote “Vices of the Political System of the United States.” These would become the “cautions” that a new government must avoid. Hopefully it would become a government actually empowered to govern.

All but the last of the twelve “bullet points” Madison set down in “Vices” were accompanied by elaborating commentary. For instance: “Failure of the States to comply with the Constitutional requisitions,” the first complaint, was explained as an “evil” which “has been so fully experienced both during the war and since the peace, [which] results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”

While Madison was careful to identify the “effects” of the deficiencies of the Articles, he did not focus on its numerous structural defects:

  • The Articles created only a unicameral Congress. In 1774, the Continental Congress had simply “come together” without much thought of being a permanent fixture. Governments of history had often included a Senate, but where would the authority to add a Senate to the Congress come from, even if the advantage was obvious? By 1787, however, all of the states had adopted bi-cameral legislatures in their state constitutions. While this example was adopted by the convention, it is generally regarded as one of many compromises. (See Article 1)
  • There was no Supreme Court. With Congress lacking the authority to create a supreme legal body, conflicts between states were assigned to ad hoc committees to resolve. Without an enforcement arm, committees were limited to recommending solutions, relying on the good will of the states to carry out their recommendations. (See Article 3)
  • There was no true chief executive function. Beyond keeping order in the Congress, the President had little power to do much else. Enforcing the laws passed by Congress? Not in the President’s obligations. (See Article 2)
  • The amendment process effectively guaranteed no amendments. The Articles required state unanimity before an amendment was adopted. In practice, this proved self-defeating since in every case a single state could (and did) object and thus the suggested amendment came to a grinding halt. (See Article 5)

All of these defects were corrected in the new Constitution.

The standard meme today is that the Articles were discarded in their entirety and a “brand-new” document substituted. But while the structure of government adopted at the Grand Convention was indeed new, not every feature of the Articles was abandoned; the following clauses and provisions were retained, some nearly verbatim:

  • The “privileges of trade and commerce” enjoyed by the citizens of each state were preserved, reworded as the privileges and immunities clause of the Constitution. (See Article IV, Section 2)
  • The power to extradite fugitives. (See Article IV, Section 2)
  • The “Full faith and credit clause.” (See Article IV, Section 1)
  • “Freedom of speech and debate in Congress” was retained as was immunity from arrest. (See Article I, Section 6)
  • The prohibition against treaties, confederations, or alliances between the states without the consent of the Congress. (See Article I, Section 10)
  • Congress’ exclusive war-declaring power. (See Article I, Section 8)
  • Congress’ exclusive authority to issue letters of marque and reprisal and punish “piracies and felonies commited (sic) on the high seas.” (See Article I, Section 8)

At the Virginia Ratification Convention on June 5, 1788, Edmund Pendleton would sum up the Articles thusly: “Our general government was totally inadequate to the purpose of its institution; our commerce decayed; our finances deranged; public and private credit destroyed: these and many other national evils rendered necessary the meeting of that Convention.”

The genius of fifty-five “demigods” would find solutions to the various defects of the Articles of Confederation, would create the “more perfect union” the men sought and that America deserved, yet all this genius depended on one final institution: a virtuous people. As John Adams reminds us: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[v] If this constitutional republic is to survive, if the republic is to be “kept,” the result is in the hands of “We the People.”

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Rufus King to Elbridge Gerry, April 30, 1786

[ii] Henry Knox to Gouverneur Morris, Feb 21, 1783.

[iii]  Alexander Hamilton to James Duane, 3 Sept. 1780.

[iv] George Washington to Benjamin Harrison, 18 Jan. 1784.

[v] To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798.

 

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Guest Essayist: Tony Williams
Articles of Confederation, George Washington, 1787


At the end of the Revolutionary War, many Americans had great hopes for a politically and economically prosperous future for their independent nation. In June 1783, General George Washington took a moment to reflect on the state of America and offer some advice to his fellow citizens to preserve its future.

In his Circular Letter to the States, Washington wrote that the “lot which Providence has assigned us” was blessed with “the Establishment of our forms of Government; the free cultivation of Letters, the unbounded extension of Commerce, the progressive refinement of Manners, the growing liberality of sentiment, and above all, the purse and benign light of Revelation.” For Washington and others, the American founding occurred during an “auspicious period.”

The reality of the 1780s, however, rarely matched such optimism. The economy suffered a recession at a time of heavy public and private debt. The states passed tariffs on each other’s trade and nearly went to war over these trade disputes. Several states violated the 1783 peace treaty. They violated the property rights of Tories and the rights of conscience of religious dissenters with unjust laws.

The Articles of Confederation offered few solutions to the problems that plagued the new nation. The national government lacked the power to tax or regulate interstate trade. The principle of separation of powers was largely absent as the government did not have an independent executive or judiciary nor a bicameral legislature. The national government failed to respond militarily to crises such as Shays’ Rebellion.

While most acknowledged that the new republic suffered problems of governance, they differed as to the proper remedies to those difficulties and the exact character of the national Union. These contrasting views were seen in the Confederation period, at the Constitutional Convention, and during the ratification debates between Federalists and Anti-federalists.

The Anti-federalists, admitted throughout the period, the Confederation government had a few problems. Nevertheless, they thought that a few reforms were sufficient to solve the problems. The proposed New Jersey Plan at the Constitutional Convention added greater powers of taxation and trade regulation to national powers but did little to alter the basic framework of government.

The Anti-federalists defended this basic line of thinking and opposed the significant increase of powers in the national government in the new Constitution. For example, the first letter of Brutus warned that the proposed government was dangerously consolidated and threatened the liberties of the people. They believed that they were the real “federalists” because they supported the principle of federalism with a better balance between state governments and the national government.

Brutus was concerned that the Constitution would destroy the Confederation and thereby change the very nature of the Union. The Necessary and Proper Clause and the National Supremacy Clause, Brutus explained, granted virtually unlimited powers to the national government and effectively annihilated the state governments as they were “barely necessary to the organization of the general government.” Brutus also appealed to Montesquieu’s view in Spirit of the Laws that republican governments can only survive in small territories.

The Federalists, on the other hand, sought to expand the powers of the central government and argued that a stronger government would actually do a better job than the Confederation government at protecting liberty. They defended the new government and believed that the powers of government had to be redistributed in favor of the national government.

James Madison was one of the leading voices of the Federalists who propagated this new view. Before the Convention, Madison penned the Vices of the Political System, which detailed the evils that beset the Confederation. He thought, “The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions to control one part of the Society from invading the rights of another, and, at the same time, sufficiently controlled itself from setting up an interest adverse to that of the whole society.” In other words, the main goal was to empower the national government without creating a tyranny.

With this in mind, Madison developed the Virginia Plan that laid the basis for debates early in the Convention. While he did not get everything he had wanted in the Constitution, Madison was one of the main proponents of the Constitution as one of the three authors of the Federalist essays under the pseudonym Publius and at the Virginia ratifying convention.

In Federalist #39, Madison explained, “The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.” He thought this delicate balance would help make possible a government in a large republic. In his innovate political science in Federalist #10 and Federalist #51, Madison argued that liberty would be better protected in a large republic because contending interests would prevent unjust factions from introducing majority tyranny.

The vigorous deliberation during the American founding demonstrated that while the founders on both sides of the argument concurred on the ends of government, they differed on the best framework of government to achieve those ends. Americans have continued to debate the relationship of the national government and the states according to the federal principle throughout the history of the country to the present day.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Guest Essayist: Tom Hand


The Articles of Confederation and Perpetual Union was our nation’s first constitution and essentially served as the basis for our government from 1777 to 1789. It was created by the thirteen original states to help them unify their war efforts against England and was the precursor to our present Constitution.

In June 1776, soon after the Second Continental Congress appointed the Committee of Five to draft the Declaration of Independence, Congress also established a committee to craft a document by which this new country would be governed. Comprised of one delegate from each colony and chaired by John Dickinson of Pennsylvania, these thirteen men presented their initial draft to Congress on July 12, 1776.

They named it the Articles of Confederation, suggesting a fairly loose coalition rather than one united entity. Although the states agreed to form a national government, they were not willing to cede any of their individual rights or powers to it.

After much debate and five different versions, the Articles were finally approved by Congress on November 15, 1777, and immediately sent to the various states for their ratification. Although official approval of the document required all thirteen states to ratify it and the thirteenth state (Maryland) did not do so until February 2, 1781, the Articles effectively guided Congress’ action from 1777 onward.

The Articles stressed the rights of the individual states more than the power of the central government. As Article II states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Additionally, the states viewed this association as a group of co-equals and there was no consideration given for the size, wealth, or population of the various colonies. As articulated in Article V, “In determining questions in the United States in Congress Assembled, each state shall have one vote.”

Article IX entrusted several responsibilities to the Confederation Congress such as dealing with Indian nations and foreign affairs to include making treaties, declaring war, and making peace. However, the Article also required “nine states assent” to virtually anything Congress wanted to do. Given the sessions were lightly attended by the delegates, quorums were often difficult to attain which made passing any new legislation even more challenging.

Interestingly, Article XI expressly allowed for the addition of Canada to our confederation if that colony so chose. That fact indicates how precarious was England’s hold on our northern neighbor in the minds of Americans in the 1770s. Finally, as Article XIII states “the Union shall be perpetual” which meant that joining the compact was permanent and there was no recourse for leaving the Union.

The Articles of Confederation as approved created an amazingly weak central government. One might ask why the states would take the time to form a national government at all if the one they designed was powerless and ineffective. It is important to remember state sovereignty was paramount to virtually all political leaders in early America.

As the move towards independence gained traction in 1776, states codified freedoms in their own state constitutions that had been denied to them under King George and Parliament. With each state already guaranteeing liberties to all citizens, there was no need or desire to create a powerful entity at the federal level to ensure them.

This extreme focus on state’s rights is understandable when one considers how the original colonies had been established. Rather than the eastern seaboard being populated by the English all at once, the various colonies had been settled separately and independent of the others. Naturally, each colony jealously guarded its autonomy.

The inherent weakness of the federal government, and the danger that posed, became clear as the American Revolution got underway. Although its provisions authorized the central government to regulate and establish an Army, it lacked the power to enforce its decrees. While Congress could request funding and troops from the states, all money and men would only be forthcoming if the states agreed to the requests. Not surprisingly, most requests were ignored.

This lack of funding and men almost proved the undoing of the Continental Army which, of course, would have meant the end of our effort to win independence. As General George Washington wrote to George Clinton from Valley Forge in February 1778, “For some days past, there has been little less than a famine in camp.” He went on to write, “When the fore mentioned supplies are exhausted, what a terrible crisis must ensue.”

Unfortunately, funding for the army only got worse after we secured our independence. With the threat from England largely ended, the national army shrank to a skeletal force that attempted without much success to protect the western borders from Indian attack. Additionally, because of this military impotence, the United States could not compel England to abandon its forts in the Northwest Territory as called for in the Treaty of Paris.

The Articles also expressly denied Congress taxation authority. Consequently, the central government was constantly short of cash and unable to pay its bills. Congress printed more money, but this only served to devalue the currency. To make matters worse and national finances more confusing, the individual states had the right to print their own currency as well.

Another flaw was the lack of an executive branch. Although the men who presided over the Continental Congress were called “President,” they had no power, and many served in that position for less than a year. Most delegates had seen too much of King George and monarchy to be willing to entrust significant authority in one central figure.

These issues aside, the Articles of Confederation deserves some credit. For one thing, it was our first constitution, and with it we survived the American Revolution and six years beyond.

The Articles also granted the Confederation Congress the authority to establish an efficient system for expanding the new nation. Its provisions for new territories and how to settle them as seen with the Northwest Ordinance of 1787 proved to be a boon in the decades that followed.

So why should the Articles of Confederation matter to us today? Perhaps the greatest blessing of the Articles was its flaws. Our nation’s leaders were able to see and learn early on what we needed in a central government for our country to succeed.

While we feared a powerful Federal government, we realized one that was powerless would ensure our demise. The recognition that we needed to balance these two concerns led to the changes our Founding Fathers incorporated into our Constitution.

If you want to learn more about the Articles of Confederation, I suggest reading “We Have Not a Government: The Articles of Confederation and the Road to the Constitution” written by George Van Cleve. Published in 2017, it is an excellent account of the troubles resulting from the weakness of the Articles and how those troubles led to the creation of our Constitution.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Guest Essayist: Gary Porter
U.S. Bill of Rights


Before I begin this discussion, I should like to highlight two books which cover this topic quite well, in far more detail than I can include here: The First American Constitutions, by Willi Paul Adams, first published in 1973 in Germany, later, in 2001 in the U.S., and The Origins of American Constitutionalism, published in 1988 by Donald S. Lutz. Both are well-written, well-documented and well-worth your time.

We tend to view the American War for Independence in simplistic terms: parliament overreached; the colonies balked, declared their independence, fought a war to secure that independence, and went on to establish a unique written Constitution “of the people, by the people and for the people.” But as any historian knows, the story is more complicated. While the later part of the 1700s, at least in America, was indeed dominated by the War for Independence, “[t]he last three decades of the eighteenth century were a time of extraordinary political experimentation and innovation,” [i] writes Donald Lutz, and the American Revolutionary War “just happened” to occur during that extraordinary time.

The U.S. Constitution has at various times and by various writers been called the product of the Enlightenment, Classical Greek philosophy, Protest theology, the Hebrew Republic, English common law and English Whig political theory, and some of its roots can easily be traced to these predecessors; but many overlook its connections to the first state constitutions. “The early state constitutions contributed significantly to the development of [the] constitutional principles [found in the U.S. Constitution].”[ii]Anyone who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents.”[iii]

By 1787, when fifty-five men met in Philadelphia to “render the federal Constitution adequate to the exigencies of the Government and the preservation of the Union,”[iv] all but two of the thirteen states had already set in place a new state constitution.[v] Of those fifty-five men, almost half (26) had served in their state legislatures, including participating in the drafting of their state’s new plan of government.

References to numerous state constitutional provisions were made during the “Grand Convention.” One of the last being on September 12th, just five days before the Constitution was completed and signed.  Virginia delegate, George Mason, rose to point out that the absence of a Bill of Rights in the draft they were then considering was a matter of great concern. “It would give great quiet to the people (to have a Bill of Rights); and with the aid of the State declarations, a bill might be prepared in a few hours.” Colonel Mason, you may recall, had been the chief architect of the Virginia Declaration of Rights of 1776; thus, he was eminently qualified and experienced to draft yet another declaration.  But Mr. Roger Sherman of Connecticut then rose to point out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion was made to establish a committee to draft a bill of rights, but the motion failed 0-9, and the delegates went on to put the final touches on the document they had labored over for four long months.

But let’s step back a bit in time and review what prompted this “extraordinary political experimentation and innovation.”

Rising tensions between Great Britain and the American colonies had led to the suspension of state assemblies in Massachusetts, New York, Virginia. Other Royal Governors simply fled their posts. Leaving a society without government and/or leadership invites anarchy. Thomas Jefferson complained of this in the Declaration of Independence:

He (i.e., the King) has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Without their state assemblies in operation and to mitigate “the dangers of invasion from without, and convulsions within,” Committees of Correspondence, Committees of Inspection and Committees of Safety became shadow state governments. Eventually, provisional assemblies were formed and these sought advice from the Continental Congress, which began meeting in September 1774.

The State of New Hampshire figures prominently in America’s constitutional history: their ratification of our U.S. Constitution on June 21, 1788, was the ninth and final ratification necessary to put the document into effect. The subsequent ratifications, by Virginia, New York, North Carolina and Rhode Island, only ensured those states would be participants in the new union rather than bystanders. But few Americans today know that New Hampshire was also the very first colony to enact a new constitution, on January 5th, 1776, a full seven months before the united colonies declared their independence in Philadelphia. New Hampshire had asked the Congress for permission to do so in the Fall of 1775, even suggesting that Congress draft a standard state constitution that each state would then adopt. Congress debated this but decided that there were so many differences in the state governments that had evolved over a hundred or more years that a “one size fits all” approach would simply not work. Congress finally gave New Hampshire and South Carolina the “go-ahead” on November 3rd, 1775.

South Carolina followed New Hampshire’s lead with a new provisional constitution of their own on March 26, 1776. On May 4th., Rhode Island unilaterally declared its independence from Great Britain without finding it necessary to establish a new plan of government; their original charter, stripped of its monarchical references, would serve adequately.

Two days later, Virginia began the fifth in a series of conventions.  Meeting in Williamsburg, the delegates approved a Declaration of Rights on June 12th and their new constitution on June 29th.

Noting the actions of New Hampshire, South Carolina, and Rhode Island, and perhaps trying to “get ahead of the curve,” the Continental Congress on May 10th approved a circular to the thirteen colonies encouraging any of the colonies who had not yet done so to form new provisional governments. After adding a preamble on 15 May, the circular was sent. [vi] On July 2, 1776, the same day Richard Henry Lee’s resolution for independence was approved in the Congress, New Jersey ratified its new constitution.

All but one of the remaining states approved new constitutions within a year: Delaware (September 11, 1776), Pennsylvania (September 28, 1776), Maryland (November 8, 1776), North Carolina (December 14, 1776), Georgia (February 4, 1777), and New York (April 20, 1777). Connecticut, like Rhode Island, decided its existing charter provided an adequate government. Other than Rhode Island and Connecticut, Massachusetts became the last state to adopt a new constitution, in 1780.[vii]  In the years that followed, several states updated or replaced their provisional constitutions.

As each colony-turned-state began drafting their new constitution they drew upon, in Virginia’s case for instance, the experience of more than 100 years of self-governance. Each colony had an elected assembly, either unicameral or bicameral, a court system, and a Royal Governor appointed by the King but usually also advised by a Governor’s Council. By 1773, however, the aforementioned committees were governing towns and counties, and soon nearly all the colonies had established provincial congresses acting outside royal authority.[viii]

Despite their practical experience in governing, the states found constitution-making from scratch a relatively new, untested process. What features of their colonial government should they retain, which should be modified or abandoned altogether? Hanging over all this constitution-making were the Articles of Confederation. For nearly four years (November 1777 – March 1791) the Articles lacked the unanimous consent they needed to be in official operation, yet there was a war afoot; no time to wait for Maryland to come on board; Congress had no choice but to act as though the Articles were ratified. How well would these new state governments work with the Confederation Congress?  Not well at all as it turned out. But the blame should be placed on the Articles, not the states.

The Continental Congress continued to function as a rudimentary, unicameral central government under the Articles of Confederation, yet in 1776-77, as the states drafted their new plans of government, the confederation’s more glaring deficiencies were yet to be revealed. What did the states come up with?

  • First, what should we call this thing? Although the nomenclature shift from “charter” to “constitution” was slow and inconsistent, eventually all states settled on some variation of that term; Virginia, Maryland, and North Carolina termed their initial document “The Constitution or Form of Government”; Pennsylvania: a “Plan or Frame of Government”; Delaware: “The Constitution or System of Government”; Georgia: “Rules and Regulations for the Future Government of the State.”
  • Division of the government into three distinct branches (most of the thirteen State constitutions had this feature). Virginia’s constitution reads: “That the legislative and executive powers of the State should be separate and distinct from the judiciary.”[ix]
  • Checks and balances. “They had encountered evil or unfortunate conditions in the past, in their royal and State governments; and they planned now to avoid a renewal of those conditions by adopting theories to fit the circumstances. So far from intending each of the three branches to be wholly coordinate, they decided to curb any excess of power in any one branch by balancing it with an effective power in another. Where they had experienced an evil in an omnipotent Legislature, they checked it; where they had actually felt the oppression of a too strong Executive, they checked him; where they believed a Court had been too independent, they checked it.”[x]
  • The Franchise. Generally, men (and in some states, women) who owned a certain minimum amount of property could vote. Pennsylvania enfranchised any male who paid taxes.
  • Elective Government. All states established direct popular elections for at least the Lower House of the legislature, with annual elections being the rule. Ten states also chose annual elections for the Senate, whether by the people or the lower house. Eleven states instituted annual elections of the governor, in three states directly or indirectly by the people, in the others by the legislature. Interestingly, South Carolina set a net worth requirement for their governor, the only state to do so.
  • The Legislature. While most colonies had operated with a unicameral legislature up until independence, often augmented by a Governor’s council, all but one state chose a bicameral legislature for their new constitutions, with Pennsylvania being the lone exception (Pennsylvania joined the bicameral states fifteen years later).
  • The Executive. In a rejection of powerful royal governors appointed by the King, the states, at least Initially, made their governors almost powerless. Although problems created by a weak executive soon became apparent and were slowly corrected, “[b]y 1787, only four states had executives worthy of the name.[xi]
  • The Judiciary. Most states instituted an appointed judiciary, often appointed by the Governor (four states) or the Legislature (seven states).
  • Consent of the governed. In all but one state, the new constitution was simply put in effect as though it were a simple law. There were some murmurings, but the citizens generally accepted this “constitution by fiat.” But to be fair to the legislatures involved, they felt themselves to be representatives of the people.

Many states kept the other major features of the governmental structure that served them for so many years. One example from Delaware: “The sheriffs and coroners of the respective counties shall be chosen annually, as heretofore.”

So, what can rightfully be called innovations in the state constitutions? I’ve encountered few that could be called truly radical, but Delaware’s Constitution provides some examples:

  • A Declaration of Rights preceded the Constitution (Virginia led the way in this).
  • In Delaware alone were elected officials impeachable up to 18 months after leaving office.
  • Delaware’s Article 26 prohibited slavery, one of the first states to do so constitutionally.
  • No firearms were allowed to be carried at any election.
  • There was to be no establishment of any one religious sect in preference to another.
  • “No clergyman or preacher of the gospel…shall be capable of holding any civil office in this State.” (other states incorporated this feature as well).
  • The oath before assuming office in Delaware read: “I, ___, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

What of the various state bills or declarations of rights?  How did they compare with what eventually became the U.S. Constitution’s Bill of Rights?

Beginning with Massachusetts, the Anti-federalists began insisting that their vote for ratification would only materialize if there were a “gentleman’s agreement” that both amendments and articles for a future bill of rights would be accepted and submitted with the ratification instrument. When he arrived at the first Congress under the new U.S. Constitution, James Madison set to work reviewing these submissions from the states and incorporating those with the greatest appeal. It should come as no surprise to find parallels between the state Declarations and what became the U.S. Bill of Rights. But there were exceptions – suggestions that were either rejected by Madison or rejected by the Congress after Madison included them in his draft to the Congress. Notably, several verbatim quotes from Virginia’s Declaration of Rights were rejected by the Congress after appearing in the draft.

In summary, as Willi Paul Adams concludes: “The most significant accomplishment of the American Revolution, apart from the military achievement of independence, was the successful establishment of republican, federal, and constitutional government in a territory so extensive by European standards that conventional wisdom considered only monarchical government suitable for such an empire.”[xii]

Donald Lutz takes a different view: “[t]he (U.S.) Constitution … successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it bult upon and in many important respects derived from state constitutions.”[xiii](emphasis added)

While the American states were intended to be experiments in government, and they have in many respects played that role over our 230+ years, there was still remarkable similarity in the thinking of the drafters of the early state constitutions as they considered what were the ingredients to “good government.” The fact that Massachusetts operates today from their 1780 Constitution, albeit with 120 amendments, remains a testament to the wisdom of America’s founding generation.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988. p. 97.

[ii] Donald S. Lutz, Ibid. p`. 99.

[iii] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925

[iv] Resolution of the Confederation Congress, February 21, 1787.

[v] Rhode Island decided to retain the structure of government described in their Royal Charter although the linkage to the British government had of course been severed. Rhode Island operated from this modified charter until 1842.

[vi]Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”

[vii] Giving Massachusetts the distinction of having the longest continuously-operating constitution in the world today.

[viii] https://en.wikipedia.org/wiki/Colonial_government_in_the_Thirteen_Colonies

[ix] Virginia Constitution, 1776, Article 1, Declaration of Rights, Sec. 5.

[x] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925, p. 24

[xi] Donald S. Lutz, Ibid. p. 106

[xii] Willi Paul Adams, The first American Constitutions, 2001, p. 5-6.

[xiii] Donald S. Lutz, Ibid. p. 109

 

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Guest Essayist: Adam Carrington
Independence Hall, Philadelphia, Pennsylvania


We don’t always get it right the first time. Sometimes, experimentation then leads to true success. Those statements prove true for many situations, professional and private. The Founders experienced both with their first forays into constitution-making in the 1770s and the 1780s. Those efforts included the Articles of Confederation, our first national constitution. Our current Constitution replaced it after a short, tumultuous time.

Here, though, we will focus on the efforts made at the state level. The former colonies needed their own governing documents to set the conditions for rule. These first efforts saw some success and some need for serious improvement.

First, these constitutions got the source of rule correct. The constitution for North Carolina (1776), opened by declaring, “That all political power is vested in and derived from the people only.” New Hampshire (1776) based its constitution’s power on the “free suffrages of the people of said colony.” This reasoning aligned with another document from 1776, the Declaration of Independence. That work of the Second Continental Congress declared that governments derive “their just powers from the consent of the governed.” This point itself derived from the Founders’ commitment to human equality, expressed by the fact that no person should rule another without pre-conditioned agreement.

Second, these constitutions in general got the purpose of government right. Massachusetts’ constitution (1780), penned by John Adams, said the purpose of government resided in the power “to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.” This reasoning, too, aligned with the Declaration of Independence. It declared that all human beings possessed “unalienable rights,” meaning claims on others that no one else could infringe. It then said that “to secure these rights, governments are instituted among men.” Government exists because we have these rights but cannot adequately enjoy them due to threats from others. Political society forms to offer protection of these rights for their better use by each person.

Third, however, these state constitutions tended to struggle to rightly structure their institutions. In particular, they correctly sought a government organized around the concept of separation of powers. WE must understand this point before saying how they struggled with it. This theory said that government power is based on the rule of laws. However, law requires three functions to rule properly.

First, one must make law—the legislative power. Some may say we could stop there. However, that would leave government inadequate to its task. We know that merely saying what someone should do does not always get obedience. Sometimes people will disobey the law even when they know it. Think of many of us on highways with speed limits. That brings in the second task of government under the rule of law. A government must enforce those made laws—the executive power. Executive power brings coercive force to bear in service of the laws, to make sure people obey them and thus do not infringe on rights. Third and finally, a tribunal must exist to interpret and apply the law when disputes arise regarding it—the judicial power. People may know the law but not agree on whether someone broke or followed it. That factual question is what juries often decide in trials. People may agree on what happened but disagree about the wording of the law in relation to what happened. Judges make these calls, trying to apply the law’s words faithfully to the actions in a case before him or her. Together, these three powers ensure the law rules, both our constitutions and the statutes made under them.

Most state constitutions affirmed separation of powers. Article VI of the Maryland constitution’s declaration of rights (1776) said, “That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” However, many states structured their separation of powers to make the legislative power too strong and the other branches too weak. Doing so did not deny separation of powers on paper. But it did so in practice.

States such as Pennsylvania and Virginia in particular created very weak executives. They quickly came under the control of the state legislatures. James Madison saw this problem in the 1780s. Having seen what happened with state constitutions, Madison wrote in Federalist 48 that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In some sense, legislative dominance was natural. Legislative power made the laws that other branches must then carry out. That gave it an advantage. Also, in a popular government, people would see themselves more in the numerous, lawmaking legislature than the much different executive or judicial branches.

We must not underestimate the problem with separation of powers failing in practice in these states. The Founders knew and said that any combination of legislative, executive, and judicial power together led to tyranny. It did so because it allowed one entity to take over the laws and start using them as it wished. The law then became a tool for human beings to oppress one another, not a guide and restraint to rule over them.

Thankfully, not all constitutions fell prey to this problem. New York’s 1778 constitution, for example, gave a strong executive that maintained independence from that state’s legislature. It became an example members of the Constitutional Convention looked to for constructing our American President. In other ways, our Founders learned from the other states’ mistakes in how they constructed the national Constitution. They put in a system of checks and balances to work alongside separation of powers. These checks gave each branch ways to limit the power of the other branch. Ambition would check ambition, as Madison would write in Federalist 51. Sometimes, these checks even meant giving a little of one branch’s power to another. Thus, the president’s veto power is a legislative power to make laws. But it helps protect that office against legislative encroachments. Even the powerful Congress possesses the impeachment power, lest a president or judges usurp their power or the Constitution’s.

Thus, we can be thankful we no longer have the state constitutions of the 1770s and 1780s. They needed improved upon. But we also should thank them for the good they did. They set out the proper origin and purpose of government, a commitment we only reinforced through our subsequent history. And they taught us how to structure our government better. They gave us the experience that showed how to separate governmental powers to support the rule of law and by it human equality and liberty.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Guest Essayist: James C. Clinger


The federal, or United States Constitution, drafted during a hot summer in Philadelphia in 1787 was not the only constitution written in that time period, nor was it the first. Earlier, as the former American colonies became newly formed states, they adopted new constitutions that would later influence other states and even the form of the federal Constitution. These documents became the first statements of how republican government would be framed and put into practice.[1] According to Akhil Reed Amar, within these constitutions were “certain overarching elements that are now so commonplace that we forget how truly revolutionary they were in 1776: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability.”[2]

Most of the new constitutions roughly resembled the colonial charters that they replaced. Connecticut and Rhode Island even retained their colonial charters with only minor modification. But some states began a serious effort to craft their own, unique constitutions which would both empower and constrain state government as well as protect the rights and liberties of their people. New Hampshire drafted its constitution even before independence was declared, and several others followed suit while the revolution was being fought.[3]

Many of those early state constitutions were hastily drafted under adverse conditions. The threat of approaching British troops forced some constitutional conventions to adjourn and reconvene multiple times.   Some states’ constitutional framers were not completely convinced that the revolution would be successful.[4] According to Article 26 of New Jersey’s constitution of 1776, “if Reconciliation between Great Britain and these Colonies should take place, and the latter be again taken under the Protection and Government of the Crown of Great Britain, this Charter shall be null and void, otherwise to remain firm and inviolable.”

There were certain commonalities in the various constitutions, but a number of unique features in particular states. All states provided for some separation of powers which would become a distinctive feature of both state and federal governments. Most states provided for a fairly weak executive, although in many respects the chief executive, almost always referred to as a governor, was more powerful than any executive in the national government under the Articles of Confederation. Many states did not provide for a veto for their governor, and some gave veto authority to a plural body, sometimes called a council of censors.[5]

Most state legislatures were bicameral, although both Pennsylvania and Georgia established a single chamber in their initial constitutions.   There were usually property requirements to hold office in the legislature, with stricter requirements for members of the upper chamber. The lower chambers’ members were directly elected by the voters. This was usually the case for the members of the upper chamber, which today in every state is called a senate, but in Maryland the senators were chosen indirectly with voters selecting electors who would then select the members of the senate. A few states later adopted this method, and a few for a short time used electors to select their governor.   Direct election of the governor was established in only five of the original thirteen states’ initial constitutions. In the remaining states, the legislature would select the chief executive.[6] Under the initial state constitutions, judges were either appointed by the legislatures or by the governor with approval of the legislature or at least the senate. The legislature was generally permitted to change the compensation of judges at will, thus diminishing the courts’ reputations for independence.[7]

The terms for almost all offices in the early constitutions were very short. With one exception, all states limited the length of lower legislative house members’ terms to one year. South Carolina had two-year terms. Most states’ senators served terms of one or two years, as did most governors and many judges. These brief terms were a primary check on the behavior of public officials.[8]

The early state constitutions established suffrage requirements for state voters. Most states required property holding requirements, but those varied dramatically from state to state. Property requirements might also vary for the electors of different offices. To vote in elections for the lower legislative chamber, Pennsylvania and North Carolina offered the franchise to all freemen who paid taxes. To vote for members of the state senate, North Carolina required ownership of fifty acres of land. New Hampshire imposed a poll tax. New Jersey had a minimum property requirement of fifty pounds value that applied to suffrage for all state office.[9] These voter qualification requirements had implications for voting in elections for the federal House of Representatives, once the U.S. Constitution took effect, since Article I, Section 2 stipulates that the voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Some, but not all, of the new constitutions included a bill of rights or a declaration of rights. Some of the language in these declarations was largely precatory, with admonitions that state government “ought” not to do certain things, such as impose excessive bail. Other language seems to impose more of a binding commitment on the government. Some of the rhetoric is fairly sweeping, such as the declaration in the Virginia Declaration of Rights that all men are “born free.” The absence of a bill of rights in the federal Constitution was a contentious issue during its ratification. But that issue was resolved with the passage of the first ten amendments. These state declarations became a model for the Bill of Rights, although there were notable differences between the first state declarations and the federal Bill of Rights. The state declarations usually referred to rights to jury trials, the free exercise of religion, and the right to bear arms. The very first state constitutions did not refer to a general freedom of speech, although later constitutions did. Notably, most state constitutions did not include a state equivalent of the federal Establishment Clause.[10] Some constitutions, in fact, authorized state government to support religious institutions[11] and several authorized religious tests for holding certain public offices.[12] The initial constitutions of the original thirteen states did not mention slavery as an institution, although a few rhetorically declared that the British monarch had enslaved the American colonies. Provisions defending, limiting, and abolishing slavery within different states would appear in subsequent constitutional revisions in the coming years.[13]

Some of the early state constitutions were hastily written and did not even provide a provision for amendment. Thus, constitutional changes took place through wholesale re-writes of the documents. Many states drafted entirely new constitutions in the first few years of the republic, and more constitutions were written and ratified as new states were added to the union. Many of those constitutions borrowed from the existing constitutions of other states. For example, about 70% of the 1792 constitution of the new state of Kentucky was taken almost word for word from the Pennsylvania constitution of 1790.[14] Of course, many features of the federal Constitution borrowed somewhat from the state constitutions. Most early state constitutions or amendments were adopted through a legislative process. The constitution of the Commonwealth of Massachusetts was one of the first to require approval by voters. In that instance, the document was voted upon by local towns and townships. Today, most states require a public referendum to approve new constitutions or constitutional amendments.[15]

Acknowledgements: The author would like to thank Dr. James Humphreys for his comments on an earlier draft of this essay. Any errors are the responsibility of the author.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky. 

[1] Adams, Willi Paul.. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era / Willi Paul Adams; Translated by Rita and Robert Kimber; with a Foreword by Richard B. Morris. Expanded ed. Rowman & Littlefield Publishers; 2001.

[2] Amar, Akhil Reed.   The Words That Made Us: America’s Constitutional Conversation, 1760-1840.  Basic Books,

2021.

[3] Adams, loc cit.

[4] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press.   p.83

[5] Squire, loc cit., p. 87

[6] Lutz, Donald S. “The Theory of Consent in the Early State Constitutions.” Publius 9, no. 2 (1979): 11–42.

[7] Tarr, G. Alan.  “Contesting the Judicial Power in the States.”   Harvard Journal of Law & Public Policy 35, no. 2 (2012): 643-661.

[8] Lutz, loc cit.

[9] Lutz, loc cit.

[10] Lutz, Donald S. “The State Constitutional Pedigree of the U.S. Bill of Rights.” Publius 22, no. 2 (1992): 19–45.

[11] Vincent Phillip Muñoz, “Church and State in the Founding-Era State Constitutions.”   American Political Thought  4, (Winter 2015):1-38.

[12] Wilson, John K. “Religion Under the State Constitutions, 1776-1800.”  Journal of Church and State.  32, no. 4 (1990): 753-773.

[13] Herron, Paul E. “Slavery and Freedom in American State Constitutional Development.” Journal of Policy History 27, no. 2 (2015): 301-336.

[14] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[15] Tarr, 2000

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Ken has spent more than two decades working at the highest levels of national policy and communications. He serves as the policy translator for the firm’s communications strategies to ensure that complex issues in areas such as healthcare, transportation, technology, homeland security, and many others, are understandable and actionable for clients’ intended audience(s).

Prior to joining the firm, Ken served as Chief Counsel and Deputy Staff Director of the U.S. Senate Commerce Committee where he served under then-Chairman Ted Stevens of Alaska. Ken also served under Committee Chairman John McCain. Ken joined the Committee after serving as an attorney in the Issues and Appeals Division of the law firm Jones Day, and also as Senior Law Clerk to the Honorable Donald Ivers on the U.S. Court of Appeals for Veterans’ Claims.

Ken is a graduate of Miami University in Oxford, Ohio, and Capital Law School in Columbus, Ohio. He is a proud-native of Cleveland, Ohio, and he is married with two teenage children.

In 2000, Keith realized his vision for a multidimensional communications strategy firm that not only focused on the public relations needs for clients but also designed growth strategies for companies and organizations ranging from small start-up businesses and nonprofits to multinational corporations.

Keith believes that every organization has a story to tell. When the story is told well and strategically, that organization will be better equipped to reach its goals.

A 27-year veteran with top-level experience advising, designing, and managing some of the largest campaigns in US history, Keith has worked for governors, members of Congress, and served in the White House under the first Bush Administration. His work has taken him around the world to dozens of countries and almost every state in the nation. Among other roles, Keith has served as Special Assistant to the Vice President of the United States, Special Assistant to the Governor of New Jersey, consultant to the Secretary of Health and Human Services (HHS), consultant with top-secret security clearance to national security agencies, and campaign manager to Congresswoman Michele Bachmann in the 2012 presidential campaign.

Among his many career achievements, Keith has worked for six presidential campaigns, managed the messaging priorities for HHS at the request of the Secretary, and orchestrated both the Medicare Part D prescription drug enrollment campaign and the HHS Prevention and Value Driven campaign.

Keith has significant experience working with the media and has been a frequent source of commentary for national news outlets, including the Washington Post, New York Times, Boston Globe, Wall Street Journal, ABC, CNN, NBC, CBS, Fox News, NPR, and others.

Keith is married to his wife Courtney and holds a B.A. in History from the College of Wooster.

From a very early age, music was an integral part of Wil Gravatt’s life. Wil’s mother worked for the legendary Capitol Records; and he was exposed to the sounds of the Beatles, Janis Joplin, Buck Owens, and Waylon Jennings to name a few. His first love was the drums; teaching himself to play and forming his first band when he was only 14. More of a rocker in the early years, Wil switched to country music in his late teens while in college. He bought an acoustic guitar and taught himself to play by listening to BB King, Bruce Springsteen, and others.

Wil released a solo record “Ready to Cross That Line” in the late 90’s to critical acclaim. In the early 2000’s Wil put together a band of high-caliber musicians and started performing many energetic shows to a packed house at the now-defunct Whitey’s in Arlington, VA. Eventually they released “Live at Whitey’s.” It’s a staple of the collection of many country music fans.

In 2005 and 2009 the band was invited by Presidents Bush and Obama to perform at their respective Inaugural Balls – quite an honor for any band. The Wil Gravatt Band has shared the stage with Robert Earl Keen, Lynyrd Skynyrd, Pat Green, Little Big Town, ZZ Top and myriad other renowned artists. Based in Washington, DC they continue to perform 75+ shows a year to long-time fans and new recruits to their unique brand of high-energy Honky Tonk music.

The band features former Danny Gatton sideman Steve Wolf on bass, Gary Crockett on drums and vocals, Jimbo Byram on steel guitar, Bobby Spates on fiddle, and Wil on vocals and guitar. A new album of original music recorded in Nashville is slated for release in late 2016.

Peter Roff is a longtime Washington, D.C. writer and commentator whose work has appeared in U.S. News & World Report, Newsweek, and other publications. He appears frequently on radio and television and holds fellowships with several public policy organizations. He can be reached by email at RoffColumns@GMAIL.com. Follow him on Twitter @PeterRoff.

At one time the political director of Newt Gingrich’s GOPAC, Mr. Roff planned and directed political education programs that trained tens of thousands of candidates for public office and political activists. Prior to his years at GOPAC, he spent nearly five years as executive director of Americans for Tax Reform, the organization that created the “Taxpayer Protection Pledge.”

Leaving politics in the late 1990s, he began a new career as a journalist, spending five years as the senior political writer for United Press International.

While at UPI he regularly filled the wire with breaking news and analysis, working on some of the biggest political stories of the 20th century including the September 11, 2001 terrorist attack and the election of George W. Bush in one of the narrowest political contests in U.S. history.

A frequent commentator on politics and public issues, Mr. Roff has appeared on a variety of radio and television programs including “CBS News Overnight,” “Politically Incorrect with Bill Maher,” “The Dennis Miller Show,” “Hannity & Colmes,” “The O’Reilly Factor,” “C-SPAN’s Washington Journal,” and even once appeared as himself on the hit ABC comedy “Spin City.”

Mr. Roff’s observations have been quoted in major publications including USA TodayThe New York Times, the online version of The Wall Street JournalThe Washington Times, The Christian Science Monitor, and National Review.

A 1988 graduate of The George Washington University, Mr. Roff has lived in Northern Virginia for much of the last 25 years along with his children and his beagle Watson.

Nashville songwriter Steve Dean has co-written six number one hits, including the most played song on country radio in 2007, “Watching You” for Rodney Atkins, the Grammy nominated “It Takes A little Rain” for The Oak Ridge Boys, “Southern Star” for Alabama, “Round About Way” for George Strait, “Walk On” for Reba McEntire and “Heart’s Aren’t Made To Break” for Lee Greenwood.

Among Steve’s musical influences are The Beatles, The Byrds, The Eagles, Buck Owens,
Johnny Cash, and Roger Miller.

Steve’s songs have been recorded by LoCash Cowboys, Joe Nichols, Dierks Bentley, Lee Ann Womack, Waylon Jennings, The Roys, Pure Prairie League, John Michael Montgomery, Point of Grace, Conway Twitty and others.

Steve has earned eight BMI Songwriter Awards, two BMI Publisher Awards, two BMI 2 Million Air Awards and three BMI 1 Million Air Awards.

Steve’s song “Walk On” is on the Grammy winning CD, Reba’s Greatest Hits Volume 2.
Steve’s song “Expecting Good Things”, is the title track to Jeff and Sheri Easter’s Grammy nominated CD “Expecting Good Things”.

As a singer/songwriter, Steve lets his audience in on a behind the scenes look at, and a unique opportunity to hear the stories surrounding the inspiration for and why these songs were written.

Mark Rodgers is the Principal of The Clapham Group, a company that seeks to influence culture upstream of the political arena. Mark served as the third-ranking Republican leadership staffer in the U.S. Senate for six years overseeing strategic planning and strategic communications. He also served as a high profile chief of staff to Senator Rick Santorum, working on Capitol Hill for a total of 16 years. He was known on the Hill for his work on such issues as poverty alleviation and global AIDS, as well as protecting life at its most vulnerable stages. Mark is a published writer and a speaker at large and small gatherings on the topics of faith and public life, culture and caring for the least of these. His work over the years has involved consulting with some of the largest foundations in the world, Fortune 500 companies, internationally known music artists and filmmakers, and even famous comic book creators. He is a published writer and a speaker on the topics of faith and public life, culture and caring for the least of these.  His work over the years includes outreach to “culture creators,” and he has worked closely with artists from diverse fields including computer gaming, graphic novels, film and music.  Mark is also a social entrepreneur, and enjoys finding ways to help people “do good while doing well.”

He earned a bachelor’s degree in petroleum engineering from Penn State, and attended Trinity Episcopal School for Ministry. Mark is married to Leanne, and together they have four children and four grandchildren. Mark resides in Burke, Virginia.

Gail MacKinnon joined the Motion Picture Association (MPA) in November 2017 and is the current Senior Executive Vice President for Global Policy & Government Affairs. A skilled senior executive with experience in public policy advocacy, issues management, and strategy development, Gail oversees the MPA’s government relations portfolio and policy agenda, as well as its international advocacy and policy, including in the APAC and EMEA regions.

Previously, Gail served as Executive Vice President, Government Relations for Time Warner Cable, where she led all aspects of federal, state, and local government relations for the telecommunications company. She positioned the company as a trusted advisor to government leaders on a range of public policy issues; including video reform, cybersecurity, tax, and privacy.

Prior to her role at Time Warner Cable, Gail was Senior Vice President of Government Relations at the National Cable & Telecommunications Association. She has held senior positions at Viacom, CBS Inc., Telecommunications Inc., and Turner Broadcasting. She began her career on Capitol Hill, serving as Legislative Director for Congressman Jack Fields (R-TX).

In 2016, Gail helped co-found WE Capital, a consortium of women in the Washington, D.C. business community investing in female-led startups focused on social impact work. She was named one of Washingtonian’s Most Powerful Women in 2019. Gail received a Bachelor’s degree from Georgetown University.

Born and raised in Dallas Texas, Moses Uvere was the first born to Patience and Gabriel Uvere, immigrants who came to America to seek “the American Dream.” Being brought up by parents from a different country, Moses witnessed firsthand what “the American Dream” was all about and the struggle to achieve a better life. Living in poverty-stricken areas Moses had an up-close view of growing up poor, sharing clothes with his brothers, wearing hand-me-downs, and not getting much during the holidays. Moses was an active kid who always played sports and was a fine football prospect in high school where his career was cut short. Due to the fact that his mom left the family, he the eldest of the four had to grow up quickly to help his dad raise his two little brothers and his little sister. “The things in my life didn’t break me, but made me the man I am today.” Music had always been a part of his life and after being in the group minority authority for a few years, Moses struck out on his own. He met up with Dustin Cavazos who produced his first release, From Worse to Better. (2008) The album is a reflection of past experiences that he has seen and lived. A few years later, (2011) Uvere signed a record deal with Universal / Motown producer Geoff Rockwell under the imprint of chaos creative and released an album entitled Mind the Gap which received critical acclaim. Following that album, Uvere had his highest-profile release yet with Never Been Better which led him to be in front of 13.9 million people (according to anchor marketing), with his latest release Kingdom of the Fallen. The album reached the top 100 of the iTunes charts and was followed up with a performance at the historic Klyde Warren Park as the first Christian hip hop artist in its history to be invited as a headliner. Each project of his musical offerings was influenced by artists such as Kanye West, Common, Pigeon John, Issac Hayes, and Musiq Soulchild. He is a husband, a father of three, and currently the Lead Pastor at the Vine of Life in Garland, TX.

Shane Tews is a nonresident senior fellow at the American Enterprise Institute, where she focuses on cybersecurity issues, including privacy and data protection, next-generation networking (5G), the Internet of Things, international internet governance, digital economic policy, information and communications technology, artificial intelligence (AI) and the metaverse, cryptocurrency and non-fungible tokens, and emerging technologies. She is also president of Logan Circle Strategies, a strategic advisory firm.

She is vice chair of the board of directors of the Internet Education Foundation; chair of the Internet Society’s Washington, DC, chapter; member of the board of SeedAI; chair of the board of directors at TechFreedom; and chair of the Dynamic Coalition on the Internet of Things of the Internet Governance Forum.

Previously, Ms. Tews served as co-chair of the Internet Governance Forum USA. She was a member of the board of the Information Technology and Innovation Foundation, the Information Technology Industry Council, and Global Women’s Innovation Network. She also managed internet security and digital commerce issues as vice president of global policy for Verisign. She began her career in the George H. W. Bush White House as a deputy associate director in the Office of Cabinet Affairs and later moved to Capitol Hill as a legislative director for Rep. Gary Franks (R-CT).

Ms. Tews studied communications at Arizona State University and American University, where she graduated with a bachelor’s degree in general studies with an emphasis on communications and political science.

Experience

  • Logan Circle Strategies: President, 2014–present
  • Vrge (formerly 463 Communications): Outside Policy Consultant, 2015–19
  • 463 Communications: Principal and Chief Policy Officer, 2012–15
  • Internet Education Foundation: Vice Chair, Board of Directors, 2011–present; Member, Board of Directors, 2004–11
  • Verisign: Vice President of Global Public Policy and Government Relations, 2001–12
  • Distilled Spirits Council of the United States: Vice President for Federal Affairs, 1997–2001
  • Citizens for a Sound Economy and Citizens for a Sound Economy Foundation: Director of Government Relations, 1995–97
  • Office of Congressman Gary A. Franks (R-CT), US House of Representatives: Legislative Director, 1992–95
  • The White House: Deputy Associate Director, Office of Cabinet Affairs, 1991–92
  • US Department of Transportation: Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs, 1991; Staff Assistant to the Secretary of Transportation for Scheduling and Advance, 1989–91

Education

BA, public relations and political science, American University
Attended Arizona State University

Guest Essayist: Tony Williams


The Americans of the founding period were a strongly Protestant people of various denominations including dissenting Presbyterians, Baptists, and Congregationalists. Some historians have estimated that Protestants made up over 98% of the American population. Their Protestantism was characterized by a strong dissenting tradition against religious and civil tyranny as well as a strong streak of individualism.

Their Protestantism—especially the Puritan tradition—was also exemplified by appeals to the natural law in its covenant theology that was consistent with Lockean social compact theory. Covenant theology caused Americans to view themselves as a Chosen People of a new Israel who formed a covenant with God. The natural law of covenant theology was consistent with both reason and revelation as they reconciled their reason and faith in the natural law and natural rights philosophy of the American Revolution.

The American founders drew from a variety of traditions in arguing for their natural rights and liberties. Ancient thought from Greece and Rome, the English tradition, and the ideas of John Locke and other Enlightenment thinkers combined with Protestantism for a rich tapestry. While the Enlightenment provided a strong influence on the founders, the contribution of their religious beliefs has often been downplayed or ignored. The average American colonial farmer or artisan may not have read John Locke’s Two Treatises of Government or ancient philosophy, but they heard dissenting religious ideals and Lockean principles from the pulpit at religious services.

Toward the end of his life, Thomas Jefferson had cause to reflect on the meaning of the Declaration of Independence, a document which later influenced the United States Constitution. He wrote to Henry Lee in 1825 about the purpose of the Declaration:

“This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.”

The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest articulators of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.”

In 1774, Thomas Jefferson expressed the same sentiments in his Summary View of the Rights of British America. In the pamphlet, he wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

A year later, a young Alexander Hamilton wrote a pamphlet, Farmer Refuted, in which he eloquently described the divine source of universal rights. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

These “expressions of the American mind” were common formulations of natural rights that influenced the Declaration of Independence. The four mentions of God in the document demonstrate their understanding of the divine, but it also showed that God was the author of good government according to natural law.

First, the Declaration appeals to the “separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This first mention of God is that of Protestant and Enlightenment natural law. They saw God as the author of truth in the moral order of the universe. This moral order defined their thinking about republican self-government.

Second, the Declaration asserts that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” God is the Creator and author of natural rights in this formulation. Since rights are from a higher authority, no earthly power can violate an individual’s inherent rights. Interestingly, God here acts as a supreme legislator who makes the natural law and grants natural rights.

Third, the Declaration appealed to “the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.” God is a judge who authored the idea of justice and who judges human actions. God here represents the judicial branch of government.

Fourth, the Declaration stated that, “With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Americans believed that God was a providential God who intervened in human affairs and protected his Chosen People. This conception of God represents the executive branch of government.

The Declaration of Independence was a reflection that the American natural rights republic was rooted in the natural law. Reason and divine revelation supported the natural law that shaped a good government built upon the understanding of human nature and the rights given to human beings by God.

In Federalist #1, Alexander Hamilton explained the entire purpose of establishing free government based upon the principles of the Declaration of Independence and Constitution. He stated that Americans had the opportunity and responsibility to form good government by “reflection and choice,” not by “accident and force.” The United States was founded uniquely upon a set of principles and ideals.

In 1861, President Abraham Lincoln had occasion to reflect upon the principles of the American Founding. Using a biblical metaphor, he thought that the Declaration of Independence was an “apple of gold” because it contained the foundational principles of the new country. The Constitution was the “picture of silver” framing the apple with the structures of republican government, thus preserving the purpose of the Declaration. In the mind of Lincoln—and those of the Founders—an inextricable link bound together the two documents in creating a free government.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Guest Essayist: J. Eric Wise


Everything comes back to the Declaration of Independence. In a way, the seeds of the Federalist Anti-federalist dispute in the framing of the Constitution were sown in the Declaration.

The Declaration of Independence established the basis of just government as consent as against the divine right of kings. To quote Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.”

Consent leads to forms of majority rule, although it must be a reasonable and restrained majority which respects the rights of the minority. Consent requires some kind of deliberation for the sake of forming consensus, and public deliberation over a proposed charter leads to disputes for and against.

But that is not the sole connection. The Declaration of Independence establishes a right of revolution. Whenever a government becomes abusive of the ends of just government it is the right of the people to alter or abolish it. Revolution is an extra-legal right. The oppressions of King George – “[a] Prince whose character is thus marked by every act which may define a Tyrant” – entitled the colonists to rebel, illegally.

The Declaration of Independence – a “unanimous Declaration of thirteen united States of America” – also stated that “That these United Colonies are, and of Right ought to be Free and Independent States.”  A new nation was born that was having a hard time saying clearly whether it was one nation or many. Babes lisp, and so it was with the young United States.

The first charter of the United States was entitled the Articles of Confederation and Perpetual Union. Confederation comes from the Latin con meaning “with or together” and foederare meaning treaty or league. Again, the early babble of United States suffered some polysemy. It was a union that was perpetual but also a treaty of several states.

The Articles of Confederation, as a practical matter, were inadequate. Among other things, the new government was unable to enforce its laws directly and the scope of its powers was narrow, particularly in commercial and financial matters. The result was a chaos of creditor-debtor disputes and a moribund economy that began to threaten the viability of the United States. Both France and Britain anticipated the collapse of the new United States, and were eager to pick up the pieces.

A convention was called in 1787 to repair the defects of the Articles.  The convention produced a proposal for an entirely new charter, the Constitution, to replace the Articles. The Constitution would have many new features, including drawing its authority directly from the people rather than a compact of states, exclusive coinage and bankruptcy power, and a radically new executive power embodied in a president of the United States. It also proposed that it would be deemed adopted when ratified by only nine states.

This last proposal flatly contradicted the Articles. The Articles required a unanimous vote of its member states for amendment. Like the revolution the proposal for a new Constitution, though an appeal to ballots and not bullets, was illegal.

The ground for the adoption of the Constitution was similar to that of the Revolution, an appeal to the “necessity” and (echoing the Declaration) the “law of nature and nature’s God.” The Articles were incompetent and had to be “thrown off” to for the “preservation” the country. Federalist 43.

In politics it is important to pick the name of your movement.  If you do not, your political adversaries will pick it for you. The proponents of the new Constitution, led by Alexander Hamilton, James Madison and John Jay, took the name Federalist. Opposition to the new Constitution was labeled Anti-federalist, locking in rhetorical disadvantage.

Anti-federalists argued with some alarm that the new Constitution permitted the national government to resort to force. Federalists argued that the states were protected from invasion by the Federal power by their militias and from domestic insurrection or invasion by the new federal government. Federalist 28.

The Anti-federalists argued that the confederal form should have been preserved. The Federalists argued that the proposed government was “partly federal and partly national.” Federalist 39.

Anti-federalists argued that the convention did not have the authority to adopt the Constitution. The Federalists argued that the new Constitution was “necessary.” Federalist 40.

Anti-federalists argued that the proposed Constitution was too difficult to amend, and that it should be amended whenever a department of the government exceeds its authority. Federalists rebutted that frequent appeals to the people would undermine the authority and reasonableness of the new government. Federalist 49.

Anti-federalist argued that the judiciary was too independent.  Federalists argued that the new Constitution’s judiciary was its least dangerous branch, and that unconstitutional judicial decisions could be ignored. Federalist 78.

The Federalists prevailed, but experience has at times exposed weaknesses in the Federalist’s arguments. The federal government has overtime supplanted the states in their power. Appeals to the people to amend their Constitution have not just become infrequent, but have ceased almost altogether: The Constitution has not been amended “soup to nuts” in more than 50 years. And this has happened as the judicial power has expanded under the doctrine of a “living constitution” to displace the amendment function; this raises the question whether the Constitution can continue to be the people’s document if the courts, and not they, are its author in key respects.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

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Guest Essayist: Tom Hand
Declaration of Independence painting by John Trumbull depicting the five-man drafting committee, left to right: John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson, Benjamin Franklin of the Declaration of Independence presenting their work to the Congress. The original hangs in the U.S. Capitol rotunda.


The Declaration of Independence was America’s first and, arguably, greatest document. It not only laid out the reasons why we should leave the British Empire but also eloquently explained a different set of rules by which a nation should be governed. The background leading to the creation of this document is critical to understanding its content.

At the end of the French and Indian War (or Seven Year’s War) in 1763, the British Empire’s treasury was depleted due to the terrible expense of the war. Although it had been fought in several parts of the world, King George and Parliament decided to recover much of the cost on the backs of their American subjects.

Parliament enacted the Stamp Act (taxes on most printed materials) in 1765 and then the Townshend Act (taxes to fund royal officials, as well as language reinforcing Parliament’s right to tax the colonies) in 1767. While Parliament felt it reasonable that the colonies share of the cost of the recent war, the colonists felt quite different.

To understand where the Americans were coming from, it is important to understand that for much of our early history the British Empire had neglected their American colonies. As a result, Americans had developed a strong independent streak. Out of necessity, our early leaders created their own assemblies and learned how to govern themselves.

Colonial officials reasoned that since the colonies were not directly represented in Parliament, that legislative body did not have the right to levy taxes on them. Not surprisingly, tensions rose over the course of the next few years as the Americans resisted and found ways to avoid paying these new taxes.

Following the Gaspee Affair in 1772 in which colonists burned a British ship, and the Boston Tea Party in 1773 when the Sons of Liberty threw a shipload of tea into Boston Harbor, Parliament attempted to assert its authority with a series of bills known in America as the Intolerable Acts (in England they were called the Coercion Acts).

They essentially stripped Massachusetts of most of the freedoms it had enjoyed since its founding. The harshness of these acts first surprised and then outraged people in all thirteen colonies. People reasoned if England could do that to one, they could do it to all.

To address this crisis and craft a response, colonial leaders convened the First Continental Congress in September 1774. They met in Carpenters’ Hall in Philadelphia, and delegates attended from 12 of the 13 colonies; Georgia chose not to attend. They decided to impose a boycott on British goods and send King George a list of their grievances, but their petition fell on deaf ears.

As one month led into the next in 1775, matter grew worse. On April 19, American militiamen first fought British regulars at the Battle of Lexington and Concord, and on May 10 colonial leaders convened the Second Continental Congress in Philadelphia.

Most of the representatives still hoped for a reconciliation with England. After all, most still thought of themselves as English. Their ancestors had come over from England, their laws were based on English laws, and we spoke the same language.

Not surprisingly, the first point of business for Congress was to try to forge a reconciliation with England, and John Dickinson led this effort. Because most colonists viewed Parliament and not the King as the real problem, they sent a second petition, the so-called Olive Branch petition, directly to King George in July 1775. They soon found out they did not have a sympathetic ear with the King.

On August 23, in reaction to the Battle of Bunker Hill on June 17, Parliament passed the Proclamation of Rebellion which formally declared the colonies to be in a state of rebellion. By the time Congress’ petition arrived at court in late August, King George refused to even receive it, and the chance for reconciliation was essentially at an end.

Notified in late 1775 of these developments, John Adams and others who saw independence as the only choice for the colonies began to agitate for it. Then, in January 1776, Thomas Paine, an Englishman newly arrived in America, published a pamphlet called “Common Sense” which advocated for complete independence from England. His timing was perfect.

Much like Harriett Beecher Stowe’s “Uncle Tom’s Cabin” crystallized the abolitionist movement in the 1850s, Paine’s pamphlet presented to the American people a sound and well-reasoned argument for why separation from England made sense. Ideas that only months before were almost too extreme to discuss were now seen as the best alternative. The table was now set for the great debate to reach its inevitable conclusion.

The discussions were intense, but by late June enough progress had been made toward securing the votes that Congress formed a “Committee of Five” to draft a resolution declaring independence. This committee which included John Adams, Benjamin Franklin, Robert Livingston, Roger Sherman, and Thomas Jefferson wanted Adams to draft the document. However, Adams insisted that Jefferson do the writing with Adams editing it as needed.

On July 2, the Congress approved the Lee Resolution, introduced by Richard Henry Lee of Virginia, calling for independence from Great Britain. The Committee of Five promptly submitted its declaration document to Congress which they approved, after several modifications, on July 4. Thus, in the minds of the delegates, and soon in the eyes of the world, our nation was born.

The words contained in the Declaration of Independence were some of the most revolutionary ideas ever printed. When Congress approved the words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness,” they were going where no government had gone before.

The preamble further declared that “Governments are instituted among men, deriving their just powers from the consent of the governed.” Given that, in 1776, hereditary monarchies ruled all the nations of the earth, this too was a radical doctrine.

The Declaration of Independence also listed 27 grievances the King had committed against his subjects in America, essentially justifying our decision to separate from England.

These complaints ranged from “He has dissolved Representative Houses repeatedly” to “He has made Judges dependent on his will” to “He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.” Taken together, they made a compelling case for leaving the British Empire.

Ultimately, the American colonists in 1776 were left with two choices. They could either completely submit to the authority of Parliament and the Crown, becoming vassals of England, or declare complete independence and thereby control their own destiny. Time has shown that they chose wisely.

So why should the background to the Declaration of Independence matter to us today? It is important to know that our Forefathers tried to reconcile with the mother country and that rebellion was not our preferred choice.

We also must recognize the intensity of the debate and the widely varying opinions regarding the proper course of action to take and understand that our Forefathers agonized over their decision.

Finally, we must appreciate that these words revolutionized the way that not only Americans but also the rest of the world viewed the role of government and the very concept of where the right to govern originates.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

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Guest Essayist: Andrew Langer


Prior to the drafting and ratification of the United States Constitution, our founders had nearly two hundred years of colonial governance from which to draw lessons regarding both the proper, and the improper, management of such territories, and the best way to add new lands to a governmental structure.

Among the threads that run through the Constitution, the assurance of fair and equal treatment of all citizens and the necessity of “due” process as a way to protect those citizens’ rights is repeated in a myriad of ways.

When it came to colonization and settlement, the founders could draw on the history of Great Britain’s management of the colonies (and, in many cases, their mismanagement) to ensure that the deficiencies in British governance could be corrected and their mistakes not repeated.

A central problem was consistency in the development of colonies and the application of British law. Colonial charters, the documentation actually allowing British subjects to establish colonies in North America, could be granted by the King (directly) or by the King’s officers, and they were granted to both corporate entities and groups of individuals.

But these charters could also be revoked, and most colonial charters were, at some point or another, revoked and reinstated by the Crown.

If Americans were going to settle the western portions of the recently-unionized states, they would have to be guaranteed, under the law, that the same kinds of arbitrary actions that plagued British colonial governance would not be continued by an American government.

Not all were even in agreement about such expansion (that became encompassed in the 19th century as the Monroe Doctrine. An Anti-federalist, writing under the name Brutus I in response to the Federalist papers written by James Madison, John Jay, and Alexander Hamilton under the pseudonym Publius, voiced deep concern about American empire building.

Jonathan Marshall, writing for Inquiry Magazine in 1980 (and republished in The Journal of Libertarian Studies) wrote:

“[T]he Antifederalist world view was profoundly shaped by their abhorrence of “empire”-that is to say, the rule of a vast territory by a strong, consolidated government. In rejecting the Federalist dream of a glorious American empire, they challenged the notion that the confederated states had to mimic European empires to safeguard their independence. Ultimately, the Antifederalists insisted, empire could be achieved only at the expense of their most cherished and hard-won prize: liberty.”

That skepticism is certainly shared when viewed in the context of another failure of British rule—the abandonment of the principle of “salutary neglect.” Discussed at length by one of the earliest historians of the American Revolution, Dr. David Ramsay (a revolutionary-era politician and physician), the concept is straightforward: the best way for a colony to prosper is for the parent nation to take a “light touch” in terms of direct governance, to let the colonists themselves make decisions and solve problems.

As the American colonies grew more powerful and determined to make decisions on their own, the British crown became more determined to bring them to heel. This only served to frustrate and anger the colonists, and eventually led them to declaring themselves free and independent states.

The Constitution addresses these concerns squarely—most clearly in Article IV, Section 3, more commonly known as the Admissions Clause.

The clause has two parts—the first, granting power to Congress to admit new states. The second, a restriction on that power, saying that Congress cannot create a new state by dividing the territory of an existing state or by joining two states together, without the consent of the legislatures of those states.

Both are essential to the practice of good governance. The people of the United States and potential states, i.e., territories know that there is one body with the power to admit states into the Union. It cannot be done or denied arbitrarily by a President, or the President’s bureaucratic functionary.

The second clause is almost more important than the first since it essentially prevents a state from being punished or the federal government otherwise abusing its powers by tearing apart states or forcing them to join with other states against their will. There has to be agreement from that state’s duly elected legislative representatives.

It is, essentially, another form of Due Process, protecting the rights of these citizens from arbitrary or capricious behavior on the part of the Federal Government.

Interestingly enough, though not outlined in the Constitution, the process for newly-settled lands to become states has largely been codified over time. Public lands are declared U.S. territory. Through a variety of means, the people in that territory vote to declare their intent to become a state, and then Congress passes an “enabling act” legislating that the territory becomes a state.

One aspect of this, for many of the states that entered after the middle of the 19th century, was to declare that all “unappropriated public lands” within those territories to be the property of the United States itself.  This was a way of “clearing title” to those lands for the purpose of encouraging further settlement (clear title, as the property rights scholars Hernando DeSoto and Richard Pipes have both written, is an essential element of strong protection of private property). It is also the reason why, as a percentage of a state’s territory, so much more land is owned by the federal government west of the Mississippi River (which has had huge implications for the balance of power between federal and state governments for the last half-century).

The British government had both successes and failures when it came to their management of the North American colonies. The authors of the Constitution learned from those mistakes and crafted clear language to safeguard against making them again.

Andrew Langer is President of the Institute for Liberty.

 

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Guest Essayist: Tom Hand


The Colony of Virginia was established at Jamestown by the Virginia Company in 1607 as a for-profit venture by its investors. To bring order to the province, Governor George Yeardley created a one-house or unicameral General Assembly on July 30, 1619.

This body of men was comprised of an appointed Governor and six Councilors, as well as 22 men called burgesses (a burgess was a freeman of a borough in England). Most importantly, the burgesses were elected by the eligible voters (free white males) in the colony, thus making this General Assembly the first elected representative legislature in British America.

In 1642, Governor William Berkeley split the legislature into two houses initiating a bicameral assembly, with the elected representatives in the newly created House of Burgesses and the appointed Councilors of State meeting separately.

It was here, the leading men of Virginia met and debated the great issues of the day. Until the 1760s, this legislative body largely determined how the colony would be governed, including how its citizens would be taxed.

This began to change in 1765 when Parliament passed the Stamp Act which imposed a tax on paper products such as newspapers, pamphlets, and legal documents. Importantly, it represented the first time Parliament placed a direct tax on the colonies in North America.

This revenue grab did not go over well with the colonists who were used to controlling their own internal affairs. The debates and the documents that flowed from the House of Burgesses after that act spearheaded our nation’s drive for independence from England.

On May 29, 1765, Patrick Henry introduced a series of resolutions known as the Virginia Resolves. These declarations essentially denied Parliament’s right to tax the colonies since the citizens in America did not have representation in England.

By late June, many newspapers throughout the colonies had printed these resolutions which inflamed the passions of people. The “no taxation without representation” sentiments led to the Stamp Act Congress of 1765, marking the first time the colonies joined forces against the Mother Country.

The years passed and the relationship with England continued to deteriorate as the Mother Country introduced more burdensome legislation. In 1774, after Parliament passed the Boston Port Act which closed the port of Boston, the House of Burgesses again voiced their opposition in a series of resolves. The result was that Governor Lord Dunmore dissolved the assembly.

However, the Burgesses would not be denied their right to assemble and immediately convened in a public house called the Raleigh Tavern. Here, they called for a series of five Virginia Conventions to meet in defiance of the governor.

It was at the Second Virginia Convention on March 23, 1775, that Patrick Henry gave his most famous speech by concluding, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, God Almighty! I know not what course others may take, but as for me, give me liberty or give me death.”

In addition to Patrick Henry (Burgess from 1765-1776), the men who passed through the House of Burgesses was a group that had an outsized influence in the founding of our great nation. Its alumni list is a “Who’s Who” of Founding Fathers:

George Mason (Burgess from 1758-1760) who wrote the Fairfax Resolves in 1774 which denied Parliament’s authority over the colonies, and in 1776 formulated Virginia’s Declaration of Rights, a precursor to our Declaration of Independence and Bill of Rights.

Thomas Jefferson (Burgess from 1769-1774) whose 1774 paper A Summary View of the Rights of British America clearly expressed our grievances against King George and, of course, he authored our landmark Declaration of Independence in 1776.

George Washington (Burgess from 1758 to 1775) who commanded our Continental Army in the American Revolution, was our first President, and became the Father of our Country.

With the advent of the new Virginia Constitution in 1776, the House of Burgesses was finally dissolved. In its place, the new state government formed an elected Senate and an elected House of Delegates, which continues to govern the Old Dominion today. In 1780, Virginia moved its capital to Richmond, ending Williamsburg’s long run as the center of politics in America.

Sadly, the unity of these deeply patriotic men ended within a few years of achieving our independence in 1783. Defeating the British had been a cause on which all the former Burgesses could agree. With that task accomplished, they began to splinter over how to run the United States.

The Articles of Confederation under which the country operated provided a weak central government and allowed the states a great deal of autonomy. This system did not vest any taxation authority in the central government or allow for a federal standing army or navy. Many worried our new nation could not survive without a stronger federal authority.

Consequently, leaders organized a convention for the fall of 1787 to meet in Philadelphia to address issues with the Articles. Known at the time as the Philadelphia Convention but to posterity as the Constitutional Convention, the delegates did more than fix the Articles; they designed our new Constitution.

Former Burgesses like George Washington who saw the need for a strong central government were called Federalists. They argued that without this change the nation would be virtually defenseless in the face of foreign aggression. Additionally, the numerous currencies and laws of the thirteen states would tend to destabilize the nation, possibly leading to its dissolution.

Those former Burgesses that opposed the new Constitution, Anti-federalists like Patrick Henry and Thomas Jefferson, worried that creating a powerful central authority would simply replace the tyranny of the king with a different tyrant. These men preferred local control and felt states should be governed as each one saw fit.

By 1796, a mere thirteen years after the signing of the Treaty of Paris, the nation had divided into two deeply antagonistic political parties. These men, once so unified in thought and action when they were fighting for our freedom, were never able to bridge the divide regarding the proper direction for America after that freedom had been secured.

So why should the history of the House of Burgesses matter to us today?

In its day, many of the men who assembled there later assembled on the national stage to lead our country. Throughout the crisis with England, it was an eloquent and vocal proponent for American liberty and many of the ideas found in our Declaration of Independence and Constitution were first debated and refined in their meetings.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

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Guest Essayist: Tom Hand


When the English began to settle North America in the 1600s, the leaders of the various colonies had different motives. While all colonies exercised their authority in the King’s name, they were not created in the same mold, and some had more autonomy than others. In fact, there were three different types of colonies: royal, self-governing, and proprietary.

Royal colonies were owned and completely administered by the Crown. The Governor and his Council were appointed by the King and these lands existed simply to generate wealth for England. Although few land grants began as a royal colony, by the American Revolution, eight of the thirteen colonies were this type: Virginia (converted in 1624), New Hampshire (1679), New York (1685), Massachusetts (1691), New Jersey (1702), South Carolina (1719), North Carolina (1729), and Georgia (1753).

Self-governing colonies were formed when the King granted a charter to a joint-stock company which set up its own independent governing system. These organizations were essentially corporations formed to make money for the investors.

Like the entrepreneurs of today, a few men came up with an idea, presented it to their friends and associates, and asked them to invest in their plan. Their organizations had wide latitude to appoint leaders and run their business as they wished. Virginia, Massachusetts Bay, Connecticut, and Rhode Island were all initially established as self-governing colonies.

However, these colonies soon found out that their independence was on a short leash. If the colony was poorly administered like in Virginia or if the people proved troublesome like in Massachusetts, these dominions were converted into a royal colony with all the restrictions that came with it. By the time of the American Revolution, only Rhode Island and Connecticut, retained their original self-governing charter. The King always had the final say.

Proprietary colonies were land grants given by the King to one or a few favored men called proprietors. They in turn were to administer these areas for the Crown but in a manner to be determined by them. The proprietors appointed the Governor and his Council, determined the laws (but they had to be approved by the Crown), and ran the territory as they saw fit. While the King had the ultimate authority, the rule of the proprietors resembled that of a monarch.

Maryland was an example of a proprietary colony. It was established by Cecil Calvert in 1632 upon receiving a land grant from King Charles I. Lord Calvert, also known as the 2nd Baron Baltimore, wanted to develop a land where Catholics could openly profess their faith without fear of retribution.

After several starts and stops, settlers for this new colony finally arrived in 1634. The colony prospered and in 1649 Maryland passed the Maryland Toleration Act, the first law establishing religious tolerance in British North America. Although Lord Calvert never visited Maryland, the Calvert family managed the province well and never had their charter revoked.

Not surprisingly, these proprietary colonies which operated without a great deal of input from England, were not as anxious to sever ties with the Mother Country as those with more stringent controls. For example, the Pennsylvania Assembly had to replace five of its initial nine delegates to the Second Continental Congress to get a majority of delegates to be in favor of independence.

Delaware, which was another proprietary colony, had to send an extra delegate, Caesar Rodney, on a midnight 80-mile ride to Philadelphia to break the tie in their delegation so the state could vote for independence. By the time of the American Revolution, only Delaware, Maryland and Pennsylvania remained as proprietary colonies, none of which were hot beds of rebellion.

WHY IT MATTERS: So why should the way in which colonies were organized and governed matter to us today?

The three types of colonies with their different systems of government generated varying attitudes towards English rule and our independence. Understanding these conflicting feelings helps us to better appreciate why not all Americans wanted to break from the Mother Country.

What we see is that those colonies left to govern themselves were fairly content living under English rule and not as anxious to break from England. In retrospect, England may have been wiser to allow all the colonies to operate with more autonomy and to manage them in a less oppressive manner.

SUGGESTED READING: If you are interested in a deeper dive into this subject, Colonial America: A History to 1763 is an excellent book on background, founding, and development of the thirteen British North American colonies. It was written by Richard Middleton and Anne Lombard and originally published in 1992, but it was updated in 2011.

PLACES TO VISIT: The statehouse in Annapolis, Maryland, is an incredibly beautiful building and a great example of architecture from our colonial era. It is the oldest state capitol in continuous legislative use and is the only statehouse ever used as the nation’s capitol. Seeing it and the rest of this historically significant seaside city would be well worth your time.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Guest Essayist: Adam Carrington


In the Gospel of Matthew, Jesus says, “Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock.” He contrasts these persons with him who “hears these words of mine and does not do them.” This latter man built his house “on the sand.” When rain and storms come, the first house stands firm while the second, not only falls, “but great was the fall of it.”

Americans must ask upon what kind of foundation they built their political house. What first principles created us, define us, and thus should continue to guide us going forward? Some have posited that our rightful foundation rests on a literal rock—Plymouth Rock. By saying so, they mean that the Puritans who came to New England in 1620 defined our Founding and should prescribe our tomorrow.

These persons point to the Mayflower Compact, the charter those settlers signed as the basis for their political community. This document clearly displays the political ends which these Puritans pursued and the means they established in that pursuit. We must declare them and then assess them. We thereby must ask whether this foundation of Plymouth Rock in 1620 is in fact our own as Americans in 2022.

The Compact says that it seeks to “plant” a colony. More importantly, it states what it intends to do in establishing that political community. It first lists “the Glory of God.” It follows with the “advancement of the Christian Faith,” then the “honour of our King and Country,” and, finally, their “better ordering and preservation.” Together, these make up the ends of their political community.

We must see in the first purpose the overarching one, the final end to which all others in the Compact strive. The Puritans were defined by a faith that placed God’s glory the highest in priority and all-comprehensive in its pursuit. Thus, they must advance the Christian faith, increasing who glorified God. Their honoring king and country also assumed a religious element, since they saw King James as a Christian prince and England as a Christian nation. Their honor was a mere reflection of God’s glory. Even good ordering and preservation linked back to God’s glory, since the Compact says they will so do in “furtherance of the ends aforesaid.”

Clearly, the foundation laid on Plymouth Rock required a particular kind of religious subscription by all citizens and officers in the colony. To be a rightful citizen, one must be a rightful believer. Did Americans who wrote the Declaration of Independence and ratified the United States Constitution build on this foundation or on another?

The Founders did not deny the importance of God in general or the Christian faith in particular. The Declaration of Independence mentions God no less than four times. God authors the laws of nature. He is the Creator who “endows” human beings with equal rights. The Declaration also calls God the “Supreme Judge of the world,” to whom they make the ultimate appeal for the justice of their revolution. Finally, the document concludes by a “firm reliance on the protection of divine Providence.”

But the Founder’s God took a different approach to religious practice than did the one whose glory the Puritans pursued. The Puritans demanded as a political act of citizenship on earth uniform practice aligned with citizenship in Heaven. In other words, religious liberty as we understand they rejected as hostile to the proper ends of good government.

Our Constitution, while not contradicting the Declaration, made sure that religious liberty helped define the political implications of God. The Constitution denied all religious tests for holding national office. Its First Amendment rejected the establishment of a national church as well as protecting the free exercise of religion for all. The purpose of human life might be to glorify God. But our politics would leave wide sway for persons to come to that conclusion on their own. Our laws would let persons who so decided additional liberty to consider how exactly to glorify God. Our laws would not enforce the advancement of Christianity. But we would permit its spread and protect the right of its adherents to share, to persuade throughout the land. We must also say, then, that it protected the right of conscience for even those who rejected this view of God or the existence of God altogether.

Thus, we understand that our foundation owes some influence to Plymouth Rock. Yet we cannot call it our perfect and complete foundation. We did not follow its ends in the exact same way. Instead, the Mayflower Compact influenced the Founding even more in the additional means it posited to run its political community. To achieve their ends, they wrote they would “Covenant and Combine ourselves together in a Civil Body Politic.” They founded a political regime on the basis of consent, of the willing agreement of their citizens. No outside tyrant imposed their ends upon them. In the same way, our Constitution opens that “We, the People,” did “ordain and establish” the Constitution for the purposes written therein.

Moreover, they said this new political community would, “constitute and frame…just and equal Laws, Ordinances, Acts, Constitutions and Offices.” They committed themselves to the rule of law, not the fiat of human beings. These Puritans also declared that rightful laws should contain two qualities: justice and equality. They must pursue the good and do so equally for all. Our Founding agreed. The Constitution’s Preamble gives one of its purposes as “to establish justice.” The Declaration’s commitment to equality informs so much of the Constitution, but especially the Fourteenth Amendment’s equal protection clause, which says that no state shall deny any person the equal protection of the laws.

Thus, we see ourselves on a different foundation than that laid on Plymouth Rock. Ours did not deny God but recognized Him as one of political and religious liberty. At the same time, we took much in the means from Plymouth, especially consent of the governed and just as well as equal laws. Was this foundation on a true rock or did we build a sandy foundation doomed to a great fall? We find the answer in the experience of the last 250 years. America endured. More than endured, it thrived. It rose to become a beacon of human equality and liberty, the “last, best hope” as Abraham Lincoln once called it. Its true foundation rested on those commitments—human equality and liberty—as understood through the laws of nature and of nature’s God. Those principles still hold out the promise of provision, provision of a strong foundation against all storms, internal or external. It does; but only if we continue to build wisely and faithfully upon it.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Guest Essayist: Tony Williams


Throughout U.S. history, Americans have appealed to the idea that the country is a “city upon a hill” and exceptional in its natural rights republican principles and constitutional government. These ideas were present at the time of the American founding as the founders had a sense of destiny and an understanding of the unique historic moment.

The concept of a “city upon a hill” originated with Massachusetts Bay Colony Governor John Winthrop’s “Model of Christian Charity” sermon aboard the Arbella. He described the purpose of establishing a godly society to work towards the common good, just government, and civic virtue. Winthrop’s thinking about a “city upon a hill” was influenced by covenant theology: “We must consider that we shall be as a city upon a hill, the eyes of all people are upon us; so that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a by-word through the world.” The same ideals about a religious and civil covenant with God and each other were present in the Pilgrims’ “Mayflower Compact.”

Pilgrim and Puritan thinking about a “city upon a hill” focused on establishing a pure church that was free of the perceived corruptions of the Anglican Church as well as creating a civil commonwealth on biblical principles. While they were very specific to colonial Massachusetts, they influenced the founders’ purpose to create a republic based upon natural rights and liberties. American exceptionalism thus enlarged to a national vision at the time of the founding.

After the Constitutional Convention, a vibrant political debate centered on the proposed Constitution and addressed larger political principles upon which the American republican regime was to be built. This deliberation took place in newspaper essays, pamphlets, state ratifying conventions, and in public spaces such as taverns. It was one of the greatest debates about human nature, political principles, and government the world has seen.

The debate revealed significant differences of political philosophy among American statesman as noted by numerous historians and political scientists. While the Federalists, who supported the new Constitution, and Anti-federalists, who opposed it, acknowledged that the Articles of Confederation had deficiencies that needed to be remedied, they differed significantly on the character of the changes that were needed.

The Federalists wanted a more energetic government than had existed under the Articles of Confederation because they believed it would promote better governance and thereby protect liberty. Of particular note, they argued for a stronger executive and independent judiciary under the principles of separation of powers and national supremacy.

On the other hand, the Anti-federalists admitted that the national government needed greater powers to regulate trade and to tax, but they were deeply concerned about a powerful executive, a corrupt Senate, and an imperial judiciary or perhaps a cabal of those branches acting tyrannically against the liberties of the people and the powers of the states.

This great deliberative moment during the American founding belies the fact that the opposing sides of the debate shared several fundamental republican tenets in common. They believed in popular sovereignty and representative government, limited government, federalism, separation of powers, the liberties of the people, and other essential constitutional principles even if they differed over the best means to achieve them in the framing of the constitutional order.

The Federalists and Anti-federalists also shared common roots in their thinking about government and human nature. They were influenced by ancient history and philosophy, Enlightenment ideas, the English tradition and colonial experience, and Protestant Christianity. Their Protestantism contributed to their thinking about resistance to tyranny, religious and civil liberty, and American exceptionalism.

The Federalist has several references to American exceptionalism. Most notably, in Federalist #1, Alexander Hamilton famously stated, “it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” The American opportunity to discuss those principles of government by “reflection and choice” was not merely a coincidence. Many of the founding generation thought it a sign of divine providence in their creation of a virtuous constitutional republic.

James Madison demonstrated this belief more directly in Federalist #37, when he wrote, “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Similar words were written by George Washington and others reflecting on the unlikely victory of the American Revolution and the founding.

The Anti-federalists were also pious Christians whose religious views shaped their understanding of the republican experiment in America. Brutus (widely assumed to be New Yorker Robert Yates) wrote his first essay about the danger of a large republic and struck a chord of Puritan covenant theology. Much like John Winthrop’s “City Upon a Hill,” Brutus wrote that if Americans were faithful and built a virtuous republic, they would be blessed. “[If] you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.” If they established a despotism or tyranny that destroyed liberty, they would be punished and, “posterity will execrate your memory.”

President Washington used the occasion of his First Inaugural Address to advance the republican principles of free government and free society in the new nation. He stated, “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” This assertion of American exceptionalism made the American experiment in liberty a sacred obligation not only for the destiny of America but as a model of republican government for the world.

Abraham Lincoln would echo these dutiful sentiments at Gettysburg when he said, “that this nation, under God, shall have a new birth of freedom –and that government of the people, by the people, for the people, shall not perish from the earth.”

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Guest Essayist: Joerg Knipprath


During the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”

In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.

With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.

First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.

The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.

In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”

Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.

The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.

The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.

The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.

The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.

The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.

After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.

Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.

Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.

The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.

Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.

One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”

One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.

Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.

The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.

A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities. The Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.

The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.

Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Adam Carrington


In the last essay, we discussed the British political system of the 17th century. That system consisted of King and Parliament, supposed to share rule but really locked in a battle for supremacy. While the division of power between them originally consisted of their number—the one king as well as few Lords and the many Commons in Parliament, the division between legislative and executive power grew up in the midst of the English Civil War.

King and Parliament did not fight this war merely for which institution would wield more power. A religious dispute arose, lighting the fires of war as well. In this religious dispute, we see much with which to compare to the American Constitution and the Republic that operates through it.

Every society holds some things in common. Short of total communism, they do not hold everything communally, but divide everything between personal ownership and the common stock. This division includes more than land or stuff. It includes principles. By what a society holds in common, they thereby define who they are and what they should do as a people.

For 17th century English society, people considered religion an essential glue holding them together. They saw God and His commands as essential to right believing and right living. They saw those commands as stretching to public actions pertaining to law and custom. Therefore, they assumed as necessary some king of religious uniformity. A common God understood by a common theology and common church helped to make England one nation. The English Reformation, with King Henry VIII declaring a national church apart from Roman Catholicism, only bolstered the link between national identity and religious conformity. There was a Church of England with dissenters often punished and forced to attend the official state religious body.

This history also bolstered the position of the king within England’s national religion. The Act of Supremacy (1534) had named Henry VIII “Supreme Head of the Church.” Since then, for theological reasons, English monarchs have taken the slightly different title of “Supreme Governor of the Church of England.” Still, the monarch stands as the head of the church.

This view has a utopianism to it. It hopes for uniformity of practice religiously to create a kingdom that conforms to God’s rules here on earth. It sees a unity in the king that helps to bring about this conformity through his or her governing of the Church of England. We see in here some remnants of the old divine right of kings. As God set him on the throne, so the king must made sure right religion reigns so long as he does reign, too.

The civil war saw armies with competing theologies, even as they fought under the banner of Crown or Parliament. The Cavaliers and the Roundheads, as they were called, fought over issues such as religious rites and how to structure church government. So violent did this conflict go that, in 1649, King Charles I was beheaded after a questionable trial by a small portion of Parliament.

America took a different track, both regarding religion and the king’s role related to it. In the United States Constitution, our First Amendment had two clauses related to religion. The first protected its free exercise, the second forbade the national government from making any law regarding establishing a religion. There would be no “Church of America” like existed across the pond. Moreover, the Constitution forbade any religious test be required to hold federal office.

Taken together, these provisions set up a baseline of religious liberty for all. State establishments and tests did continue in some places, including an established Congregational church in Massachusetts as late as 1833. However, even most states quickly adopted similar provisions in their own laws and constitutions.

This position took an anti-utopian stance. It saw religion as something that cannot hold us together because we must leave the individual conscience free to worship or not worship God as that person sees fit. No coercion should fall on the dissenters from majority belief.

This point mattered for the president. He would never be head of a church. He would never protect doctrinal purity. This point, again, connected with the lack of divine right. The people set him up to rule, not his birth. He would rule for four-year terms, not for life.

But our presidents do take some role in religious expression. George Washington’s Farewell Address warned of the need for religious belief among the people. That belief would shore up national morality among the ultimate human rulers, We the People. It would aid in public and private happiness, in the ruling of self that is a prerequisite to running a popular government.

Moreover, since Washington, most presidents have published proclamations or given speeches that thank or make requests of God. John Adams warned in 1798 that our Constitution was made for a religious people and the need to cultivate those beliefs, consistent with human liberty. Perhaps the greatest speech ever given on American soil, Abraham Lincoln’s Second Inaugural, consisted of an extended meditation on God’s will in the American Civil War and an affirmation of God’s goodness in the midst of so much hardship and bloodshed.

These appeals to religion should be seen, not as coercions to make one believe, but as encouragements, as attempts at persuasion. In that, we have come a long way from the English Civil War. Much divides us that people think we must hold in common these days. But we continue to hold the right to believe as we see fit and to act on those beliefs within reason, within not hurting others. We can thank our Constitution for that and be thankful for a president who is chief executor of the laws, not governor of an American church.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Guest Essayist: Adam Carrington


When Americans speak of the Civil War, we of course have our own conflict (1861-1865) in mind. However, the term “civil war” does not name one conflict in world history. It categorizes a certain kind of conflict. Many political communities have suffered from civil wars. Such conflicts pit one portion of a country against another in armed battle.

Human beings often turn civil wars into the worst of conflicts. They do so because of why civil wars occur. People will invade other countries for money, for glory, for responding to a slight, perceived or real. Civil wars nearly always become conflicts about what a country is. Combatants spar over what principles truly define the country and who rightfully belongs as citizens within it. Our civil war centered those questions around the issue of slavery.

England had its own civil war two centuries before America’s. From 1642 to 1651, with little respite, Englishmen formed armies and killed each other in ugly, pitched battles. They did so over competing visions of England. These competing visions divided along two lines. The first was political, a battle over the English constitution regarding who should rule the country and through what kinds of institutions, especially the institutions of the king and the Parliament. The second was religious. Devoutly Christian persons on both sides, and those caught in-between, desired that England adhere in true fashion to the true God.  But, as with the constitution, they did not come to the same answers. In this essay, we will examine the political differences and compare them to America’s constitutional system. In the following, we will take up the religious question of the English Civil War in relation to the American experiment.

To understand the political question of England, we must delve into the history and development of how countries organized themselves politically. In ancient and medieval times, political thinkers divided all good forms of political rule into three camps: the rule of the one (monarchy), the rule of the few (aristocracy), and the rule of the many (polity). Many of the same men extolled the good of a fourth option they referred to as the “mixed regime.” This form of government involved sharing powers among some combination of the one, the few, and the many. They intended this mixture to ensure that a country would receive the good qualities of each pure governmental form and suppress potential vices that could turn monarchy to tyranny, aristocracy to a wealth-obsessed oligarchy, or a polity into a mob-terrorizing democracy (democracy was a negative term at the time).

The English system in the 17th century had developed into one that shared power between the king and the parliament. In so doing, it incorporated the rule of all three groups. The monarch represented the rule of one, Parliament’s House of Lords the rule of the few, and Parliament’s House of Commons the rule of the people.

Such a system is impossible under our form of government. It first is so because of our principles. Kingship and aristocracy, in their pure form, begin with human inequality as the basis for ordering a political society. So, the sharing of rule comes between equals and un-equals within the country. However, our Declaration of Independence states as a “self-evident” truth that “all men are created equal.” This equality means no person can rule another without consent. No person can rule another unless the ruled can set limits on the ruler and even remove and replace him from time to time.

We legalized our commitment to equality in several places in the United States Constitution. Most notably for this issue, Article I, Sections 9 and 10 deny both the state and the national government from bestowing a “title of nobility.” The Constitution thus forbids the creation of a legal caste, a codified aristocracy who then receives special treatment by the law. Therefore, we cannot have a “House of Lords” because no lords, or dukes, or any other such legally titled persons reside among us. We cannot have a king because no hereditary right to such a position can exist for us. Our system of elections reinforced this point. Our Congress and our president both come into office by means of elections. These elections prove that “We, the People” exercise the ultimate or sovereign power through these officers, not act as subjects under their independent fiat. Our rejection of a king was of particular vehemence on this point, not wishing to elevate one man in such a way above his fellow citizens.

But the British system has evolved dramatically from this earlier setup. The English Civil War pitted Parliament against the English King, each with an army fighting for its claims. Instead of sharing power, both sought to rule outright, with the other subservient. They thus sought to make easier the exercise of the worst vices of each system. During this time, for example, we continued to see English monarchs claim their rule based in some form of divine right. God placed them on the throne and that meant something akin to absolute power in relation to parliament and English subjects.

America’s system, again, rejected these kinds of arguments. For one, we rejected the divine right of kings because of our commitment, discussed above, to human equality. Thomas Jefferson famously said that no person was born with spurs or with a saddle, the former then knowing he had a natural right to ride the latter. Human equality meant no legally born kings to subjects. Instead, the people, again, created offices to which they delegated their sovereign power to rule. That difference is why, in American history, persons often called presidents “kings” to disparage them (Andrew Jackson and Abraham Lincoln are two examples).

For another, Americans intentionally divided power among its political institutions in a way different from that which enveloped the English in the 17th century. They did not divide by who ruled, since the people ruled entirely. They divided by governmental function. They divided these functions and thus institutions into three, not England’s two: a Congress to make laws, a president to enforce them, and a judicial system to decide disputes based on the law. This separation of powers has proven far more consistent and effective over its history.

The English system, in fact, partly followed America’s route even before America existed. Parliament more and more took the lead for making laws—the legislative power. The monarch still possessed the power to veto legislation parliament passed, keeping such bills from becoming law. However, the monarch took the lead on matters we now would call executive and judicial. The king enforced the laws. He did so through ministers and other officers who arrested and restrained persons or collected taxes. The king enforced the law through his judges. Thus, England has had one court named The King’s Bench. During the commonwealth period (1649-1660), England acted as a government without a king. But they failed to truly form a government of, by, and for the people, succumbing to a de facto king in Oliver Cromwell. By 1660, England returned to a mixed regime of sharing power between Parliament and monarchy.

Over time, our president fared much better than England’s monarch. Our president only has grown in power over the centuries. He has done so as each officeholder has cultivated his role as representative of the people. As the legitimacy of rule by kings faded, though, so did the real political powers of the monarch. Vetoing legislation, for instance, is now virtually unthinkable. The British courts occupy a firmly independence existence. Parliament eventually gained total supremacy, a fate made nearly certain by the “Glorious Revolution” of 1688. Due to that dominance, the English system lacks a true separation of powers. The Prime Minister in the House of Commons occupies the real role of executive head. Meanwhile, the British king or queen now occupies a figurehead position. TV shows like “The Crown” argue for the virtues of this circumstance. They claim it allows for the monarchy to represent the country as a whole, to reside above partisanship, and to guide softly by manner, gesture, and example. But this mostly covers up a loss of political power near total in scope.

Thus, the modern British government has moved nearly all real political power, not just into Parliament, but into its House of Commons. Legislative and executive power both reside therein, with the Prime Minister doing both. Our system maintained its separation by keeping a strong executive with real powers distinguished firmly from the legislative branch. In doing so, we built a system both popular in basis and workable in execution. We maintained our independent executive power by making him not a creation of divine right but of the sovereign people. And that will continue, so long as the Constitution continues to rule the United States of America.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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By Jay McConville

America is the great nation that it is because we revere and honor the memory of brave souls who gave their lives to preserve it. Let the memory and sacrifices of those who have come before, for liberty purchased at such an immeasurable price for future generations, be forever written in our hearts.

“Whether we observe the occasion through public ceremony or through private prayer, Memorial Day leaves few hearts unmoved. Each of the patriots whom we remember on this day was first a beloved son or daughter, a brother or sister, or a spouse, friend, and neighbor.” (President George Herbert Walker Bush, Proclamation 6442—Prayer for Peace, Memorial Day, 1992)

Regardless of one’s faith tradition, one must acknowledge that the Bible is one of the greatest books in all human history. Many expressions we use daily come from it, and people often use biblical phrases without ever knowing it. In Jeremiah, from the Old Testament, one such memorable phrase relates to the covenant that God made with Israel. Jeremiah 31:33 (NIV) reads, in part, “I will put my law in their minds and will write them on their hearts.” This is repeated in the New Testament letter to the Hebrews (10:16, NIV), which reads, “I will put my laws in their hearts, and I will write them on their minds.”

While biblical scholars may disagree on the specific meaning of this verse, it is generally believed to indicate that the laws, in this case from God, are followed not merely out of obedience, but because we accept them as part of us at a much deeper level. Those with the laws written in their hearts live those laws as part of their very being.

I am partial to President H.W. Bush, who I quoted above, for personal reasons. He was my Commander-in-Chief during the war, that I was part of as an Army Officer, Desert Shield and Desert Storm. Like hundreds of thousands of others who served then, and millions and millions who have served in other conflicts, I had raised my hand and taken an oath to defend the United States Constitution. While military oaths differ, every military member, regardless of rank, swears “that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same…” That defense of the Constitution, for some, includes making the ultimate sacrifice.

Memorial Day is unlike any other holiday, in that it remembers those who died to write the laws of the U.S. Constitution in our hearts and on our minds. On this special day, all Americans remember those who have, as was movingly described by President Lincoln in the Gettysburg Address (1863), given the “the last full measure of devotion” so that the ideals reflected in the U.S. Constitution would endure. As Lincoln said, those who gave that last full measure, did so “that government of the people, by the people, for the people, shall not perish from the earth.”

Constituting America’s mission is to educate, empower, and inspire. We do this by teaching the relevancy of the U.S. Constitution and the principles of self-governance inherent in our founding documents. That relevancy is more than just the legal principles of the Constitution, or even the ideals detailed in our founding documents. It comes from the meaning and significance that those principles and ideals promote in how we live our lives, both as individuals and as members of the national community. Those we remember on Memorial Day made the ultimate sacrifice for those principles and ideals, and lived them to the fullest, ensuring our nation would endure. From Bunker Hill to Gettysburg, Antietam to the Ardennes, from Iwo Jima to Seoul, and Ia Drang to Mogadishu, as well as many other places and battles known and unknown, Americans have bravely sacrificed their lives to preserve the freedoms we all enjoy. The memory of each of those who died lives in the hearts of all patriots, and their sacrifice ensures that the Constitution lives there along with them.

So, on this Memorial Day, as we celebrate with friends and family, enjoy the emergence of summer, and bask in the bounty that we have been blessed with, let us rededicate ourselves to remembrance, so that those who died to make us free live forever in our hearts and on our minds. Let us also educate new generations about the sacrifices that have come before, so that what was purchased at such great price will inform how we live today, and how we persevere in days to come. Let us all dedicate ourselves, as those who died did, to the preservation of our great nation, and let us inspire all future generations to do the same.

As President Calvin Coolidge wrote on May 30, 1923, it is “to the spirit that places the devotion to freedom and truth above the devotion to life, that the nation pays its ever enduring mark of reverence and respect.”

The Constitution is more than just a legal document. It is the embodiment of what makes America the great nation that it is. Hundreds of thousands of brave souls have died to preserve it. Let their memory always be in our hearts, and let the Constitution be written there also. We must never take for granted what has been bequeathed to us by generations past. Let the Constitution be part of our being. In that way we will honor those who died to make it so.

“Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.” (President John F. Kennedy, Inaugural Address, January 20, 1961)

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He has a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and two grandchildren.

Guest Essayist: Joerg Knipprath


There have been few times as crucial to the development of English constitutional practice as the 17th century. The period began with absolute monarchs ruling by the grace of God and ended with a new model of a constitutional monarchy under law created by Parliament. That story was well known to the Americans of the founding period.

The destructive civil wars between the houses of York and Lancaster, known as the War of the Roses, ended with the seizure of the throne by Henry VII of the Welsh house of Tudor in 1485. The shifting fortunes in those wars had shattered many prominent noble families. Over the ensuing century, the Tudor monarchs, most prominently Henry VIII and Elizabeth I, consolidated royal power. Potential rivals, such as the nobility and the religious leaders, were neutralized by property seizures, executions, and dependence on the monarch’s patronage and purse for status and livelihood. Economic and social change in the direction of a modern commercial nation-state and away from a feudal society where wealth and status were based on rights in land had already begun before those wars. This change was due to financial necessities and a nascent sense of nationalism arising from the Hundred Years’ War between the English Plantagenet kings and the French house of Valois. Under the Tudors, England’s transition to a distinctly modern polity with a clear national identity was completed.

When Elizabeth died childless, the Tudor line came to an end, and the throne went to James VI Stuart of Scotland, who became James I of England, styling himself for the first time, “King of Great Britain.” On the whole, James was a capable and serious monarch but had strong views about his role as king. His pugnaciousness brought him into conflict with an increasingly assertive Parliament and its allies among the magistrates, especially his Attorney General and Chief Justice, Sir Edward Coke. The need for revenues to pay off massive debts incurred by Elizabeth’s war with Spain was the catalyst for the friction. James was well educated in classic humanities and had a moderate literary talent. He wrote poetry and various treatises. He also oversaw the production of the new English translation of the Bible. As a side note, I have found it amusing that, 400 years ago, James warned about the dangers of tobacco use.

It was James’s political writing, however, which irked Parliament. He was a skillful defender of royal prerogative and seemed to derive satisfaction from lecturing his opponents in that body about the inadequacies in their arguments. James was able to navigate relations with Parliament successfully on the whole, mostly by just refusing to call them into session. But his defense and exercise of his prerogatives, his claim to rule as monarch by the grace of God, and his pedantic and irritating manner, coupled with the restlessness of Parliament after more than a century of strong monarchs, set the stage for confrontation once James departed this mortal coil.

Parliamentary authority had accreted over the centuries through a process best described as punctuated equilibrium, to borrow from evolutionary biology. Anglo-Saxon versions of assemblies of noble advisors to the king existed before the Norman Conquest, in accordance with the customs of other Germanic peoples. William the Conqueror similarly established a council of great secular and ecclesiastical nobles of the realm, whom kings might summon if they needed advice or political support before issuing laws or assessing taxes. This rudimentary consultative role was expanded when the council of English barons gathered at Runnymede in 1215 and forced King John to agree to a Magna Carta. A significant provision of that charter required the king to obtain the consent of his royal council for any new taxes except those connected to his existing feudal prerogatives. This was a major step in developing a legislative power which future parliaments guarded jealously.

In 1295, Edward I summoned his Great Council in what the 19th-century English historian Frederic William Maitland called the Model Parliament because of the precedent it set. This Great Council included not just 49 high nobles, but also 292 representatives from the community at large, later referred to as the “Commons,” composed of knights of the shire and burgesses from the towns. Edward formalized what had been the practice off and on for several decades at that point. Another constitutional innovation was Edward’s formal call for his subjects to submit petitions to this body to redress grievances they might have. This remains a vital constitutional right of the people in England and the United States.

The division of the Great Council into two chambers occurred in 1351, with the high nobility meeting in what later came to be known as the House of Lords and the knights and burgesses meeting in the House of Commons. Within the next few decades, parliaments increasingly insisted that they controlled not just taxation, but also the other side of the power over the purse, expenditures. They faced some hurdles, however. Parliaments had no right to meet, and kings might fail to summon such a gathering for years. Also, these bodies were in no sense democratic. The Lords were a numerically small elite. Due to property restrictions, the Commons, too, represented a thin layer of land-owning gentry and wealthy merchants. The degree to which bold claims of parliamentary power succeeded depended primarily on the political skill of the monarch. Strong monarchs, such as most of the Tudors, could either decline to call parliament into session or push needed authorization through dint of their standing among powerful and respected members of those bodies. A politically adept king could secure those relationships through a judicious use of his patronage to appoint favorites to offices.

During the rule of James I, parliamentary opponents of the king increasingly expressed their displeasure through petitions to redress grievances. English parliaments also manipulated the process as a tool of political power against the king. While those petitions might in fact come directly from disgruntled constituents, they were often contrived by members of Parliament using constituents as straw men to initiate debate in a way which suggested popular opposition to the monarch on a matter. These were political theater, albeit sometimes politically effective. Even if such a petition were granted by Parliament when in session, relief would have to come through the king or his officials, an unlikely result.

After the death of James I, relations between king and Parliament deteriorated further under his son. More affable than his father, Charles I was also less politically astute. As adamant as his father had been about protection of royal prerogative, Charles made too many political missteps, such as arresting members of Parliament who opposed various policies. Much of his political trouble arose from England’s precarious financial situation, partly due to misbegotten and unpopular military campaigns precipitated by Charles’s foreign minister, the Duke of Buckingham. When Parliament proved uncooperative, he attempted to finance these ventures and various household expenses through technically legal, but constitutionally controversial, workarounds.

One constitutional theory held that taxes, especially direct taxes on wealth or persons, were not part of the king’s prerogative. Rather, such taxes were “gifts” from the people. As with other gifts, the king might ask but could not compel. The people could refuse. It was impractical to ask each person. Instead, the Commons collectively could vote to grant such a gift to the king. The king had the prerogative, however, to enforce feudal obligations, collect fees, or sell property to raise funds. When Parliament in 1626 refused to vote taxes to pay for the military expeditions, Charles instead imposed “forced loans” on various individuals. Although such loans were deemed legal by the courts, this constitutional legerdemain was exceedingly unpopular and failed to produce significant income. Worse for the king, Parliament adopted the Petition of Right in 1628, which, in part, reaffirmed Parliament’s sole power of taxation. Charles at first agreed, but soon reneged. He dismissed Parliament and reasserted his power at least to collect customs duties. The Petition would prove to be significant eventually for another reason, because it also asserted certain rights which the king could not invade.

Charles then ruled without Parliament. To pay for his expenses, he resorted to various arcane levies, fees, fines, rent assessments, and sales of monopoly licenses. Still, he ran out of funds by 1640. Needing money for a military campaign against the Scots, he called Parliament into session. The first session proved unproductive, but he summoned another Parliament, which met in various forms for most of the next twenty years and became known collectively as the Long Parliament. Friction between Charles and Parliament led to civil war, a military coup by General Oliver Cromwell and other officers of the New Model Army, the trial of Charles by a “Rump Parliament” purged of his supporters by the Puritan military, and the regicide in 1649.

Following the execution of Charles, the Rump Parliament abolished the monarchy and proclaimed England to be a “Commonwealth.” Deep political divisions remained. If anything, executing who historians consider one of the most popular English kings undermined the legitimacy of the Commonwealth with the people. Cromwell finally dismissed the Rump Parliament forcibly in 1653, after scorning them with the splendidly pungent “In the name of God, go!” speech the likes of which would not be heard today.

The Protectorate established later that year did not smooth relations between Parliament and Cromwell. In essence, this was a military dictatorship, and even the absence of royalists in the Commons and the interim abolition of the House of Lords did not prevent opposition to him. The two Protectorate Parliaments also were dissolved by Cromwell when they proved insufficiently cooperative, especially in matters of taxation, and too radically republican for Cromwell’s taste, having dared to challenge the Lord Protector’s control over the military.

Although the Protectorate’s military government was an aberration in English history, it produced some notable constitutional developments. The Instrument of Government of 1653 and the Humble Petition and Advice of 1657 collectively are the closest England has come to a formal written constitution. They created a structure of checks and balances which captured the trend of the English system from an absolutist royal rule to a limited “constitutional” monarchy. Although these two documents eventually were jettisoned by the “Cavalier Parliament” after the Restoration, they became a model for resolution of a subsequent constitutional crisis.

The Instrument provided the basic structure of government for the Protectorate. It was drafted by the radical republican Puritan General John Lambert and adopted by the Army Council of Officers in 1653. It was based on proposals which had been offered in 1647 to settle the constitutional crisis with Charles I, but which the king had rejected. The Instrument set up a division of power among the Lord Protector, a Council of State, and a Parliament that was to meet at least every three years. The last had the sole power to tax and to pass laws. The Protector had a qualified veto over the Parliament’s bills. However, he had an absolute veto over laws which he deemed contrary to the instrument itself. Moreover, Parliament could not amend the Instrument. Although these provisions put Cromwell in the position of final authority over this “constitution,” the proposition that Parliament was limited by a higher law contradicted principles of Parliamentary supremacy. It anticipated the later American conception of the relationship between a constitution and ordinary legislative bodies. The Humble Petition and Advice was adopted by Parliament in 1657. It proposed some amendments to the Instrument, among them making Cromwell “king” and creating the “Other House,” a second chamber of Parliament, composed of life-term peers. Cromwell rejected the first and accepted the second.

After Cromwell’s death in 1658, and the resignation of his son Richard as Lord Protector the following year, the Protectorate ended. This created a political vacuum and a danger of anarchy. In the end, one of Cromwell’s trusted leaders, General George Monck, led elements of the New Model Army to London to oversee the election of a new “Convention Parliament.” Though Monck had been personally loyal to both Cromwells, he was also a moderate Royalist. The new Parliament technically was not committed either to the Commonwealth or the monarchy. However, it was controlled by a Royalist majority, and popular sentiment was greatly in favor of abolishing the military government and restoring the monarchy. Monck sent a secret message to Charles II for the prince to issue a declaration of lenity and religious toleration. After Charles complied, Parliament invited him to return as king.

Although the new king also fervently believed in his divine right to rule and proceeded to undo the Protectorate’s laws and decrees through his friends in Parliament—which again included the restored House of Lords—he was savvy enough not to stir up the hornet’s nest of Stuart absolutism too vigorously. A period of relative constitutional calm ensued, although Whig exponents of radical theories of popular sovereignty and revolution could still find their works used against them as evidence of treason and plotting.

Upon Charles’s death in 1685, the crown went to his brother, James II, an enthusiastic convert to Catholicism. When he and his wife, Mary of Modena, had a son in 1688, it presented the clear possibility of a Catholic dynasty, a scenario which repelled the Anglican hierarchy. Even more objectionable were James’s exertions at blunting the Test Acts and other laws which discriminated against Catholics and Protestant dissenters from the established Anglican Church. The main tool was his dispensing power, a prerogative power to excuse conformance to a law. But, at the likely instigation of the Quaker, William Penn, he also issued his Declaration for Liberty of Conscience in 1687, a major step towards freedom of worship. The Declaration suspended penal laws which required conformity to the Anglican Church.

James’s Anglican political supporters began to distance themselves from him, and seven Protestant nobles invited the Stadholder of the United Netherlands, William of Orange, to bring an army to England. The Glorious Revolution had begun. James initially planned to fight the Dutch invasion, but lost his nerve and tried to flee to France. He was captured and placed under the guard of the Dutch. William saw no upside to having to oversee the fate of James, who was his uncle and father-in-law. To rid himself of this annoyance, he let James escape to France.

With James gone, William refused the English crown unless it was offered to him by Parliament. At the behest of a hastily gathered assembly of peers and selected commoners, William summoned a “Convention Parliament.” The throne was declared vacant due to James’s abdication. The Convention Parliament drafted and adopted the Declaration of Right. The following day, February 13, 1689, they offered the crown to William and Mary together as King and Queen, with William alone to have the regal power during his life. After accepting the crown, William dismissed the Convention Parliament and summoned it to reconvene as a traditional parliament.

The Convention Parliament was another milestone in the development of Anglo-American constitutional theory and built on the earlier Protectorate’s Instrument of Government. The process instantiated the radical idea that forming a government is different than passing legislation, in that the former is, in the later phrasing of George Washington, “an explicit and authentic act of the people.” The opponents of the Stuarts had long claimed that all power was derived originally from the people. However, parliaments had challenged the king’s supremacy with the claim that they represented the estates of nobles and commons, and that the people had vested all constitutive power in them. But, if the people were truly the ultimate source of governmental legitimacy, how could they permanently surrender that to another body? This debate was carried on among the Whig republican thinkers of the era, such as the radical Algernon Sidney and the moderate John Locke. It raised knotty and uncomfortable issues about revolution. Those very problems would occupy Americans for several decades from the 1760s on in the drive toward independence and the subsequent process of creating a government.

There was no concrete condition that William and Mary accept the Declaration, but the crown was offered on the assumption that the monarch would rule according to law. That law included the provisions of the Declaration, once the reconvened parliament passed it as the Bill of Rights in December, 1689. Until then, the Declaration had no force of law, not having been adopted by Parliament as a legislative body and not having received the Royal Assent. This has been the process of the unwritten English constitution. As with the various versions of the Magna Carta and other famous charters and proclamations, an act of Parliament is required to make even such fundamental arrangements of governance legally binding. The English Bill of Rights is, mostly, still a part of that unwritten constitution, although some provisions have been changed by subsequent enactments.

The English Bill of Rights built on the Petition of Right to Charles I in 1628 and the Habeas Corpus Act of 1679 in expressly guaranteeing certain rights. Among them were protections to petition for redress of grievances, to have arms for self-defense for Protestants, against cruel and unusual punishments or excessive bail or fines, and for trial by jury. Moreover, it protected members of Parliament from prosecution for any speech or debate made in that body. Many of these same protections appeared in American colonial charters, early American state constitutions, the petitions of state conventions ratifying the Constitution, and the American Bill of Rights. At first glance, the failure to protect religious liberty seems to be a glaring omission. However, anti-Catholic feelings ran high, and, contrary to James II, the Anglican majority was not in the mood for religious tolerance. As to Protestant Nonconformists, their religious liberty was recognized in the Toleration Act of 1689.

The Bill of Rights also made it clear that the monarch holds the crown under the laws of the realm, thereby rejecting the Tudor and Stuart claims of ruling by divine grace. This postulate was a crucial step in the evolution towards a “constitutional” monarchy. Following the approach of the Protectorate’s Instrument of Government, the Bill of Rights provided that laws must be passed by Parliament, although the monarch had an unqualified power to withhold consent. One must note, however, that this veto power has not been exercised since 1708 by Queen Anne. An attempt to do so by a British monarch today might trigger a constitutional crisis.

As a reaction against the perceived Catholic sympathies of the Stuarts and, in James II’s case, his actual Catholicism, the Bill of Rights very carefully designated the line of succession if, as happened, William and Mary died childless. That line of succession was limited to what were traditional Protestant families. To make the point clearer, the Bill of Rights defiantly debarred anyone who “is … reconciled to, or shall hold communion with, the see or church of Rome, or shall profess the popish religion, or shall marry a papist …” from the throne. The last prohibition likely was due to the habit of the Stuart kings to marry devout Catholic princesses, and an understandable concern over the influence that such a spouse might have in spiritual matters. On that point, too, the English experience affected later American developments, with the protection of religious freedom in the Bill of Rights and the prohibition of religious test oaths in the Constitution.

In addition to the importance of these historical antecedents to American constitutional development, the English Civil War and the Glorious Revolution demonstrate an uncomfortable truth. When the ordinary means of resolving fundamental matters of governance prove unavailing, those matters will be resolved by violence. Constitutional means work during times of relative normalcy, but on occasion the contentions are infused with contradictions too profound for compromise. It is an axiom of politics that politicians will seek first to protect their privileges and second to expand them. The increased demands by parliamentarians for political power inevitably clashed with the monarchs’ hereditary claims. Both sides appealed to traditional English constitutional custom for legitimacy. With their assumptions about the source of political authority utterly at odds, compromise became increasingly complex and fleeting. It was treating a gangrenous infection with a band-aid. Radical surgery became the way out. The American Revolution in the following century, and even the American Civil War of the century thereafter, showed evidence of a similar progression, with the two sides operating from fundamentally contradictory views of the nature of representative government and proper division of power between the general government and its constituent parts.

The Glorious Revolution resolved the contest over these conflicting views of legitimate authority and the proper constitutional order between king and Parliament. The earlier Commonwealth with its Protectorate was an abortive step in the same direction. It failed due to the political shortcomings of the military leaders in control. Although further adjustments would be made to the relationship between monarch and parliaments, the basic constitutional order of a limited monarchy reigning within a political structure of Parliamentary supremacy was set. The new constitutional arrangement became a model for political writers of the 18th century, such as the Baron de Montesquieu. American propagandists of the revolutionary period readily found fault with the British system. Once they turned to forming governments, however, Americans more dispassionately studied and learned from the mother country’s rocky path to a more balanced and “republican” government in the 17th century. Both sides in the debate over the Constitution regularly used the British system as a source of support for their position or to attack their opponents.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Andrew Langer


Though the words attributed to King Louis XIV are apocryphal (they don’t appear in print attributed to him until decades after his death), they present a chilling picture of the danger of absolute monarchy to individual freedom, and it should come as no surprise that the French had a revolution, and then a series of power struggles, starting at the end of the 18th century and for almost a century after.

In the wake of our own revolution, our founders, and then those who became the architects of our constitutional republic, were rightly worried about the descent from a free people into monarchy, and the further descent from monarch, to absolute monarch, to despotism.

As historian Arthur Schlesinger, Jr., wrote, “The power to do good meant also the power to do harm, the power to serve the republic also meant the power to demean and defile it,” and in the proximate sense of the founding, they had history from which they could draw. In 1974, Professor Raoul Berger wrote, “the Framers were steeped in English history; the shades of despotic kings and conniving ministers marched before them.”

But they could also look to the reign of King Louis XIV—his consolidation of power, his undermining of the potential for opposition, and his creation of a civil service corps personally loyal to him—to see the dangers of centralized executive power.

Law professor Jonathan Turley has written extensively about this, especially with regards to our present executive branch and its largely unaccountable administrative state, saying:

“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

What Professor Turley is saying is that without adherence to the system of checks, balances, and a diffusion of sovereign power, this lack of transparency and increased autonomy is dangerous to individual rights.

In Federalist 68, 69 and 70, Alexander Hamilton further discusses the concerns (both real and imagined) with a strong governmental executive in making the case for the Constitution’s constraints against a President’s powers.  In Federalist 70, he invokes the ghosts of Imperial Rome:

“Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.”

While Hamilton was referencing Rome, he could also have been talking about the excesses of the court of Louis XIV in France—and also warning against the converse, the dangers of a weak president.

The key was to weigh the powers of a reasonably strong executive, and executive branch, against the checking powers of the other two branches. This was the focus of both Federalist 68 and 69, in which Hamilton details how the President, as envisioned by the proposed Constitution, differs markedly from monarchs, and monarchies, of all kinds.

It starts with the simple—in Section 1 of Article II, the President’s term is limited to four years, and with the ratification of the Twenty-second Amendment in 1951, the President was limited to two terms in office.  So, unlike a king, a president’s time in power is limited.

Then, the engineering of a presidency balanced between strength and limitation gets more complicated. The President can appoint senior officials including cabinet members and Supreme Court justices, but these positions have to be confirmed by a vote of the Senate. So again, unlike a king, the President cannot merely pick individuals who are personally loyal to him—they have to be picks that will satisfy a majority of the members of the Senate as well.

The President is commander-in-chief of the United States Military. But the President cannot declare war; only Congress can. Yes, the President can engage in limited military action, if such a response is immediately necessary, but if this action is going to go more than several months, Congress must have its say. Congress also controls the budget. This is an enormous check both on the power of a President to wage war, and also on the President’s ability to engage in other policymaking.

Most importantly, unlike most monarchies absolute or otherwise, Congress has the power to remove a President from office via an impeachment for “high crimes and misdemeanors.” King Louis XIV expended a great deal of energy in working to ensure that his aristocracy could not undermine his regal powers and to make sure that France did not descend into civil war.

In America, the power of impeachment works to ensure that a President doesn’t abuse his office—either by abusing the rights of American citizens or by using his office for his personal enrichment.

The founders were deeply troubled by centralized power, especially the idea that an absolute monarch could become a tyrannical despot. While ensuring that a President could do his job, they created a constitutional system that checked the strong powers of the executive branch.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Andrew Langer
1598 Edict of Nantes which granted extensive religious freedom.


In 1992, U.S. Supreme Court Justice, Sandra Day O’Connor, succinctly and eloquently summed up the essence of our federalist form of government:

“federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992)

Power is diffused among branches and levels of government, so that no one branch can become any more powerful than any other—and the architects of our government were purposeful in this construction.

They did so because they were inherently distrustful of overly centralized power, because they knew that power could be abused, especially the power of an executive, probably the greatest threat to individual liberty. Both Federalist 69 and Federalist 70 focus on the dangers of concentrated or overly powerful chief executives, and how that power ought to be reined in, and while Federalist 69 spends a tremendous amount of time focusing on the English monarchy (and Federalist 70 looks at Ancient Rome), the Federalist’s authors (Madison, Hamilton, and Jay) were well-aware of the recent history of France’s Bourbon monarchs, especially King Louis XIV, the self-proclaimed “Sun King.”

Louis XIV had been coronated when he was only 4, and while contemporaneous observations noted only a casual interest in ruling while he was a boy, when he assumed true personal rule of France in 1661 (following the death of Cardinal Mazarin, the king’s Chief Minister), he worked to ensure that his regal power was both consolidated and secure—building on the tutelage of his mother, Queen Anne, and having witnessed the chaos of a series of French civil wars (The Fronde) as a boy.

These civil wars were of deep concern to him—from both a standpoint of his personal safety and from the standpoint of ensuring his power.  Louis, in turn, began to enact a series of reforms to strengthen his role as an “absolute monarch.” While there was a legislature, and there were ministers, Louis served to create a royal civil service corps that were loyal to the crown itself, while at the same time making requirements of both the titled and military aristocracy that served to weaken their power over time.

By making the privileges of aristocracy dependent upon presence and participation at court, the king took both the political and military aristocrats away from their estates—placing them under direct scrutiny of the king and those closest to him, while frustrating any efforts that could undermine Louis’ hold on power (or present a military threat to him).

While it is apocryphal, given the concentration of power by the monarch, the king is reported to have said, “I am the state!”

It is interesting to note that all three of the Federalist’s authors viewed this concentration of power with deep skepticism, but for widely different reasons.

James Madison, one of Thomas Jefferson’s closest friends, shared Jefferson’s affinity for the French generally, but of the three authors of the Federalist essays was probably the most-skeptical of concentrated power from a political perspective, and would have seen the concentration of power as not just a threat to individual rights but also as politically unsound in the long term, something that was proven right decades after Louis XIV’s rule, when the French people revolted.

In contrast, Alexander Hamilton, the author of Federalists 69 and 70, believed in greater concentration of power in the federal government, as well as greater concentration of power in the executive branch. That being said, Hamilton was no fan of the French, and ultimately tried to start a war with the French, despite their assistance to America during the Revolution.

But it was John Jay whose antipathy toward the French monarchy was deeply personal—and who certainly had no love for King Louis XIV.

Jay was raised as a Huguenot, a French protestant sect. The Huguenots were persecuted for a very long time by the French government, until the 1598 Edict of Nantes granted them extensive religious freedom.

But in October 1685, King Louis XIV issued the Edict of Fontainebleu, which revoked the freedoms granted nearly a century earlier (Louis may have done this to placate the Catholic Church, whose political power he had also been trying to diffuse). Persecution of the Huguenots began anew, and John Jay’s great-grandfather sent his wife and children to England to avoid being targeted. As a result, Jay’s great-grandfather had his property confiscated, and he eventually joined his family in England.

When Jay was born in America, he was raised in Rye, New York, and educated in a French Huguenot church school in the next town, New Rochelle named for La Rochelle, a Huguenot center in France.

There is no doubt that his family’s experience colored his own views of the relationship between a central government and the rights of citizens, especially when it came to the freedom to worship and the right to enjoy private property. Interestingly enough, Hamilton, too, had at least one Huguenot ancestor, a grandfather, and this may have contributed toward his antipathy toward the French as well.

To be certain, whether based upon familial experience or an overall approach to political philosophy (and most likely a combination of the two), the authors of the Federalist saw that the political machinations and concentration of absolute monarchic power during the reign of King Louis XIV as something to not just avoid, but to actively work against.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Joerg Knipprath


Two noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.

Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.

One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.

The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.

Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.

Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?

Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.

The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.

Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.

Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.

The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.

The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.

This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.

That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.

But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.

Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.

This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.

Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.

Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.

The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Ron Meier


In Federalist 31, using references to math and science, Hamilton says that, “IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. But in the sciences of morals and politics, men are found far less tractable; yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. Strong interests, passions, and prejudices may degenerate into obstinacy, perverseness, or disingenuity.”

In Federalist 37, Madison says, “In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn.” On the other hand, (The Federalist Papers) “solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. A faultless plan was not to be expected.  The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.”

Madison notes that the delegates to the Constitutional Convention sought to find the best combination of features in the construction of government that would provide “stability and energy in government with inviolable attention due to liberty and to the republican form. They sought to avoid those features that they believed would risk the destruction of their proposed government as quickly as was that of the Republican government of Florence in the early 16th century.

In the turmoil of Florentine politics, Machiavelli believed that Republican government was necessary for good government, but that many who sought to be autocratic rulers had different ideas of what good government looked like. Machiavelli observed that those opposed to good government under a Republican form believed (1) that moral and spiritual virtues are not essential for the administration of government and must be avoided by ensuring that government is secular; (2) that Christianity, in particular, is destructive to governing; (3) that fear and the threat of coercive force are more important than legal force; (4) that a forceful, and even violent, response is the only appropriate means to prevent enemies of the state from upsetting the political order of the state; (5) that what’s good for the state should guide government rather than what’s good for its individual citizens; (6) that the head of state must use whatever means is at his disposal to do whatever is necessary to maintain control and power; (7) that, to ensure peace and tranquility in the country, a consequence is that citizens will be disarmed.

It’s not difficult to understand Machiavelli’s observations when one considers the period in which he was an official in Florence’s government. Although a Republic existed after the Medici government was overthrown, it lasted less than 20 years; in addition, a co-conspirator in the overthrow of the Republic was the Papal forces. Thus, he seems to have concluded that Christian leaders may have been no more moral than secular leaders and that Christian leaders were as willing as secular leaders to exercise force to gain control of government and the populace.

America’s Founding Fathers, all of whom had studied the Bible as an essential part of the classical education, believed that moral and spiritual virtues were necessary for good men to establish good government.  They believed that the government should be entrusted with limited powers, with those powers determined by the people through their elected representatives, rather than with unelected governors who used force to obtain security for the people, but at the expense of the people’s liberty. And they believed that government existed to secure the rights of the people rather than to ensure the long-term viability of the state.

As they debated the construction of a new Republican form of government in Philadelphia in the summer of 1787, they sought to use their knowledge of republican and authoritarian governments over thousands of years to construct one that might prevent their proposed republic from ultimately being overcome by authoritarian-minded opponents. The features of acquiring authoritarian power in government noted by Machiavelli were features that the Convention delegates sought to minimize in their new Constitution.

Their Christian education and study of Aristotle’s Ethics informed them that leaders of good character were necessary for good government.  John Adams, in a speech to the Massachusetts militia in 1798, said that “Our constitution was made only for a moral and religious people,” and George Washington reflected a similar sentiment when he said, in his Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . And let us with caution indulge the supposition that morality can be maintained without religion.”

Yet they also recognized that no particular religion should require support by the citizens of the nation and that no religious affiliation should be required to hold federal public office. At the time, many of the 13 states had state-sponsored religions and, at a minimum, required that those citizens eligible for public office must be Protestants. In Article VI, Clause 3, of the United States Constitution, the Constitution clearly stated that, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  So, good character, moral, and ethical principles, generally acquired from education in religious and philosophical principles, were recognized as important for helping citizens acquire responsible civic virtue that the Founders considered necessary for good government of the people.

In crafting the Second Amendment, the Founders recognized that citizens who were disarmed would be unable to retain their liberty should authoritarian politicians attempt to seize power in the federal government.

Rather than adopting Machiavelli’s concept that government existed for the “good of the state,” the Founders decided that government existed to secure liberty for the people. The Constitution was designed to provide the government’s structure in support of the principles of the Declaration of Independence, most specifically the Declaration’s statement that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” To more forcefully communicate that government existed to secure the rights of the people, Article I, Section 8 of the Constitution specifies limited powers of the federal government and the Ninth Amendment states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Additional measures in the Constitution provided for two houses in Congress, one to represent the people and the other to represent the individual states. The President was given power to veto laws passed by both houses of Congress to prevent the legislature from accruing excessive power, and the Congress was given the power to override a Presidential veto to prevent a President from accruing excessive power.  The Supreme Court was given the power to ensure that laws passed by Congress and signed by the President were in accord with the Constitution to prevent a situation in which both houses of Congress as well as the office of President were occupied by politicians of one faction and attempted to enact legislation to benefit their faction, in conflict with the Constitution.

If all else fails, then Article I of the Constitution provides for impeachment of the President, Vice President and all civil Officers for treason, bribery, or other high crimes and misdemeanors, with the additional check and balance providing that the House has the sole power to impeach and the Senate has the sole power to try all impeachments.

As noted above in Federalist 37, “A faultless plan was not to be expected.” The Founders attempted, to the best of their abilities, to construct a Constitution that reflected the strengths and minimized the weaknesses of republican governments over thousands of years of history, a history they knew well because of their classical education.  Yet, they recognized that their conception of a federal government structure was an experiment, as reflected in what Benjamin Franklin said in his final speech at the Convention, “when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.” Later, when he was asked by a group of citizens what sort of government the delegates had created, his answer was, “A republic, if you can keep it.”

We’ve kept it for more than 230 years, overcoming many challenges to its existence. In his Gettysburg Address, President Lincoln reminded us that, “It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.”  And President Reagan said in his 1964 speech, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected and handed on for them to do the same.” It’s up to us, we the people, not the government, to keep it going for another 230 years.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

 

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Guest Essayist: Joerg Knipprath


Among the common definitions one finds for “Machiavellian” are “unscrupulous,” “cunning,” “deceitful,” and “duplicitous,” words associated with disreputable character. The namesake for these malignant traits is Niccolo Machiavelli, a Florentine diplomat who lived from 1469 to 1527. He was a scion of an ancient Florentine family. His father, a lawyer, provided him with a classic education. That learning shows in Machiavelli’s various books about political science, warcraft, and history. In addition, Machiavelli wrote numerous letters and shorter essays and a satirical play, Mandragola, which was immensely popular at the time. Whether or not he intended it as such, this play has been described as an allegory about political events in 16th century Italy, a bawdy dramatization of the advice Machiavelli gave to the Medici family in his notorious work, The Prince (De Principatibus or Il Principe).

Machiavelli and his family were firmly associated with the republican factions in Florence. Through that connection, he held diplomatic offices in service to his city, traveling extensively to political centers and royal courts in Italy and the rest of Europe. In this capacity, he met a number of rulers, including the charismatic Cesare Borgia, after which the protagonist in The Prince is supposedly styled. With the return to power of the anti-republican faction of the Medicis in 1512, Machiavelli’s political fortune cratered. The following year, he was accused of plotting against the regime, arrested, imprisoned, and tortured.

It has long been claimed that he wrote The Prince while in prison as a testimony that he was loyal to the regime and, indeed, should be permitted to serve in the new government. The fawning dedication to Lorenzo de Medici, Duke of Urbino, that Machiavelli wrote in the preface of the book lends credence to that claim. Whether or not Lorenzo or any other member of the family ever read the book, Machiavelli’s hope for a further diplomatic career remained unfulfilled. He retired to a life of contemplation and writing.

Around 1517, he wrote his other famous work on politics, The Discourses on the First Ten Books of Titus Livy, wherein he examined the politics of the early Roman Republic. From Rome he sought to learn the necessary conditions for a successful republic, an aspiration for his own city’s future. Although there are common threads, such as the judicious use of violence when needed to maintain the government, The Prince is different in tone and goal than The Discourses. This has led to much speculation about Machiavelli. Was he the amoral cynic who scorned Christian ethics, which the former book displays? Or was he the admirer of republican Rome, who emphasized the need for constant “rebirth” to maintain that best of all systems? In the latter work, he is alarmed that corruption of republican character will destroy the republic, unless something spurs its rebirth, preferably from reforms within the republic itself. John Adams, writing a quarter-millennium later in A Defence of the Constitutions of Government of the United States of America, agreed. But that is not The Prince.

In short, one must look at The Prince on its own terms. Readers then and since have been shocked—or piously professed to be shocked—by its content and tone. But why? The book makes no claim to promote virtue, either in the classic or Christian sense. He does not disparage Christianity or challenge Christian virtue in this or any other of his works. As one commentator has noted, “What should not be assumed is that whatever Machiavelli thinks about things in general is necessarily ‘Machiavellian.’ His view of politics is, but it simply does not follow that his view of everything is ‘Machiavellian.’” The Prince purports to deal with the world as it is, not as philosophy or religion would like it to be. It followed a long literary tradition called “the mirror of princes,” books whose lessons instructed future rulers about “proper” governance. It should come as no surprise that such instructions during the Middle Ages came with a heavy dose of Christian ethics to civilize the prince and habituate him to just and temperate rule. After all, as Thomas Aquinas noted, God gave the ruler care of the community for the general welfare, not a license to exploit the people for the ruler’s own benefit.

Machiavelli builds on that literary tradition but uproots it from its philosophical grounding. He tosses aside the Aristotelian conjoining of ethics and politics, the classic assumption that what defines a good person also defines a good ruler, where the private virtue is elevated to the public. It is an abandonment of the scholasticism of the High Middle Ages and its synthesis of philosophy and religion, of which Thomas was a prominent expounder. The Prince warns the ruler that, to be successful in politics, assume the worst of everyone, whereas the classical version of politics as ethics writ large held that a few people are virtuous, more are evil, and the great majority are in-between. It was for the last group that habituation to ethical behavior might move the needle.

Machiavelli is not interested in saving the prince’s soul, but in having him survive, a matter of particularly acute relevance in the chaotic and often murderous factional politics of the Italian states. He does not hold up his examples as paragons of morality, and his praise of virtu means a prince’s skill at the craft of statesmanship, not the ideal character of a Christian nobleman or the pursuit of personal excellence by a Roman Stoic sage. His advice is specific and based on assumptions about how human beings consistently respond to certain events and actions. These assumptions are drawn from hard-nosed examination of human behavior and contemporary events. Machiavelli engages in empirical psychology, no less valid because his analysis often also draws from historical sources made familiar through his classical education. Like the image of Janus, the Roman two-faced god of transitions, Machiavelli and his contemporaries looked ahead to a more secular world revealed through humanistic tools of discovery but still could not avert their gaze from the medieval world receding behind them.

The Prince is divided into several sections and chapters, dealing with the particular conditions of various principalities. There are secular and ecclesiastical princes.. Among the secular are those who became rulers by conquest, by criminal acts, or by acclaim of the people. Just as all cars might have certain similar requirements for maintenance, yet need different manuals to address their particular components, so does the governance of people in different polities.

Starting with commonalities, there are certain common sense postulates derived from experience. It is better to be feared than loved by the people. He acknowledges that it is best to be both respected and loved by the people. A ruler who is loved is likely to return that love and act magnanimously and govern moderately. But love is unsteady. In human relations, lovers betray each other constantly, through deceit or worse. That behavior is the theme of much literature, dramatic as well as comedic, including Machiavelli’s own Mandragola. At the impersonal level of a state, love becomes even less stable, which Machiavelli’s own fate in a city riven with factionalism demonstrated all too well. No politician is loved by everyone and should not even try. Sic transit gloria mundi should be a warning for every politician, as the glory of today becomes the exile, or worse, of tomorrow. Fear, on the other hand, provides a more stable rule, because it always produces the same reaction from people, of obedience and, indeed, respect for the ruler’s decisive leadership.

True, some might feel so much hatred for a strict ruler that it overcomes their fear. Therefore, the ruler must apply the precautionary principle: treat everyone as a potential assassin, more practical advice to survive in 16th century Italian politics. From this, another general rule emerges. Feign affability, but never let down your guard by mistaking your disguise for reality.

Of particular relevance to the Medicis would be the advice for rulers of conquered lands. Upon victory, the new ruler might react in an understandable human way and be indiscriminately magnanimous to the conquered people. Big mistake. The ruler must put himself in the position of various groups among those people. First, there is the former ruler and his family, around whom those with loyalty to the prior regime might coalesce. To the extent possible, the prior ruler’s family must be exterminated to eliminate this mortal danger to the new prince.

Another group might be those who have invited the prince to invade as a result of factional strife within that domain. This group expects to be rewarded. It is safe to ignore them, as they have no one to support them against the new prince. Their own people consider them traitors, and their very existence depends on the prince’s success. He holds their reins, not they his.

A third group are the sizable portion of the people who have something to lose in wealth or position, but are not among the first two groups. They might be, for example, merchants, artisans, and bureaucrats. The advice: be generous to make them feel connected to him. Kill those with loyalties to the old regime, fine. But get it done quickly, and do it through a subordinate who can then be blamed for having been overly zealous. One might think of King Henry II of England and his cry to the nobles, “Will no one rid me of this meddlesome priest” about killing Thomas Becket, the 12th century Archbishop of Canterbury. Better yet, kill the executioner, for there is no better way of showing that executions are over than hanging the hangman. The conquered people are afraid and cowed, uncertain of what will become of them, their families, and their property. They look for any sign of humanity in the conqueror and want to believe in the ruler’s good will. Such an approach will reassure them that they are safe and will be seen by them as one of generosity. After all, the condemned man is thankful for a pardon, even though it may have been the ruler whose prosecution put the man in the position of needing one. The reader might find it difficult to avoid the sense that this part may have been about Machiavelli and his own family’s situation while he wrote The Prince.

People, by nature, lack gratitude. Over time, the effect of not having been killed or lost their property wears off. Now the prince should reward them, but do so gradually and without raising taxes. The people may see through this, but will respect the prince for his fiscal discipline which has benefited them financially. One other noteworthy point that Machiavelli makes is that this third group of people might accept their conqueror because they blame the prior ruler for their situation. They will believe that the prior ruler lost because of corruption of his moral or political bearings, with the latter due either to the ruler’s laziness in attending public affairs or to a rot of the political structure as a whole. In any case, the prior ruler proved unfit, which makes the new one worthy of respect and fealty.

The last group is the remainder of the population. One option is to rule with perpetual fear and to strangle their livelihoods with taxes to keep them struggling for survival rather than engaging in political scheming. But, sooner or later, the prince will need them as soldiers. It will not do to impoverish the people because, with nothing for them to lose, it will make them unable and unwilling to fight on his behalf.

This broaches the topic of war, one of Machiavelli’s favorites, not coincidentally also a frequent pursuit of the rulers of Italian states during his time. War, he declares, is ubiquitous and inevitable among states. The prince should embrace it, but be smart about how and when to fight. War must deliver benefits for his people, such as tribute or new lands. Internal politics are inevitably connected to foreign policy, an interrelation which a diplomat such as Machiavelli would be sure to emphasize. War also can be a useful distraction from domestic trouble by rallying the people to the prince.

The “how” of fighting the war is of particular significance and requires long-term choices. One might use one’s own forces, those of allies, or mercenaries. While some combination among them, particularly the first two, is possible, he addresses the benefits and drawbacks of each. If one relies on allies, one takes a risk. They may help you and fight with elan. However, they may want a division of the conquered territory. If you refuse, they may turn on you. Therefore, be hesitant about allying with more powerful entities, but at least make sure that there is not one predominant ally among the group.

Mercenaries are always a problem, during war or peace. Perhaps he based this on the experience Italian states had with their frequent use of mercenaries, particularly German and Swiss. He broadened the argument to include professional soldiers in general. They fight for money and often are on retainer during peacetime. Therefore, they want to avoid war and will counsel against or even frustrate the ruler’s political decision about war. If war happens, they feel a certain fraternity with those on the other side. They may know them and even may have fought alongside them in other wars. Mercenaries do not fight vigorously, because the soldier on the other side is “just doing a job,” just as they are. The mercenaries lack the necessary conviction for the cause, because, in the words of one commentator, they “no more hate those they fight than they love those whom they fight for.” Even if they win, they could turn on the prince. At the least, they might raise their fee, a demand it would behoove the prince not to ignore lest the mercenaries act against his interest.

Best, then, to rely on one’s own citizen militia. If there are military reverses, the citizens will fight most vigorously for their hearth and home. If they are victorious, they can be rewarded with a moderate degree of plunder. They might also be useful to colonize the new realm. However, this migration must be undertaken with the long view towards intertwining the conquerors with the original inhabitants. It must not produce a collection of isolated communities of occupiers. Assimilation works best if the conquerors and the conquered share language, religion, and customs. Otherwise, particular care must be taken to be sensitive to deeply-held customs of the conquered people to pacify them. This reflects a practical strategy employed successfully by the ancient Romans as they spread across alien lands.

Machiavelli’s commendation of citizen militias and his distrust of professional soldiers reflects his republican leanings. Such broad-based military service was at the heart of the classic Greek and Roman conception of citizenship. His views became a staple of classic republican argumentation. During the debates over the American Constitution in 1787 and 1788, the Anti-federalists vigorously objected to a standing army as a tool of tyranny that would doom the republic. Hamilton and Madison used several essays in an attempt to blunt those objections.

Another aspect of Machiavelli’s instruction was that the ruler must consider the role of luck in events, particularly in war. He uses Fortuna, the Roman goddess of luck and fate. She is capricious, moody, and willful. She must constantly be courted to keep her on one’s good side. Her capriciousness cannot be tamed, but fortunately, if one may use that word, it may be calmed by the ruler’s virtu. Machiavelli is a Christian, so he does not believe in unalterable fate; man has free will. Moreover, the history of warfare shows not only the influence of luck, but of skill at warcraft, such as when a commander executes a deft maneuver that allows his army to escape a precarious situation. Hence it behooves a ruler to act decisively. Fortuna and virtu, working together, are irresistible.

Unlike the legitimacy a prince has by succession under established constitutional rules, conquest by itself cannot bestow legitimacy on the new prince. Machiavelli’s prince is not Thomas Hobbes’s Leviathan. Machiavelli calls to mind Aristotle’s distinction between king and tyrant. The non-pejorative meaning of “tyrant” was someone who came to power outside the customary process. That said, a consistently “lucky” prince will be seen by the people as beyond ordinary men, which creates legitimacy in their eyes. It is a well-known psychological urge in people to “go with a winner.” One need note only the increased attendance at sporting events in our time when the team is on a winning streak that season. As in the case of the ancient Greek heroes favored by their deities, Fortuna smiles on the prince. The concrete evidence of the prince’s success bestows the legitimacy on him which medieval Christians believed occurred through God’s anointment of kings and emperors. A lot of this may be theater, where elaborate court pomp and ritual provides the stage to make it appear that the prince is powerful and favored by fortune. The medium becomes the message, as the phrasing goes. As in Plato’s parable of the cave, the appearance becomes the reality in the minds of the subjects, a metamorphosis to which citizens of modern republics certainly are not immune, either.

The requirement that a successful prince take account of Fortuna’s fickleness and need for constant attention and courting sounds very much like Plato’s and Polybius’s critiques of the “pure” forms of democracy. For them, the general citizenry was fickle and willful and craved constant flattery from would-be leaders. The extent to which the latter possessed the political virtu to manipulate the citizens would determine how much support such demagogues would get. One also is reminded of Hamilton’s concern in Number 68 of The Federalist that direct election of executives is undesirable, because it rewards men who offer nothing more than their “[t]alents for low intrigue, and the little arts of popularity.”

The Prince has often been compared—unfavorably—to the works of political theorists who followed Machiavelli within a few generations, preeminently Jean Bodin and Thomas Hobbes. The latter, critics have charged, produced much more sophisticated and internally consistent investigations of political systems. Bodin, a French academic and jurist who wrote in the 16th century, analyzed different forms of government and organized them around the concept of sovereignty. Hobbes, an Englishman writing a hundred years later, claimed his work to be a new science of politics. He provided a modern psychological basis for the origin of political society in the rational self-interest of mankind, foremost the desire for personal security and safety. Meeting that primal psychological need established for Hobbes the legitimacy of an absolute ruler such as his Leviathan.

These criticisms miss the purpose of writing The Prince. Like Bodin, Machiavelli favored centralized and effective power through his prince. He hoped for a strong leader to unify Italy, much as Bodin wrote in favor of the French monarchy which had mostly completed the unification of France. Like Hobbes, Machiavelli in The Prince rejects established ethical justifications for a ruler’s legitimacy and justifies a strong and energetic ruler based on that ruler’s success in governing. As was essentially the case for Hobbes, there is no universal moral order of natural law which actually limits the prince’s law-making. To borrow from Justinian’s Code, the prince is the law because there is no earthly sovereign above him. This had also been the position of certain medieval churchmen, especially William of Occam, in regards to the divine realm and God’s omnipotence. Machiavelli and Hobbes secularized those arguments. It is true that The Prince lacks the philosophical wholeness and complexity of other works, but Machiavelli was not aiming for that. His Discourses on Livy comes closer to it. With The Prince, he was writing a practical guide for a successful ruler, a guide drawn from experience and an exemplar of a new science of statecraft.

Machiavelli’s prince did not, then, fail as a political concept. Indeed, Machiavelli’s goal of Italian unification through a dynamic leader, possessed of virtu and smiled upon by Fortuna, was realized, albeit more than three centuries later. Rather, because so much depended on the political skills of each ruler, particular princes failed while others succeeded. This flux destroys the social stability which is needed for productive lives and is traditionally the goal of government. Machiavelli reveals the concurrent strengths and weaknesses of monarchy and other single-executive systems of government. Leaving aside the potential problems of standing armies and heavy taxation discussed earlier, The Prince provides many lessons for us and reveals parallels to how our system functions.

For one, Machiavelli’s methodology is strikingly similar to the approach in The Federalist. Alexander Hamilton declared in Number 6, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” Use of illustrative historical events and commentaries on human nature based on similar psychological investigations run throughout those essays. One goal of the authors of The Federalist was to explain to their readers how this republican system could be successful as a practical undertaking, regardless of its conformance to some ethical ideal, the virtue—or lack thereof—of its politicians, or the problematic legitimacy of its creation.

Machiavelli also recognized that the fate of the prince and the people ultimately are tied together. The prince’s wise practice of statecraft will bring prosperity, which the citizens will defend vigorously, if needed. This is an eminently pragmatic position, well supported by examining history. As James Madison wrote in Number 40 of The Federalist in response to criticisms that the Philadelphia convention had acted illegitimately and against existing constitutional rules, “[If] they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless be embraced, if it be calculated to accomplish the views and happiness of the people of America.”

Another lesson is the need to avoid dependence on the particular qualities of one leader. It has long and often been recognized that the Constitution creates a potential for strong executive government. Examples abound, from Alexander Hamilton’s broad claims of implied executive powers in his Pacificus essays from 1793, to Woodrow Wilson’s positively Machiavellian observation in his book Constitutional Government, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it.” Most telling are the numerous claims of far-reaching power to act in emergencies by presidents down to the present, which emergency powers then conjure more emergencies. While the political benefits from energy and decisiveness in the executive were duly noted, the framers of the Constitution intended the system of structural separation of powers to diminish the dangers from concentration of power in a single ruler.

Finally, there was the need to deal with the destructive factional politics that plagued Italian cities during Machiavelli’s time and beyond. The Prince proposes one manner—the charismatic leader whose skill will prevent these factions from entrenching themselves. The Constitution recognizes the problem, but proposes a different solution, to set the factions against themselves in peaceful competition by multiplying their number and diversity so that none become entrenched.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Ron Meier


As Professor Joerg Knipprath notes, Webster defines Machiavellian as a term often used to describe someone who employs cunning, duplicity, or bad faith tactics to get what he wants. Synonyms include cutthroat, immoral, unconscionable, unethical, unprincipled, unscrupulous.

Only 250 years before the rise of revolutionary fever in the American colonies, Machiavelli’s observations on political power were published.  Those observations were more a description of how government worked at the time he wrote than a prescription of how government should work.  Government in the British colonies in the 18th century, in many ways, looked too Machiavellian to our Founding Fathers and influenced their decisions about how to form a new government, more specifically how to minimize human nature’s inclinations for control and power by those to be trusted as America’s future political leaders. Machiavelli’s tenure in political office in the Republic of Florence was sandwiched between the long Medici reign before its overthrow and the Medici restoration, with the aid of Papal troops, less than 20 years later.

In the turmoil of those years, Machiavelli saw that raw power determines who rules; natural law, religious faith and morality were irrelevant to rule and therefore, a secular government was more the norm. Preserving the state, not protection of individual rights by the state, was the objective of government; and whatever force was necessary to preserve the state, provide security for its citizens, and stability was acceptable. Machiavelli is considered by many today as the father of political science, generations before the term “political science” came into common usage.

Considerable discussion occurred during and after the 1787 Constitutional Convention between those arguing for and against a strong, energetic President. This was understandable in light of the recently concluded war of independence from a perceived strong British ruler whose “long train of abuses and usurpations” were listed in the Declaration of Independence.

In Anti-federalist 70, the author, arguing against a strong and energetic executive says, “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous.”  He then adds, “So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington, that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.”  Although Washington was not yet in office as President, the author recognized that Washington would probably be elected President if the Constitution were ratified, but that subsequent Presidents, lacking the moral and civic virtues of Washington, may hunger for unlimited power and become the despot that all feared. The author went on to say that, “If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics.”

In Anti-federalist 71, the author says that “the best security for liberty was a limited duration, and a rotation of office, in the chief executive department.”  And, in Anti-federalist 72, arguing against unlimited reelections of a President, “Upon his being invested with those powers a second or third time, he may acquire such enormous influence and, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s point. We seem to be fast gliding away; and the moment we arrive at it — farewell liberty.” The Anti-federalists’ knowledge of the history of ancient governments reflected their concerns that political offices in the proposed Republic didn’t have more stringent restrictions on the ability of those elected to federal office to be reelected. Where restrictions were in place, the risk of despots holding office was reduced and where such restrictions were not in place, authoritarian government often grew.

The Federalists, on the other hand, took pains to illustrate that the checks and balances and separation of powers in the proposed Constitution would slow down the enactment of laws with extensive debate and thereby check the authoritarian impulses of the various branches. In modern terms, days, weeks, and months of debate were preferred to the ability of a President to use his phone and pen to enact new law rapidly.  They also believed that the two, four, and six-year terms of office in the Legislative and Executive branches were long enough to enable the occupants of those offices to have a positive impact on the exercise of their enumerated powers, yet short enough to allow citizens to turn them out of office when their Machiavellian methods and authoritarian impulses, to override the will of the people, became too strong.

In Federalist 51, Madison states that, “In republican government, the legislative authority necessarily predominates.” Therefore, to avoid a legislative branch aggrandizing its power at the expense of the executive branch, the Founders believed that care must be taken in constructing the government to grant powers to the President to check legislative overreach. Also, they recognized that a legislature which knew that the President who, after his four-year term ended could not be reelected, could wait out a President whom the legislature deemed too willing to check their power and hope that the next occupant of the executive branch would be less willing to check the legislative powers with a veto.  Over a period of time, patience by the legislature would enable them to accrue significant power. Therefore, the Founders decided that a President would not be forced to vacate his office, but could be reelected if the citizens so decided.

In Federalist 71, Hamilton discusses the advantages and disadvantages of a term of four years for the President. He says, “a duration of four years will contribute to the firmness of the executive but not long enough to justify any alarm for the public liberty.” In Federalist 72, Hamilton argues that a President shouldn’t be limited to only one four-year term, stating that there is a connection between “the duration of the executive magistrate in office and the stability of the system of administration.” This is easily observed in recent years as the Executive Orders of a prior President are frequently reversed immediately open the ascension to office of a new President, especially when a sitting President is defeated after his first term of office. Businesses that don’t know if a President’s Executive Orders will stand in the next administration are not willing to make long-term investments to grow their businesses.

In Federalist 23, Hamilton discusses the problems encountered during the fighting of the War under a Confederation form of government. He states the difficulty of requisitioning troops, supplies, and money to fight the war and of keeping morale high in the military ranks under such conditions. Hamilton says, of the country, “the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.” The President, as Commander in Chief, also must know that he has the authority to effectively lead the nation in time of war.

The Founders’ knowledge of the successes and failures of all types of government was deep; Machiavelli’s observations of what government transitions normally looked like provided an important, more recent, reminder of how quickly a Republic can fail internally if its government is not well constructed at birth and externally when confronted by powerful, amoral governments, led by autocrats’ intent on seizing and holding power.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

 

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Guest Essayist: Andrew Langer


In making the case for the ratification of the Constitution, the authors of the Federalist papers (Alexander Hamilton, James Madison, and John Jay) routinely looked to history for examples of what to follow, and, almost more importantly, what shouldn’t be followed. The Constitution, of course, was to be an improvement over the previous Articles of Confederation, and document whose flaws in the separation and balance of powers necessitated the drafting of the Constitution itself.

The Articles of Confederation was also built on historic example, and among these was the 1579 constitution of the Netherlands provinces—the subject of Federalist #20, authored by Madison. Created as a result of the “Union of Utrecht”—a treaty created between the seven northern Dutch provinces who had allied with one another to oppose the Habsburg-controlled southern provinces, this constitution laid out the shared power structure between these unified territories.

But Madison recognized that the flaws endemic in the document creating this Dutch confederacy were duplicated by the flaws in the Articles of Confederation. In laying out his criticism of the Netherlands Constitution, he said the following:

“What are the characters which practice has stampt upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.”

In other words, because of the structural flaws in how this constitution laid out the relationship between the provinces, it left this union weak and vulnerable. Madison went on to say, “It was long ago remarked [that] nothing but the hatred of his countrymen to the House of Austria, kept them from being ruined by the vices of their constitution.”

To be fair, there was a flaw in Madison’s essay (and it was a flaw repeated by others), in that Madison suggested that votes on issues of importance to these provinces had to be unanimous. This was untrue.  William Riker, a political scientist and expert on federalism, said this in his 1957 journal article, “Dutch and American Federalism”:

“Nearly all the framers who spoke on the subject seemed certain of one statement about the Netherlands; and in this they were mistaken. Nearly all seemed to believe that the decisions of the general government required unanimity of the seven provinces-an even more stringent requirement than in the Continental Congress. But, misled by inaccurate commentaries, they did not know what this requirement meant or how it worked in practice or what significance it had in Dutch politics.”

Riker noted how favorably many of the founders (other than Madison) looked at the governmental practices within the Netherlands—which should come as no surprise given the breadth of Dutch colonial activity in the continent prior to the American founding.  He said:

“[W]hen the records of the Constitutional Convention and the state ratifying conventions are superficially examined, it appears that our heritage from the Netherlands is considerable. The records show that members of the conventions referred to the government of the United Provinces more frequently than to any other modern European government, except that of Great Britain.”

It should be noted that Professor Riker’s views on federalism changed over time as his expertise on the subject grew.  In his 1987 book, The Development of American Federalism, he admits the following in the introduction:

“Given my ideological shift [from “New Dealer” to “anti-statist”], I have also changed my evaluation of federalism. Initially I regarded it as an impediment-minor, perhaps—but still an impediment to good government. Now I regard it as a desirable, though still minor, restraint on the leviathan.”

But contemporaneous accounts underscore the relationship between the 1579 constitution and the Articles of Confederation. Pieter Paulus, who later became the first President of the Batavian Republic, wrote:

“It is surprising and to the credit of our ancestors, that these inhabitants of another continent, after a lapse of some two centuries, adopted practically the same measures and arrangements as they did when drafting the Union of Utrecht.”

Yet, here we have Madison’s criticism, a criticism which may have been informed by his fellow-Virginian, William Grayson, a lawyer and soldier who later became a member of the United States Congress.  Grayson had deep concerns about the Articles of Confederation, and how similar it was to the 1579 Netherlands constitution, writing to Madison:

“It is no wonder our Government should not work well, being formed on the Dutch model where circumstances are so materially different.”

This becomes reflected in Madison’s concluding remarks for Federalist #20, in which he says:

“The important truth, which it unequivocally pronounces in the present case, is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals; as it is a solecism in theory; so in practice, it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coertion [sic] of the sword, in place of the mild and salutary coertion [sic] of the magistracy.”

The answer then is made manifest in the choices made in the structure of the Constitution as it was ultimately adopted: carefully enumerated powers for the federal government, a balancing of those powers between branches of government, and the retention of all power not surrendered in the hands of the people themselves as well as state governments.

This theme is made manifest throughout the Constitution and, in just one example, one can note the balance and contrast between what is discussed in Article 1, Section 10, and Article IV.  In Article I, Section 10, the founders placed very clear limits on the extent of state power—by making it clear, for example, that states cannot coin their own monies, nor could they negotiate treaties on their own. The reason for this is clear: building on the warning echoed by Madison in Federalist 20 (in part because of how he understood the flaws of the 1579 Netherlands Constitution), the drafters knew that while there might be intense internal debate between the states, that once an issue reached America’s shorelines, the nation had to speak with one voice. It would be chaos, for instance, if Massachusetts were negotiating one treaty with Spain, and Maryland were negotiating something different with Spain, or with an enemy of Spain.

In the same way that the federal government is responsible for regulating interstate commerce, these drafters also knew that it would likewise be chaotic if each state were creating its own currencies. So, they limited the power of the states in that regard as well.

But like all the other checks and balances, the trade-off to this is seen in Article IV—while the powers of the states are limited in terms of things like treaties and currency creation, Article IV gives a guarantee of protection to states. The federal government agrees to defend a state against military threats, and at the same time offers assurances in terms of working to make sure that each and every state treats each and every other state fairly. Article IV also makes guarantees as to the admission of new states into the Union, and a guarantee of a “republican” form of government.

With all of that in mind, the framers still felt it necessary to include the Supremacy Clause (Article VI, Clause 2), which says that the Constitution, and any laws that are created by Congress, are the “supreme law of the land.”  So long as Congress creates laws that are based on the powers delegated to the federal government by the people (and the states), should those laws come into conflict with state laws, the federal laws take precedence.

But those laws have to be within those enumerated powers—and this is central to many of the policy and political debates of today. For much of the 20th century, the federal government’s authority was virtually unlimited in terms of legislation, and thus holding sway over competing laws that might be enacted by state legislatures, due to an expansive interpretation of the Commerce Clause (Article I, Section 8, Clause 3).

But in a series of Supreme Court decisions in the 1990s, the limitations on federal power were re-asserted. The Supremacy Clause remains, but that “leviathan,” as Professor Riker described it, is checked by the limitations on, and diffusion of, that power within our system of federalism.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Chris Burkett

In Federalist No. 20, James Madison (with Alexander Hamilton) discusses the vices of the constitution of the United Netherlands. The United Provinces of the Netherlands, sometimes called the Dutch Republic, consisted of seven republics and was established through the Union of Utrecht in 1588. After decades of bloody religious wars, the sovereignty of the United Provinces was officially recognized with the Peace of Westphalia in 1648, but the union collapsed in 1795 during the Batavian Revolution.

In theory, Madison observes, the constitution of the United Netherlands seems to have successfully combined effective executive power with republican representation in a legislative body. “The sovereignty of the Union,” Madison writes, “is represented by the States General, consisting usually of about 50 deputies appointed by the provinces.”[1] The States General has well-defined powers and responsibilities – including the power to make treaties, to make war or peace, to raise armies and equip fleets, and to demand quotas of contribution from the provinces – and the individual provinces are restrained from engaging in certain actions that are deleterious to the other provinces or to the Union as a whole.

“The executive magistrate of the Union is the Stadtholder,” Madison continues, “who is now a hereditary Prince.”[2] Each of the seven provinces was led by a stadtholder, but the offices eventually became hereditary and, in time, the Prince of Orange came to hold most or all of the individual stadtholderships. The Stadtholder of the union was given many powers and prerogatives, including the power to settle disputes between provinces, and to command the federal troops and navy.

The United Provinces of the Netherlands, “as delineated on parchment,” seemed to have struck a form that balances popular representation with an energetic executive. “What are the characters which practice has stampt upon it?” Madison asks. “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.” The first vice of the constitution of the United Provinces is that there is a nearly constant tension between the different aims and policies of the States General – which wants to preserve the republican nature of the government – and the Stadtholder, with his ties to wealth and other monarchical powers in Europe. In fact, Madison writes, the authority of the Stadtholder arises mainly “from his great patrimonial estates [and] from his family connections with some of the chief potentates of Europe.”[3] This tension between the foundations and objects of the Stadtholder and States General had led to frequent disagreements and conflicting policies between the two departments over commercial affairs and defense policies.

The second vice of the union is that the States General, though vested with general legislative authority, requires “unanimity and the sanction of their constituents” for the enactment of all policies and laws. Although the unanimity requirement arose from an assumed equality of the seven provinces, and a desire to protect the provincial interests of each, it had led to two further difficulties. First, the unanimity requirement meant that a single deputy in the States General could veto measures necessary for the good of the whole union. “The Union of Utrecht,” Madison writes, “reposes an authority in the States General seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.”[4] The second difficulty this produces is that in times of great and urgent emergencies, the States General and the Stadtholder frequently violated the constitution by ignoring the rule of unanimity. A constitution that, of necessity, is frequently violated, Madison suggests, is fundamentally flawed and in need of improvement.

The Articles of Confederation, which governed the union of American states prior to the Constitution, suffered from this second vice in some important ways. The unanimous consent of all the state legislatures and state delegations in Congress was required for all amendments to the Articles of Confederation. In the Confederation Congress, supermajorities (nine out of thirteen state delegations) were required for Congress to raise revenues, make treaties, and do other things necessary for the good of the American Union. The Federalists defended the new Constitution’s ability to remedy these potentially deadly defects: the requirements for ratifying and amending the Constitution were reduced from unanimity to a supermajority of state conventions; furthermore, all acts of Congress under the new Constitution would require only a majority vote of both houses of Congress. This last improvement especially makes it less likely that the federal government would need to violate the Constitution to take necessary actions in times of crisis, as the United Netherlands had done on numerous occasions. This problem is further mitigated by the independence and discretion of the president to take certain actions in times of crisis without prior authorization from Congress; it is further mitigated by the fact that there are implied powers in the Constitution, as indicated by the necessary and proper clause in Article II. These improvements would give the federal government a degree of flexibility to better fulfill its responsibilities, especially with regard to national security, without the need to undermine the sanctity of the Constitution by frequent violations.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] The Federalist ­No. 20

[2] The Federalist ­No. 20

[3] The Federalist ­No. 20

[4] The Federalist ­No. 20

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Guest Essayist: Joerg Knipprath


Historians have usually described the government of the Netherlands in the two centuries between 1579 and the political system’s collapse in the late 18th century as a “republic.” Consistent with his commentary about the government of Venice, James Madison did not approve of this characterization. In Number 20 of The Federalist, he deemed the United Netherlands “a confederacy of republics, or rather of aristocracies, of a very remarkable texture.” While at times complimentary in his assessment, overall he saw in their government further evidence of what ailed, in his view, all confederations, including the United States under the Articles of Confederation.

Like the Articles, the Dutch system was forged in a war for independence, the first goal of which was to survive militarily. The Dutch referred to their Revolt of the Netherlands as the “Eighty Years’ War.” Fighting against Spain began in 1566, the seven northern provinces of the Spanish Netherlands formally united in their common cause through the Union of Utrecht in 1579, a watershed step not unlike the agreements of mutual aid and action among the North American colonies in the years before 1776. The Dutch analogue to the American Declaration of Independence was the Act of Abjuration of 1581 against the king of Spain. There were some truces and cessations of hostilities in subsequent decades, but independence was not officially recognized until the Treaty of Westphalia in 1648 which ended the much broader European conflict known as the Thirty-Years’ War. Still, the Dutch Republic had been functioning as an independent nation long before the status became official.

In the romanticized founding myths of the Dutch, the struggle was about religious toleration and national independence precipitated by an inquisition launched by the Spanish crown in support of the Council of Trent of 1543 and the Catholic Counter-Reformation. That may have been the motivator for some portion of the populace, and the assertion was useful in papering over the tensions which arose among the provinces during the war. The general reality was less lofty and more prosaic.

The Habsburg family ruled the Holy Roman Empire. They had received 17 provinces of the Duchy of Burgundy in 1482, which were allotted to the family’s Spanish branch in 1556. What happened next sounds familiar to the student of American history. The new Spanish king, Philip II, sought to centralize administration over these provinces located some distance from Spain, and to increase the efficiency of tax collecting. This would diminish the power that local bodies had previously exercised under the more hands-off approach of the Burgundians and the Emperor. The commercial towns in the southern provinces and the local nobles viewed this as an attack on their ancient privileges, secular and religious.

With resistance turning into rioting in 1566, the Spanish government sent an army, led by the Duke of Alba. Although a very capable military leader said by some to be one of the greatest of all time, he was a harsh governor, referred to by the Dutch as the “Iron Duke.” His army was generally successful against the rebels, but his policy of mass executions, sackings of towns, and massacres coalesced the population against the Spanish. The rebels received the support of a Catholic German-Dutch prince, William of the House of Orange-Nassau, the incumbent royal governor of several of the provinces. Colloquially—but unjustifiably—known as William the Silent for his supposed self-control not to erupt in anger, he was an effective political leader. As one of the richest Dutch nobles, he was also an important financial supporter of the rebels.

Although William had some successes against the Spanish army, the Duke of Alba eventually defeated his forces. William fled to his ancestral lands in Germany, from where he organized several mostly unsuccessful invasions. In 1573, Philip II relieved Alba of command and instituted a policy of reconciliation and acquiescence to greater local control. That split the rebels. The mostly Catholic southern provinces, which constitute Belgium today, returned to the Spanish fold. The seven increasingly Protestant provinces of the north remained in rebellion under William’s leadership. Dutch military fortunes brightened after the army of the United Provinces was formed following the Union of Utrecht. The army was placed under the command of William’s son, Maurice, after William was assassinated by a Spanish agent in 1584. Prince Maurice remained a prominent military and political leader for the next forty years.

One facet of the conflict at which the Dutch were consistently better than the Spanish was at sea. The northern provinces had long been oriented to fishing and maritime trade. Their coastal trade surpassed that of England and France in the 16th century. By the 17th century, their horizon had expanded to oceanic trade and the acquisition of colonies and foreign trading concessions. Along with that experience came skills in naval warfare. Professor Scott Gordon, in his thorough work on checks and balances in older constitutions, Controlling the State, estimates that, in the middle of the 17th century, the United Provinces owned more shipping capacity than England, France, the German states, Spain, and Portugal—combined. Amsterdam became the leading financial center of the world until it was finally replaced by London a century and a half later. It was the Dutch bankers from whom John Adams sought help during the American Revolution, because that was where the money was. Amsterdam was also one of the largest cities in Europe in the 17th century, having grown from 100,000 to 200,000 population in the middle decades.

Although the seven provinces were formally the main constituent parts of the “United Provinces of the Netherlands,” the towns were the actual foundation of the Dutch Republic’s political structure. The approximately 200 native Dutch noble families had status but limited power. There was not the same tradition of feudalism based on relationships of lord and vassal as in other European domains. In part, this was due to the closeness to the sea, with its sources of sustenance and wealth. In part it was due to the fact that for generations, land had been recovered by draining swamps or building dikes. These “polders” were claimed by commoners.

The towns were governed by the Regents, a wealthy subgroup of the merchant elite. The towns traced their charters and privileges to the medieval period. The Regents claimed to act for and represent the citizenry. However, their authority did not rest on broad political participation. From that perspective, the structure was not a republic, but an oligarchy. Meetings of the town councils controlled by the Regents were not open to the public. At the same time, the Regents did not constitute a class-conscious bourgeoisie in a Marxist sense. Rather, their actions seem to have been driven by local identity and preserving their local power. This town-centric system of governance remained until the reorganization of the Netherlands after the end of the Republic in the 1790s.

The towns built their own defense installations and levied taxes to maintain them, to preserve public order, and to provide for the poor. They also operated their own courts, enforced provincial laws, and administered provincial policies. The policy-making bodies, the town councils, generally had between 20 and 40 members. They elected various burgomasters annually from the Regent class to carry out executive and judicial functions.

The oligarchic character of the town governments was modulated somewhat through the militia, a combination military unit and social club. They were composed of troops of well-trained and heavily-armed men. Because members had to supply their own weapons, the militias consisted of middle and upper-middle class volunteers. They were led by officers from Regent families appointed by the town councils and were expected to carry out the latter’s wishes in case of civil disturbances. According to sources cited by Professor Gordon, riots were a not-uncommon manner for the citizenry to provide feedback to the Regents about their policies. The militia sometimes stood back if they opposed those policies themselves. Such expressions of popular discontent would have been particularly potent because the towns were still rather small, with the homes of the Regent families in close proximity to the other residents.

Gordon considers the failure of the Dutch Republic to provide less destructive means of popular expression of opposition to the town councils as one of its defects. Perhaps. But such riots were not uncommon in the history of the American republic, with apparently a customary acceptance of a degree of violence before the militia would be summoned. Recent events show that still to be a characteristic of American society. Whether that shows a defect in the republican nature of the political structure created in the constitutions of the United States and the several states is an interesting speculation.

The level of government above the towns were the provinces, formally the constitutional heart of the Dutch Republic. They were governed by entities called the “provincial states,” another institution formed in the Middle Ages. This term is not to be confused with the American concept of “states” as distinct political domains. Rather, the term refers to specific constitutional bodies which governed such political domains. These were assemblies of delegates from the towns. The members were selected by the town councils typically from the members of the Regent families. A town could send more than one delegate, but each town only had one vote, regardless of its population. However, despite this formal equality where decisions were generally reached by compromise and consensus, a dominant town would necessarily exercise a greater influence. Amsterdam as the largest and wealthiest town within the province of Holland provides a telling example. A province’s nobility also had one vote.

The principal obligation of the provincial states was to maintain the province’s military forces and to provide a system of provincial courts to preside over trials for various crimes and for appeals from the local courts. These assemblies could also assess taxes, but were dependent on the towns to collect them. Not infrequently there might be tension between the provincial state and the stadholder, the province’s chief executive from the House of Orange. Those tensions were especially acute and frequent in Holland, due to the strong anti-Orangist sentiments of Amsterdam, with its bourgeois merchants, its growing tradition of secular and religious dissent, and its cosmopolitanism. At times, Holland, as well as other provinces, refused to elect a stadholder when the prior one died.

At the apex of the Republic’s constitutional structure was the States-General, the body of around 50 delegates from the provinces. It met at The Hague. Although a province might send more than one delegate, each province had one vote. This equality of sovereigns marked the constitutional nature of the Republic in Madison’s characterization of it as a confederacy. As with the provincial states, this formal equality was tempered by the inequality of size and wealth among the provinces, in particular, Holland. That province’s delegation’s willingness to provide—or not—needed funding gave it influence which better reflected its economic position. The terms of office of the delegates were determined by the provinces and could be at pleasure, for one or more years, or for life. The agenda of the States-General was set by its president, which position rotated weekly among the provinces. Unanimity was required for action, although that was sometimes ignored if a particular need arose. It had various working committees to formulate policy and a Council of State to carry out its executive functions. The Council of State was composed of the provincial stadholder and twelve other appointees of the provincial states.

Initially, the States-General was to deal with the military campaign for independence. Thereafter, its role continued to be about war in the various conflicts in which the republic found itself in the 17th century. Beyond that, the States-General had broad responsibilities over coinage, diplomacy and foreign commerce and, as the Dutch quickly entered the pursuit of overseas empire, colonial affairs. Although it had the potential to become a national legislative body, that potential remained inchoate. Aside from the overarching political jealousies of the provinces and towns to maintain their local privileges, there were more direct limitations on the powers of the States-General, as well. For one, that body could not generally impose taxes directly. It could tax the colonies, but that yielded rather little. It could make assessments on the provinces, but that depended on the willingness of their delegates to agree, especially the delegation from Holland which typically had to bear at least half of the burden of an assessment. Any loans sought by the States-General for the benefit of the Republic must be approved by the provinces. It becomes clear why Madison saw the Republic as a case study for the fate of the Articles of Confederation.

Finally, there were the stadholder of the provinces and the de facto stadholder of the United Provinces. The office was derived from the provincial governorships the Holy Roman Emperor had established. Each provincial state selected that province’s stadholder for life. More than one province could appoint the same person, a very common scenario. During the two centuries of the Republic after 1589, all provinces always appointed members of the House of Orange-Nassau. When the need arose, the province of Holland, as the most important of the union, always appointed the head of that family. Technically, there was no Stadholder of the United Provinces. However, by customary practice, the States-General always appointed the stadholder of Holland to be the Republic’s commander-in-chief. This made the head of the House of Orange the main political leader of the most populous and prosperous province and the commander-in-chief of the Republic’s armed forces. The stadholderships generally became hereditary in the mid-17th century.

The power of the Prince of Orange over the armed forces included the power to set up military tribunals and to appoint higher-level officers. He also met with foreign ambassadors and had some adjudicatory powers, such as settling disputes among the provinces. His influence was bolstered by two broad sources. First, at the level of the union, he sat on all working committees of the States-General and on the Council of State. Together with his life term, this gave him broad knowledge about political matters over a much longer time frame than the provincial delegation, analogous to the Venetian Doge’s position in relation to the Senate and Great Council. If knowledge is power, this made the prince powerful, indeed.

Second, being the stadholder of Holland and, usually, several other provinces gave him significant control over provincial and even town affairs. The provincial stadholder was the head the province’s highest court, could pardon criminals, and had significant patronage powers over the appointment of officials at all levels. He could appoint certain burgomasters, although those had to be made from lists submitted by the Regent-controlled town councils. These roles, some formal, others by accepted practice, exercised at all levels of government, and extending to civil, military, and judicial matters, made the Prince of Orange in some ways the vortex around which Dutch politics swirled. In the end, however, with the vague constitutional dimensions of the office, it was the personality and talents of the particular stadholder which defined his powers.

A curious spectacle occasionally arose when various provinces left their stadholderships unoccupied. Even the province of Holland at one point in the 18th century left that position unoccupied for 45 years. In the 17th century Holland also prohibited the House of Orange from holding the stadholderships. Soon thereafter, its provincial state abolished the office altogether. That experiment lasted only five years, when those acts were repealed in the face of an invasion by England and France. One modern commentator quoted by Professor Gordon described the princes of the House of Orange as having “a special status within the Dutch state, almost mystical … in its nature.”

The Republic’s constitution was weakened in the 18th century in part due to factional rivalries in Amsterdam, the largest and wealthiest city in the largest and wealthiest province. The monarchist pretentious of the House of Orange clashed with the increasingly militant endemic anti-Orangist attitudes of the urban bourgeoisie. With a hardening of factional positions, political accommodations became more difficult. As well, the financial burdens of the colonial empire and the military needed to support it began to overwhelm the capacities of what was, after all, a rather small country. Still, it took the military might of, first, the Prussian Army and, thereafter, Napoleon’s forces, to end the Republic’s two centuries of successful government.

Madison in Number 20 of The Federalist disparages the Dutch system, his stand-in for the Articles of Confederation, as, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war.” He seems to have derived his information from a book by Sir William Temple, a 17th century British ambassador to the United Provinces. But Temple was hardly an unsympathetic observer of the Republic. Where Madison saw deadlock leading to eventual dissolution and anarchy, Temple saw a system which attracted large numbers of foreigners from polities less conducive to liberty. Certainly, the federal nature of the United Provinces stood in stark contrast to the centralization of power in national governments generally, and in monarchs particularly, which was ascendant in the Europe of the time.

If one uses classic designations of constitutions, the Dutch system at first blush most closely resembles an oligarchy. If one uses Madison’s definition in Number 10 of The Federalist, it was a closed system controlled by the wealthy Regent families and the Prince of Orange. It failed the test of broad public participation even by the limited standards of the early American polities. But, if one evaluates a republic functionally, as a political structure which provides overall social stability, fosters the general well-being of the people, and promotes the liberty of individuals to follow their own paths to fulfilled lives, all by reigning in various political institutions through a functioning balancing of powers, the constitution of the United Provinces qualifies. The mutual checks provided among the levels of government (town, provinces, union), among the provinces themselves, and between the stadholder on the one hand and the provincial states and States-General created a system which protected the liberties of the people better than other contemporaneous countries. More bluntly, as Professor Gordon explains, “[W]ith this political system, the Dutch not only fought Spain and France to a standstill and invaded England, but also made their little collection of swamps and polders into the richest, most civilized, nation in the early modern world.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Chris Burkett


In the previous essay we saw the Federalist’s critique of the Holy Roman Empire and its two principal vices: first, a lack of effective executive authority in the confederacy; and second, a lack of centralized control and effective checks by the national authority over the member states. Both of these defects were strongly prevalent in the American Union under the Articles of Confederation as well. Under the Articles of Confederation, ratified in 1781, there was no independent executive branch. Important matters affecting foreign policy and national security were handled by Congress, which created numerous “executive boards” to formulate and execute defense policies. This uncoordinated approach to fulfilling executive functions, as Alexander Hamilton observed, meant that “their decisions are slower, their energy less, their responsibility more diffused.” Hamilton continued, “Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system.”[1]

Congress also lacked any real power – especially a tax power – under the Articles of Confederation, and had no way to coerce or enforce their policies upon delinquent or disobedient states. “The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws,” Hamilton wrote. “The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions.”[2] All revenue for the purposes of defensing the Union was raised through the voluntary compliance by the state legislatures, which was frequently lacking. Furthermore, the manner in which Congress was constituted gave the individual states great influence – if not complete control – over the affairs of Congress. Each state had one vote in Congress, and state legislatures selected their congressional delegations with authority to recall those delegations at any time. Supermajorities (nine out of thirteen state delegations) were required for Congress to enact important matters such as requisitions for revenue and making treaties. Despite specific restrictions on the states, the structure of government under the Articles of Confederation gave the individual states enormous influence and control over Congress; Congress, on the other hand, had no means by which to compel the states to comply with the Articles of Confederation. In other words, the Articles of Confederation had recreated the same fundamental defects of the constitution of the Holy Roman Empire. The result was a lack of unity, coordination, and effectiveness in doing those things vitally important for the good of the whole Union – or as James Madison put it, there was a complete “want of concert in matters where common interest requires it.”[3]

The framers of the Constitution remedied these defects by creating an independent executive with a large degree of discretionary power, especially in the area of foreign affairs. “Energy in the Executive is a leading character in the definition of good government,” Hamilton observed. “It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”[4] The unitary nature of the executive – as opposed to executive boards or committees – provides the office with the “energy” to act on important matters with “decision, activity, secrecy, and dispatch.” The Constitution deems the president “Commander in Chief” of the military forces of the nation, giving the office a further degree of discretion, free from the influence of a cumbersome Congress, in taking swift measures necessary for the security of the Union. Even the longer four-year term in office, combined with the mode by which the president is elected – through an electoral system rather than being appointed by Congress or the state legislatures – gives the executive a degree of independence to do those things necessary for the steady administration of the laws and the protection of the states from foreign threats.

The framers of the Constitution also found remedies to prevent the “inordinate pride of state importance” from hindering the national government’s efforts to promote the good of the whole Union.[5] By dividing Congress into two houses, the preponderance of state influence in national affairs is confined to the Senate, in which state legislatures would appoint the senators (as opposed to direct election by the people of members in the House of Representatives). Rather than each state having one vote in the Senate, the two senators do not need to agree or vote in the same way on any particular law or policy. The framers also overcame reliance on the voluntary compliance of the states to provide the needed revenue for national purposes by giving to Congress a real tax power. “There is no method of steering clear of this inconvenience,” Hamilton observed, “but by authorizing the national government to raise its own revenues in its own way.”[6] Even the “republican guarantee” clause in Article IV section three gives the national government the right to protect every state of the Union “against Invasion [and…] domestic violence.” “Without a guaranty,” Hamilton wrote, “the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret.”[7]

Through these improvements, the Constitution of the United States provides the national government with the “energy’ needed to effectively repel foreign and domestic dangers, a higher degree of independence from state interference in national affairs, and the means to prevent the frequent dissentions, rebellions, and civil wars that constantly plagued the Holy Roman Empire.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Alexander Hamilton to James Duane, 3 September 1780.

[2] The Federalist No. 21.

[3] James Madison, “Vices of the Political System of the United States,” 1787

[4] The Federalist No. 70

[5] The Federalist No. 21

[6] The Federalist No. 21

[7] The Federalist No. 21

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Guest Essayist: Chris Burkett

In the months leading up to the Constitutional Convention in Philadelphia in 1787, James Madison carefully studied ancient confederacies so as to learn from their failures and improve upon their defects. He published his critique of the Holy Roman Empire in The Federalist essay number 19, co-authored by Alexander Hamilton.

The Holy Roman Empire was a union of kingdoms in Western, Northern and Southern Europe. It arose in the Early Middle Ages and lasted over eight centuries until its dissolution after the Napoleonic Wars. The Holy Roman Empire was initially under the nominal authority of one “emperor,” who claimed the right to rule as the heir of the emperors of Rome.  Eventually the office became “elected” after political control devolved to the dozens of kingdoms and territories that comprised the union.

Madison’s critique of the Holy Roman Empire focuses on two fundamental defects. The first is a lack of effective executive authority in the confederacy. Though initially under the centralized control of a single sovereign, the “principal vassals” claimed more localized control over the affairs of the union. “In the eleventh century the emperors enjoyed full sovereignty,” Madison writes. “In the fifteenth they had little more than the symbols and decorations of power.” The Emperor did retain certain prerogatives, including a veto power over the resolutions of the legislative body. Two judicial bodies, under control of the emperor, had “supreme jurisdiction in controversies which concern the empire.” From these institutions one might surmise that the supreme executive was extremely capable and efficient in directing the affairs of the union. But real political power in the Holy Roman Empire was vested in a Diet that represented the constituent members of the union.

The lack of an efficient executive had left important matters of security and commerce in the hands of a Diet whose members were deeply divided over local interests. “Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies,” Madison writes, “that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters.” The military forces of the union are “defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.” This vice has left the confederacy constantly open to the predations of neighboring enemies.

Madison’s second and most important critique of the Holy Roman Empire is a lack of centralized control and effective checks over the member states. In theory, the member states are expected to restrain themselves from infringing upon the duties of the central government and are pledged to obey its authority. As Madison writes,

The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions.

Sufficient constitutional restraints seem to have been placed on the member states to prevent them from undermining the interests of the whole union. However, as Madison writes: “Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.” The central authority, in its weakness, had been forced of necessity to rely on local enforcement of the acts and policies of the Diet. “This experiment has only served to demonstrate more fully the radical vice of the constitution,” Madison writes. “Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.”

The lack of any effective centralized authority to enforce the policies of the Diet reveals the tenuous nature by which the parts of the union remain barely united. This defect is revealed in the nearly constant acts of violence and injustice among the member states. “The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak,” Madison writes. In sum, the vices of the constitution of the Holy Roman Empire are marked by “general imbecility, confusion, and misery.”

Despite these vices, one might ask, what allowed the Holy Roman Empire to persist for more than eight centuries? Not the constitution and institutions of the union, Madison concludes, but matters that rely more on “accident and force” rather than “reflection and choice.” “They are kept together by the peculiarity of their topographical position,” Madison writes, “by their individual weakness and insignificancy; by the fear of powerful neighbors…[and] by the mutual aid they stand in need of, for suppressing insurrections and rebellions.”

In the following essay we will explore the remedies to these defects that Madison and the framers worked into the Constitution of the United States.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: Joerg Knipprath

Much of the history of the Holy Roman Empire was one of conflict and intrigue: among emperors and popes, emperors and nobles, and nobles themselves. Periods shaped by forces that fostered centralization of power in the hands of strong and capable emperors were eclipsed by developments that threatened to tear apart the Empire due to personal weaknesses or military miscalculations by the holders of the imperial title. Several generations of extraordinarily wise and astute rulers were inevitably followed by the collapse of dynasties and periods of political turmoil and social misery.

The collapse of the Western Roman Empire in the 5th century A.D. led to the formation of various Germanic kingdoms throughout the former territory. The Visigoths and other invaders attempted to carry on the Roman civilization, but lacked the administrative capabilities, technological know-how, and economic wherewithal to do so. They, in turn, also collapsed within a few generations. For the inhabitants of the former Roman domain, there was continuing danger from Germanic tribes, other marauders that are said to have been successors to the Huns, and, beginning in the 7th century, Arab raiders and armies. The Byzantine emperor’s control over those lands was nominal. The Roman Catholic Church was organizationally weak and doctrinally disorganized.

In the 8th century, the situation improved. A new line of kings had been elected by the nobles of a Germanic people, the Franks. The most prominent was a warrior-king, Charles. He defeated other German tribes and pushed against the Muslims in Spain whose advance into Frankish territory had been stopped by his grandfather, Charles the Hammer. Pope Leo III, eager to distance himself from the political and religious influences of the Orthodox Byzantine Empire, and hoping to spread the influence of the Catholic Church through the physical security offered by the Franks, crowned Charles emperor on Christmas Day, 800 A.D. Carolus Magnus, or Charlemagne, as he came to be known, was proclaimed the successor to the Roman Empire in the west. Indeed, from the imperial capital at Aachen, in the current Germany, he governed, as “Emperor of the Romans,” an area of Europe larger than anything seen since that empire.

Three decades after his death, Charlemagne’s realm was divided among his grandsons. Several centuries later, the western portion became the kingdom of France. The eastern portion became the German dominions. The end of the Carolingian dynasty in 911 resulted in the fracturing of the eastern portion. There were strong tribal loyalties within the various ancestral German domains, centered on several dukedoms and on the holdings of other, less powerful local strongmen.

In 936, Otto, the duke of the Saxons, a particularly warlike people who had been barely Christianized through force by Charlemagne a century earlier, was elected King of the Germans by the other nobles. A successful military campaigner who extended the eastern Frankish realm, Otto was given the imperial title in 962, after the Pope had appealed to him for military help. Referred to as Otto the Great, he established a new dynasty of emperors. His grandson, Otto III, revived the imperial seal of Charlemagne which had the motto, in Latin, that stood for “Renewal of the Roman Empire.” He understood this to be a clearly Christian empire, not only a political unit as imperium romanum, as reflected in his designation of the realm as imperium christianum. The successors of Otto III were weak and saw themselves as primarily German kings who happened to have holdings in Italy, not as rulers of a multicultural and transcendent Christian empire.

Once political conditions in western Europe became relatively settled by the end of the 10th century, the era of the warrior-king was succeeded by the era of the great landholding magnates. High feudalism emerged as the dominant social and political structure. Wealth, social standing, and power were based on land ownership and formalized through personal obligations between lords and vassals. On the continent more so than in England, local great men were independent of the emperor, who was addressed at times as “King of Germany” or the “German Roman Emperor.” These nobles retained their ancestral privileges and often claimed new ones.

Nevertheless, the idea of Empire remained alive. This political tension of a universal empire, yet of a German people, led externally to frequent, and not always enthusiastic or well-received, involvement of the Germans in the affairs of Italian communities. Internally, it resulted in the strange federal structure of what formally became known in the 13th century as the Holy Roman Empire. The interactions between emperors and popes further underscored the claims to universality. Papal coronation bestowed God’s recognition of the emperors’ legitimacy as secular rulers in Christendom. Refusal by a pope to grant that legitimacy, or removing it later by issuing a ban on the emperor, endangered the emperor’s rule by absolving the people, particularly the nobility, of loyalty to their earthly lord and excused them from fealty to any oath sworn to that lord. In a society vastly more religious than ours, within a feudal structure fundamentally based on mutual personal loyalties and obligations, such a development could prove fatal to the ruler.

After the end of the Saxon Ottonian line in 1024 and of its successors, the Frankish Salians, control over the Holy Roman Empire shifted in 1127 to a family from another part of the realm, the Hohenstaufen line from the Duchy of Swabia in southwest Germany. Under their best-known ruler, the charismatic and militarily and politically astute Emperor Frederick I Barbarossa (“Red beard”) from 1155 to 1190, the Empire achieved its greatest geographical expanse. Shortly after the rule of his similarly powerful grandson, Frederick II, the Hohenstaufen line ended, and the Great Interregnum brought considerable turmoil to the Empire and contests among various noble families for the imperial title. Rival emperors from different houses were chosen, and a general decline of the Empire’s territory and influence occurred. Not until the 16th century did the Empire regain a prominent position in Europe.

The struggle between emperor and nobles ebbed and flowed, depending significantly on the dynamism and capabilities of the emperors. These contests were endemic, with a parallel for several centuries in the conflict between the emperors and the popes. An example of the latter was the Investiture Controversy over the right to name local church leaders which led to a half-century of civil strife in Germany in the late 11th and early 12th centuries and ended with the emperor’s powers reduced as against popes and local nobles. Even as strong an emperor as Frederick II out of political expediency had to confirm, in statutes of 1220 and 1232, previously only customary privileges to the nobles, such as over tolls, coinage, and fortifications.

In 1493, Maximilian I from the Habsburg family, became Holy Roman Emperor. From that year, the Habsburg line provided an almost uninterrupted sequence of emperors until the Empire was abolished in 1806. A significant change in outlook under Maximilian was a turn to a more national identity and the stirrings of a nascent nation-state, in part due to the proposed Imperial Reform during the late 15th century supported by the energetic Maximilian. As a consequence, the realm began to be known as the Holy Roman Empire of the German Nation.

The Imperial Reform of 1495 was an attempt to modernize the administration of the realm and to increase the power of the emperor through more centralized governance. Aside from some success in making aspects of legal administration uniform through the use of Roman Law, the reforms came to naught by being ignored in the local principalities. There, the rulers generally strove to exercise the absolute powers of monarchs in England and France. As to the Empire, these local nobles guarded their privileges. Not to be outdone, the independent imperial “free” German cities, with their rising populations and increasingly powerful commercial bourgeoisie, were no less jealous of their privileges than the landed nobility.

The problem with the political structure of the Holy Roman Empire in the eyes of the framers of the American Constitution of 1787 was the overall weakness of the emperor in relation to the nobles. The Empire was a federal system, but, in their view, an unsuccessful version. The criticism is, overall, a fair one. Alexander Hamilton and James Madison, writing in The Federalist repeatedly identified the sources of weakness. Both emphasized the straightened financial circumstances in which the emperor frequently found himself to fund the costs of imperial government or necessary military actions against foreign countries. That difficulty was due at least in part to the obstructions created by local rulers to the flow of commerce.

Hamilton mentioned in Federalist Number 12 the emperor’s inability to raise funds, despite the “great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues.” Along the same lines, quoting from the Encyclopedia, he wrote in Number 22, “The commerce of the German empire is in continual trammels, from the multiplicity of the duties which the several princes and states enact upon the merchandises passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless.” In Number 42, Madison seconded Hamiltons’s point, “In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet [the parliament]; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.” Both writers painted this bleak picture as an omen of what would occur in the United States under the Article of Confederation. The Constitution would prevent this problem because, there, Congress was given “a superintending authority over the reciprocal trade of [the] confederated states.”

More fundamentally, however, the problem of the Empire and, by analogy, the United States under the Articles of Confederation was in the structure itself, an imperium in imperio, a state exercising sovereignty within another state. In Number 19 of The Federalist, Madison presented a lengthy overview of the Empire’s history. He identified problems with the structure, such as the difficulty to meet military emergencies or collect requisitions. The emperor had no holdings as such, only in his position as a hereditary sovereign in his ancestral lands or those acquired by marriage. Madison dismissed the Empire as a playground of foreign rulers because of the conflicts among the members of the Empire and between the emperor and the nobles large and small. This division allowed foreign rulers to split the allegiances of the nobles and to keep the empire weak. The worst example of this was the Thirty Years’ War from 1618 to 1648. While there were limitations on the powers of the nobles, and while the emperor had various prerogatives, these were paper powers, not real. Ultimately, the problem was that the empire was a community of sovereigns.

In support of Madison’s critique, one can look at one locus of power, the Reichstag, the name for the Imperial Diet or parliament. The Diet in some form already existed during Charlemagne’s time. Originally intended as a forum for discussions, not as a modern legislative body, by the 11th century it presented a serious counterweight to the emperor and a source of power for the nobles in two ways. First, the Diet participated in the making of law, typically through a collaborative manner with the emperor. Second, certain members of the Diet elected the Emperor.

The Diet during the Middle Ages comprised two “colleges.” That number was eventually raised to three as feudalism gave way to a more commercial modern society, and the growing importance of the bourgeoisie in the cities required representation of their estate. Each member of those colleges in essence represented a sovereignty, and the Diet in that light was a “community of sovereigns.” When the Diet met, the colleges and the emperor attended together. All were seated in a carefully prescribed manner, respecting their rank, with the emperor front and center and raised at least three feet above all others. Voting might be either per individual or per collegium as an estate in a complicated arrangement, depending on the rank of that individual and group.

The most important of these groups was the college of electors, which represented another locus of power in the Empire. Not only did the prince-electors vote individually, rather than as an estate, but they had the important occasional task of electing the emperor, the third institution of power. There was a fourth locus of power in the Empire, that is, the pope. Papal influence precipitated many political crises in medieval Europe, because the emperor was not properly installed until crowned by the pope, a practice discontinued after Charles V in the 16th century. However, papal influence is not crucial to an examination of the Empire’s political constitution as that structure influenced the debates over the American Constitution of 1787.

The election of the emperors was derived from the ancient practice of German tribal councils to elect their leaders for life. The direct male heirs of a deceased ruler generally had the advantage in any succession claim, but heredity was never a guarantee. That practice was extended first to the election of the kings of Germany by the dukes of the largest tribes in the 10th century, and then to the election of the emperors in the 13th century. Initially, the number of electors was somewhat fluid, but eventually there were four set secular and three set ecclesiastical electors. Over time, the membership was increased to nine and, briefly, to ten electors. The ecclesiastic rulers from certain archbishoprics eventually were replaced by secular electors, and, in time, the secular rulers themselves might be replaced by others as power shifted among rulers of various local domains.

A critical moment came with the promulgation of the Golden Bull of 1356 by the Imperial Diet at Nuremberg. A “bull” in this usage is derived from the Latin word for a seal attached to a document. Because of such a decree’s significance, the imperial seal attached to this document was made of gold. This particular golden bull was the closest thing to a written constitution of the Empire. It was the result of the political instability caused by contested elections and succession controversies. It specified the number—seven—and identity—by secular or ecclesiastical domain—of the imperial electors. Procedures were set for the emperor’s election, the specific functions of the electors were prescribed, and an order of succession was provided if an elector died. For example, to prevent rival claims from lingering and dragging the realm into disunity and war, the deliberations of the electors must result in a timely decision. Failure to decide on an emperor within 30 days in theory would result in the electors being given only bread and water as sustenance until they concluded their task.

Also significant was the Golden Bull’s undermining of the emperor’s power. Sometimes described as a German analogue to the Magna Charta of 1215 imposed by the English nobility on King John, it affirmed the privileges of the nobility against the emperor. Tolls and coinage were the right of the nobles in their domains. Crimes against them, including presumably through actions by the emperor, became treason against the empire itself. The rulings of their courts could not be appealed to the emperor. With a few notable episodic exceptions, such as the rule of Maximilian I and Charles V in the 16th century, this decree put the Empire on a gradual path to disintegration and reconfiguration as independent nations-states.

Voltaire is credited with the quip in his Essay on Customs in 1756 that the Empire was “neither Holy nor Roman nor an Empire.” Whatever might have been the veracity of his derision half a millennium earlier, when he wrote the essay his satire did not require much nuanced reflection on the part of his readers. The emperor in a basic sense was always the primus inter pares, and his power rested on the prestige of his title, the size and wealth of his own ancestral domain, and his skills as a political operator and military leader. Even with the emergence of the modern nation-state, the Holy Roman Empire remained just a confederation of de facto sovereignties, a matter underscored by the Treaty of Westphalia in 1648, which ended the Thirty Years’ War. The Habsburg ruler’s power was a far cry from the classic imperium of Octavian.

With the Reformation and the rise of the self-confident nation-state, the Roman and classic medieval idea of the universal Christian empire also became anachronistic. And it was no longer “Roman.” The conscious effort of Frederick I Barbarossa in the 12th century to demonstrate that the Empire was “Roman” stands in stark contrast with the 16th century, when emperors and the Diet emphasized its German character. As constituent German entities in the Empire, such as Prussia and Bavaria, grew more powerful, the struggles between emperor and nobles intensified and sharpened into outright wars as between independent nations. The imperial structure and its institutions, such as the Diet, became weaker and, indeed, irrelevant. Despite some belated and ineffectual efforts at reform and reorganization around the turn of the 19th century, the Empire, the thousand-year Reich, was dissolved a half-century after Voltaire’s remark, when Napoleon’s army crushed the emperor’s forces and effected the abdication of Francis II in 1806.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Daniel A. Cotter


America’s Founders and Constitution Framers who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. In Essay #12, we examined the Constitution’s wisdom in light of the Roman Empire and how certain provisions helped ensure against regime failure. In this essay, we explore further some of the Constitution’s wisdom in preventing such failures.

The Republic of Venice

While the Republic of Venice officially lasted eleven hundred years, the five hundred years referred to here is the constitutional period, from 1297 until the fall of Venice in 1797. In 1297, an ordinance was passed providing for the Council of Forty. Venice was ruled by the doge, elected by the Council, and ruled for life. The Founding Fathers would consider the form of government of Venice and provide protections against regime failure, including the Republican Guarantee Clause.

The Guarantee Clause

Article IV, Section 4 of the Constitution provides:

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

This was an important provision included by the drafters to ensure a process of governance through elections. The drafters had examples of the Republic of Venice and Rome and other regimes in collapse, with concerns about other forms of government, even those labeled republics, at its core.

In Federalist No. 57, the reality of various forms of republican government is acknowledged:

“The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.”

In 1787, ahead of the Constitutional Convention and back from a trip to the Netherlands, John Adams published the first of his three-volume set, “A Defence of the Constitutions of Government of the United States of America.” In it, his goal was to defend the tripartite form of federal government. He examined other republics, including Venice. As to Venice, he wrote:

“It was at first democratical…. the people…determined that one magistrate should be chosen, as the center of all authority…. He was to be for life…he was to have the nomination of all magistrates, and the power of peace and war.”

Adams then discusses the evolution of the system in Venice, with power being in a few and not in the populace. Adams proposed the form of republican government that would find its way into the Constitution.

Adams concluded Volume I:

“All nations, under all governments, must have parties; the great secret is to controul them: there are but two ways, either by a monarchy and standing army, or by a balance in the constitution. Where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.”

In Federalist No. 39, James Madison refers to Venice and how the republican form of government, as the Founding Fathers envisioned it, was to be different.  Madison wrote:

The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

“What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland…has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles…These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

“If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”

(Emphasis added.)

With the Guarantee Clause, majority rule is the way, and each state must have an electoral process in place, to prevent the usurpation of power by a monarchial actor such as the doge. It is an important safeguard put in the Constitution by the founders.

The Supreme Court has ruled that the Guarantee Clause cannot be challenged in federal court, as it is nonjusticiable.

Conclusion

The Constitution’s wisdom is shown in many ways, including with the Guarantee Clause of the Constitution. The careful drafting in 1787 has helped to ensure American Exceptionalism once again.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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In Number 39 of The Federalist, James Madison objects to the habit of political writers of referring to Venice as a republic. He asserts that Venice is a system “where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles.” Later, in Number 48 of the same work, Madison raises the need of providing practical security for each branch of the government against the intrusion by others into its powers. He quotes Thomas Jefferson’s Notes on the State of Virginia. Jefferson, commenting about the formal separation of powers in the constitution of Virginia which he had been instrumental in creating, bemoaned the lack of effective barriers among the branches which would better preserve their respective independence. As a part of his critique, Jefferson opined that the concentration of legislative, executive, and judicial powers in one body would be “the definition of despotic government.” Further, it mattered not “that these powers would be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice.”

Leaving aside the historical veracity of Madison’s and Jefferson’s characterizations of Venice, their perceptions shaped their ideas of a proper “republican” political structure and how that would differ from Venice. Madison’s critique of a city governed absolutely by a small body of men made Venice an aristocracy or, more accurately, an oligarchy for him. It is ironic that opponents of the proposed Constitution launched that very calumny against the structure which Madison was defending. The Anti-federalists maintained a drumbeat of attacks about the supposed anti-republican, aristocratic Constitution. Some were thoughtful and substantive objections. Other writers opted for the popular appeal of satire, not likely nuanced and subtle humor, but an entertaining burlesque style.

Two examples suffice. A writer styling himself “Aristocrotis” wrote a lengthy satire in a pamphlet published in Pennsylvania in 1788.

“For my own part, I was so smitten with the character of the members [of the Philadelphia Convention], that I had assented to their production, while it was yet in embryo. And I make no doubt but every good republican did so too. But how great was my surprise, when it appeared with such a venerable train of names annexed to its tail, to find some of the people under different signatures—such as Centinel, Old Whig, Brutus, etc.—daring to oppose it, and that too with barefaced arguments, obstinate reason and stubborn truth. This is certainly a piece of the most extravagant impudence to presume to contradict the collected wisdom of the United States; or to suppose a body, who engrossed the whole wisdom of the continent, was capable of erring. I expected the superior character of the convention would have secured it from profane sallies of a plebeian’s pen; and its inherent infallibility would have debarred the interference of impertinent reason or truth.”

With the tune of satire set, Aristocrotis applied it to a libretto of feigned aristocratic enthusiasm for a document which, according to him, set the few to rule over the many, in accord with the law of nature. Particularly useful for this aristocratic scheme was a powerful Senate and both direct and deviously hidden restrictions on the potentially dangerous House of Representatives. Establishing the latter was an unavoidable practice reflective of the corrupt practices of the times, he acknowledged. However, providing for 2-year terms, instead of the annual elections common to republican state constitutions, in combination with Congress’s power to set the times, places, and manner of elections allowed that body’s membership to perpetuate itself. In addition, Congress had the power to tax so as to give itself independence over its own pay. Raising taxes on the people would have another salubrious effect: it will make them industrious. “They will then be obliged to labor for money to pay their taxes. There will be no trifling from time to time, as is done now….This will make the people attend to their own business, and not be dabbling in politics—things they are entirely ignorant of; nor is it proper they should understand.” If the people object, Congress had the power to make them comply by raising an army. This backhanded compliment reflected the deep republican antipathy to peacetime armies.

Another example of the style was an essay by “Montezuma,” which appeared in the Philadelphia Independent Gazetteer on October 17, 1787, a month after the constitutional convention adjourned. If anything, Montezuma was even more prone to literary absurdity and plot lines reminiscent of a Gilbert and Sullivan production a century later than was Aristocrotis. He begins, with all emphases in the original,

“We, the Aristocratic party of the United States, lamenting the many inconveniences to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble—and holding in utter detestation that frontispiece to every bill of rights, “that all men are created equal”—beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our friends in the first class for their inspection, the following defense of our monarchical, aristocratic democracy.”

After this mockery of the Constitution’s preamble, Montezuma proceeds to a listing of provisions that animate his imagined constitution. Any semblance of republicanism in the actual proposal, such as the election of the House of Representatives is a mirage. After all, the actions of the House can be overridden by the aristocratic Senate’s refusal to go along or by the monarchic President’s veto. Moreover, there is no limit to their re-election, so that the basic republican principle of “rotation of office” found in the Articles of Confederation is eliminated. This will result in perpetual re-election and soon make the representatives permanent members of the ruling elite. The Senate is the main home of this elite and is structured with long overlapping terms so that there is continuity in membership to acculturate any newcomers to the elite’s ways. The states are made subordinate to, and dependent on, the national government and will be “absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking hogs or determining the width of cart wheels.” The office of President is so named to fool the rubes with a republican title which hides his kingship. After all, “[W]e all know that Cromwell was a King, with the title of Protector.” He is the head of a standing army, which will start out small, ostensibly to defend the frontier. “Now a regiment and then a legion must be added quietly.” This allows the elite “to entrench ourselves so as to laugh at the cabals of the commonality.” There is no bill of rights, including the “great evil” of freedom of the press. The list goes on. Concluding his send-up of the Constitution through its closing phrase, Montezuma writes, “Signed by unanimous order of the lords spiritual and temporal,” a direct reference to the British House of Lords.

Montezuma and Aristocrotis recited the common themes of the Constitution’s opponents about the document’s insufficient republicanism: Long terms of office, no rotation in office through mandatory term limits, an aristocratic Senate, a president elected and re-elected for sequential lengthy terms, a standing army, consolidation of the formerly sovereign states into a massive national government, and lack of a bill of rights. There were other, more specific concerns raised by thoughtful opponents, but the foregoing resonated well with the citizenry.

If those themes defined a constitution’s non-republican character, Venice looked little different from what the Philadelphia Convention had produced. True, a formal nobility was prohibited under the Constitution, but there had been no formal nobility set in place in Venice until the previous constitutional structure was changed in 1297. Rather, wealth determined one’s status. Further, the commoners controlled the operations of the government through the bureaucracy. There were other important political institutions, such as the Senate with its important role to define public policy in Venice, but the ultimate power to make law was in the most populous branch, the Great Council, acting without fear of a veto by another branch of government. Unlike the proposed American system, membership in the Venetian Senate and the executive apparatus, with the exception of the Doge, was limited to annual or even shorter terms, as was the practice in the early state constitutions. While the President’s selection was filtered through electors chosen by the state legislatures, and the election might finally be determined by the House of Representatives, the selection of the Doge occurred through a process which had a strong component of what was classically viewed as a “democratic” tool, the drawing of lots of the names of those who would make that selection. The likelihood of a cabal controlling this convoluted process in order to install a puppet as the head of government was no more likely in Venice than under the Constitution. Moreover, the Doge had little formal power, unlike the President. Finally, Venice had no standing army, although it did have a large and powerful navy. In short, to an opponent of the Constitution, “aristocratic” Venice had at least as “republican” a character as the proposed American system, and Madison’s contemptuous dismissal of the city as a small group governing with absolute power sounded hollow.

The writers of The Federalist strove mightily to rebut these attacks. Madison’s narrowly formalistic definition of a republic in essay Number 10 that its distinguishing characteristic was its system of government by indirect representation, rather than direct action by the citizenry, was useful to establish a minimum of republicanism in the proposed system. But, by itself, it would hardly suffice to address the Anti-federalists’ multiple attacks. Madison understood this weakness and went on the attack, cleverly turning his opponents’ arguments against them in connection with the problem of “factions” and their threat to individual liberty and political stability.

Today, that essay is considered a brilliant insight into how political actors operate and how the framers were practical men who set up the constitutional machinery for our system of interest group politics later dubbed by the American political theorist Robert Dahl as Madisonian “polyarchy.” Yet, at the time of its publication, essay Number 10 aroused hardly a murmur. The reason likely was that few disputed his premises or his discussion about the existence, sources, and problems of factions in society seeking their own ends in contrast to the republican ideal of the general welfare. Alexander Hamilton, for one, had addressed the same point in essay Number 9. As well, no one really challenged his definition as a necessary characteristic of a republic. They disagreed about its sufficiency for a republic and, more profoundly, about whether the Constitution adequately balanced the self-interests of factions while at the same time preserving liberty.

As in so many other instances, the writers of The Federalist took to heart the maxim that “the best defense is a good offense.” Madison argued first that the republican principle of the vote, as qualified by the states themselves per the Constitution, would protect against extended dominance by some political minority. As to liberty, Madison asserted that the very variety of political factions spread across the country made the national council less likely to succumb to a dictatorship of an entrenched faction than would be the case in a smaller, culturally more homogeneous polity, whether democratic or republican in structure, such as a state or a city, including Venice. In a memorable paragraph, he wrote:

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction on a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.’

In other words, to prevent the deleterious effects of factions, the answer is, the more, the better, and the larger the domain, the more factions will exist. In at least the sense of guarding against a federal tyrant, diversity really is our strength. He repeated this defense of the general government in other essays, including one of the most renowned, Number 51.

Essay Number 51 also provides a thoroughgoing refutation that the states will be “consolidated” into the general government, and that the latter will degenerate into a tyranny. Madison relied on the formal structural separation of powers with its mutual checks and balances and on reflections about human nature. As to the first, he found common ground with his opponents:

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident 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….It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.” In the opinion of its supporters, the Constitution did that, and to exactly the correct degree.

As to the second, Madison tapped into the cynicism of some of his antagonists and the generally pessimistic views most Americans had about human nature in its fallen state. In another series of hard-hitting paragraphs, he urged:

“But 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….Ambition must be made to counteract ambition. The interests 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 of 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

In short, government is a necessary evil commensurate with the fall of mankind. But, as a human creation, it, too, is naturally corrupt. To protect liberty, one cannot overly rely on the virtue of the citizenry, and certainly not on that of the rulers. Constitutions are made of parchment and need robust pragmatism to work. To do that, it is best to harness the natural self-interest of politicians to maintain and then expand their power, by setting them against each other in various independent centers of power, state, national, legislative, executive, and judicial. The scandalous and amoral proto-capitalist assertion by the early-18th-century economist Bernard de Mandeville in his satirical Fable of the Bees about how private vices, such as greed, lead to public benefits, such as economic growth, applies well in the political realm, it seems. Such a multiplicity of political institutions acting as checks on each other, exists in the entire system of human affairs, private and public, according to Madison. An examination of the competition among political bodies and offices which characterized constitutions throughout Western history, from Athens and Sparta to Rome and Venice, bears him out.

It must be noted that, by engaging their opponents in a debate about the objects of government in a republic, not merely about its operational grounding in the particulars of the concept of representation, the writers of The Federalist were able to turn the contest to their advantage. Debates over annual versus biennial election of representatives, or four-year terms for the President versus three-year terms for the governor of New York, was playing small ball. Those issues must be addressed and were, in various writings. Excepting the careful obfuscation of the institution of slavery, the big issues were given their proper due. Reassuring the people incessantly that the federal government was of little consequence when compared to the reserved powers of the states; that the President had exactly the right degree of power to provide energy to government while also being checked by Congress’s or the Senate’s power over the purse, war, and treaties; that a standing army was necessary to protect the country’s security and that the possibility of that army becoming dangerous to liberty was remote in light of the vastly larger number of armed Americans organized into militia.; that a bill of rights was both unnecessary and would be proposed once the Constitution was adopted. Those were the republican principles which mattered, and it was there that Madison and others successfully advocated the Constitution’s republican bona fides.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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In Number 10 of The Federalist, James Madison defines “republic” and distinguishes that term from “democracy.” The latter, in its “pure” form, is “a society consisting of a small number of citizens, who assemble and administer the government in person, ….” Think of the classic New England town meeting or the administration of justice through a jury drawn by lot from the local citizenry. A republic, by contrast, is “a government in which the scheme of representation takes place, ….” It is distinguished by “first, the delegation of the government … [given] to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of the country, over which [a republic] may be extended.” The last quality is due to the fact that direct participation by citizens means that the place of government cannot be too far from their homes, lest they must leave their livelihoods and families, whereas the indirect system of governance in a republic only requires that the comparatively small number of representatives be able to travel long distances from their homes. One argument by historians for the collapse of the Roman Republic and its popular assemblies is that eventually there were too many Roman citizens living long distances from the city to make the required direct participation in the assemblies possible.

Political theorists and Western expositors of constitutional structures have characterized various systems as republics more broadly than Madison’s functional and limited definition. Examples abound. Plato ascribed the title Politeia (“Republic”) to his principal work on government. His conception of the ideal system was one of balance among different groups in society, with the leaders to come from an elite “guardian” class bred and trained to govern. This has been called government by philosopher-kings, but it was an obvious aristocracy in the true meaning of the word, government by the best (aristoi). Such government would establish a realm of “justice,” the cardinal virtue of the individual and the political order, through trained reason. He analogized the system to a charioteer who, through his reason guides the chariot safely along the path to the destination. The charioteer relies on the help of the strong obedient horse to control and direct the unruly horse which, driven by its appetites for physical satisfaction, wants to bolt off the path in search of immediate gratification of its desires. The charioteer is the guardian class, the strong horse the auxiliaries—disciplined and competent military officers and civil administrators—, and the unruly horse the masses. The system allows all to achieve their proper status in society in reflection of their inherent natural inequalities, provides stability necessary for social harmony, and is guided by an ethical principle—justice; hence, it is a republic.

Aristotle in his Politika did not discount the role of the demos in Athens. Like Madison, Aristotle considered democracy to be unstable and dangerous. From an analytic perspective, as was the case for Plato, democracy was a corruption of politeia, which he considered the best practical government for a city. Man is a politikon zoon, a creature which by his nature is best suited to live in the community that was the Greek polis. Once more, preserving a stable society and governing system was the key to maximizing the flourishing of each resident in accordance with the natural inequalities of each. Aristotle saw that balance in the “mixed” government of Athens, neither pure democracy nor oligarchy, in which the formal powers of the demos in the assembly and the jury courts were balanced by the Council of 500 and the practice of deference to the ideas and policies advanced by the elite of the wealthy and of those who earned military or civic honor.

The government of Rome before at least the First Triumvirate in 59 B.C. of Caesar, Pompey, and Crassus has consistently been described over the centuries as a “republic.” Polybius explained mikte (mixed government), the political structure of the Roman Republic, differently than did Aristotle. But he, too, deemed Rome a republic because of the balance among the monarchic, aristocratic, and democratic elements of its constitution. As important, the practical functioning of the competing political institutions limited the power of each. Polybius related the political structure and its evolution to Roman character traits that reflected Rome’s history and contemporary culture, which had stressed the maintenance of civic virtue. Polybius also understood that Romans were not immune to human passions and vices. Like Madison writing nearly two millennia later, he warned that Rome’s republican structures were better than other forms of government but were not impregnable barriers against political failure.

Cicero also described Rome as a mixed government, although his declaration that the people were the foundation of political authority was opposed to his approving description of the patrician Senate as preeminent. For Cicero, Rome’s system reflected the natural divisions of society, with leadership appropriately assigned to the best, the optimates. What made Rome a republic was that the mutual influences and overlapping authority of the various political institutions provided the stability for a successful community oriented to the thriving of all, the res publica. In the Ciceronian version, Rome was a republic, but an aristocratic one.

Closer to Madison’s time were the observations of Baron Montesquieu, an authority well-respected by the writers of The Federalist. Montesquieu’s The Spirit of the Laws has been criticized as contradictory and lacking systematic analysis. In a relevant portion which describes the English system, he calls the structure a mixed government, with separate roles for monarch, Lords, and Commons. He characterizes this as a republic, similar to the Rome of Polybius, because they embodied different interests and were able to check each other to prevent any of them from exercising power arbitrarily. England was a republic in function, but a monarchy in form.

Today, one sees systems self-named as republics that are a far cry from the foregoing examples. North Korea as the Democratic People’s Republic of Korea, the People’s Republic of China, and the erstwhile Union of Soviet Socialist Republics appear to have at most a passing resemblance to the Rome of Polybius or the England described by Montesquieu. Their “republican” connection seems to be at best a theoretical nod to the concept of the people, in the form of the proletarian class, as the source of authority, with the ruler chosen for long term, often life, by a token assemblage of delegates in a closed political system.

What then made classical Venice a republic? Based on classical taxonomy of “pure” political systems, Venice was an aristocracy. Although Venice had been founded under Roman rule, the most revealing period was the half-millennium between the constitutional reforms of 1297 and the Republic’s end after the city’s occupation by Napoleon in 1797. Like Rome and other classical polities, Venice had no written formal constitution or judicially applied constitutional law. The political structure was the result of practical responses to certain developments, the demands of popular opinion, and, as in Rome, the deference to custom traceable to the “wise ancestors.”

In 1297, membership in the nobility became fixed in certain families, and the previous fluid manner of gaining access through the accumulation of wealth during a period of economic expansion was foreclosed (the “Serrata”). That said, the number of nobles was significant, with estimates that it amounted at times to 5% of the population. The nobility governed, and their foundational institution was the Great Council. All adult males of the nobility belonged to the Council and could vote in its weekly meetings. That body debated and enacted laws. It voted on the appointment of the city’s political officials, of which at times there were estimated to be more than 800. Since the officials’ terms of office were brief, and turnover frequent, this task occupied considerable time of the Council.

In addition, there was another powerful political body, the 300-member Senate, Venice’s main effective policy-making institution. Nobles at least 32 years old were eligible to be selected by one of two procedures, election by the Council or by lot drawn from nominations by retiring Senators. Their annual terms overlapped, with no uniform beginning and end. As well, senior civil and military officers were members. The Senate determined policy for the government, most particularly in foreign and financial affairs. However, the agenda of the Senate was set by the 26-member Collegio, a sort of steering committee. While the Collegio could control what matters were debated by the Senate, it could only offer opinions held by various of its members about an issue, not submit concrete proposals.

The administrative part of the Venetian government was particularly complex, as described by Professor Scott Gordon in his well-researched book, Controlling the State. Regarding Venice, he refers frequently to Gasparo Contarini’s classic work from 1543, De Magistratibus et Republica Venetorum. Selection to office involved a confusing combination of voting and selection by lot. Gordon provides a schematic of the selection of the Doge, the city’s head. At once amusing and awe-inducing for its complexity, a simplified version is shown by: 30L-9L-40E-12L-25E-9L-45E-11L-41E-Doge, where L stands for selection by lot and E for election. In other words, at a meeting of the Great Council, the names of 30 members were drawn by lot. From them, 9 were drawn by lot. Those nine voted for 40 members of the Great Council. From those, 12 were drawn by lot, and so on, until 41 nominators were selected who would select the duke. This convoluted procedure had some anticipated benefits. Together with the prohibition of formal campaigning, the unpredictability of the eventual selecting body discouraged election rigging. Moreover, the time delays involved and the likely variation of opinions among the members of the Council encouraged debate in the Council and among the public about the qualifications of various potential candidates. Factionalism is unavoidable in large bodies, but its effects likely were somewhat blunted by this procedurally chaotic approach.

Although elected for life, the doge himself had little formal substantive power. He could do nothing official by himself. To meet visitors, or when he engaged in correspondence, at least two members of the Ducal Council had to be present. The Ducal Council was composed of six members elected for eight-month terms by the Great Council, each representing a geographic district of the city. They were the doge’s advisors, but also his watchdogs, much as the ephori (magistrates) of Sparta shadowed their kings.

Upon election, the new doge had to swear an oath on a document which detailed the limitations imposed on his office. Those limitations could vary, depending on the political conditions and the identity of the person selected. To remind him, the oath was reread to him every two months. After the doge died, his conduct was subject to an inquiry by committees of the Great Council. If he was found to have engaged in illegality, his estate could be fined, a not unusual result.

The office had little formal power, but it was more than simply ceremonial. The Doge presided over the meetings of the Great Council and the Senate, though he did so attended by the Ducal Council and the three chief judges of the criminal court. His power came from his long tenure and his participation in the processes and deliberations of all of the important organs of the city’s government.

There also were security and secret police organs, such as the shadowy Dieci (Council of Ten), elected by the Grand Council to staggered one-year terms, and the three Inquisitors. The Dieci targeted acts of subversion. The usual legal rules did not apply to them, to allow them to move quickly and secretly. The Inquisitors were a counterintelligence entity, set up to prevent disclosure of state secrets. Like all such extraordinary bodies connected to national security, they represented a potential threat to the republican structure of Venice. Notably, there is no record of them attempting to subvert the republic and seize power.

A final and very significant component of the Venetian system were the bureaucracy, the craft guilds, and the service clubs. All of these were controlled by the non-noble citizens of Venice. The first, especially, was an ever-expanding part of the government. Excluded from the political operations, commoners sought power through the bureaucratic departments. Eventually, a sort of bureaucratic oligarchy developed, as prominent families came to dominate certain departments over the generations. These cittadini roughly equaled the nobles in number, and they had the advantage that, unlike the annual terms of noble officeholders, they held their offices for life.

Venice acquired the reputation among writers during the 15th through 17th centuries of an “ideal” republic, with a stable constitution able to survive even catastrophic military defeat in 1508. The city was marked by good government and the protection of political and religious liberty. As noted by one modern commentator, Venice was “a Catholic state where the Protestant could share the security of the Greek and the Jew from persecution.”  The system stood in contrast to the violent chaos and bouts of persecution that characterized the history of Florence and other Italian cities, and the economic backwardness and lack of social mobility of the emerging nation-states, such as France. It was a wealthy, capitalist society, which was easily able to raise more tax revenues than nation-states with several times its population. On the military side, although it had no regular army or militia, Venice had for several centuries the most powerful navy in the world, with bases around the eastern Mediterranean to protect its far-ranging commercial interests.

However, by the 18th century, the “myth of Venice” had become tarnished, as the city acquired a reputation for civic decay. Hamilton and Madison wrote disparagingly about it in The Federalist, the latter claiming that the city did not meet the definition of a republic. Thus, coming back to that earlier question, why was Venice’s constitution described as such by so many? Madison’s own definition in No. 39 of The Federalist, in which he rejects characterizing Venice as a republic, emphasizes that the governing authority in a republic must come directly or indirectly from the “great body of the people,” and the government must be administered by persons holding office during good behavior.

It is true that the organs of state in Venice were controlled by a noble elite of at most 5% of the population. Yet, the general exclusion of women, children, convicts, and slaves from governance in the American states, along with the impact on free male adults of the property qualifications imposed by many states on voting well into the 19th century, undercuts Madison’s claim that the American states were republics. Moreover, in Venice the cittadini carried out the ordinary operations of the government and were, therefore, a significant force in the execution of government policy. Looking at terms of office, with the exception of the doge’s life tenure, office holders in Venice were usually selected for annual terms, unlike the longer terms of office for President, Representatives, Senators, and judges in the United States. Indeed, it was the very length of the tenures of officers of the general government which the Anti-federalists decried as unrepublican, and which Madison defended.

That is not to say that Madison’s focus is misplaced. It is a necessary, but not sufficient, condition of a republic that there is a significant element of popular participation, albeit one not amenable to precise reckoning. As important, however, is that the government is not unlimited and power is not concentrated in a single person, class, or body of persons. The balance and separation of powers which Madison considers to be crucial in The Federalist Numbers 10 and 51, when he defends against the charge that the Constitution is a prescription for tyranny, is also clearly present in Venice’s, one might say Byzantine, structure of overlapping entities checking and supervising each other. It was a structure that, by Madison’s time had, with some alterations, served the city for 500 years since the Serrata, and another three centuries since its independence from Byzantium before then. It took Napoleon’s mass army, the military might of a large nation-state, to end Venice’s long-functioning, but obsolete city-state constitution.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

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Guest Essayist: Daniel A. Cotter


Those who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. With such wisdom, the Founding Fathers made sure the Constitution addressed regime failure. Two of those provisions are the Necessary and Proper Clause and the vesting clause of executive power.

The Necessary and Proper Clause

Article I of the United States Constitution sets forth the Congressional powers. Article I, Section 8, Clause 18 of the Constitution provides:

“[The Congress shall have Power] … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This clause has been referred to as the “elastic clause” or the “sweeping clause” because the language on its face appears to expand significantly the powers of Congress. The clause has been referred to as the most important provision in the Constitution, for good reason – most federal laws are enacted under this Clause 18.

From the beginning, the clause has been debated. In Federalist No. 33, Alexander Hamilton argued the “virulent invective and petulant declamation against the proposed Constitution” caused in large measure by the Necessary and Proper Clause was misdirected, writing in part:

They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?”

James Madison in Federalist No. 44 reiterated much the same. Anti-federalists expressed concern about the unlimited power the Clause presented. Writing in Anti-federalist No. 32, Brutus wrote: “It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government.” The concern would play out in the Supreme Court over the years, beginning early in the republic.

In 1819, the Court supported the views of the Federalists, in McCulloch v. Maryland, 17 U.S. 316 (1819). Chief Justice John Marshall wrote the opinion, and after explaining the meaning of the clause, echoed the language of Federalist No. 44:

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

(Emphasis added.)

Vesting Clause

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” Known as the “vesting clause,” this clause too has been the subject of debate. With no settled meaning of the term “executive power” at the founding, some have argued that the term refers only to those powers set forth in the Constitution in other provisions. The opponents of the minimalist view assert that the power is expansive, subject only to specific limitations included in the Constitution. The latter view is referred to as the “unitary executive” and many have argued the president has such powers, often the party of the president in the White House asserting he has such powers, but not when the opposing party is inhabiting the White House.

In Federalist Nos. 69 and 70, Hamilton wrote of the need for a singular executive and the powers. In Federalist No. 70, Hamilton wrote in part:

“This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.”

Conclusion

The Constitution’s wisdom is shown in many ways, including with the two provisions covered by this essay.  The careful drafting in 1787 has helped to ensure American Exceptionalism.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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Guest Essayist: Joerg Knipprath


Rome, the city-state on the Tiber River, like her counterparts in Greece, had no cohesive written constitution. There were the Twelve Tables from around 450 B.C., of which mere fragments remain, which are sometimes presented as the Roman Republic’s constitution. However, the tablets were more an attempt to codify certain principles of criminal and civil law, rather than to lay the foundation for a political system. However, they did begin the practice in Roman law of published codes enacted by a legislative body and accessible to all citizens, which remained a core characteristic of European legal systems influenced by Rome.

Much of Rome’s political constitution by contrast was the product of custom. That custom evolved through responses to changes in the society’s social structure, through the citizens’ tacit acceptance of political bodies that arose from critical events, and by incorporating founding legends. An example of the first was the change in sources of wealth and the nature of the aristocracy comprising the leading families. The second would include the expulsion of Rome’s last king, the Etruscan Tarquin the Proud, at the end of the 6th century B.C. That event resulted immediately in the preeminence of the established aristocratic council, the Senate, and, a half-century later, in the emergence of the assemblies as sources of political influence for the commoners. The last would be the creation of institutions (such as the Senate and the tribunes) and practices said to go back to the 8th century B.C., and the acts of Rome’s first king, the legendary Romulus, and his successor, the Sabine Numa Pompilius.

While the writings of historians such as Livy and Sallust and political leaders such as Cicero are instructive, the single most authoritative source for the Roman constitution is its earliest expositor, the great Greek historian and father of constitutional analysis, Polybius of Megalopolis. Born in 200 B.C., he became a prominent politician in the Achaean League, of which his city was a member. The League, had for some years, had to tread a narrow path in relations with Rome, by then in control of most of Greece. With some exceptions, the leaders of the Greek cities generally were less than thrilled about Roman control. Such lack of enthusiasm raised suspicions and put those politicians in potential danger.

After Rome in 168 B.C. defeated Macedon for the third and final time, the Senate decided to break up that kingdom into four tributary republics. Rome also “went Roman” on the Greeks allied with Macedon, destroying 70 towns in the region of Epirus and selling a reported 150,000 into slavery. Rome’s Greek “allies” fared better but were disciplined for their lack of commitment. Polybius was among the 1000 Achaean leaders suspected of “fence-sitting” who were deported. Most were sent to provincial towns away from Greece.

Polybius was allowed to stay in Rome itself, due to the intervention of two powerful Roman leaders, Scipio Aemilianus and his brother. The developing friendship between Scipio and Polybius gave the latter access to the Roman elite. His learning and gregarious and active personality further solidified those connections. Polybius, in turn, became a committed advocate for the city and its system of government. As well, his favored status gave him extensive freedom to travel. When the Senate authorized the Greeks to return to their cities, Polybius declined. Instead, he eventually accompanied his friend Scipio to North Africa when the latter was given the command of the army sent to destroy Carthage in the Third Punic War. Polybius was well acquainted with Rome, its history, and its institutions, and he wrote about them with affinity.

The Histories is Polybius’s major influential work. It was a massive undertaking of 40 books, although one needs to keep in mind that the physical limitations of papyrus scrolls meant that a “book” might be more like a quite lengthy chapter today, and the entire effort perhaps a couple of thousand pages. The first five books are fully available, with more or less extensive excerpts from many others. Some are entirely lost. Most of the work covers Roman history from the Second Punic War (against Hannibal) to Polybius’s time. Most important to constitutional analysis is Book 6, the numerous preserved fragments of which cover, in the estimate of one authority, about two-thirds of the book. Missing is a thorough analysis of the Roman assemblies, in contrast to his discussion of other elements of the Roman constitution.

The constitution Polybius describes is that of his time, after Rome has finalized its drive for dominance of the Mediterranean world. The Punic Wars lie in the past, Carthage has been eradicated, and the destructive Social Wars and civil wars are in the future. Romans’ confidence in their institutions is high, and the republic which Polybius describes is at its political zenith. As was the habit of classic Greek observers of political systems, Polybius believed in a duality of good and bad forms of government, with an inexorable process of degeneration between those forms. But, unlike, for example, Plato and Aristotle, he claimed to see in the Roman constitution a system resistant to such degeneration. He also observed that states commonly moved through those forms sequentially and even attempted an anthropological explanation for the origins of government. Thus, he argued an archaic form of monarchy emerged when the physically dominant member of a primitive band of humans took command.

As societies become more sophisticated, that archaic form of tribal leadership proves inadequate. A more stable form of kingship emerges, one based on reason and excellence of judgment, which, in turn, fosters consent of the governed. Initially, such kings are elected for life. Eventually, the dynastic impulse of rulers to pass their office from father to son leads to kingship often becoming hereditary. Over time, such dynastic succession induces a sense of superiority and entitlement, which results in formal distinctions and ceremonies to set the royals apart from commoners. Worse, these royals begin to consider themselves exempt from rules and morals. As ordinary people begin to react with disgust at such licentiousness and arrogance, the ruler responds with anger and force. Thus, the inevitable outgrowth of kingship is tyranny.

The wealthy and talented members of respected families chafe at the tyrant’s rule the most. Conspiracies develop and the tyrant is replaced by a ruling class of high-minded men, the aristocracy. Recalling Plato’s criticism of oligarchy, Polybius saw the degeneration as the fault of the sons, not the fathers. As he wrote, the descendants “had no conception of hardship, and just as little of political equality or the right of any citizen to speak his mind, because all their lives they had been surrounded by their fathers’ powers and privileges.” Soon enough, the government controlled by supremely moral and wise men gives way to a self-interested oligarchy “dedicated … to rapaciousness and unscrupulous money-making, or to drinking and the non-stop partying that goes with it ….”

The general populace, encouraged in their passions by manipulative leaders, murders or banishes the oligarchs and itself takes on the responsibilities of government. Democracy, according to Polybius, is based on majority rule, but a majority tempered by “the traditional values of piety towards the gods, care of parents, respect for elders, and obedience to the laws.” This sounds strikingly like the admonition of republicans through the ages, that self-government requires self-restraint, focus on the common good and general welfare, and a strong moral and religious framework to promote republican virtue. John Adams’s observation that the American system was fit only for a moral and religious people is one example particularly relevant to the American experience. The exhortation in the third article of the great North-West Ordinance of 1787, about “Religion, morality, and knowledge being necessary to good government and the happiness of mankind” is another.

Regrettably, such values prove to be in short supply, and the population of the democracy, now encouraged in their delusions by manipulative politicians, believes instead that it has “the right to follow every whim and inclination.” Those ambitious for power and wealth seek to get ahead by corrupting the people with money to obtain their support. The common people become greedy for such largesse, and democratic self-government degenerates into ochlocracy (“mob rule”). As Polybius described the fate of democracy, “For once people had grown accustomed to eating off others’ tables and expected their daily needs to be met, then, when they found someone to champion their cause … they instituted government by force: they banded together and set about murdering, banishing, and redistributing land, until they were reduced to a bestial state and once more gained a monarchic master.” This is the predictable and depressing lifecycle of political systems. Polybius would have nodded knowingly, had he been present at Benjamin Franklin’s reply to his interlocutor about the type of government produced at the Philadelphia Convention, “A republic, Madam; if you can keep it.”

Fortunately, such a cycle of corrupt and degenerate forms of government could be avoided, and Rome showed the way. Polybius exalted Rome as a “mixed” government, composed of essential elements of all taxonomic forms, monarchy, aristocracy, and democracy. Unlike Plato’s fictitious ideal republic, Rome’s was a functioning system which had proved its mettle for centuries. Unlike Aristotle’s description of the Athenian government as a workable, but uneasy, mixture of popular and oligarchic elements in the Assembly on one side and the Council of 500 and other institutions on the other, Rome succeeded because of its more developed balance of powers. In that, according to Polybius, Rome’s constitution resembled that of Sparta, although Rome’s developed by natural evolution rather than from a conscious decision by a wise lawgiver like the mythical Spartan Lycurgus. Polybius regarded Sparta’s system as particularly enlightened and wrote with great favor about it, although he recognized that the structure did not prevent Spartan hubris from engaging in ultimately disastrous foreign military adventures. In light of Sparta’s legal totalitarianism, it is ironic that Polybius ascribed to this mixed government a long history of liberty in Sparta. Perhaps by this he meant independence. In any event, his characterization of mixed government became the classic understanding of what today would be called a system of limited government.

The preeminent political institution of the Roman Republic was the Senate. Although eligibility changed over time as membership was opened up to the more prominent plebeian class, the equites ((knights), the Senate was primarily the institution of Rome’s aristocratic families, the patricians. The body had begun as a council composed of 100 men chosen by Romulus from the leading land-holding families as city fathers (“patres“). Initially, it was solely a hereditary body, but eventually the primary determinant, if one sought admission to the Senate, became landed wealth. The Senate had the power over appropriations. The civil functionaries had to obtain Senate consent for all expenditures, most importantly for the massive funds spent every few years on the repair and construction of public buildings. Major crimes, such as treason, conspiracy, and gang murder were under Senate jurisdiction. Foreign relations, colonial administration, and matters of war and peace were the domain of the Senate.

Striking about the Senate was that it had no formal role except to act as an advisory council, the same as under the earlier monarchy. In reality, it was the single most powerful body in the republic, due to its class ties and consciousness, its continuous sessions, and its life membership. Moreover, the mos maiorum (the “custom of the ancestors”), the powerful force of tradition in the Roman constitution, sustained the legitimacy of the Senate. A senatus consultum was merely an advisory opinion by the Senate, but such an opinion was required for any law proposed for adoption by an assembly. Although a consultum could be overridden by the assembly or could be vetoed by a plebeian tribune, in reality an unfavorable consultum usually spelled the end of the proposed law or, if enacted, caused it not to be enforced by the magistrates. Polybius noted, if one were to look solely at the Senate, one would believe that Rome was an aristocracy. Or, in the more jaundiced view of some historians who claimed that the Senate was actually controlled by a tightly knit small hereditary group of families, it was an oligarchy.

There was also, however, another long tradition in Rome’s constitution, “What touches all must be approved by all.” As Cicero put it in Republic, “res publica, res populi.” The consent of the people was given through the assemblies. Polybius described their role in assessing taxes, the ratification of treaties, actual declaration of war, and confirming the appointment of officials. Moreover, the people had a role in legal processes. All death penalties had to be approved by an assembly. The same held for more general criminal cases where a substantial fine would be imposed. He concluded that, from this perspective, one might declare Rome a democracy.

There were various assemblies over time, and Roman citizens could attend any. Histories does not have much discussion of them. This might be because Polybius was not a great admirer of those bodies or, more simply, because his discussion is in the chapters which have been lost. These explanations are not contradictory, and there is evidence for both. One such body was the Centuriate Assembly, the oldest. It can be traced to a 6th century B.C. king and was modeled on the centuriae, the military units of 100 infantry and 10 cavalry that each of the ten subunits of the three “tribes” of Rome had to provide. As in Athens, these tribes were not based on ethnicity but were simply geographic constituencies within the city.

As the city grew, so did the number of tribes and the size of the voting units. For a long time, there were 193 “centuries.” They were organized on the basis of land ownership, wealth, and age, which, in turn, was related to the type of military service and associated weaponry of the members. At the top were the equites (knights), who were wealthy enough to provide horses and served in the cavalry. They had 18 centuries. Next were 170 centuries for the infantry, divided further into five classes based on their members’ wealth and weaponry. Below them were five centuries for the proletarii (the poor), those who could not supply weapons and typically were assigned to the navy.

In contrast to the Athenian ekklesia, in the Roman system the citizens did not vote simply as individuals. Although they met in the same place, the actual voting took place within their respective centuries. Each century had one vote, determined by the majority vote of citizens assigned to that century. The Assembly’s approval depended on a majority vote of the centuries, not of the undifferentiated citizens. With 193 centuries, the votes of majorities in 97 of those centuries would be required to approve a measure. In fact, voting was heavily skewed in favor of the equites and the wealthiest layer of the others. Between them, they were assigned 98 centuries, on the reasoning that those who provided the most financial support and had the most to lose in military service should have the most influence. Moreover, voting was done in class order, with the centuries of the equites voting first, those of the wealthiest class of others voting next, followed by the next lower group, and so on. The poor voted last. As a result, the vote of the poor rarely mattered. Class solidarity, the number of centuries weighted towards the wealthy, and the staggered voting meant that most issues would be decided well before the smaller landowners or the poor voted. Even the reforms of the 3rd century B.C., which expanded the number of centuries for the landowning classes to 350, had little effect on the dominance of the wealthy.

The Assembly could only consider bills which were on the agenda set by the tribunes or the magistrates. The citizens could vote on the proposal but not debate the bill at issue or offer amendments. Finally, all voting was done in the city of Rome. As the city’s domain spread, it became more difficult for any but wealthy citizens to travel to Rome for the duration of the Assembly’s legislative or appointive tasks. Based on his analysis of the system, the historian Scott Gordon doubts that even one-tenth of the 400,000 Roman male citizens at the end of the 2nd century B.C. attended a voting assembly in their lifetimes. The formal powers of the Assembly eventually were transferred to the Senate by the Emperor Tiberius.

There was, however, one mechanism by which the public could express its views, the contio. After a bill was proposed by a tribune, there had to be a period of at least twenty-four days before the Assembly could vote on it. This allowed for informal discussion among citizens of the bill’s merits. Moreover, any tribune could call for a formal meeting, the contio, which all residents, including women, foreigners, and slaves, could attend. The only speakers permitted were those selected by the presiding tribune and usually were senators or various magistrates. Public comment was limited to shouts and other sounds indicating support or opposition.

The final part of the formally operating civil government were judicial, executive, and administrative officials. Chief among them were those sought by ambitious Romans embarked on the cursus honorum, the “path of honors” along a sequence of offices, the apex of which was the consulship. All were initially open only to those of senatorial rank, but eligibility was expanded in the 4th century B.C. In practice, only scions of the wealthy families were likely to be elected, especially as consul. Thus, Cicero, a non-patrician resident of a non-Roman town in Latium and member of the knightly class, the highest of the plebeian classes, climbed this ladder of success quickly.

Election to these offices was by the Assembly for a one-year term, with minimum age requirements. The lowest office was that of the quaestor, who had to be 30 years old and have completed several years of military service. Quaestors were in charge of financial administration, a source of influence for further political advancement, and of record-keeping for the state archives. Above the quaestor was the aedile, in charge of public facilities and public festivals and celebrations. The next rung in the ladder was the praetor, a multi-function office. Praetors performed judicial functions but also could step into the executive role of consul if both of the consuls were absent from the city. As jurists, praetors had significant influence on the development of the body of Roman law. After his term ended, a praetor could also be awarded a foreign post as propraetor. This included military power, with full governing authority in the province. There was no term limit for that office.

At the end of the cursus honorum beckoned the consulship. The Assembly elected two consuls each year, at least one of whom was usually engaged in military campaigns in the provinces, the consul peregrinus. The one in Rome, the consul urbanus, had no real military function, because armed forces had to be kept some distance from Rome during peacetime, a constitutional limit broken, for example, by Julius Caesar when he crossed the Rubicon River. The consul’s position in the Republic was one of influence, not formal power. Any executive decision could be vetoed by the other consul and any of the ten plebeian tribunes, Moreover, he could not override the actions of other magistrates. However, his status as a member of a leading family and constant interaction with the Senate, plus the fact that he had survived the competition to reach the apex of the cursus honorum gave his opinions and actions great constitutional legitimacy. After his one-year term ended, a consul could not be re-elected for at least ten years, until the general Marius destroyed that informal constitutional limit in the 1st century B.C. After his term, a consul could be elected as proconsul, the highest military and administrative position in the provinces, with no term limits. This usually arose from the extended military campaigns abroad, which necessitated continuity of command.

Finally, outside the formal cursus honorum were the tribuni plebis, ultimately ten in number, who originally represented the “tribes” or sections of the city. Tribunes spoke for the political interests of the plebeians. They were elected to one-year terms by the Assembly. In that capacity, they were responsible to assist any plebeian who had been wronged by a magistrate. This included the power to overrule an unjust judicial order of punishment. The tribunes’ political power extended to vetoing any bills proposed to the Assembly by other magistrates and to consulta of the Senate deemed contrary to the plebeians’ interests. Eventually, they became members of the Senate and set the agenda for that body. While they formally represented the plebeian classes, with some exceptions such as the famous Gracchi brothers, they were no radicals. They were typically drawn from the patricians and the knights, the high-status classes, and shared their interests. As well, their potentially significant power was impeded by the fact that any affirmative act of a tribune could be vetoed by any of his nine colleagues. In reality, tribunes could act as a shield for the commoners against the wealthy, but rarely as an effective sword to advance the interests of the lower classes in opposition to the wealthy.

One additional aspect of the Republic’s constitutional practices bears mention. Every system has to deal with the state of emergency that can arise over time, the most common of which is war, either foreign or civil. For a long time, in such exceptional circumstances the Roman Senate would formally appoint a dictator to rule by decree for six months. That practice was discontinued by the end of the 3rd century B.C. Instead, during later troubles, such as those of the civil wars of the 1st century B.C., such exceptional powers would be authorized under the terms of a senatus consultum ultimum, a “final act of the Senate” needed to protect the Republic.

Polybius saw in the structure of the magistracies, especially in the consuls, the monarchic element that was part of the “balance” in the Republic’s constitution. In the various interactions of Senate, Assembly, and tribunes, and in their mutual formal and practical limitations, he perceived a system of “checks” on the power of any of them. In some of the particulars, he was off the mark. For example, unlike the Spartan kings to which he compared the consuls, the latter served for only one year, not life. Moreover, the consuls lacked the formal powers one normally associates with kingship. On the whole, however, his assessment has merit.

Historians have long debated the causes of the Republic’s demise. There is certainly no reason to limit the matter to one such cause. Among them was the collapse of broadly-distributed land ownership which sustained a “middle class” in an agricultural republic. As the wealthy became more so regardless of the source, they bought up more land. Land was a reflection of one’s status. Indeed, because commercial ventures were formally prohibited for Senators, one needed land to join that body. The demand raised the price of land and the taxes imposed on it. The growth of these large latifundia drove the previous smaller landowners into the city. There, they became part of the urban proletariate and competed for employment with the large and growing number of slaves acquired through foreign conquests and with other foreigners attracted to the increasingly imperial city.

Another cause was the opportunity for power and wealth afforded to successful generals operating as proconsuls in the provinces. With the troops often ill-paid by Rome, local taxes were extracted by these commanders and used to pay the troops directly. Loyalties became redirected from the city to the commander. The republican slogan SPQR (Senatus Populusque Romanus), “the Senate and the People of Rome,” which appeared on the standards of the legions, was supplanted by the reality that, “You take the king’s silver, you become the king’s man.” Especially as those troops were increasingly formed from poor Roman volunteers or foreigners, especially after the military reforms of Gaius Marius around the turn of the 1st century B.C., it became easier for generals to use those professional troops—or threaten to do so—against the city itself and to rule by force. Marius himself, and his erstwhile protégée Sulla, set unfortunate examples.

Perhaps most significant was the fundamental change in the political and social conditions of Rome. Consistent with Polybius’s theory, the societal degeneration about which he had warned as the inevitable result of the democratization of politics and the weakening of the population’s character brought about thereby, in fact occurred a couple of generations after his death. The impoverishment of a large portion of society and the resultant dependency on public largesse for survival, made those citizens susceptible to the slogans and programs of the populares, such as Julius Caesar and other, more dangerous demagogues. The bloody competition among families of the oligarchic upper classes, as shown in the Social Wars and the proscriptions of the military commanders Marius and Sulla, contributed to the chaos which sent the Republic on the path to the monarchy of the Empire.

The same events that brought about that radical social transformation also manifested themselves in the essential incongruity of governing a huge multi-cultural empire through institutions designed for a small city-state on the Tiber River. The notion of “community,” with shared traditions, civic and religious, and an ethic of sacrifice necessary to sustain the civic engagement at the core of real self-government, is eroded in the chaos of ethnic, linguistic, religious, and cultural diversity and the impersonality of large numbers. Had the Roman elite been willing to open up its political institutions and to extend citizenship and formal participation in the political system to all parts of their domain sufficiently and in a timely manner, a republican structure of sorts might have survived. As it was, the city had become an empire in fact well before its political structure changed from Polybius’s republic to Octavian’s monarchy.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Ron Meier


Not all the political leaders in the 13 states were sold on the Constitution presented to the states for ratification in the fall of 1787. It was common under the Articles of Confederation to require unanimous agreement, of the states to changes, made to the Articles. Aware that unanimous agreement on the Constitution was unlikely, the Constitutional Convention delegates decided that the Constitution would require only nine states’ ratification to become effective. Had Las Vegas existed then, the betting would have reflected the more-likely result that the Constitution would not be ratified.

Alexander Hamilton, James Madison, John Jay, and others realized that a marketing and communication campaign had to be waged. They were especially concerned about New York, and proceeded to write a series of 85 essays in New York newspapers to sell the new Constitution to the public. Those essays are known as the Federalist Papers. Those opposed to the new Constitution, known as Anti-federalists, countered with their own essays to disprove the points in each of the Federalist Papers.

The Anti-federalists were as well educated on the history of governmental structures of the past and, in particular, knew that Democratic Republics were unlikely to survive because of their greater trust in the political wisdom and virtue of the common man. The Anti-federalists also were concerned that a “national” government, rather than a stronger Confederation, would quickly erode the Sovereign powers of the individual states. They feared a national government, not unlike the British government they had just relinquished, that would dictate to the states and leave the state governments with few powers, even over more local matters. Although the Tenth Amendment was designed to ensure that the states retained significant powers, to some extent, the Anti-federalist fears have been increasingly realized, especially since the passage of the Seventeenth Amendment when the Senate was effectively made into a second House of Representatives by popular election of the Senators rather than the Senators being “representatives” of the states who sent them to Washington. Since then, Federal mandates have diminished the power of the states to act independently with respect to many otherwise local issues.

The Federalists had a difficult job to sell the Constitution, but their wisdom eventually won the day. Some of the major issues addressed are reflected below.

In Anti-federalist 47, the author writes, “Mr. Adams has traced the constitution of every form of government that ever existed. A republican, or free government, can only exist where the body of the people are virtuous.” All our founders were very familiar with the writings of Cicero and Aristotle regarding individual and community virtue and many Anti-federalists doubted that sufficient civic virtue existed in man to make this new experiment at republican government successful.

“But Hamilton’s notes for his famed five-hour (only) speech to the Convention cite Cicero, as well as Aristotle and Montesquieu, in favor of the Constitution’s proposed mixed government theory, and Madison’s notes, while drafting the Federalist Papers, cite Cicero in addition to Aristotle and Polybius. Hamilton based his foundation of republican government on Cicero’s as that strong, representative government which is most conducive to liberty and resistant to tyranny.”[1]

In Anti-federalist 57, the author notes that “the men most commonly presented to the people as candidates for the offices of representatives include (1) the natural aristocracy, (2) popular demagogues, and (3) the substantial and respectable part of the democracy, a numerous and valuable set of men, who discern and judge well, but from being generally silent in public assemblies are often overlooked. He fears that those elected to the national House of Representatives will be less likely to come from the third category than from the first two categories.”

In Federalist 57, Madison counters this argument saying, “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.” Furthermore, Madison notes that a key restraint to the election of representatives, who are found unworthy after their election, is the requirement in the Constitution that Representatives be elected every two years, allowing constituents to “throw the bums out” quickly.

Separation of powers was an important element of the new Constitution.  Anti-federalists weren’t convinced of the validity of the claim that such separation would be effective. But in Federalist 47, Madison observes that “the oracle who is always consulted and cited on this subject (separation of powers) is the celebrated Montesquieu.” Madison then quotes Montesquieu as saying, “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates, or if the power of judging be not separated from the legislative and executive powers.”

The authors of the Federalist papers used extant facts from foreign governments as well as from the Constitutions and practices of the 13 states to demonstrate that what the Constitution proposed is not so distinct but, in fact, identifies deficiencies in those documents and proposes solutions to correct those deficiencies. Madison, in Federalist 47 examined the Constitutions of each of the states to prove his case that provisions such as separation of powers already existed at the state level; if they existed there, then why would the anti-federalists believe that such a provision wouldn’t work at the national level?

Whether to have one or two bodies in the legislature was a topic of contention in the Convention. The final Constitution proposal was for two bodies, a House and a Senate. In Anti-federalist 63, the authors state, “But they are so formed, that the members of both must generally be the same kind of men, men having similar interests and views, feelings and connections, men of the same grade in society, and who associate on all, occasions. The Senate, from the mode of its appointment, will probably be influenced to support the state governments; and, from its periods of service will produce stability in legislation, while frequent elections may take place in the other branch.”

In Federalist 63, Madison notes that, “history informs us of no long-lived republic which had not a senate.” And, as to an equivalent to the Constitution’s House of Representatives, Madison states that, “in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity,” and “The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it.”

Because of the breadth and depth of the Founding Fathers’ understanding of both good and bad governments from ancient to then-current history, their debates in the Constitutional Convention, and in the political pamphlets produced in those days, were robust. The citizens read the Anti-federalist and Federalist arguments and heard both sides’ arguments in the churches and meeting halls in their communities. Because civic virtue was an important part of their formal and informal education in the 18th century, they were able to decide that the strengths of human nature could prevail over its weaknesses and that the experiment the Convention created, had a better than even chance of success.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(1) What the founders learned from Cicero // The Observer (ndsmcobserver.com)

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Guest Essayist: Ron Meier
The School of Athens, Raphael, 1509-1511, Apostolic Palace, Vatican City

In our schools over the past century or so, we’ve learned, and quickly forgotten after the test, a little about some of the great philosophers who lived thousands of years ago, the ancient Greek and Roman empires, the Kings of medieval Europe, the pilgrims who landed at Plymouth Rock and Jamestown in the 17th century, and the Renaissance and Enlightenment. Since the early 19th century, academic attention has increasingly shifted to a focus on more utilitarian subjects, particularly STEM over the past half century since the first rockets left the earth’s atmosphere to circle the earth in outer space.

All our Founding Fathers were educated in the early-to-middle 18th century. Some were able to attend the colleges of the day, but most were not so able and were self-taught or homeschooled. Primary and secondary education for all included study of the Bible. Libraries were few until Benjamin Franklin and his Junto Club[1] members started the first public library in the early 18th century. Soon thereafter they started the American Philosophical Society to “promote useful knowledge.”

With so few books and libraries, no internet to provide instantaneous acquisition of virtually any information or knowledge one would like to acquire, no email to communicate with anyone anywhere in the world, no Zoom to interact with experts on any topic, it’s natural to wonder how America’s Founding Fathers could have acquired the knowledge required to write the Preamble to the Declaration of Independence, and later, the United States Constitution. How were they able to create a Constitution, admired around the world, in only three months meeting in the humid city of Philadelphia in a building with no air conditioning?

Whether in a formal school or not, colonial children had to acquire a broad body of knowledge to survive in the largely agrarian, merchant, and shopkeeper society of that time; knowledge of religion, science, literature, art, rhetoric, human nature, and politics were necessary to solve the problems each would encounter in daily life, both individually and in their spiritual and political communities. Few could afford specialization in one body of knowledge as is more common today. We call those few among us today with such a wide-ranging body of knowledge Renaissance Men (and Women).

The Colonies’ most influential authors of the Declaration of Independence and the Constitution included Thomas Jefferson, John Adams, and James Madison.

Thomas Jefferson attended the College of William and Mary where he studied science, philosophy and law. He learned the law from the leading Virginia legal scholar, George Wythe. Acknowledging the importance of education, he later founded the University of Virginia.[2] Jefferson, well-educated in the classics, “argued that the Declaration of Independence rested on the authority of Cicero and Aristotle as well as that of Locke. This is most evidently seen by Jefferson’s altering of Locke’s natural rights formulation of ‘life, liberty and property’ into the famous American creed: ‘life, liberty and the pursuit of happiness’ in the Declaration’s preamble.”[3]

John Adams attended Harvard College, which expressed as its primary purpose “to educate future members of a learned ministry and an effective civil government.”  At Harvard, all students took the exact same curriculum with no electives, which included courses in theology, mathematics, and natural science.[4] Adams then studied law with a Massachusetts lawyer, which was how preparation for a career in law was conducted in Colonial America.

“It was upon John Adams that Cicero had the greatest influence among early Americans. The Harvard curriculum had at its core in the colonial grammar schools and colleges the study of the Latin and Greek languages, literatures and antiquities, what some called the “Sacred Classics.” The aims of this learning were to expose students to classical authors from whom they could derive “useful knowledge.” And among these selected Classics in early America Cicero took pride of place in the admiration of many liberally educated men as model authority for diction and style, as orator, lawyer, political theorist, letter writer, and guide to “private and public virtue.”[5]

James Madison, considered the “Father of the Constitution,” attended the College of New Jersey (Princeton). His primary and secondary education included mathematics, geography, modern and classical languages, particularly Latin, and ancient philosophy. At college, he studied classical languages, mathematics, rhetoric, geography, philosophy, Hebrew, and political philosophy under university president John Witherspoon, later a signer of the Declaration of Independence.[6]

Because of their education, focused on the “sacred classics,” as described more fully by Professor Joerg Knipprath in Essay #7, our political authors were well-educated in alternate political philosophies and structures. Even those not-highly-educated citizens of Colonial America, in what might be called the Middle Class today, were reasonably familiar with the political thoughts of the day from their pastors, town-hall meetings, and widely distributed pamphlet writings of the more highly educated Colonists.

All our Founding Fathers accepted the Stoic’s fundamental concept of a universal moral order based on reason and nature, but they rejected the Stoic’s concept of an individual moral order being unrelated to the laws of the political community. They understood the importance of religious faith, which at that time was almost exclusively Protestant Christianity, in the development of moral and civic virtue, the necessary ingredients of good government. They recognized the impossible Stoic vision that man could control his passions, prejudices, and pride by perfecting his reason, ethics, and morality. Civic virtue, not perfection, was expected by the founders. As Madison states in Federalist 51, “If men were angels, no government would be necessary,” and in Federalist 55, Madison says that, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.”

In Federalist 6, Alexander Hamilton notes that a basic assumption about people is that “men are ambitious, vindictive, and rapacious.” If that is a valid assumption, then expecting that a divided nation would continually live in harmony is pure folly.  It would “disregard the uniform course of human events, and set at defiance the accumulated experience of ages.”

Our Founding Fathers, including those whose debates on the issues, some of which became known through their writings and discussions as Federalists and Antifederalists, were amazingly well-educated in the political philosophies of ancient governments. They were therefore able to identify those components of governmental structure that worked and those components that didn’t work as they met in Philadelphia to construct a new government and provide that government a structure that might survive longer than the Republics of the past. Yet they still recognized that it was to be an experiment, not a proven solution.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(1) formed to “discuss queries on any point of Morals, Politics, or Natural Philosophy [physics])” Franklin’s Philadelphia: The American Philosophical Society (ushistory.org)

(2) Thomas Jefferson Biography, History, and Facts

(3) What the founders learned from Cicero // The Observer (ndsmcobserver.com)

(4) John Adams as a Harvard student, by Richard Alan Ryerson | Harvard Magazine

(5) View of The influence of Cicero on John Adams (unito.it)

(6) The Life of James Madison | Montpelier

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Guest Essayist: Joerg Knipprath


It has been said that Stoic metaphysics was the state philosophy of ancient Rome. While perhaps an overstatement, the point is well taken. Rome did not achieve the prominence of the Greeks in original philosophy, but there were a number of outstanding expositors who adapted Stoic principles to Roman conditions. Seneca the Younger, a wealthy Roman statesman, dramatist, and tutor to the future emperor Nero; Epictetus, born as a slave, but freed by his wealthy master on reaching adulthood; and Marcus Aurelius, known as the last of the “Five Good Emperors” of Rome, were particularly influential Roman Stoics.

The absorption of the Greek city-states into the Macedonian Kingdom of Philip and his successors in the 4th century B.C. shocked the Greeks’ self-regard. Hellenic culture for centuries had emphasized the special status of citizenship in the polis, and its necessity for achieving eudaimonia, human flourishing. The polis was not just “political” in the modern sense. It was a “community” in all manner, political, yes, but also social, religious, and economic. Aristotle associated such community with a true form of friendship, wherein one acts for the friend’s benefit. Plato and Aristotle both concerned themselves at length with what constitutes such a community that is suitable for a fulfilled life. For Plato, the city was the individual writ large, which formed a key component of his description of the ideal government in his Republic. For Aristotle, politics was an extension of ethics. The moral and the political, the personal and the public, were joined. The teaching and practice of individual virtue (arete—the root word for aristocracy) were necessary for a just society, and a polis operating on that basis created the conditions for individual virtue to flourish. Those outside the polis, be they hermits, bandits, or barbarians, and no matter their wealth or military prowess, could not attain that level of full human development.

The Macedonian occupiers were not much different than the Greeks and, such as Alexander, were hardly ignorant of Greek ideas or unsympathetic to Greek social and political arrangements. Moreover, the Greek poleis did not vanish, and ordinary daily life continued. Still, after unsuccessful attempts to rid themselves of their Macedonian overlords, it became clear that the Greeks were just one group competing with others for influence in a new empire. Politics being a branch of ethics, the ideal for the Greeks had been to do politics “right.” With the Macedonian success, it seemed that the foundation of the entire Greek project had collapsed.

The result was a refocus of the meaning of life from the ultimately outward-looking virtue ethics of Aristotle and the vigorous political atmosphere of the polis. In this psychological confusion and philosophic chaos arose several schools. One, the Skeptics, rejected the idea that either the senses or reason can give an accurate portrayal of reality. Everything is arbitrary and illusionary, truth cannot arise from such illusions, no assertion can claim more intrinsic value than any other, and everything devolves into a matter of relative power: law, right, morality, speech, and art. Such a valueless relativism can expose weaknesses in the assumptions and assertions of metaphysical structures, but its nihilism is self-defeating in that it provides no ethical basis for a stable social order or workable guide for personal excellence.

Another group was the Cynics, who responded to the psychological shock of the collapse of the city-state by rejecting it. The correct life was to understand the illusory and changing nature of civilizational order and withdraw from it. Life must be lived according to the dictates of nature, through reason, freedom, and self-sufficiency. The good life is not a project of study and speculation, but practice (askesis). Live modestly through your own toil so that you may speak freely, unperturbed by the turmoil and illusions around you. One of the most prominent Cynics, Diogenes, allegedly lived in a rain barrel in the Athenian market and survived through gifts and by foraging and begging. Social arrangements and conventions are not necessarily inimical to this quest, but they often hide the way. Thus, it becomes the Cynic’s duty to light the way, as Diogenes sought to do with his lamp, by exposing and ridiculing such conventions. The Cynics saw themselves no longer as citizens of the polis, but as citizens of the world.

While principled, the Cynics’ grim lifestyle in order to “speak truth to power” was not for most. An alternative school was founded by Epicurus in the late 4th century B.C. The Epicureans urged people to focus foremost on themselves to achieve the good life. The gods have turned away from the city, political decisions are made in royal capitals far away, and the only control is what you have over your actions. Thus, obeying rules, laws, and customs is practically useful but should not be a matter of concern. To live the good life was to obtain pleasure, the highest end. “Pleasure” is not to be understood as we often do as some form of sensory stimulation. Rather, it was to achieve a state of tranquility (ataraxia) and absence of pain. This ultimate form of happiness would come through a life of domestic comfort, learning about the world around us, and limiting one’s desires. Crucially, Epicureans avoided the turbulence of politics, because such pursuits would conflict with the goal of achieving peace of mind. The best one could hope for in this life was good health, good food, and good friends.

Stoic philosophy was an eclectic approach, which borrowed from Plato, Aristotle, and competing contemporary investigations of ethics and epistemology. Its name came from a school established by Zeno, a native of Citium on Cyprus, who began teaching in Athens around 300 B.C. The “school” met on a covered colonnaded walkway, the stoa poikile, near the marketplace of Athens. Its 500 years of influence are usually divided into three eras (Early, Middle, and Late), which eras broadly correspond to changes from the austere fundamentalist teachings of its ascetic founder into a practical system of ethics accessible to more than wise and self-abnegating sages.

There were two key aspects to Stoicism. First, at an individual level, there was apatheia. It would be massively misleading to equate this with our term “apathy.” Apathy is negative, conveying passivity or indifference. Apatheia means a conscious effort to achieve a state of mind freed from the disturbance of the passions and instincts. It is equanimity in the face of life’s challenges. The Stoic sage would “suffer the slings and arrows of outrageous fortune” over which he has no control and focus instead on his own actions. Reason being man’s distinctive and most highly evolved innate feature, the Stoic must train himself to live life in accordance with nature and reason. He must control his passions and avoid luxuries and material distractions that would lead to disappointments and frustrations. His happiness is within himself. The virtuous life is a simple life, achieved through constant discipline “in accordance with rational insight into man’s essential nature.”

Second was universalism. Hellenic culture became Hellenistic culture, as Greek ideas and practices were adapted to the new world order, as the polis became the cosmopolis. A Stoic saw himself in two ways. In the political realm, he was a citizen of his city or state; in his self, he was a human. As Marcus Aurelius expressed it, “My city and country, so far as I am Antoninus [a title for emperor—ed.], is Rome, but so far as I am a man, it is the world.” Stoicism, unlike its Platonic and Aristotelian sources insisted that the universe was governed by law which applied equally to all and raised all to equal status, a “universal brotherhood of man.” This revolutionary claim would profoundly influence Roman and Christian ideas thereafter.

Stoicism differed from Skepticism in that it rejected the latter’s nihilistic pessimism that life was simply a competition for power. It projected a vision of personal improvement and sought to construct a positive path towards happiness within a universal order of moral truth. It differed from the Cynics in that Stoicism did not reject the basic legitimacy of the state and its laws and conventions or urge withdrawal from the public sphere. Rather, the Stoics separated the universal moral order, by which each person’s individual conduct must be measured, from the reality of the political world and the obligation to obey the laws of the community. Stoics did not reject the secular authority or make a point to ridicule it. From a Christian perspective, it was not exactly “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” But it was close enough, coming from a pagan philosophy.

Finally, the Stoics differed from the Epicureans. The latter’s goal of a tranquil private life through the pursuit of health, learning, good food, and good company was at odds with the former’s demands of a more disciplined private life of constant self-reflection and self-improvement, plus the continuing duty to shoulder one’s obligations under the civic law. Those differences made Stoicism much more attractive than Epicureanism to the average Roman. The Roman upper classes might well be drawn to the Epicurean vision, but Stoicism could appeal to more than the leisure class. Most significant, with its emphasis on self-reliance, simplicity, and service, Stoicism more closely reflected the Roman sense of self during a half-millennium of the Republic and the early Empire. The historian Will Durant observed, “A civilization is born stoic and dies epicurean.” By that he meant that civilizations degenerate. As he explained, “[C]ivilizations begin with religion and stoicism; they end with skepticism and unbelief, and the undisciplined pursuit of individual pleasure.” Though at times turbulent and seeming to veer into dissolution as the political edifice of the Roman Republic became Octavian’s principate, the Roman culture did not yet fundamentally change, due in part to the stability provided by Stoic philosophy.

Stoicism fit well the Roman character imagined by the Romans themselves and reflected in their laws and history. As the historian J.S. McClelland wrote, “The Greeks might be very good at talking about the connection between good character and good government, but the Romans did not have to bother much about talking about it because they were its living proof.” Not unlike Sparta, Rome had always had a strong martial component to its policies, which Romans took to be an essential part of their character. It was a masculine, male-dominated culture, and unabashedly so. At the root of virtus, that is, virtue or excellence, is vir, the word for adult male or hero. Stoicism “spoke” to Romans in a way that Epicureanism could not. That said, the Middle and Late Stoic writers from the second century B.C. on were willing to refine some of the school’s rough homespun aspects and accepted that a materially good life was not inconsistent with Stoicism. Self-discipline and self-reflection were key. Moderation, not excess, all in accord with nature and reason, sufficed. Self-deprivation and the ascetic life were not necessary.

American polemicists of the post-Revolutionary War period often associated the Stoic virtues with the Roman Republic and saw those virtues reflected in themselves. This required turning a blind eye to certain fundamental assumptions. For example, as noted, Stoicism separated the universal moral order’s control over private conduct from the need for unquestioning adherence to the state’s laws made for the welfare of the community. For the Americans, a distinction between private morality and virtue on the one hand, and public morality and law on the other was not readily conceivable, at least as an idea. Though at times John Adams was quite doubtful about the capacity of Americans for self-government, in his message to the Massachusetts militia in 1798 he wrote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” James Madison writing in The Federalist, No. 55, noted that republican self-government more so than any other form requires sufficient virtue among the people.

There was another, profound, appeal Stoicism had for the Romans, which connected to their views of good government. Rome prided itself on its balanced republican government, a government meant for a cohesive community, that is, a city-state. “The Eternal City,” the poet Tibullus called it in the 1st century B.C., and so it became commonly known through the works of Virgil and Ovid during the reign of Octavian, long after it had ceased to be a mere city on the Tiber and become an empire in all but name. Indeed, Octavian styled himself princeps senatus, the highest ranked senator, avoided monarchical titles and insignia, and purported to “restore” the Roman Republic in 27 B.C. The trappings of the republican system were maintained, some for centuries.

As in the earlier Greek city-states, Roman citizens had the right and the duty to participate in their governance. Stoicism called on its adherents to involve themselves in res publica, public affairs, working for the benefit of the whole, not themselves, a commitment of personal sacrifice and service. This mirrored basic obligations of Roman citizenship, from military service to political engagement to contribution for public works. These burdens with their physical and economic sacrifices were to be borne with equanimity. Marcus Aurelius, the last great Stoic sage, spent a large portion of his reign on the frontier leading armies against invading German tribes. It is said that he wrote his famous inward-directed Meditations on Stoic ideas and practice during those campaigns.

An important component of the Roman political system was law, both as a collection of concrete commands and as an idea. As noted, Romans were not, by and large, known for original contributions to Western philosophy. For them, that was the role of the Greeks. They were, however, exceptional jurists. As they gained territory, the need to administer that territory required a system of law capable of adapting to foreign conditions. As they gained dominion over cultures beyond the Italian peninsula, and as Roman trade ventured to even farther corners of the world, the Roman law might differ in particulars from that of the local population. At the same time, there appeared to be certain commonalities to the Roman law and those of disparate communities. For the politicians, such commonalities could help unify the realm through a “common law” and support the legitimacy of Rome and its administrators. For the merchants, it could help make commercial dealings more predictable and lower their transaction costs. For the jurists, it raised the possibility of universal influences or elements in the concept of law itself.

The Stoics provided the framework for systematic exploration of that possibility. Stoicism, it may be recalled, had a cosmopolitan, indeed universal, outlook. The Stoic universe was an orderly place, governed by immutable, eternal, constant principles. In other words, an eternal law. At the center was the universal moral law. Law in general had its basis in nature, not in the arbitrary creative will of a human ruler or the cacophony of mutually cancelling irrationalities of the multitude. Humans have an inborn notion of right and wrong. Unlike Adam Smith’s theory of moral sentiments, which he based on our social nature, the Stoics ascribed this to our essential human nature, with each individual participating in this universal moral order. There was an essential equality to Stoicism that eliminated the lines between ruler and subject, man and woman, freeman and slave. Gone was Aristotle’s attempt to explain slavery with the claim that the nature of some conduced them to slavery.

Of course, this only applied to one’s ability to achieve individual virtue through Stoic self-discipline in the personal realm. The outside world still maintained those distinctions in positive law. Many were slaves in Rome. While the Stoics could consider slaves their brethren as members of the human community within the moral law, they accepted the separate obligation imposed on them to obey the political world in its flawed, but real, condition. Epictetus, himself a former slave, blurred that duality when he declared slavery laws the laws of the dead, a crime. But for most, the reality of despotic and corrupt government, the suppression of freedom, and prevalence of slavery were the actions of others over which the Stoic had no control and the consequences of which he had to deal with as best he could through apatheia.

Still, the concept of eternal law, possessed of inherent rightness, and connected to human nature, had some profound implications for human governance and freedom. The universal order is right reason itself and exists within our nature, accessible to us through our own reason. The Apostle Paul addressed this from a Christian perspective in Romans 2:14 and 15: “For when the Gentiles who do not have the law, by nature observe the prescriptions of the law, they are a law for themselves even though they do not have the law. They show that the demands of the law are written on their hearts ….” Proper human law, in its essential principles, is a practical reflection of this higher moral law and necessary for good government. Despite the shortcomings of actual Roman politics, this set a standard.

Because the moral law is universal, eternal and beyond the control of human rulers, it implies a lawgiver of similar qualities. The character of the Stoic “god” was often unclear and differed among various Stoic philosophers. It was certainly not the gods of the Greek and Roman civic religions, with their all-too-human character failings and pathological urges to interfere, usually disastrously, in human lives. Nor was it the personal and loving Christian God of the Gospels, cognizant of each creature within His creation and particularly interested in the flourishing of those created in His image. Rather, the Stoic god is best viewed as a force which created and through its presence maintained the universal order. This force has been described variously as a creative fire, world soul, pneuma (breath), or logos (word). The last two are particularly interesting in relation to Christian writings. Logos not only meant “word” but also the reason, cause, or ultimate purpose or principle of something. The Stoic moral order was an expression of divine reason and accessible to us through the reason that is part of our nature.

One of the foremost Roman commentators and synthesizers of Stoic doctrine in law was Cicero, the great lawyer, philosopher, and statesman. Cicero claimed he was not a Stoic. He seemed to have seen himself as a follower of contemporary versions of Plato’s ideas. Indeed, his two major works on good government, The Republic and Laws, paralleled the titles of Plato’s major works on politics. However, his introduction of the ius naturale (natural law) to Roman jurisprudence, a fundamental step in human freedom, owes much to the Stoics. Note his justification for the right of self-defense: “This, therefore, is a law, O judges, not written, but born with us, which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made, which we were not trained in, but which is ingrained in us ….”

Or consider the following that vice and virtue are natural, not mere artifices: “[In] fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honorable and dishonorable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honorable actions are ascribed by us to virtue, and dishonorable actions to vice; and only a madman would conclude that these judgments are matters of opinion, and not fixed by Nature.”

Perhaps most famous is this passage from The Republic: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, [note the use of the singular, not the plural associated with the Roman pantheon—ed.] over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”

From these recognitions, it is but a short step “self-evident [truths], that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A short step conceptually, but centuries in time to realize fully.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Andrew Langer


In the previous essay, we discussed how classical history (i.e., the history of Greek and Roman political structures) informed the debates over the Constitution—and how James Madison drew on history to make the case for the Constitution’s immediate necessity and importance.

In this essay, we focus again on Federalist #38, but this time discussing how the same examination of historic political structures informed the architecture or structure of the U.S. Constitution itself.

Madison and most, if not all, of the other founders were students of classical history, and well-understood how governance had changed through the ancient Mediterranean societies. They learned how Athenians’ political choices compared and contrasted with those of the Spartans and Minoans, and how the Roman Republic came into existence, but eventually turned into an imperial tyranny.

When reviewing these governments, which ranged from benign monarchies to democracies to despotic autocracies, the founders came to a stunning conclusion: that these historic examples pointed to the necessity of a balancing of powers and interests. Concentrate too much power in one person or one body, and that power could become corrupted as happened in Rome as respect for the rule of law degenerated over time, giving rise to the imperial dictatorship.  Rely too much on pure democracy, and it could descend into the rule of the mob, something equally feared.

As Benjamin Franklin is alleged to have said, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”

The statement is a truism (regardless of whether it was Franklin who said it first!), reflected, in turn, in how the architects of the Constitution ultimately designed our federal government. Our system is one that is rooted in the principles of democratic governance—we elect our legislators and cast votes in a presidential electoral system.

But in order to stave off the possibility of “mobocracy,” those democratic ideals are balanced with republican limitations—from a Bill of Rights which underscores limitations on how government exercises its power, to the idea that each branch of our federal government has its powers specifically enumerated.

Consider, for example, the voicing of unpopular ideas—a subject hotly debated today. There are some, there have always been some, who would like to see unpopular speech outlawed or severely restricted, whether it is so-called “hate speech” or speech that is sharply critical of America, to the point of the burning of a flag. In a pure, Athenian-style democracy, the majority declaring this speech outlawed would be it—the “mob” would have spoken.

But our Constitution recognizes that it is unpopular speech that requires the greatest amount of protection; popular speech requires no protection, after all. So, regardless of what the majority of citizens might demand, and regardless of what the Congress might enact, or the Executive Branch attempts to pursue through the administrative process, the First Amendment presents a counterbalance to a majoritarian tyranny.

It is that explicit assignment of powers, and the careful balancing of those powers against one another, that serves to protect the rights of individual Americans.

In Article I, Section 8 of the Constitution, the legislative powers of Congress are laid out. In Article II, the Executive Branch is given the power to interpret and carry out the laws Congress has passed. Under Article III, the Judicial Branch enforces those laws and ensures that both the laws that have been passed and the interpretation and administration of those laws by the Executive Branch withstand constitutional scrutiny.

In theory, this is supposed to ensure that no branch is more powerful than any other branch—and that the creation and administration of federal policies does not injure or harm the individual rights of American citizens.

In theory.

The ongoing concern is similar to that which brought the aforementioned descent of ancient Rome from republic to dictatorial empire—an increasing disrespect for the regular order of governmental processes and the overall rule of law. In Rome, as chaos and corruption grew, first Julius Caesar and then Augustus offered Romans greater safety and security in exchange for their democratic political rights. The result was the end to any real sort of Roman republic and centuries of despotism.

Again, it was Benjamin Franklin who warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

In modern America, we see this playing out in a myriad of ways—from those who seek to simply circumvent the Constitution’s rules to those who use Congress’ political propensity to pass vaguely defined pieces of legislation as a pretext to increase the power of the federal Executive Branch.

Because of the manner in which power is distributed and balanced, if Congress passes a piece of legislation in which the subject-matter is vaguely defined, the Executive Branch can, in turn, define it. The result is a situation in which, while the Executive Branch isn’t creating law out of “whole cloth,” the power of the Executive Branch is expanded.

Take the Clean Water Act of 1972, a piece of legislation with the noble purpose of dealing with America’s polluted waterways of the 1970s—rivers were, literally, catching on fire! In it, Congress declared that we cannot “pollute” a “navigable water of the United States.”

But Congress didn’t define “pollution,” didn’t define “navigable,” didn’t define “water of the United States”—and for a half-century, all of those terms have been subjected to intense debate as various presidential administrations have offered a varying degree of definitions, some focusing on the plain-language of the act, but others which seem to encircle not just America’s major rivers but even disparate and unconnected bodies of water, or even patches of dry land, that would otherwise have been under the regulatory purview of state and local governments (the definition of “Waters of the United States” or “WOTUS” is once again under debate in Washington).

In the end, this balancing of interests is supposed to protect the population at large to prevent the kind of overreach we have been discussing and to also ensure that we “look before we leap” in terms of public policy solutions. This is especially true when it comes to foreign policy.

The President is Commander-in-Chief of the U.S. armed forces and the military operates under the auspices of the federal Executive Branch.  But it is only Congress that can declare war.  The President, and his duly-designated officers, have the power to negotiate treaties, but it is within the power of the Senate to ratify them. Moreover, despite the power of the President and the Executive Branch to respond to national emergencies and international crises, and setting aside the legitimacy of the War Powers Resolution which asks the President to report on such actions within 48 hours of them being undertaken, Congress retains the power of the “purse strings” i.e., the power to actually fund the operations of the U.S. government, so the Executive Branch is further restrained.

In all, taking a cue from the governments of the Greek city-states as well as ancient Rome, the founders knew that there had to be a greater division of powers and balancing of interests, that good democratic principles have to be checked by the limitations that a republican form of government provides. When it works, this balance serves to protect the rights of individual Americans.

But we have to make sure that all of the branches are working properly, lest the American experiment become a cautionary tale that scholars two millennia from now examine as an example of what not to do.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Andrew Langer


In his play, The Tempest, William Shakespeare wrote, “What’s past is prologue.”  Building on this idea, in 1905, philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”

Our founders were acutely aware of this concept—even if they were unfamiliar with Shakespeare or preceded Santayana by more than a century.  Firmly grounded in both the history of classical antiquity and the philosophies underpinning the various Greek and Roman societies, men like Thomas Jefferson and James Madison relied firmly on what they had learned as they were envisioning the American Republic (and, to be certain, Jefferson found great inspiration from the Greeks and the Romans in his architectural pursuits as well).

Nowhere is this more evident than in Federalist #38.  Written by Madison, this essay continues his efforts to counter the rhetoric of those opposed to the ratification of the Constitution—focusing squarely on the flaws in those opponents’ reasoning, and drawing on the lessons of history in order to sway support in favor of ratification.

After briefly discussing the Minoans, the Spartans, and the Romans, Madison focuses on Athens—the cradle of early democracies (the word “democracy” is in and of itself Greek, meaning “ruled by the people”).  After discussing some of what led to the formation of the Athenian democratic government, he asks by the people of Athens,

“should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?”

In other words, there was concern as to whether one person—whether a “divine right” monarch or someone selected through a democratic process—would serve the nation (though in the case of the Greeks we’re generally talking about “city states” better than some group of citizens, acting together to make decisions.

In fact, Athens made participation in their democracy mandatory, and each year a group of citizens would be compelled to serve in the government.

Madison then goes on to talk about the challenges that the founders of these governments faced, showing that there is indeed a lesson in the debates that existed in Greece and Rome for those debating the ratification of the Constitution:

“History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect.”

In other words—these men faced challenges, too, but those challenges did not prevent them from moving forward with improvements. But most important is the lesson that correcting the mistakes of governance in the past is an essential element of a successful and enduring nation, while at the same time recognizing that opposition for opposition’s sake can be needlessly complicating:

“If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.”

This is the real focus of Madison’s essay—his accusation to the critics of the Constitution that their arguments are not in any way constructive or substantive, but worse, that they are (in many cases) contradictory and harmful in that they are needlessly delaying the lawful formation of a national government.

The Constitution was meant as a necessary improvement over the Articles of Confederation, a document that, like many implemented first drafts, was found to be wanting and ultimately unworkable.  It was a document full of contradictions—a central government given responsibilities but little authority to exercise those responsibilities.  In fact, it could be said that this is by design, that these flaws were embedded in the Articles of Confederation to make that document (and any government trying to operate under it) unworkable (in modern legal parlance, this is referred to as a “poison pill”).

But Madison knew time was of the essence—and that pointing out the contradictions in the arguments of the Constitution’s opponents was essential to the speedy adoption of that document, framing it as a mortal health issue:

“A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution…

“Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No.”

Sometimes, we forget the precarious nature of the fledgling American republic.  Yes, we had just won the war for our independence, but the nation’s future was hardly guaranteed.  In fact, it was even more precarious because of the failure of the Articles of Confederation in producing the balancing of interests between the states, the central government, and the people themselves.

Ultimately, Madison prevailed upon the readers of his essays to consider that as flawed as the Constitution might be, it was better than either of the two alternatives (as he saw them): the Articles of Confederation or no organizing document whatsoever.  Whichever the particular complaints of the Constitution’s opponents, Madison needed them to see that point.  With the past being prologue, Madison knew what would happen to the American experiment otherwise.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Joerg Knipprath

In classical studies and terminology, a (political) constitution is a concept that describes how a particular political system operates. It is a descriptive term and refers to actual political entities. It is, therefore, unlike what Americans are accustomed to hearing when that term is used. Rather, we think of The Constitution, a formal founding document which not only describes the skeleton of our political system, but has also attained the status of a normative standard for what is intrinsically proper political action. Thus, we can talk about constitutional law and of rights recognized in that document in defining not just how things are done, but how they ought to be done.

In that, our Constitution is unusual. The ancient Greek cities lacked such formal documents that were self-consciously founding a new political order. However, there were analogous decrees and laws which shaped aspects of government. In that sense, we, too, might say that a statute that organizes a branch of government might be “constitutional,” not in the sense that it is somehow a noble law, and not just that it is within the textual limits of the Constitution. Instead, the term conveys that such a law simply sets up basic procedures to run the government, procedures that people use and, thereby, at least tacitly accept as legitimate. An example might be a statute that establishes a specific system of federal courts.

Moreover, functional descriptions of constitutions must take into account not only formal written rules of government for that entity, but the unwritten customs and practices that shape, refine, or even negate those written rules. Even our formal written Constitution is subject to such informal influences, one prominent form of which is the collection of opinions of Supreme Court justices on the meaning of the words in that document. The ancients, too, were keenly aware of the importance of such long-adhered-to customs to influence the practice of politics and also to give—or deny—legitimacy to political actions. The Greek playwright Sophocles made the clash between a novel royal decree and custom in the form of the “immortal unrecorded laws of God” a central plot device in his play Antigone, a part of the tragic Oedipus Cycle. For the Roman Republic and the early Empire, one must look to the use of constitutional custom through the mos maiorum (the “custom of the ancients” or “practice of the forefathers”) to understand the political order.

As with our own polity, it would be foolish to describe the constitutions of the Greek poleis (city states) as unchanged over the centuries of their existence. Cultural perspectives and societal needs do not remain static. Thus, one must give an evolutionary overview, made more specific through a snapshot of a particular period. When Aristotle (or his students) wrote Athenaion Politeia (the Athenian Constitution), he did just that, providing a history and a contemporary description. As an aside, Aristotle is credited with analyzing 158 Greek constitutions, of which the Athenian is the only one to survive in substantial form. With that number, it is more likely that Aristotle’s students compiled these surveys, perhaps on behalf of their teacher’s research.

As the Greek city states evolved, so did their governments. The chieftain or kingly form of government under a basileus, limited often by powerful individual noble warriors, prominent in Homer’s Iliad, typically gave way to an aristocracy based on land ownership. In Athens, as later in Rome and in the history of Europe and North America, there were further pressures towards democratization, influenced by the growth of commerce and sea trade. Both Plato in Politeia (the “Republic”) and Aristotle in Politika (the “Politics”) wrote about these trends. Neither was a fan. Plato, especially, saw these developments as evidence of degeneration.

While much of this history is murky and in shadows, apparently the major power of government in early Athens was in the Areopagus, a council of aristocratic elders with legislative and judicial powers. Significant constitutional changes in Athens began in 621-620 B.C. with the Code of Draco (who may have been an individual or a signifier for a priestly class), which solidified the powers of the holders of large estates in a legislative Council of 400. This body was selected by lot from the class of those who, according to the Code, could supply a certain level of military equipment.

Solon, regarded by many historians as the founder of Athenian democracy, undertook various political reforms in the early 6th century B.C. One was to deprive the Areopagus of much of its judicial power. Instead, jury courts took over that role, including the ability to adjudicate suits against public officials for unjust treatment. The most significant reform was to expand political participation based on size of land ownership. Four classes were created. All, even the landless laborers could take part in the ekklesia (assembly) and the jury courts. However, only the top two classes could hold the significant public offices. Members of the third class could hold minor administrative positions. In effect, this diminished the role of the hereditary aristocracy and entrenched the wealthier oligarchy of large landowners. The Council of 400 controlled the agenda of the assembly, thereby ensuring more control by the landed elite.

The process of democratization continued with the reforms by the military leader Kleisthenes who came to political power in 507 B.C. He organized the citizens in Athens and the surrounding area into ten “tribes.” While Athens had many residents from other Greek cities and from non-Greek areas, these “metics” were not counted. Tribe is not to be understood as an ethnic concept, but merely as a convenient label for a geographic constituency, such as a community or district. Kleisthenes eliminated the Council of 400 and replaced it with the boule, a Council of 500. Each tribe would have 50 seats in that council, chosen annually by lot from male citizens over 30 years old. The Council was a powerful entity, in charge of fiscal administration. It also set the agenda for the Assembly. Council members could serve only twice in their lifetimes. Kleisthenes had his reforms approved by vote of the Assembly, which gave particular legitimacy to the rules and increased the Assembly’s constitutional significance. However, the nine archons, the senior civil officials, as well as other magistrate offices, such as judges, were still drawn from the nobility and the wealthy landowners.

During the 5th century B.C., further reforms occurred under Ephialtes and Pericles, resulting in what historians often call Athens’s “Golden Age of Pericles.” The Assembly was the focal point of Athenian democracy. It met on a hill near the central market. Sessions were held on four non-consecutive days each Athenian month. There were ten months, with thirty-six days each. A quorum was 6,000 of the estimated 40,000 Athenian male citizens. Anyone could speak on items placed before the Assembly by the Council. Laws generally were adopted by majority vote of hands, though some laws required approval also by a special body drawn by lot from the jury rolls.

This façade of radical democracy must not fool casual observers of Athenian politics. First, there was the matter of demographics. Of the estimated 300,000 residents of Athens and its environs, most were slaves, metics, women, or children. It is estimated that only about 15% were adult male citizens. Second, the members of the Assembly did have final authority to vote, but on proposals shaped by the Council. Finally, business could not have been carried on if thousands of people exercised their right to speak. Thus, informal customs were observed. Speeches on proposals were given by a small number of recognized leading members of the community. These speakers were the “demagogues” (demos means “people”; gogos means “leader”). Initially, the term had a neutral meaning. It soon took on the modern sense, as various individuals sought to gain favor and influence with the voters through inflammatory language, theatrics and emotionalism.

As happens not infrequently, many such spokesmen for the people were from noble families or wealthy businessmen seeking to advance their economic interests. Notorious among them were Alcibiades, known for his charm, wealth, good looks, and Spartan military training; Hyperbolus, namesake of a word that represents theatrical and emotional language, a frequent target of satire by Greek playwrights, and the last person to be “ostracized” (that is, required to leave Athens for ten years); and Cleon, a man who, centuries before William F. Buckley, declared that “states are better governed by the man in the streets than by intellectuals …who… want to appear wiser than the laws…and…often bring ruin on their country.” Such speakers could “demagogue” issues and exploit, exacerbate, and even create divisions within the Athenian populace. However, they also served a useful role in that they were usually well-informed and regular participants in the debates. They could explain to the more casual attendees unfamiliar with the intricacies of Athenian government and politics the issues of the day. It is reported that ordinary Athenians, not known to be reticent in matters of political debate, were anything but shy about vocalizing their opinions about the various speakers through shouts, jeers, cheers, laughter, and a multitude of other sounds even if they did not make speeches.

As noted, the Assembly’s power was not unrestricted. The Council of 500 controlled its agenda. More precisely, since a body of five hundred could not realistically expect to control the shaping of public policy and its administration, it was a standing committee of the Council that performed this work. The standing committee of 50 rotated monthly among the ten tribes which composed the Council.

Athens had no king or president. The archons were senior magistrates and judges. They were selected by lot and, in theory, by the 4th century B.C., any male citizen was eligible for the office. Archons served for one year and thereafter could not be re-selected. Strategoi were the military commanders of the army and navy. Since those positions required particular expertise in war and leadership capabilities, they were not selected by the chancy method of the lot. Rather, the Assembly elected them for one-year terms. Unlike the civil magistrates, because wars operate on their own timetable, military commanders were typically re-elected. At the same time, the Assembly could revoke their commands at any time and for any reason. In addition, Athens had many junior bureaucrats who held their offices longer.

By the end of the fifth century B.C., the jury courts, well-established in the litigious Athenian society, had also taken on a political role. They were in charge of the confirmation process that each official had to undergo before taking office. If challenged on his qualifications, a jury would have to vote by majority to approve the selection. The courts and the Assembly also could hear “denunciations” brought by Athenian citizens against public officials and military commanders after an initial review by the Council. Finally, upon completing his term of office, a public official was subject to a review (euthenai) by an administrative board. If a citizen brought a complaint of mistreatment by the official, that complaint also would be heard by the courts after an initial review by a committee of the Council.

Despite its source in the demos, the Athenian system was not an unrestrained democracy. Such a system would have collapsed quickly, given the size and complexity of the Athenian state by the 6th century B.C. Athens was a “mixed” government (mikte). What brought it to eventual collapse was defeat in the Peloponnesian War at the hands of Sparta, the overextension of its colonial reach, the interference by foreign powers during the 5th and 4th centuries B.C. in the politics of Athens (from Persia to Sparta to Thebes to Macedon), and the usual interest group conflicts that plague societies (rich versus poor, landed versus commercial interests, creditors versus debtors, new elites versus old, traditionalists versus modernists). The social frictions and political instability caused by the violence of the successive factions that controlled Athens in the early 4th century B.C. based on support of, or opposition to, Spartan influence, undermined the system to the point that the city could not resist its eventual assimilation by the Kingdom of Macedon and its successor, the Alexandrian Empire. Both the oligarchic pro-Spartans, such as the Thirty Tyrants, and the democratic anti-Spartans seized the property of defeated political rivals and resorted to death for people suspected of supporting those defeated rivals. It was the democratic faction, after all, that convicted Socrates and sentenced him to death for a trumped-up charge.

All of that said, one must not forget that between the initial democratic stirrings under Draco and the Macedonian occupation, the Athenian democracy functioned three centuries. Even after the end of its independence as a city-state, the Athenian constitution continued, albeit in modified form and with less power abroad.

The Spartan system was superficially similar to the Athenian constitution yet was grounded in some fundamentally different social and political realities. Like some other thoroughly stratified and structured societies, Sparta was highly legalistic. The tight and intrusive control over life that is associated with the “Spartan way” was rooted in law, not tyrannical arbitrariness. Law, in turn rested on tradition, not written statutes, allegedly due to a directive from its possibly fictional founder, Lycurgus.

Spartans attributed the origin of their system to their great “lawgiver,” Lycurgus, supposedly in the 9th century B.C. Because so little is known about Lycurgus, historians have questioned the timing and, indeed, his very existence as a real person. Still, this event lay at the base of Spartan claims that their democracy antedated that of Athens by a couple of centuries.

In some sense, it is curious to imagine Sparta as “democratic,” but there is a basis to that description. The apella was the Spartan Assembly, to which all adult male citizens authorized to bear arms belonged. Moreover, Spartan women were far more equal in status to men than were their Athenian counterparts. While they were not given formal political powers, Spartan women were expected to voice their opinions about public matters. Most important, they also, unlike Athenian women, had rights to their own property through dowry and inheritance.

At the same time, the real political power was exercised by two institutions, the gerousia (Council of Elders—gerontes) and the ephoroi (magistrates). The Assembly could only vote on proposals presented by the Council, not initiate them. There is dispute about whether the Assembly could even formally debate proposals, but it is likely that vigorous debates in fact took place. The Assembly was composed of Spartan warriors, after all. The Council consisted of the two Spartan kings and 28 citizens over the age of 60 who were elected by the Assembly for life. This made the Council the main legislative power in what might be considered a bicameral system. Cicero analogized the Council to the Roman Senate. While the Council was not composed of a hereditary “aristocracy,” as was the principal – but not sole — characteristic of the Roman Senate, its members were drawn from the most prominent and tradition-minded elements of Spartan men.

Political writers since ancient times often pointed to another feature of the Spartan constitution, the dual monarchy. The origins of that system are obscure. For example, historians have sought to locate that origin in an ancient dispute between two powerful noble families that was settled by making the leader of each a king. Others have seen this as the result of a union of various villages or tribes at the city’s founding, the chiefs of the two most powerful becoming the kings. In later years, the system evolved that one king was responsible for domestic matters, mainly religious and judicial, while the other was typically away on military expeditions. The two kingships were not explicitly hereditary, and the kings were elected, another democratic feature. But they were elected for life and from those same two ancient families.

Whatever its origins or democratic bona fides, writers have often lauded the dual monarchy as representing an effective barrier to centralization of power in a single tyrant. The force of tradition and the natural rivalries among powerful faction kept each in check. Given the largely ceremonial role of the kings, except in military campaigns, and the checks otherwise placed on the kings make this justification for the dual monarchy less compelling.

The final piece of the formal Spartan political structure was the board of magistrates. The ephoroi were elected annually by the Assembly. Even the poorest citizen theoretically could be elected. There could be no re-election to a subsequent term. Initially, the ephoroi had limited powers, but as time passed, their offices gained substantive powers. When away on a military campaign, the king was accompanied by two ephoroi. Similarly, the kings lost the power to declare war and to control foreign policy to the ephoroi and the Council. Much of this might be traceable to security concerns that a king could make surreptitious deals with enemies of Sparta or get entangled in foreign schemes injurious to Spartan survival. Except while acting as generals, the kings over time became figureheads. But the ephoroi themselves also had significant limitations on their powers, chief among them their short tenures.

Polybius, often described as the founding light of constitutional and political studies, described the Spartan system as a true balanced and mixed government. In the classic understanding, that meant it contained a mixture of monarchic, aristocratic, and democratic elements balanced in harmony to produce an effective government duly attentive to individual rights. It seems unpersuasive to describe the rigid and totalitarian Spartan society in that manner. In light of the functional dominance of the Council, with its life tenure and its selection from the upper levels of Spartan society, one might more readily classify Sparta as an oligarchic system.

The end of Spartan power was not due to any inherent defect in the constitutional structure. More likely were the combined factors of demographic collapse and overextension in foreign and military ventures. The near-constant warfare of the 5th and 4th centuries B.C. against Persians, then Athenians in the Peloponnesian Wars, then against the combination of Athens, Thebes, Corinth, and Persia in the Corinthian Wars, and, finally, against Thebes alone, depleted the Spartan hoplite infantry on which Spartan military success depended. The population of Spartan citizens shrunk, and their rule over the helots which made up 90% of the state’s residents became increasingly precarious.

The rigid nature of Spartan society, the paranoia reflected in the Spartan security state, and the traditionalism of the Council, shown for example by their unwillingness to extend citizenship to the helots, may have contributed to the downfall of Spartan influence after the Battle of Leuctra in 371 B.C. Still, the city at that time had been a powerful actor in the Mediterranean world for three centuries. Moreover, the system continued to operate reasonably well within the Roman world for nearly another eight hundred years, until it was sacked by Alaric and the Visigoths in 396 A.D.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow.

 

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Guest Essayist: Samuel Postell


 
In the last essay, I attempted to show how the framers rejected ancient political thought. In this essay, I will try to show what guided the framers of our Constitution. In Federalist 1, Publius made the bold claim that:

“it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Publius implied that no past regime had created the circumstances for reasonable lawmaking or political stability. Past regimes lacked liberty, but they also lacked institutional arrangements to foster reflection and cooperation in law making, and thus were ruled by the force of one or the accidents of the many. Publius envisioned that America would create the opportunity for freedom and stability because of the regime’s dedication to liberty and natural rights, reliance on the people, and structure to combat the abuse of power.

In Federalist 9, Publius revealed what regimes governed by “accident and force” look like in practice: he claimed that “The petty republics of Greece and Italy… were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.” Because no regime had provided a stable foundation for “reflection and choice,” the ancient regimes were led by the force of tyrants, or the anarchy typical of pure democracies. But what did the past regimes lack that made them unstable? Publius argued that they lacked a proper constitution that assured a “firm union.”

Publius argued that various principles unavailable to the ancients allowed the framers of our Constitution to check tyranny and prohibit anarchy. In Federalist 9, he argued that the vibration between the extremes of anarchy and tyranny might give the opponents of liberty just cause to “abandon that species of government as indefensible.” However, Publius argued that “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” He argued that five principles rendered the American republic more stable than ancient constitutions. According to Publius, the following improvements are “means… by which the excellences of republican government may be retained and its imperfections lessened or avoided”:

  1. “The regular distribution of power into distinct departments.”
  2. “The introduction of legislative checks and balances.”
  3. “The institution of courts composed of justices holding their offices during good behavior.”
  4. “The representation of the people in the legislature by deputies of their own election.”
  5. “The enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.”

The last of the five improvements was the most novel, but also the most criticized. For example, both Anti-Federalists, Cato and Brutus, argued that such an enlarged sphere made “consolidation” likely, and thus endangered liberty. Montesquieu, the thinker upon whom many of the founders’ relied, argued that free government could only exist in small republics. Additionally, the free regimes of the ancient world were much smaller than the United States, and when they expanded, they became corrupt and liberty was endangered.

In Federalist 10, Publius gave his most robust defense of the “enlarged sphere.” In that paper, he considered an enlarged sphere to be the means by which the union may “break and control the violence of faction.” He argued that there are two means for dealing with the problem of faction: you may either remove the causes, or control the effects. However, the former cure– removing the causes– is worse than the disease because it would require that one remove liberty because “liberty is to faction what air is to fire.” Publius argued that two things will follow from an enlarged sphere, both of which combat faction: first, enlarging the sphere multiplies the number of factions which makes it more difficult for one faction to become a majority, and second, if the country covers a larger tract of land, it will be more difficult for a faction to “concert and carry out its schemes of oppression.”

However, Publius did not explain the most prolific difference between the American Constitution and ancient constitutions until Federalist 51. In Federalist 51, Publius argued that the constitutional form makes possible an extensive republic while also providing checks upon the abuse of power. He argued that the Constitution created an “interior structure” which made the branches “by their mutual relations… the means of keeping each other in their proper places.” In Federalist 47, Publius established that the departments of power were “distributed and blended.” The distribution of powers into separate branches, he argued, is essential to ensure accountability and prohibit the abuse of power. In fact, he argued that the very definition of tyranny is “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.”

Even before the Constitutional Convention, Madison noted that giving the government sufficient power while ensuring that power was not used to abuse rights was the “great desideratum” (Latin, meaning “great thing desired”). Publius argued that the next and most important task after dividing power was to provide some “practical security” to combat consolidation over time. In Federalist 48-50, he sought the means whereby the distribution of power into separate branches could be maintained. In Federalist 51, he revealed the practical security: the “interior structure” of the Constitution creates ambitious branches which counteract one another, and thereby limit the exercise of federal power.

Ultimately, Publius argued that in order to preserve liberty, each department must have “a will of its own” and each department should have “as little agency as possible in the appointment of the members of others”; additionally, each officer, in each branch, must have the “necessary constitutional means” and the “personal motives to resist encroachments from the others.” In other words, not only must the branches be separate, but the members of each branch must defend the rightful power of the branch to which he belongs. Publius envisioned a system in which each officer identified his own power with that of his branch, and became jealous of usurpation. He argued that the result is that “ambition” will counteract “ambition,” and each branch will check the others in the use of power. The result is that tyranny, consolidation, and the abuse of power is less likely, and the preservation of natural rights is more likely.

But in order to make each branch ambitious, each officer must be ambitious, and that requires that “the interest of the man must be connected to the constitutional rights of the place.” In order for this to occur, the officer must understand that whatever good he may do, or whatever glory he may harvest, ultimately, he requires that the branch to which he belongs maintains its Constitutional strength. Publius argues that such a system reinforces the separation of power. Paradoxically, the solution to the abuse of power is to make each branch ambitiously use its Constitutional powers to limit the abuse of power by other branches.

In our Constitution, therefore, there are a variety of institutional checks that keep the branches in their proper places. I will list a few of those checks inherent in the interior structure of our government. Publius remarks that the legislature is the most powerful branch so it is in need of extensive checks. He remarks that the legislature is an “impetuous vortex” swallowing the power of other branches. Therefore, our Constitution weakens the legislature by dividing its power between two houses and rendering each house different in mode of election and principle of representation. Additionally, the executive department has veto power over legislation. On the other hand, the Senate has the authority to declare war, so the president cannot determine foreign policy alone. The legislature is mixed with the executive and judicial departments when it comes to appointing justices of the Supreme Court, as the Senate must approve the president’s appointments to the Supreme Court. Additionally, the Vice President casts a tie-breaking vote in the Senate. The judiciary checks the legislature by considering the constitutionality of its laws. And finally, the states check the federal government because sovereignty is divided between the states and the federal government. Publius argues that this creates a “dual security” for the rights of the people.

The idea of blending power to control power, and rendering each branch sufficiently ambitious in order to combat tyranny and centralization, was an entirely new theory about how to control power. Institutionalizing this new theory made our Constitution completely novel in political science. Although the framers rejected the popular theory that a strict division of power was necessary to ensure the separation of powers, they did so after careful consideration of ancient history. For example, In Federalist 47, Publius argues that no state embraced a strict separation of power in its constitution, nor did the British government. Although almost all other regimes were forced by necessity to blend power, the American Constitution was the first to utilize the principle of blending power to ensure that power remained limited.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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Guest Essayist: Samuel Postell


 

 
In a letter to Henry Lee written in 1825, Thomas Jefferson counseled that the Declaration of Independence’s authority rested “on the harmonising sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, Etc.” George Washington had the play Cato performed before his troops at Valley Forge, presumably because he believed that ancient examples would inspire them. In what sense was America an experiment in self-government, and in what sense was it a continuation of the Roman or Athenian experiment in popular government? The American Founders relied on the Western tradition for their understanding of virtue, but they learned from the failures of the ancient regimes and sought to correct those failures when framing the Constitution.

The ancient constitutions presupposed a high degree of virtue, and ancient regimes would often stifle freedom in order to ensure that citizens cultivate virtue; the American Constitution, prioritizing liberty and individual rights, embraced a more sober understanding of human nature.

Plato’s Republic is considered his most comprehensive account of government, yet the imaginary republic constructed by Socrates stifled liberty to ensure order and harmony. The American founders rejected much of Plato’s thought because The Republic paints liberty as inconsistent with order and political unity. For example, in 1814 John Adams wrote to Thomas Jefferson,

“I amused myself with reading seriously Plato’s republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. while wading thro’ the whimsies, the puerilities, & unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this?”

In addition to stifling liberty, The Republic relies on one-man rule and proposes that a philosopher king should be vested with power; the founders found this suggestion unpalatable because they believed that one-man rule could quickly lead to abuses of power. One of The Republic’s central allegories is the image of the “ship of state.” In Book 6, Socrates argues that the “true pilot” of the ship will be overlooked by the multitude, and he will be called a “star-gazer” or a “good for nothing.” Nevertheless, Socrates argues that such a man deserves to rule because a good captain must “pay attention to the year and seasons and sky and stars and winds, and whatever else belongs to his art.” In Federalist 10, Publius rejects Plato’s prescription of an “enlightened statesman” to steer the ship of state. He writes,

“Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”

Not only did Publius believe that an enlightened statesman would likely be rejected, but he also believed that it would be unlikely that the statesman could “take into view indirect and remote considerations.” Whereas Plato believed that a high degree of knowledge was necessary for rule– however unlikely that knowledge may be– the founders believed that it was unlikely that rulers, even if enlightened, could properly consider and weigh all “indirect and remote considerations” having to do with politics in a popular regime. Additionally, the framers did not believe that enlightenment made men less self-interested; rather, they believed that even an enlightened statesman may have passions and interests that would tie him to a particular faction and corrupt his judgment.

If the framers did not follow Plato’s political prescriptions, did they also reject Aristotle? In The Politics, Aristotle identified six different kinds of regimes: monarchy, tyranny, aristocracy, oligarchy, polity, and democracy. He argued that what defines a regime as correct or deviant is whether the ruler rules for his own good, or the public good. He suggested a “mixed regime.” The mixture, he suggested, was an aristocratic republic. In Book 5, Aristotle argued that justice is the end of regimes, and that some degree of stability is necessary to promote peace and justice. Aristotle concluded that disputes among the few rich and the many poor result in instability and injustice. In Book 5, Chapter 7, he wrote that “Both polities and aristocracies are overturned above all through a deviation from justice in the regime itself.” Aristotle argued that such regimes are overturned because the parties attempt to rule for their own benefit at the expense of the common benefit. Aristotle argued that this results because the aristocratic and democratic elements of the regime have not been “finely mixed.”

While it does seem that our regime is mixed because we have aspects of each kind of regime, in Federalist 14 Publius argued that our republic is unmixed. He wrote, “America can claim the merit of making the discovery of the basis of unmixed and extensive republics.” In other words, he argued that the American founding presents a new kind of constitution, a true republic, and that no historical or philosophical examples can explain our Constitution. In Federalist 39, Publius argues that Holland, Venice, Britain, and Poland are all called republican governments, but argues that they are not truly republican in form.

There are many ways in which the U.S. Constitution is novel, but the most obvious novelty is a system of representation predicated on the consent of the people. In Federalist 39, when defining republicanism, Publius wrote that:

“It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people.”

In Federalist 51, Publius argued that what makes a republic– a reliance on the people– is also the “primary security” for liberty. He argued that “A dependence on the people is, no doubt, the primary control on the government.” Unlike Plato’s Republic, which relied on a philosopher king, the American Constitution relies on the virtue and wisdom of the people. Unlike Aristotle’s mixed regime, the idea of consent permeates all of our institutions. What makes the American regime unique is its firm reliance on the people as the source of political power, and the faith that the people are capable of justly wielding political power.

Did the American founders, therefore, reject ancient wisdom entirely? Although the framers rejected many of the ancients’ prescriptions for political constitutions and created a form of government which was unprecedented, they relied on ancient wisdom in order to do so. Although the framers rejected the totalitarian government of Plato’s Republic, and did not precisely follow Aristotle’s model for a mixed regime, what led them to create a novel form of government was an understanding of human nature and the failures of past experience. The framers were led by history and experience, and much of the history they considered was ancient, and they derived their critiques from the same foundation as the ancients did. In the next essay, I will consider the history and experiences that led the framers to create our Constitution, and I will highlight precisely what makes it different from past constitutions.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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90-Day Study 2022

Essay #1 — HISTORIC TOPIC #1: Plato, Aristotle, and Ancient Greek Thought on Human Nature and Good Government – How they succeeded and how they failed.

Essay #2 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Plato, Aristotle, and Ancient Greek Thought – Their thinking and debates about how to prevent the previous regime’s weaknesses and failures.

Essay #3 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Plato, Aristotle, and Ancient Greek Thought – Specifics in the Constitution dealing with how to prevent the previous regime’s failures; see requirements for electors and elected officials.

Essay #4 — HISTORIC TOPIC #2: The Constitutions of Athens and Sparta (Democracy and Oligarchy and Instabilities of Each) – How they succeeded and how they failed.

Essay #5 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Constitution of Athens and Sparta – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalists, but rather a commentary on their corresponding prescience. Madison focuses extensively on the distinctions between the U.S. Constitution and ancient Foundings in Federalist No. 38; Fed. 10, 18, 38, 55, 63.

Essay #6 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Constitution of Athens and Sparta – Specifics in Constitution dealing with how to prevent the previous regime’s failures; Focus on limited/enumerated powers of Congress in Article I, Section 8, and the ratification/amendment process.

Essay #7 — HISTORIC TOPIC #3: — The Stoics and Classic Roman Thought on Human Nature and Good Government (Cicero and Universal; Law; Polybius and Balanced Government) – How they succeeded and how they failed.

Essay #8 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: — Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Stoics & Classic Roman Thought on Human Nature & Good Government – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Fed. 47, 51, 57, 66.

Essay #9 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of The Stoics & Classic Roman Thought on Human Nature & Good Government – Specifics in Constitution dealing with how to prevent previous regime’s failures.

Essay #10 — HISTORIC TOPIC #4: The Roman Republic (From Aristocracy To Dictatorship) – How they succeeded & how they failed.

Essay #11 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Roman Republic – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but rather a commentary on their corresponding prescience. Focus on Federalist Papers view of executive and also on improvements to Roman Senate by Madison. Fed. 10, 34, 41, 70.

Essay #12 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Roman Republic; Specifics in Constitution dealing with how to prevent previous regime’s failures – Necessary & proper clause in Article I section 8; Nature of the vesting clause of executive power in Article II.

Essay #13 — HISTORIC TOPIC #5: Five Hundred Years of the Republic of Venice (What is a Republic) – How they succeeded & how they failed.

Essay #14 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Five Hundred Years of the Republic of Venice – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience. See Federalist No. 39 on “what is a republic?” See James Madison’s “Vices” on “republican principle” & majority rule. Fed. 9, 14, 39, 51, 52, 55, 57. No titles of nobility may be granted by the U.S. [Article I, Section 9] nor by any state [Article I, Section 10]; nor may a person holding the office of honor in federal government receive a title from a foreign country [Article I, Section 9].

Essay #15 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Five Hundred Years of the Republic of Venice –Specifics in Constitution dealing with how to prevent previous regime’s failures; Republican Guaranty clause.

Essay #16 — HISTORIC TOPIC #6: Holy Roman Empire (Imperium in Imperio, Ruler Elected by Electoral College) – How they succeeded & how they failed.

Essay #17 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Holy Roman Empire – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #18-20 on problems with ancient confederacies – failures to act because of disagreements between member states. Fed. 19, 22, 43.

Essay #18 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Holy Roman Empire – Specifics in Constitution dealing with how to prevent previous regime’s failures; Modes of an election, especially for executives.

Essay #19 — HISTORIC TOPIC #7: United Provinces of the Netherlands (Federal Head Over Constituent Sovereigns) – How they succeeded & how they failed.

Essay #20 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of United Provinces of the Netherlands – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #18-20 on problems with ancient confederacies – failures to act because of disagreements between member states. Fed. 15, 20, 54.

Essay #21 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of United Provinces of the Netherlands – Specifics in Constitution dealing with how to prevent previous regime’s failures. Supremacy clause; Article I section 10 (limits on state power); Article IV (on relations between the states).

Essay #22 — HISTORIC TOPIC #8: Machiavelli & the Science of Politics (The Pursuit & Maintenance of Power by the Ruler) – How they succeeded & how they failed.

Essay #23 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Machiavelli & the Science of Politics – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Machiavelli calls for an energetic executive to do the things necessary for the security of both his power & the lives & property of his subjects; the problem is the lack of checks on executive authority (at least in The Prince). Contrast Federalist #51 on checks & balances with Federalist 72 on the need for the energetic executive. See Federalist 23 for the need for energy in government to achieve necessary ends. Fed. 31 (“science” of politics to prevent excess power). Fed. 37 (limitations of the science of politics). Fed. 51.

Essay #24 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Machiavelli & the Science of Politics – Specifics in Constitution dealing with how to prevent previous regime’s failures. Impeachment, treason, legislative process.

Essay #25 — HISTORIC TOPIC #9: The “Sun King,” Louis XIV (The King As Sovereign) – How they succeeded & how they failed.

Essay #26 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the “Sun King,” Louis XIV – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Fed. 69, 70.

Essay #27 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the “Sun King,” Louis XIV – Specifics in Constitution dealing with how to prevent previous regime’s failures.

Essay #28 — HISTORIC TOPIC #10: King Versus Parliament in 17th Century England (From Absolutism to Constitutional Monarchy; Montesquieu) – How they succeeded & how they failed.

Essay #29 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of King Versus Parliament in 17th Century England – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #68 contrasting constitutional executive to a monarch. See Brutus, Cato No. 4, & Old Whig No. 5 on dangers of absolute/hereditary monarchy. Fed. 26, 47, 52.

Essay #30 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of King Versus Parliament in 17th Century England – Specifics in Constitution dealing with how to prevent the previous regime’s failures.

Essay #31 — HISTORIC TOPIC #11: The Mayflower Compact & the City of God on Earth (Government by Consent; Government in the Service of God) – The genesis of self-government, the strengths & weaknesses.

Essay #32 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Mayflower Compact & the City of God on Earth – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures – or in THIS case, IMPROVED upon or BUILT upon their genius. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist & Anti-Federalist literature on American exceptionalism – what makes America special? Federalist #37: “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Brutus I’s use of Biblical language to describe the importance of the ratification question. Fed. 37, 69. Religious test oaths were prohibited under Article VI, Section 3. Religious liberty & 1st Amendment; Virginia Memorial & Remonstrance of 1786, as well as Statute for Religious Freedom of that year. Massachusetts Constitution of 1780.

Essay #33 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Mayflower Compact & the City of God on Earth – Specifics in Constitution dealing with how to prevent previous regime’s failures; Preamble: “Secure the blessings of liberty.”

Essay #34 — HISTORIC TOPIC #12: The Creation of Colonial Governments in British North America (Types of Charters; Eventual Failure & Royal Control) – How they succeeded & how they failed.

Essay #35 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Creation of Colonial Governments in British North America – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Thomas Jefferson, “Rights of the British Colonies”? David Ramsay (Federalist historian) on colonial histories & abuses by British; Brutus I against expansion/empire; Fed. 52.

Essay #36 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Creation of Colonial Governments in British North America – Specifics in Constitution dealing with how to prevent previous regime’s failures. Addition of territory/admission of new states.

Essay #37 — HISTORIC TOPIC #13: The American Declaration of Independence (Musings on Human Nature & the Basis of Government; Revolution) – The genius of the genesis.

Essay #38 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful CONTRIBUTING Wisdom of Federalist/Anti-Federalist (FOUNDING FATHERS) to the American Declaration of Independence – See Federalist #40 on right to revolution, and #43 on the transcendent right to preservation by the law of nature; Fed. 28, 39, 40, 49, 78.

Essay #39 — THE CONSTITUTION’S WISDOM: Successful WISDOM from FOUNDING FATHERS to PRESERVE the American Declaration of Independence.

Essay #40 — HISTORIC TOPIC #14: Chaos & Experimentation in the Early State Constitutions (Legislative Dominance; Who Makes Constitutions) – The strengths & weaknesses.

Essay #41 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful WISDOM of FOUNDING FATHERS to the EXPERIMENTATION in the Early State Constitutions – FOUNDERS WISDOM & lessons noted to this experimentation; John Adams “Thoughts on Government”; James Madison, “Vices of the Political System of the United States”; Federalist No. 9 & 10 on “petty republics” & problem of faction in states; Fed. 47, 48, 53, 81, 83.

Essay #42 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the EXPERIMENTATION in the Early State Constitutions – Specifics in Constitution dealing with how to prevent previous regime’s failures; The legislative process on Constitution; function of the federal courts & judicial review.

Essay #43 — HISTORIC TOPIC #15: From the Articles of Confederation to the Constitution (Government in Stasis, What Is/Are the United States) – Strengths & weaknesses.

Essay #44 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the EXPERIMENTATION of Articles of Confederation to the Constitution – Brutus I on nature of the Union; Hamilton to James Duane, 3 September 1780; Madison, “Vices of the Political System of the U.S.”; Federalist #15 on the situation under the Articles of Confederation; Generally Fed. 15-22; Fed. 39, 40, 43; Anti-Fed.: Eleventh Letter of Centinel, in Independent Gazetteer, January 16, 1788, in McMaster & Stone, Pennsylvania & the Federal Constitution, (1888), pp. 634-637; also in Morton Borden, The Antifederalist Papers, (1965), Antifederalist No. 6.

Essay #45 — THE CONSTITUTION’S WISDOM: From Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Articles of Confederation & the Constitution – Specifics in Constitution dealing with how to prevent weaknesses in Articles; How the Constitution creates a “more perfect Union.”

Essay #46 — HISTORIC TOPIC #16: The Bill of Rights (Why? Types of rights? Source of rights?) – Why a bill of rights…what in constitution & fears of big government warranted it such as: where England failed with Magna Carta.

Essay #47 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful COLLECTIVE Wisdom of Federalist/Anti-Federalist to the NEEDS of the Bill of Rights – Brutus IV; Federalist No. 84; Madison, “Letter to Jefferson,” 17 October 1788; Madison, Speech in the House of Representatives, 8 June 1789; Anti-Fed.: An Old Whig, in The Massachusetts Gazette, November 27, 1787; also in Morton Borden, The Antifederalist Papers, (1965), Antifederalist 18-20; Fed. 84; Declaration of Independence, petitions from states during ratification, debates in Congress.

Essay #48 — THE CONSTITUTION’S WISDOM: Successful FOUNDERS Wisdom in the U.S. Constitution That WAS a BILL OF RIGHTS & How LIMITED GOVERNMENT IN CONSTITUTION WAS a BILL of Rights – There are several places in the Constitution (before the Bill of Rights) in which rights are protected by provisions: e.g., no titles of nobility, no ex post facto laws, no suspension of habeas corpus unless invasion/rebellion, no bills of attainder, etc.

Essay #49 — HISTORIC TOPIC #17: The Importance of Virtue: John Adams, Alexander Hamilton, John Taylor of Caroline (Education & Training – Virtue As Fundamental to Republican Government; Separation of Powers & Other “Auxiliary Precautions”).

Essay #50 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful CORRESPONDING Wisdom of Federalist/Anti-Federalist to the WISDOM of the Importance of Virtue – John Adams, Alexander Hamilton, John Taylor of Caroline. John Adams letters to Abigail Adams, Mercy Warren, Thomas Jefferson Federalist No. 51, 55; Adam’s writings in 1776, 1798; Fed. 56, 76.

Essay #51 — THE CONSTITUTION’S WISDOM: Successful CORRESPONDING Wisdom in the U.S. Constitution to the Importance of Virtue – John Adams, Alexander Hamilton, John Taylor of Caroline.

Essay #52 — HISTORIC TOPIC #18: The French Revolution & the Reign of Terror (Violent Revolutions Versus Peaceful Change) – The success & failures of the French Revolution. Jefferson’s naïveté & Adam’s prescience.

Essay #53 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the French Revolution & the Reign of Terror – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Federalist No. 1: “Reflection & choice.” Fed. 40, 49, 78.

Essay #54 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the French Revolution & the Reign of Terror – Specifics in Constitution dealing with how to prevent previous regime’s failures.

Essay #55 — HISTORIC TOPIC #19: The Rise of Napoleon Bonaparte (Preventing One-Man Rule Through Layered Election & Separation of Powers) – The essayist will talk about why and how Napoleon succeeded. Also how he manipulated & excited people to think he could succeed.

Essay #56 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Rise of Napoleon Bonaparte – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Fed. 38, 70

Essay #57 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Rise of Napoleon Bonaparte – Specifics in Constitution dealing with how to prevent previous regime’s failures.

Essay #58 — HISTORIC TOPIC #20: The Communist Manifesto (Views On Human Nature & Class Loyalties; Madisonian Pluralism) – Why & how the Communist Manifesto manipulated & excited people to think it could work. Additionally, the obvious & subsequent failure. In essence: success (manipulations) & failures with its theories.

Essay #59 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Communist Manifesto. – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist No. 10 on human nature & protection of property; Fed. 10, 51, 54, 70.

Essay #60 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Communist Manifesto – Specifics in Constitution dealing with how to prevent previous regime’s manipulations & failures; How the Constitution protects one’s property but minimizes class distinctions concerning rights.

Essay #61 — HISTORIC TOPIC #21: The American Civil War: Disunion & Reconstruction (What is the Union; Secession; “An Indestructible; Union Composed of Indestructible States”).

Essay #62 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the American Civil War. This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience; Federalist #2-4 on the benefits of Union; Federalist #5-6 on dangers of sectionalism (including on economic grounds); Fed. 42, 59.

Essay #63 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the American Civil War: Disunion & Reconstruction – Specifics in Constitution dealing with how to prevent such disunion; Nature of representation in the House & Senate; electoral college mode of electing President.

Essay #64 — HISTORIC TOPIC #22: World War I & the Collapse of the Old World Order (Federalist 6/7 & Conflicts Among Republics); The success of the Old World Order & where it failed & how it led to WWI.

Essay #65 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of World War I & the Collapse of the Old World Order – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience. Fed. 6, 7, 74, 75.

Essay #66 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of World War I & the Collapse of the Old World Order – Specifics in Constitution dealing with how to prevent the previous regime’s failures.

Essay #67 — HISTORIC TOPIC #23: Stalin & the Military Regime; The use of persuasion & how Stalin slyly manipulated the people & situation into a Military Regime.

Essay #68 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Stalin & the Military Regime – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist justification of standing army; Anti-Federalist concerns; Fed. 25, 26, 28, 41, 46.

Essay #69 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to Stalin & the Military Regime – Specifics in Constitution dealing with how to prevent the previous regime’s failures.

Essay #70 — HISTORIC TOPIC #24: The Progressive Vision & Its Challenge to the Constitutional Order (“Negative” Constitution to Protect Liberty Inherent in Individuals From Government, to “Active” Government to Reshape Society Into an “Organic” State in Which Individuals Are Mere Cogs) – The progressive movement, what vulnerability in the U.S. populace led to it, why it succeeded, how it has “failed” or been limited.

Essay #71 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Progressive Vision & its Challenge to the Constitutional Order; Their thinking/debates about how to prevent the previous regime’s weaknesses/failures – or in this case, had a loophole that allowed it; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.

Essay #72 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Progressive Vision & its Challenge to the Constitutional Order – Specifics in Constitution dealing with how it has prevented full progressive movement or could if people understood the Constitution better.

Essay #73 — HISTORIC TOPIC #25: The Economic Depression & the Birth of New Deals & Great Societies (Dangers of an Administrative State Governed by Unelected Bureaucrats; Separation of Powers; Judicial Review; Due Process; Status of Rights in Property).

Essay #74 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Economic Depression & the Birth of New Deals & Great Societies – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.

Essay #75 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Economic Depression & the Birth of New Deals & Great Societies.

Essay #76 — HISTORIC TOPIC #26: Hitler & the Third Reich – How Hitler used an economic crisis to fool the German people and lead them into tyranny and evil.

Essay #77 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Counteracting Wisdom of Federalist/Anti-Federalist to the evil and tyranny of Hitler & the Third Reich.

Essay #78 — THE CONSTITUTION’S WISDOM: Counteracting Wisdom in the U.S. Constitution to the evil and tyranny of Hitler and the Third Reich.

  • The United States Constitution as a Bulwark Against Tyranny by Jeanne McKinney, Military Writer at Patriot Profiles; Award-winning Military Journalist; Winner of multiple San Diego Club “Excellence in Journalism Awards” and eight first place honors; Published, among many, in Working Dog Magazine, Homeland Security Today.

Essay #79 — HISTORIC TOPIC #27: Chairman Mao & the Cultural Revolution (Freedom of Speech & Religion; Right to Direct the Upbringing of Children) – What led to Mao’s take over & the rise of the Cultural Revolution.

Essay #80 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Chairman Mao & the Cultural Revolution –Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.

Essay #81 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Chairman Mao & the Cultural Revolution – Specifics in Constitution dealing with how to prevent the previous regime’s failures.

Essay #82 — HISTORIC TOPIC #28: The Creation of the United Nations & the “Citizen of the World” (Treaties; Nations; Borders; Citizenship) – Reasons why people thought it was a good idea & how the failures of international regimes in the past led to it.

Essay #83 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Creation of the United Nations & the “Citizen of the World” – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist #6 on foreign policy & motives of other nations.

Essay #84 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Creation of the United Nations & the “Citizen of the World” – Specifics in Constitution dealing with how to prevent such global interplay.

Essay #85 — HISTORIC TOPIC #29: The Collapse of the British Empire – America’s Manifest Destiny but also our curbing of international domination & overreach & how the founders wisdom led to such curbing.

Essay #86 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Collapse of the British Empire – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Brutus & other Anti-Federalists on problems of representation in “large republics” (i.e., empires).

Essay #87 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Collapse of the British Empire – Specifics in Constitution dealing with how to prevent large republics & international interplay & allowance of international involvement & its dangers.

Essay #88 — HISTORIC TOPIC #30: The Failings of Utopian Creation Experiments (Framers As Constructing Workable Government, Not an Ideological Blueprint; Madison’s “Best Possible” Government; Franklin’s Pragmatism; Connecticut Compromise; Compromise Over Slavery Issue) – The dangers of utopian thinking in our American Republic. How our founders were aware & educated about historic failings. How we should have such awareness & education as a populace to prevent such historic failures in our republic – as history has endured before & after our founding. How our founders’ prescience & founding documents still hold true, that this is why we are exceptional. “A republic if we can keep it.”

Essay #89 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Failings of Utopian Creation Experiments – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Fed. 14, 31, 37, 85.

Essay #90 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failings of Utopian Creation Experiments – Specifics in Constitution dealing with how to prevent Utopian Creation Experiments.

Guest Essayist: Chris Burkett
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

How did the American Founders acquire the wisdom to frame a Constitution that has withstood many challenges to liberty and self-government for over two hundred years? Their deep interest in understanding human nature, derived from a careful study of history, allowed them to create a Constitution that both improved upon past constitutions and also anticipated future developments well beyond their time.

The American Founders studied ancient constitutions carefully, especially those of Greece and Rome, and sought to improve upon their imperfections. They found that these ancient regimes were all founded on unrealistic notions of human nature, which led the ancients to count on a degree of civic virtue that was either too high or too low. Many ancient regimes assumed that “there is not sufficient virtue among men for self-government; & that nothing less than the chains of despotism can restrain them from destroying & devouring one another.”[1] The Founders discovered that ancient democracies – or “petty republics” as Alexander Hamilton called them – too often vibrated between the extremes of anarchy and tyranny.[2] The defect in these ancient constitutions was a lack of institutions necessary to preserve both virtue and liberty; many lacked, for example, a proper separation of powers, adequate checks and balances, and important representative bodies such as a senate. Without proper constitutional arrangements, as James Madison observed, “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.”[3]

The American Founders needed to improve upon these constitutional devices because they wanted to create a political system that balanced civic virtue with liberty. To accomplish this, they established a Constitution framed upon a more realistic notion of human nature – one that acknowledged and anticipated both the good and bad aspects of human motives. “As there is a degree of depravity in mankind which requires a certain degree of circumspection & distrust,” James Madison wrote, “so there are other qualities in human nature which justify a certain portion of esteem & confidence. Republican government presupposes the existence of these qualities to a higher degree than any other form.”[4] The Founders’ study of history revealed that in some fundamental ways, human nature never changes. Human beings are capable of being reasonable and therefore self-governing, but one should not ignore the propensity of mankind to pursue and abuse power for self-interested purposes. By framing a constitution upon a realistic understanding of unchanging human nature, they anticipated all sorts of new political developments: the forms of tyranny might change in the future, but the sources would not.

The American Founders applied what they learned from history and human nature to fix the defects of the Articles of Confederation. The glaring defect of the Articles of Confederation was the frequent failure of the state governments to abide by the terms of that compact – despite the fact that they had all promised to do so. States often refused to pay their share of revenue for the good of the Union, violated international treaties, and exercised other powers that were prohibited by the Articles of Confederation. This led George Washington to observe in 1786, “We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power.”[5] The proposed Constitution, created by the Federal Convention of 1787 to correct these errors, was then submitted to the public for ratification.

The debate over ratification was also the greatest debate in history on human nature. Supporters and critics of the proposed Constitution – Federalists and Antifederalists – made insightful arguments learned from the lessons of history regarding human nature. The key to a good constitution, according to Antifederalist Brutus, for example, is establishing good representation. A virtuous citizenry is especially important under any constitution to check the self-interested abuses of power by elected representatives. “It is a truth confirmed by the unerring experience of ages,” wrote Brutus, “that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.” This disposition to attain and abuse power, “which is implanted in human nature,” requires sufficient protections against potential tyranny.[6] “The principle of self-love, therefore, that will influence the one to promote the good of the whole, will prompt the other to follow its own private advantage. The great art, therefore, in forming a good constitution, appears to be this, so to frame it, as that those to whom the power is committed shall be subject to the same feelings, and aim at the same objects as the people do, who transfer to them their authority. There is no possible way to effect this but by an equal, full and fair representation; this, therefore, is the great desideratum in politics.”[7]

Federalist James Madison, considered to be the Father of the Constitution, agreed with Brutus on the fundamental difficulty of framing good government – the natural propensity of human beings, out of self-love, to put their private interest above the common good. In Federalist No. 10, Madison argued that a constitution must be framed on the understanding that men are prone by nature to become “factious,” and that the causes of faction are rooted in human nature. Factions are groups of people, according to Madison, united by a common interest or passion, who want to use political power to harm or violate the natural rights of others. From his careful study of history, Madison learned that factions have been “the mortal diseases under which popular governments have everywhere perished.” The causes of faction might only be eliminated, Madison argued, by eliminating liberty itself – in which case the “remedy” would be “worse than the disease.”[8] Rather than trying to eliminate the causes of faction, Madison’s solution was to frame a Constitution that acknowledged the likelihood of factions in politics, and sought to control their dangerous effects through the means of properly separating power and providing sufficient checks and balances between the branches of government. Madison’s insights into human nature led to important improvements to the science of politics and of constitution making.

The insights learned from history allowed the American Founders to infuse the Constitution with a wisdom that stretched far into the future. They understood well that so long as human beings are human beings, the possibility of tyranny will always exist. Even though new forms of tyranny might emerge, its causes remain the same. Because its foundation rested on an understanding of unchanging human nature, the Constitution has proven remarkably adaptable and capable of dealing with new challenges to liberty and self-government for over two hundred years.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

 

 

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[1] Federalist No 55

[2] Federalist No. 9

[3] Federalist No. 55

[4] Federalist No. 55

[5] George Washington to John Jay, August 15, 1786

[6] Brutus No. I

[7] Brutus No. IV

[8] Federalist No. 10

My name is Giovanni Adu-Gyamfi. I am 19 years old, and I am a freshman at The College of New Jersey (TCNJ), where I am majoring in public health. I spent most of my childhood in Old Bridge, New Jersey, but I currently live in Parlin, New Jersey. From a young age, I was fascinated by the world around me, participating in STEM-based activities and taking STEM classes. I enjoy reading, writing, helping others, and spending time with my family. In the future, with a public health degree, I hope to go into research helping regulate the spread of diseases and looking into more ways to prevent them.

Watch Giovanni’s Winning PSA:

Our Interview With Giovanni

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
I was recommended to it by a close family friend.

What inspired your work?
Growing up, I was passionate about history, knowing a lot about the presidents.

What did you learn while creating your entry?
I learned what it means to carry out civil civic conversations, which I never knew about.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I hope to encourage others to learn more about civil civic conversations.

How do your friends respond to history or talking about the Constitution?
They are neutral to it.

What do you love about U.S. History and the forming of our government?
I like learning about how our country was exactly formed.

Which U.S. historical site would you like to visit?
White House.

Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr.

Who is your greatest role model?
My parents.

What in your life are you most passionate about?
I’m most passionate about my education.

How do you spend your free time?
In my free time, I read, play soccer, watch TV, study, and work out.

What are your plans for the future?
Right now, I am a public health major. I hope to help with the control of diseases.

If you could do one super impactful thing to help people, what would it be?
I would be an advocate for mental health.

Why is the Constitution relevant today?
It is relevant today because it basically tells us what we are entitled and have rights to.

Dawson Rhoades, 12, is a 6th Grader at Grapevine Faith Christian School and resides in Texas with his parents and his older brother. Dawson’s hobbies include playing tennis, pickleball, golf, water skiing, acting, and performing on the piano. In his free time Dawson can be found adding music to his “favorites” playlist, which includes songs from the 80’s, Contemporary Christian, and Country Hits.  Dawson’s favorite class is American History.  Dawson enjoys learning about our country’s rich history and the lessons that can be learned from our past.  He is honored to have been selected as “Best Middle School Song Winner.”

Listen to Dawson’s Winning Song Below:

Our Interview With Dawson

Was this the first time you entered the contest?
Yes!

How did you hear about the contest?
My advanced science teacher Mrs. Lauden assigned the project.

What inspired your work?
I love to write music and I love America, so I decided to enter a song about the Constitution in the competition.

What did you learn while creating your entry?
I learned that in the Bill of Rights there’s a provision regarding the housing of soldiers and another regarding unlawful search and seizure.

What do you love about U.S. History and the forming of our government?
I love that we have ups and downs in our history that we can learn from.

Which U.S. historical site would you like to visit?
Pearl Harbor

Which American historical figure is most influential/inspirational to you?
I would say Donald Trump because he is a smart businessman who ran our country like a business and promoted America first.

Who is your greatest role model?
My grandfather is my greatest role model because even though he has a disease that prevents him from doing the things he loves like tennis and golf, he perseveres and does the best he can and is supportive of his family and treats everyone he meets with respect and kindness.

What in your life are you most passionate about?
I am passionate about music, tennis, and personifying Jesus through my actions.

How do you spend your free time?
I spend my free time playing board games with my family and playing tennis.

What are your plans for the future?
I want to become a marine biologist. I’ve always loved nature and animals, in particular. I’d like to do something to benefit animals.

If you could do one super impactful thing to help people, what would it be?
America is one nation under God. Therefore, I would spread the gospel and the good word of Jesus.

Why is the Constitution relevant today?
The Constitution justifies our freedoms and gives us guidelines to follow.

Louis Akkermans
Louis Akkermans is 21 years old and beginning his MA in Public Interest Media and Communication.  Interested in filmmaking, he hopes to find a path that would allow him to write for the screen, though video production as a whole is a passion of his and one he could inhabit in any facet. Topics he is interested in are politics, philosophy, inter/intrapersonal relationships, and intimacy/loneliness.

Casey Chapter
Casey Chapter is a senior at Florida State University studying Digital Media Production and Literature. Throughout her education, Casey has been interested in journalism in all of its forms, from print newspapers to radio broadcasts to documentaries. While she currently serves as the Managing Editor of the FSView & Florida Flambeau (FSU’s independent, student-run newspaper), she aims to be a documentary producer in the future and hopes to attend FSU’s graduate program in Public Interest Media & Communications. In her free time, Casey enjoys reading, writing, and playing with her dog Lucy and her cat Ashe.

Watch Louis & Casey’s Winning Short Film Below!

Our Interview With Casey & Louis

Was this the first time you entered the contest?
Casey: Yes, I had never previously entered any of Constituting America’s contests.
Louis: Yes!

How did you hear about the contest?
Casey: I was referred to Constituting America’s contest by Izzy Cring, who has won the contests for best high school song and best college song. We have worked together on video projects in the past. She also works with Constituting America now.
Louis: Both Casey and I heard about the competition through our friend Izzy Cring.

What inspired your work?
Casey: As a journalist, I have done a lot of reporting on local city commissions, boards, and committees of various kinds. I was interested in the idea of using the format of a local political meeting, such as a sub-committee meeting, and playing with it to create a funny and honest film that shows how the system works.
Louis: We wanted to poke some fun at the stalling, slow-moving, and unimportant debates that sometimes occur in government. Our video was meant to hyperbolize some of the drawbacks that occur in a ruminating democracy.

What did you learn while creating your entry?
Casey: I learned that creating a film is a complex and sometimes difficult endeavor, but it’s worth it once you get to see the final product. I’m very proud of what we came up with.
Louis: A creative partner is invaluable. Casey and I hadn’t worked in that capacity before, and once we passed the awkward idea formulation stage production was like a well-oiled machine.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Casey: As a journalist, I think about and talk about the first amendment a lot. I plan to continue to educate my peers on the importance of a free press and the many other freedoms included in the Constitution.
Louis: By my words and actions. We sometimes forget the purpose of government; how it works and why it works the way it does. It’s important to critique our systems, but before we do that we must understand why those systems were put in place. Sometimes we find that those systems should stay upheld and other times they should change. The constitution grants us a foundation to begin that discussion.

How do your friends respond to history or talking about the Constitution?
Casey: I have engaging discussions with my friends about the U.S. Constitution and government system.
Louis: This is admittedly a subject that doesn’t come up often in conversation. If it does, it’s usually framed through the topic of current events. It’s a subject that is missing in most people’s thought processes.

What do you love about U.S. History and the forming of our government?
Casey: I love that America has a free press, as I think this is a vital part of a democracy. This allows everyone to be informed about their government and their communities.
Louis: The tenacity of our government. We live in the longest lasting governmental institution of the modern day. It’s through the belief of its people and the stability those founding documents provide that our country has lasted for so long; that is to be admired.

Which U.S. historical site would you like to visit?
Casey: I would like to visit Mount Rushmore in my lifetime.
Louis: I would love to visit the Grand Canyon one day.

Which American historical figure is most influential/inspirational to you?
Casey: Ruth Bader Ginsburg is an inspirational figure that I look up to. After learning about her struggles throughout her life, and how she managed to become a successful lawyer and eventual Supreme Court Justice while juggling being a mother, I felt inspired by her tenacity.
Louis: Even the best and brightest of U.S. history can be mired with scandal and unsuccessful policy. Though controversial I find Franklin D. Roosevelt to embody much of what is desirable in a leader. Providing stability during a destabilizing crisis and creating policy that uplifts and secures the average American. You find these qualities in other figures, but FDR is a stark and prominent symbol of those characteristics.

Who is your greatest role model?
Casey: My mother is my greatest role model. She managed to become a successful business owner while being a single mother at a young age, and has always been my role model growing up.
Louis: There are many people I take great inspiration from but there is no one I wholly want to emulate. There are people who demonstrate skills or characteristics that I would like to mimic, but it’s more a process of taking all the good and leaving the bad.

What in your life are you most passionate about?
Casey: I am most passionate about informing people and staying informed myself on international, national, state and local occurrences. I feel that it is important to be fully informed from multiple sources of information in order to have my own understanding of events and phenomena throughout the world.
Louis: Currently, it’s figuring out what I am passionate about. I have a love for many things, so I suppose I’m passionate about creating a “life formula” that allows me to do as many lovely things as I can.

How do you spend your free time?
Casey: I spend lots of time reading and writing. I also enjoy filming and editing documentary-style videos.
Louis: I exercise, consume media, write, and spend time with friends and family. What most people do.

What are your plans for the future?
Casey: I plan to pursue a Master’s degree at Florida State University and eventually become an independent video journalist or documentarian.
Louis: I want to make films in some capacity.

If you could do one super impactful thing to help people, what would it be?
Casey: I enjoy telling people’s stories so that the world is more aware of what is going on around them. Writing nonfiction news stories about everyday people and their struggles allows others to become more aware of their communities and can lead to people taking action.
Louis: As a filmmaker my skills lie in effectively communicating ideas visually. If opportunity allows, I want to contribute to communicating a crisis or issue to a mass audience through that medium.

Why is the Constitution relevant today?
Casey: The Constitution comes up every day in political discussions between citizens, politicians, activists, and others throughout America. It is the basis for American citizens’ rights, and provides us with foundational rights that help maintain our democracy.
Louis: It guides every action and debate that takes place in government.

Maya Robinson is a senior at Gann Academy in Waltham, Massachusetts. She loves exploring interesting mathematical concepts and is developing a budding interest in coding. She has attended the Ross Mathematics Program and PROMYS over the past two summers, and she is hoping to continue deepening her understanding and appreciation of number theory this summer. Besides math, Maya enjoys being involved in theatre at Gann, whether it be acting in productions, being a House Manager, attending drama club meetings, or taking theatre classes. Every week, she looks forward to leading toddler services at her synagogue, where she feels a personal connection to the children and parents who come to pray.

This semester, Maya is taking a class on the Supreme Court, where her research for the We the Future Contest has helped her greatly. Her interest in U.S. history is relatively new, but it is growing quickly, and she cannot wait to see where this opportunity will take her!

Maya Describes Her Winning STEM Project: 

“What does an average high schooler know about the US Constitution? In order to start to answer that question, I coded an online quiz (https://mayarobinson613.wixsite.com/constitution/quizzes; click on “General Constitution Quiz”) about the Constitution which I shared with peers.

It turns out that coding a quiz was not quite as straightforward as I imagined that it would be. Though such quizzes may look simple on their surface, even getting my code to open a graphical window with a title and a clickable button was a huge achievement at first. I spent hours fixing problems like making a window disappear when the test-taker is done with a question so the next can pop up; disabling buttons after the user responds so that it is impossible to double-click an answer and get twice the points; and emailing results to my email inbox so that I could track scores and specific answers.

Achieving these goals required me to substantially deepen my knowledge of the computer language Python, including object-oriented programming and graphical user interface programming, as well as to find and utilize helpful code modules in books and online to solve specific problems.

When the general quiz was finished (copy of questions and answers attached; quiz code available on request), I sent it out to peers to collect data.”

Click here to read more about Maya’s winning STEM project, including tables that show data for 15 test-takers, of which 14 go to her high school.

Maya Also Created A Website: 
“Of course, quizzes test knowledge, and I wanted to teach as well. So, I also created a larger educational website composed of original explanations that I wrote, along with links to pre-existing informative resources. In doing so, I strengthened both my knowledge of and appreciation for the US Constitution and its history.
Click here to explore Maya’s winning STEM Project website

Click here for answers to Maya’s Quiz Questions!

Our Interview With Maya

Was this the first time you entered the contest?
Yes it was!

How did you hear about the contest?
I found it on a scholarship database with just barely enough time to complete a project of this scale before the deadline. After reading the description, though, I knew it would be well worth my time to apply.

What inspired your work?
I am in my school’s chapter of Girls Who Code, and we created a personality quiz last school year. When I saw this scholarship’s technology category, I felt it would be an exciting chance for me to do a similar project from an entirely different angle – using a different coding language, working with very different subject matter, and building an educational website around my coding project.

What did you learn while creating your entry?
I learned more deeply about the Constitution in order to create the quizzes, landing page, and resources page on my website, gained a deeper appreciation of the history behind it, and greatly improved my Python skills. I also found out that Thomas Jefferson did not sign the Constitution, which had previously escaped my notice.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I have shared my project with many of my friends and classmates in order to both gather information about the pre-existing knowledge level of a typical student at my high school and help them fill in the gaps in their knowledge. In the future, I believe that my project is still a wonderful way to begin conversations about the Constitution outside of class.

How do your friends respond to history or talking about the Constitution?
I have been fortunate to have thoughtful friends who, regardless of their knowledge level, have been enthusiastic about discussing any of my interests. Some of my friends respond to my request to talk about the Constitution with a great deal of information and the desire to have a deep and nuanced conversation, while others are open to learning more about this important topic. I have yet to encounter a friend who has been unwilling to discuss this part of American history with me.

What do you love about U.S. History and the forming of our government?
I love the fact that our government is built to shift over time. We do not have kings, we have three branches of government, each of which has a duty to keep the others in check; Presidents have term limits; and the Constitution can be amended. With adequate power behind a cause, major changes can take place.

Which U.S. historical site would you like to visit?
Of the historical sites that I have already visited, I would most like to revisit the Freedom Trail. I live in the Boston area and visited the Freedom Trail a few times as a small child, and would love to go back both for the nostalgia and to deepen my knowledge of my home city’s history.

Out of the U.S. historical sites that I have not yet had the chance to visit, I would particularly like to visit Mount Vernon. I have learned about George Washington since elementary school as America’s legendary first President, and more recently as a nuanced person who was exceptionally important in the foundation of our country, demonstrated wonderful leadership, and still had important flaws. I believe that in seeing his home – and plantation – I would have the chance to reflect on such a deeply influential President and increase my knowledge on both George Washington and the history of the United States.

Which American historical figure is most influential/inspirational to you?
I think there are so many good answers to this question, but one that feels particularly inspirational is Harriet Tubman. Through her bravery and resourcefulness, she rescued dozens of enslaved people using the Underground Railroad: a connected group of activists and safe houses who helped enslaved people move to states where slavery was illegal.

As a Jew, I find deep meaning in Tubman’s actions. My grandmother’s family, and many others like it, only survived by escaping Nazi-controlled Poland with the help of a network of activists. When others are struggling, Jewish tradition dictates that my people have struggled, so I am obligated to help those around me who are struggling, in ways as large as what Harriet Tubman did, or as small as checking in on the people I care about.

Who is your greatest role model?
While I feel that it would be impossible to pick just one person who is the greatest of all my role models, I am particularly inspired by 19th century mathematician Sofya Kovalevskaya. At a time when women were not welcome in many parts of academia, she broke through barriers and learned an incredible amount, proving to her mentor that the reason he did not see more women in math stemmed from prejudice. Her story, and many like it, inspire me to openly live my truth as a woman who wants to learn and likely pursue STEM. In telling these stories, pursuing STEM myself, and creating an environment where other girls feel comfortable learning whatever they want, I feel I am doing my part to create a world where girls and women do not feel that their gender will prevent them from pursuing their dream career.

What in your life are you most passionate about?
This ties in to my previous answer – I am most passionate about education. Many students feel discouraged for learning certain subjects, especially math, because of teaching styles that feel inaccessible to them. I love showing these students a new way to view math as a subject that is creative and interesting and, most importantly, intuitively understandable with the right approach. When I help one of my peers begin to feel empowered to succeed in classes and experience less anxiety about previously difficult topics, I feel that I have succeeded in an important way.

How do you spend your free time?
I love spending time with friends, baking, and working on interesting math problems when I have free time.

What are your plans for the future?
My career plans are definitely not set in stone, but I am planning on attending Harvard College for the next four years, and I cannot wait to see what opportunities are in store. If I absolutely had to guess, I would say I am likely to major in math or physics and continue in academia.

If you could do one super impactful thing to help people, what would it be?
In Jewish tradition, every individual person is metaphorically viewed as their own universe. I have grown up with the wisdom that if I save one person, it is as if I saved an entire universe. As such, I have the power to shift entire universes through my actions. I believe that an action that looks small from an outside perspective can make a massive difference. When I teach those around me, I impact their universes, and I feel great power in the act of showing my peers a new way to view the subject they are learning, and ultimately the world around them.

Why is the Constitution relevant today?
The Constitution is the document that lays out the blueprint for our entire system of government. I believe that everybody should have at least a baseline understanding of their government in order to be an informed citizen. Having just taken a class on the Supreme Court, I especially think of incredibly influential Supreme Court cases that require an understanding of the Constitution, and what is constitutional, in order to grasp.

My name is Noe Flores. I am a 6th grade honors student and live in Fort Worth, Texas.  I enjoy learning and reading and was the runner up for my school Spelling Bee in 3rd grade. I am currently in band and play percussion. My favorite subject in school is science because it’s interesting and at my STEM school we get hands-on learning.  I like playing video games and hope to one day become an animator and create my own video game.  

I am very excited and grateful to have been selected as one of the winners. Thank you for this amazing opportunity and the chance to visit Washington D.C. and meet my fellow   Constituting America contest winners. 

Click Here for Noe’s report on his STEM Project! Click Here to see the 20 surveys he created, distributed, collected and then tabulated from his peers!

Our Interview With Noe

Was this the first time you entered the contest?
Yes, this was my first time entering the contest.

How did you hear about the contest?
My middle school counselor sent out an email with several scholarship opportunities and this one grabbed my attention.

What inspired your work?
Since I was learning about the Constitution in class, I figured it would be a good time to do the survey.

What did you learn while creating your entry?
I learned that my classmates didn’t know too much about the Constitution.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Talk to my classmates about how important the U.S. Constitution is to us and why we need to be more aware of the benefits of learning our rights.

How do your friends respond to history or talking about the Constitution?
They don’t really know much about the history of the Constitution or talk about it.

What do you love about U.S. History and the forming of our government?
I get to learn how our government was formed and how we have evolved over the years as a country.

Which U.S. historical site would you like to visit?
I would like to visit the White House and see where all the past Presidents lived.

Which American historical figure is most influential/inspirational to you?
Martin Luther King is most inspirational to me because he abolished racial discrimination and fought for civil rights.

Who is your greatest role model?
My mom and dad because they never give up.

What in your life are you most passionate about?
I am most passionate about Jurassic World, Godzilla, and video games.

How do you spend your free time?
In my free time I like to play video games, read books and play with my dog Rex.

What are your plans for the future?
I plan to become an animator for video games and film.

If you could do one super impactful thing to help people, what would it be?
I would make sure all those without a home or shelter get the help they need to survive and be successful in their lives.

Why is the Constitution relevant today?
Because it created all of our laws and gave us the freedom we have today.

Shaynlin is a 17-year-old senior from Drexel, Missouri. She is the founding chairman and current chairman of the Young Americans for Freedom Chapter at Drexel High School. Shayn is also the president of NHS, FBLA, FCCLA, and Student Council at Drexel High. Throughout high school, she was involved in football, basketball, basketball cheerleading, track and field, dance team, and scholar bowl. In her limited spare time, she enjoys volunteering at Restoration House of Greater Kansas City, attending leadership conferences, and spending time with her family. After she graduates, Shaynlin plans to attend Central Methodist University to Study Business Communications and Graphic Design. She is extremely honored to receive this award and grateful for the patriotism of Cass County, Missouri!

 

 

Watch Shaynlin’s Winning Short Film Below!

Our Interview With Shaynlin!

Was this the first time you entered the contest?
Yes! This is the first time that I have entered any video contest.

How did you hear about the contest?
I was searching for scholarship opportunities when I stumbled across Constituting America’s website.

What inspired your work?
I was inspired by all of the patriotism that is represented in my community and school. This video gave me a really great opportunity to visit places in my area that I usually wouldn’t take much time to appreciate.

What did you learn while creating your entry?
While creating my entry, I came to the realization that we are constantly surrounded by signs of freedom and independence. We may not always see the beauty that surrounds us, because you have to be looking for it in order to truly admire it.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Through my leadership as the chairman of the Drexel Young Americans for Freedom (YAF), I am an advocate for the Constitution every single day at my school. This is something that may bother other people, but I am always willing to discuss my thoughts and the importance of the U.S. Constitution with those that agree or disagree with my views. YAF gives students the opportunity to meet a few times each year to talk about our rights and how to preserve them.

How do your friends respond to history or talking about the Constitution?
I have many friends that enjoy learning and talking about American history and the Constitution, however, it is a goal of mine to get more students to understand how important knowledge of history and the Constitution is.

What do you love about U.S. History and the forming of our government?
I love everything about the founding of the United States! Every one of our founding fathers has such an incredible story. The most amazing thing about America’s founding is the fact that all odds were against the rebellion, and it is a miracle that freedom prevailed.

Which U.S. historical site would you like to visit?
I would love to visit Mount Rushmore. I have never traveled to South Dakota before, and I think that it would be really cool to see the sculpture in person.

Which American historical figure is most influential/inspirational to you?
Sergeant William Harvey Carney is definitely the most inspirational historical figure that I have ever encountered. He served in the Civil War, fighting for his own freedom. He entered the line of fire to stop the American flag from touching the ground. Sergeant Carney survived several gunshot wounds, and became the first African American to receive a Medal of Honor.

Who is your greatest role model?
Ronald Reagan is a role model that has really impacted my life. I attended the 2021 Ronald Reagan Boyhood Home Inaugural Program in Dixon, Illinois, and I got the chance to explore the town that he grew up in. His character, leadership, and accomplishments have influenced my life immensely.

What in your life are you most passionate about?
I am most passionate about making a difference for my country, and giving back to my community. I am involved in many organizations that prioritize community service, and I currently volunteer at Restoration House of Greater Kansas City. While I don’t know what life has in store for me, I am certain that I will find time for charitable acts.

How do you spend your free time?
During my spare time, I enjoy spending time with my family, volunteering, and attending leadership conferences.

What are your plans for the future?
I am planning to attend Central Methodist University to study Business Communications and Graphic Design. During my time in college, I will participate in many internships and job shadowing opportunities in order to find a job that I am passionate about and excel at.

If you could do one super impactful thing to help people, what would it be?
I would really like to do something to give back to veterans that have fought for our country. I have considered working for or starting my own nonprofit organization that would accomplish this goal. This really interests me, because many nonprofit organizations have really inspired me throughout my life.

Why is the Constitution relevant today?
The Constitution is more relevant today than ever before, because we continue to inch further and further away from the liberty that the Constitution provides. The Constitution will be relevant as long as America exists, because it lays the foundation of the government and provides U.S. citizens with their freedoms and rights.

We believe in the importance of the ideals of our Constitution! Our aim is to design lessons that engage and empower middle through high school students. Through our diverse backgrounds, we are able to collaborate and curate dynamic educational experiences in Spring, Texas. In the words of President Teddy Roosevelt, “believe you can, and you’re halfway there.”

 

See their winning digital lesson plan here.

Our Interview With Adam

Was this the first time you entered the contest?
Yes

How did you hear about the contest?
I heard about the contest from a visiting presenter last spring who recommended submitting a lesson. My district content supervisor is a former lesson plan winner Michelle Neyrey who also encouraged making a submission.

What inspired your work?
Our lesson was inspired by the kinesthetic method example of our presenter and a desire for a lesson that was effective and ready made without any teacher preparation to implement.

What did you learn while creating your entry?
We learned that the incorporation of physical motion creates a unique association with the content for better recall and brings an element of fun for greater student engagement.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
We plan to collaborate with other content areas about implementing similar lessons that can extend to their specific areas while reinforcing the core principles of the U.S. Constitution.

How do your friends respond to history or talking about the Constitution?
My friends share my enjoyment of history and we have many conversations about it together.

What do you love about U.S History and the forming of our government?
I love the story of what individuals are capable of achieving in pursuit of their happiness and purpose that connects across time to our own human experience.

Which U.S. historical site would you like to visit?
Smithsonian Museums, Sagamore Hill

Which American historical figure is most influential/inspirational to you?
Theodore Roosevelt

Who is your greatest role model?
My greatest role models are my parents.

What in your life are you most passionate about?
I am most passionate about my children.

How do you spend your free time?
I spend my free time reading books and enjoying physical activities outside.

What are your plans for the future?
My plan for the future is to continue to teach, sharing my enthusiasm with my students and become more impactful on my campus bridging social studies into a literary/history club, Decathlon/UIL coach, leading a travel group and launching a history elective course offering.

If you could do one super impactful thing to help people, what would it be?
I want to be in a place and role with the maximum effect to encourage/support/model to others the great potential and opportunity that comes from healthy living, a positive attitude and willingness to learn through effort in all areas of their life. Arete Strenuous Life

Why is the Constitution relevant today?
The Constitution is a testament to how a common purpose can unite differing individuals to create a society for all individuals to thrive in the pursuit of fulfillment and purpose. A greater understanding of this common aim is critical in the wake of increasing antagonism grounded in the differences that make up our citizenry today.

Our Interview With Christine

Was this the first time you entered the contest?
Yes

How did you hear about the contest?
A presenter from Constituting America presented at my school last year and encouraged me to enter.

What inspired your work?
My daughters and my students are always my greatest inspiration.

What did you learn while creating your entry?
It was a reminder of the requirements needed to change an amendment.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Any time I discuss geopolitics both inside and outside the classroom, it’s connected to how lucky we are to have the Constitution protecting us.

How do your friends respond to history or talking about the Constitution?
Most of my friends work in Education so they appreciate hearing about history and the Constitution.

What do you love about U.S History and the forming of our government?
I love that America is always evolving. We are constantly living through historical events that are shaped by our country’s past, but we get to help guide what happens next.

Which U.S. historical site would you like to visit?
I would love to visit the White House.

Which American historical figure is most influential/inspirational to you?
President Teddy Roosevelt. I respect his passion for bringing a balanced approach to leadership and his relentless thirst for knowledge. Mr. Clark and I immediately bonded over this same question when we first began teaching together.

Who is your greatest role model?
My step-dad. He was an immigrant to the U.S., and he worked hard to gain his American citizenship. I’m grateful every day to have him in my life!

What in your life are you most passionate about?
I’m most passionate about my family and providing the best educational experiences for my students. I hope that my World Geography class inspires them to always consider the broader contexts and implications of history.

How do you spend your free time?
I love playing games, crafting, and reading with my daughters. I also love traveling and learning new languages.

What are your plans for the future?
I’ve always wanted to write historical fiction and continue to travel as much as possible.

If you could do one super impactful thing to help people, what would it be?
Aside from teaching in the U.S., I would love to help with refugee resettlement. My background is in international social work, and I also taught ESL in South Korea and Russia.

Why is the Constitution relevant today?
The Constitution continues to protect our freedoms and ensure a level of equality that isn’t guaranteed in many countries. The more my students learn about geopolitics, the more they realize this truth.

We believe in the importance of the ideals of our Constitution! Our aim is to design lessons that engage and empower middle through high school students. Through our diverse backgrounds, we are able to collaborate and curate dynamic educational experiences in Spring, Texas. In the words of President Teddy Roosevelt, “believe you can, and you’re halfway there.”

 

See their winning digital lesson plan here.

Aaron Toler has been a Social Studies teacher in Oklahoma for over 15 years. During this time he has taught World History, U.S. History, Native American History, Military History, and Modern History. He has been awarded Middle School Teacher of the Year twice as well as District Teacher of the Year once. He holds a Master’s Degree in Curriculum and Instruction from Southern Nazarene University and became a National Board Certified Teacher in 2012. His philosophy in his classroom is “Make History Fun.” He uses a number of different resources to teach his students about history. His Constituting America lesson “Little Jemmy is Missing” is an interactive escape room lesson where the students must find “Little Jemmy” a.k.a. James Madison and the missing Constitution. He also enjoys incorporating debates, songs, and skits to bring history to life for his students. His historical themed Valentines Day Cards were featured on “The Ellen” show to celebrate Presidents Day. You can see more of his resources on his website www.makehistory.fun and follow him on Social Media @MakeHistoryFun

Aaron and his wife Lauren (who is also a teacher) have three children Lila, Will, and Hayes.

See his winning digital lesson plan here.

Our Interview With Adam

Was this the first time you entered the contest?
This was the first time I had entered the contest!

How did you hear about the contest?
I heard about the contest from Jacob and Emily Vanderwerken who came to speak to my 8th graders on Constitution Day.

What inspired your work?
I am always looking for ways to draw my students into the lessons, so I created this fictional story where the “Father of the Constitution” James Madison had been captured by King George III and it was up to them to try and save the Founding Father and the country! I used the book “Our Constitution Rocks” by Juliette Turner to help me with my research!

What did you learn while creating your entry?
While creating my entry I had to do a lot of research to try and make it as kid friendly as possible. I learned a ton of information about the 7 Articles of the Constitution specifically

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
In addition to my job as a middle school history teacher I also run a business called Make History Fun and I am active with it on Instagram and Facebook spreading information and ideas teachers can use in their classrooms. My whole goal is to try and help teachers make history fun for their students. WIth this account I plan to continue sharing information about the importance of learning about the Constitution and the rights of American citizens.

How do your friends respond to history or talking about the Constitution?
Many of my friends are big fans of history and enjoy having historical conversations about the government and the Constitution!

What do you love about U.S History and the forming of our government?
I love learning about the people who created our country and showing my students that these were actually real people.

Which U.S. historical site would you like to visit?
I would love to visit colonial Williamsburg!

Which American historical figure is most influential/inspirational to you?
I am a big fan of John Adams and think his life was incredible. He played such a large part in the creation of the country and also was a part of sustaining it. So many great lessons can be taught by using his life as an example. The way he defended the soldiers in the Boston Massacre when it would have been very unpopular to do so. The feud and then eventual reconciliation between Thomas Jefferson and himself.

Who is your greatest role model?
My parents and my wife are my biggest role models. They always seem to have the right words to say and have been a constant encouragement to me.

What in your life are you most passionate about?
I am the most passionate about my wife and 3 kids.

How do you spend your free time?
I spend my free time with my family. My wife is also a teacher which means every time we have a break we try and do something together.

What are your plans for the future?
In the future I plan to continue teaching middle school history and trying to make history fun for students.

If you could do one super impactful thing to help people, what would it be?
As a teacher, education is obviously a very important part of my life. I would want to encourage students to be learners, to ask questions, and listen to learn rather than listen to respond.

Why is the Constitution relevant today?
The Constitution is still relevant today because the ideas that it was created with still remain. The system of checks and balances and separation of powers are crucial in ensuring that no singular person or group can dominate the government.

Priscilla was born in NYC. Her father is an army veteran and her mother is from Seoul, Korea. She received her BME from Texas Christian University. Priscilla is a 30-year veteran public school Master Teacher in Denver Public Schools; an elite distinction held by less than 1% of Colorado’s teachers. She was the first teacher in Colorado to become National Board Certified in Early Adolescent/Young Adult Music. Priscilla has worked in urban, suburban and rural schools in Texas, Colorado and Alaska as a public school teacher, principal, Regional Team Specialist, teacher evaluator/coach, Summer ELA Site Leader, high school tennis and volleyball coach and higher education Student Teacher Supervisor at Colorado Christian University. Priscilla is the 2020 Harriet Tubman “Moses” Teacher Leader of the Year recipient from The EduCtr and bestowed an Honorary Doctor of Humane Letters from the Aspen Theological Seminary.

Priscilla is married to international jazz saxophonist and record producer, Darren Rahn, and they volunteer on the worship band at their church. Priscilla is also a small business owner and loves to snowboard on her free time.

See her winning digital lesson plan here.

Our Interview With Priscilla

Was this the first time you entered the contest?
Yes, this was my first time!

How did you hear about the contest?
I heard about the contest from Jill Cullis. She was the presenter for the free Constituting America presentation. She brought flyers to my students and explained the contest and encouraged me to enter the teacher lesson plan contest.

What inspired your work?
I teach music, and one of the music standards is creativity. I thought it would be a great idea to teach my students how to write a song about the Constitution. I was inspired by watching videos of past Constituting America student winners and my students. I wanted to expose my students to songwriting, because even though it can be very daunting to young musicians, it doesn’t have to be out of their reach. It is important that my students embrace the challenge, so I found a simplified way of helping students connect important content within the Constitution to their ability to express themselves through song.

What did you learn while creating your entry?
I learned that I don’t have to be a Social Studies teacher in order to create a platform for my students to engage with the Constitution! I can use music content and songwriting skills to help students make a personal connection with the history of America and tell their story. I also learned that it’s ok to not be an expert in history and the Constitution. I can start with a basic knowledge of my rights and freedoms and continue to learn from there.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I have already shared this amazing opportunity with other teachers to have Constituting America teach a free class to their students. I will continue to share this opportunity with my social media network.

How do your friends respond to history or talking about the Constitution?
My friends/colleagues and I can typically find agreement on topics when we talk about the Constitution. Talking about the founding of our nation and our freedoms actually helps me engage with my friends and we discuss solutions to the problems we see in our government today.

What do you love about U.S History and the forming of our government?
I love that everyone I speak to agrees that all men are created equal. I love that our nation was founded on godly principles and the acknowledgement that we are born with unalienable rights. I love the story of Frederick Douglass and many other courageous people who fought to hold our government accountable for the words in our Constitution.

Which U.S. historical site would you like to visit?
I would love to visit the White House, Congress, Howard University, museums, any Frederick Douglass historical site and the US Supreme Court.

Which American historical figure is most influential/inspirational to you?
The most influential and inspirational figure to me is Frederick Douglass. His story of being born a slave, escaping slavery, teaching himself to read, author 4 autobiographies and became the advisor to 5 US presidents is quite astounding!

Who is your greatest role model?
I think Lt. Governor Winsome Sears is an amazing role model as well as Dr. Ben Carson.

What in your life are you most passionate about?
I am most passionate about honoring our veterans and seniors. My dad retired after 30 years in the Army. He was a Vietnam War veteran and my mom survived the Korean War. I believe we should take great care of our military and seniors so that they can live out their lives with dignity.

How do you spend your free time?
I enjoy crafting. I like to make soaps, body butters and candles! I also enjoy snowboarding and tennis.

What are your plans for the future?
I would love to open a music school. I would also love to have a small gift shop. I am running for County Commissioner and who knows where that will lead?!

If you could do one super impactful thing to help people, what would it be?
The most impactful thing I could do to help people is to share the gospel with them and pray for them. I think it’s important to defend our religious freedoms. I’ve just watched all of the attacks from the left against individual freedoms (i.e medical, right to go to church, etc.). I want to be a voice to protect these freedoms. I have been very active in my community teaching, raising money for student scholarships and foundations, but the issue of salvation is literally the most important issue I can think of. My goal is to be salt and light wherever I go and to treat people with love and dignity.

Why is the Constitution relevant today?
The Constitution is relevant today because it is still the supreme law of the land that outlines the proper role of government. It is the glue that keeps our three branches in check. It’s also relevant because it reminds us that our individuality is sacred and that we have the right to hold the government accountable for protecting our freedoms.

As educators, we have the opportunity to provide students with innovative learning experiences that combine standards-aligned objectives and future-ready skills. Students think, process, and learn through varying avenues.

I am passionate about designing instruction that is creative, engaging, and relevant to a diverse set of learners. I love seeing students take ownership of their learning.

 

See her winning digital lesson plan here.

Our Interview With Sam

Was this the first time you entered the contest?
Yes

How did you hear about the contest?
Teachers

What inspired your work?
Creating an assignment that empowers students and gives them autonomy in their learning inspired me to create self-paced slides.

What did you learn while creating your entry?
I learned how to align content to social studies standards. It was stretching to create content to be helpful to other teachers.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Encouraging other teachers to submit entries to your contest.

How do your friends respond to history or talking about the Constitution?
My friends enjoy talking about all things history.

What do you love about U.S History and the forming of our government?
I love learning about the men and women who played impactful roles in the formation of our government.

Which U.S. historical site would you like to visit?
I would love to visit Philadelphia and the Liberty Bell.

Which American historical figure is most influential/inspirational to you?
Jane Addams

Who is your greatest role model?
My mom.

What in your life are you most passionate about?
I am passionate about my family.

How do you spend your free time?
I spend my free time at parks with my two sons, reading books, and hanging out with my friends.

What are your plans for the future?
I am stepping out of the classroom to be more present at home and design instruction full time.

Why is the Constitution relevant today?
The constitution is relevant today because it is our framework on how decisions are made. It gives our nation a foundation.

As educators, we understand that not all children think, process, or learn alike. Therefore, at Grapevine Faith we have the unique opportunity to offer STEAM to our students. We are passionate about teaching students that scientific principles and artistic expression work together with such incredible harmony to reach all types of learners. The genius, Leonardo da Vinci said it best, “To develop a complete mind: study the science of art; Study the art of science.”

We hope you will enjoy our Constitution lesson plan coming from two subject area perspectives.

Thank you,
Heather Lauden and Monique Gorman

Click Here For Their Winning STEAM Constitution Lesson Plan!

Our Interview With Monique & Heather

Was this the first time you entered the contest?
Monique: No, I have entered the contest multiple years.
Heather: yes!

How did you hear about the contest?
Monique: A fellow co-worker had scheduled you to come and speak to our students.
Heather: Through getting to know Cathy/Janine after a presentation at our school

What inspired your work?
Monique: We have had the privilege of having past winners, and wanted to try again.
Heather: We thought it would be fun to write a STEAM (science, technology, engineering, art and math) lesson plan about a topic that is usually only taught in social studies or history classes.

What did you learn while creating your entry?
Monique: Teamwork on a lesson plan can be enriching and fun at the same time.
Heather: How the original documents are stored and preserved.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Monique: We teach about the importance of our Constitution at Grapevine Faith.
Heather: By teaching our lesson plan in our STEAM classes and also sharing our lesson plan with other teachers, such as social studies and language arts.

How do your friends respond to history or talking about the Constitution?
Monique: Positively
Heather: They realize how interesting it actually is and are reminded of its importance and applicability to our freedom, even (and especially!) today.

What do you love about U.S. History and the forming of our government?
Monique: That the Bible was fundamental.
Heather: I love the fact that our government was founded on democratic, “we the people” processes.

Which U.S. historical site would you like to visit?
Monique: Plymouth and/or Jamestown
Heather: Independence Hall in Philadelphia.

Which American historical figure is most influential/inspirational to you?
Monique: Ronald Reagan
Heather: Abraham Lincoln

Who is your greatest role model?
Monique: My family (Dad, Mom, and older brother)
Heather: Jesus

What in your life are you most passionate about?
Monique: Teaching and creating
Heather: My family and of course, inspiring kids through teaching.

How do you spend your free time?
Heather: Any kind of craft, sewing, etc. Spending time with my family.

What are your plans for the future?
Heather: To retire with my husband and travel.

If you could do one super impactful thing to help people, what would it be?
Heather: Prove to people that they are important and that they are seen and loved by at least one other person.

Why is the Constitution relevant today?
Heather: More than ever, with what is going on overseas, we should be thankful for our freedom and the rights, as well as protection that we have as Americans. We all have the constitution to thank for that!

Carson is a 15-year-old homeschooled freshman from Austin, Texas. He is a nationally competitive rower, racing in regattas across the country. As well as being a successful rower, he is also an assistant coach teaching introductory courses for teens and adults. When he is not studying, Carson enjoys reading, writing, and documentary filmmaking. Last year, he won the middle school division of C-SPAN’s national StudentCam documentary competition. Carson is also the leader for his Youth Bible Study at the church he attends, Austin Ridge. In his free time, Carson enjoys volunteering at the Central Texas Food Bank, amassing over 500 hours of time there over the last 4 years.

Watch Carson’s Winning Essay On Film 

Our Interview With Carson

Was this the first time you entered the contest?
Yes, this was the first time I entered the contest.

How did you hear about the contest?
My sister had previously won the contest and my parents introduced me to the video division.

What inspired your work?
I love making documentaries and I’ve always wanted to use my hobby to share my passion for the Constitution. When I came across the Constituting America contest I thought it was a perfect opportunity.

What did you learn while creating your entry?
Not only did I learn about how the Constitution actually functions, but also how U.S. citizens’ rights are better protected than in other countries that do not have such a document.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I love debating my peers in both of my government courses and generally am the only one defending constitutional opinions. I believe I have changed at least a few opinions. I also intend to keep creating and sharing videos related to the matter.

How do your friends respond to history or talking about the Constitution?
The majority of my friends do not particularly care about the Constitution in itself. Rather, they are more interested in interpreting the Constitution to maximize government size and use their knowledge of our founding documents to defend their own predisposed positions, and even then, few seem to seriously care. Many of my closest friends, however, do show serious interest in the Constitution and how it dictates our government.

What do you love about U.S. History and the forming of our government?
I love using U.S. history to form opinions about how our government functions. I believe we can learn so much from looking at our past and that this method of governing is neglected today more than ever.

Which U.S. historical site would you like to visit?
I’d love to revisit the Gettysburg battle site. I toured it when I was in elementary school, but I feel that I lacked enough knowledge of American history to truly understand why this battle, and the greater war, were and still are important. I’d love to have the opportunity to re-examine the significance of Gettysburg with my greater understanding of its history.

Which American historical figure is most influential/inspirational to you?
While there are a plethora of figures I look up to, by far the most inspirational to me is Desmond Doss. His courage serving in World War II unarmed, there only to save his fellow Americans shines as one of the bravest acts of the war. His unwavering valor is inspirational to me everyday.

Who is your greatest role model?
My entire life I’ve looked up to my grandfather as one of the greatest role models I could have been blessed with. After serving in the Air Force in Vietnam, he returned to San Antonio to teach computer aided design at community college. He’s always willing to help me with anything I need, he’s always respectful and outgoing to everyone he meets, and beyond anything else, he’s truly the kindest person I’ve ever met.

What in your life are you most passionate about?
I am most passionate about working hard at whatever I do. Right now, that’s rowing and making documentaries.

How do you spend your free time?
In the few hours a week I can spare outside of schoolwork and rowing, I love to spend time with my friends, read non-fiction, and work on other videography projects.

What are your plans for the future?
I would like to join the military and earn a college degree.

If you could do one super impactful thing to help people, what would it be?
I would like to spread more about the Constitution in some new, innovative way. I’m not sure how, but I’d like to use platforms and strategies most influential to younger generations to help reach my peers.

Why is the Constitution relevant today?
The Constitution is one of the most important defense mechanisms to liberty and truth in the world. Without it, we are forlorn to the tyrannical impulses of human nature. Today, the Constitution is still as important, if not more important, as it was in 1776 when the Founding Fathers designed the blueprint for American freedom.

My name is Ella Dumas. I am in the 6th grade at Grapevine Faith Christian School in Grapevine, Texas. I love music and play the piano for our school Chapel Band. I love trying new sports and playing all types of games. This past year at Faith, I was on the basketball team and swim team. My favorite sport is volleyball, and I have been playing competitive club volleyball for 4 years. I have also enjoyed STEM activities, and in 5th grade I competed with my middle school robotics club. My friends and I have enjoyed going to local escape rooms and I loved having to solve the problems and clues. Last year we did online escape rooms for class and it was always super fun and a great way to learn. For this project, I thought I could create something people could play that was fun and enjoyable that could help them learn. When making the Constitution Escape Room, I was able to learn about coding to make the game work as I wanted. I hope people enjoy playing the game and learning more about the Constitution!

Click here to visit Ella’s escape room!

 

Our Interview With Ella

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
We entered in science class for a grade.

What inspired your work?
I wanted to make something no one has done before. And having ADD, I know it is hard to stay focused on something unless it is fun or interactive. I immediately knew I was going to work online so it came down to what am I going to do? At first, I wanted to try to make a VR like game but I didn’t have the resources to do it so I thought of the next best thing, an escape room. We did escape rooms last year for school all of the time and I really enjoyed it. I also had been doing a lot of real escape rooms. So, once I thought of that I stuck to it and it paid off!

What did you learn while creating your entry?
Technology is not as easy as it seems.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Right now, especially, our government is much more important than they and I myself would have realized. Think about it, if we didn’t have our constitution or people who stood up for us to be a democracy we could be in the same spot as the Russians, in communism. I think giving people the “what would’ve happened” point of view really helps them think about it.

How do your friends respond to history or talking about the Constitution?
We have long conversations. At first, it’s confusing but then it gets more interesting the more you understand it.

What do you love about U.S. History and the forming of our government?
It is so interesting. It’s like what makes an interesting book, it’s hard to explain but it is like you want to keep reading.

Which U.S. historical site would you like to visit?
I would want to see the USS Arizona Memorial in Honolulu because I love WW2. I love reading the books about it and talking about it and this site is what brought us into the war. I would LOVE to see it one day.

Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr.

Who is your greatest role model?
My mom and dad.

What in your life are you most passionate about?
Sports and School.

How do you spend your free time?
Hanging out with my family/friends and playing volleyball.

What are your plans for the future?
To graduate school. Until then I will focus on the other things like volleyball and school and hanging out with my friends. YOLO so I’m going to live now and leave my future for then.

If you could do one super impactful thing to help people, what would it be?
If I could do one super impactful thing, I would cure cancer. There is a long story to that, but that is what I would do.

Why is the Constitution relevant today?
It forms our basic rights as people to live by. Without them we could have little to no freedom and terrible lives.

Ava Watts is 12 years old and in sixth grade at Grapevine Faith Christian School in Grapevine, Texas.  Making the PSA for the “We The Future” contest came naturally because she loves performing in front of a camera as well as on stage as a competitive dancer.  Ava has been dancing since the age of two and started competing at the age of six.  It is her passion and joy and one day she hopes to make it a career. Along with dance, Ava enjoys playing a variety of sports.  She was a member of Grapevine Faith’s Junior High basketball team this year, is on the Speech and Debate team, and will be a Junior High cheerleader in the fall.

 

 

 

Watch Ava’s Winning PSA 

Our Interview With Ava

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
My science teacher, Ms. Lauden.

What inspired your work?
My dad inspired my project.

What did you learn while creating your entry?
I learned more details about freedom of speech and what is included or not included.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I plan to tell them that history is cool and to watch my video so they can learn how things started, and why, in order to know where things are going in the future. You have to go backwards first before you can go forward in learning about our country and the Constitution.

How do your friends respond to history or talking about the Constitution?
Most are indifferent and have no feeling on the subject.

What do you love about U.S. History and the forming of our government?
What I love most are the freedoms that we have.

Which U.S. historical site would you like to visit?
The Lincoln Memorial.

Which American historical figure is most influential/inspirational to you?
Abraham Lincoln.

Who is your greatest role model?
My mom and my best friend, Maddie.

What in your life are you most passionate about?
Dancing.

How do you spend your free time?
Dancing and sleepovers with friends.

What are your plans for the future?
To have a career in dance or the entertainment industry.

If you could do one super impactful thing to help people, what would it be?
To share the gospel.

Why is the Constitution relevant today?
It protects our rights and lets us know how to go about life!

My name is Emily Tan – I am a 7th grader at South Forsyth Middle School in Cumming, GA. Social Studies and History has always interested me, and this STEM project was a new experience, as this was the first complete website I have created. Soon after, I started creating more websites on different topics. Currently, I am part of my school’s FBLA and HOSA, which are two major clubs in South Forsyth Middle. I am also part of my school’s Symphonic Band as a clarinet player and recently participated in GMEA All-State Middle School Band. Outside of school band, I play piano, enjoy drawing and play tennis as side activities. I have participated in the school Creative Writing Workshop and VEX Robotics. This STEM project combined several of my passions and makes for an interesting contest to compete in! I am truly grateful for everyone who supported me, allowing me to be able to get this far. This accomplishment enhanced my attentivity and love for Social Studies and History and I am excited to see what else is in store!

Click Here To Explore Emily’s Winning STEM Project!

Our Interview With Emily

Was this the first time you entered the contest?.
Yes, this was the first time I have entered a contest from Constituting America.

How did you hear about the contest?
From my ELA tutor, as well as being posted on my school’s website.

What inspired your work?
Competing has always been something that has interested me, whether for fun or for learning opportunities.

What did you learn while creating your entry?
Admittedly, I didn’t know much about the Constitution before creating the website – only the basics, so I got to study and research much about the topic whilst creating the project, which in my opinion, was quite fun.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Most of my peers have already known about the importance of the Constitution, but I hope to recommend them to view my website sometime.

How do your friends respond to history or talking about the Constitution?
My friends believe the Constitution is important, but don’t think much of it.

What do you love about U.S. History and the forming of our government?
It is very well made and planned out to fit exactly what we want and the government’s needs. Providing a thought-out and thorough plan for America. It has also supported us for many years, proving my point.

Which U.S. historical site would you like to visit?
The White House, U.S. Capitol, Library of Congress, or just any place in Washington DC. I have never been there.

Which American historical figure is most influential/inspirational to you?
Dr. Martin Luther King Jr. – arguable one of the biggest influencers who partook in ending segregation in America. He raised and upheld one of the most iconic speeches and changed America into what it is today. Without him who knows what dystopian country we may have had.

Who is your greatest role model?
My parents have raised me for 13 years and continue to do so and I sometimes take it for granted. They always care for me while being strict and without their support, I would not have made it this far. They have shown me success throughout my life and I consider them role models.

What in your life are you most passionate about?
I love the Arts; this includes music and drawing, however being a passion of mine, I am not looking to pursue a career in this field.

How do you spend your free time?
Drawing, listening to music, or if necessary, studying for a test.

What are your plans for the future?
I want to do something that will impact or change the world positively.

If you could do one super impactful thing to help people, what would it be?
Cure Cancer – It’s generic but it’s truthful. Many of my relatives have passed from the disease and Cancer is an incredibly dangerous and feared illness. I remember seeing how upset my friends and family alike were when a loved one passed from Cancer. So Cancer is something I want gone and it is considered an impactful thing to help people.

Why is the Constitution relevant today?
The Constitution remains to be, and always will be, an important part of U.S. history. It has served us well for many years past and still continues to do so now. The Constitution plays a role in commending citizens’ freedoms and rights and still remains relevant today.

Nicholas Heiniger was born and raised in Marietta, Georgia. Currently, he is attending the University of Georgia where he is majoring in international affairs. From a young age, he has shown interest in world languages and cultures by taking Spanish and Latin language classes in high school and studying Russian through the National Scholarship Language Initiative for Youth (NSLI-Y). He also enjoys learning about the law and government, and he has participated in the Atlanta Bar Association Summer Law Internship Program. He hopes to combine all of these interests in the future by working as a diplomat. In his free time, Nicholas likes to play table tennis and chess.

Click here to view Nick’s Winning STEM Project or scroll down to watch his video!

Our Interview With Nicholas

Was this the first time you entered the contest?
Yes, and I am excited to enter it again next year!

How did you hear about the contest?
I heard about the contest from Fastweb Scholarships, a scholarship database that sends me emails about various scholarship and internship opportunities.

What inspired your work?
I was interested in exploring an unconventional or often less talked about amendment to the United States Constitution. Most Americans are already familiar and fond with most of the amendments in the Bill of Rights as well as other, later-added amendments granting greater equality and expanding the suffrage, such as the 13th, 14th, 15th, 19th, and 26th amendments. I thought it would be interesting to examine the effects of the 16th amendment, one which I had often taken for granted.

What did you learn while creating your entry?
I learned about just how integral income tax was for governmental revenues in the modern-day as well as its increasing importance over time. From 2020, income tax accounted for over half of all governmental revenues. It is hard to imagine a past where there was no income tax at the federal level, but from 1776-1913, this was largely a reality.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I am planning to further my involvement within political organizations on campus as well as participate in voter-outreach and perhaps even work on a congressional campaign during the 2022 midterm cycle. An integral function of voter outreach is informing people of their Constitutional right to vote. The Founders of our country created a representative democracy so that Americans could make informed decisions and freely choose who they wanted to lead. Through informing Americans about issues related to their community and how candidates will address them, people often become more energized and incentivized not only to vote, but to volunteer, to protest, to petition for a new law to be passed, to work for a political campaign, or to even run for office themselves. Through the engagement of any and all of these activities, the founding father’s vision of an ideal representative democracy is further realized.

How do your friends respond to history or talking about the Constitution?
My friends are also very enthusiastic about history and talking about the Constitution. I have a lot of friends who are studying international affairs as I am, and we recognize that it is essential to understand history to understand current relations among countries. Additionally, turning our focus to the governmental institutions of other countries in the world can often expand our own knowledge and appreciation for the U.S. Constitution through comparison. It is very fortunate that we are able to live in a society that gives importance to ideas such as freedom of speech, due process, and equal treatment under the law.

What do you love about U.S. History and the forming of our government?
Over this past Spring Break, I had the amazing opportunity of visiting Jamestown, Yorktown, and Colonial Williamsburg. There, I was able to see in-person many of the monumental sites to the founding of our country, explore revolutionary battle-grounds, tour informative historical museums, and learn more about both common and famous people from the time through re-enactments. I especially loved to see how the philosophical ideas from the Enlightenment such as from Locke, Montesquieu, and Voltaire became actualized in the founding documents of our nation such as the Declaration of Independence and the Constitution.

Which U.S. historical site would you like to visit?
One U.S. historical site I would like to visit would be Ford Theater. It was the site of the assassination of President Lincoln in April 14, 1865. Currently, it is both an operating theater house as well as a museum showcasing many historical artifacts relating to Lincoln’s presidency. Abraham Lincoln was one of the most influential figures in American history, and it is always intriguing for me to learn more information about him. Although it is macabre, I think the story behind Lincoln’s assassination is very interesting, and it was an event that changed the course of U.S. history.

Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr. is most inspirational to me because of his leadership in the Civil Rights Movement of the 1960’s. He advanced Civil Rights through non-violence and civil disobedience and was able to create the momentum and support needed for the passage of several monumental pieces of legislation like the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.

Who is your greatest role model?
My greatest role model would probably be my mom or my dad. I am very glad to have been raised by such loving and caring parents, and they mean the world to me.

What in your life are you most passionate about?
I am most passionate about learning languages. To me, a new language is a new door opened. Through learning a new language, I can not only communicate with people who may have distinctively different lifestyles and perspectives than my own, but can learn more about their culture, their belief systems, and what makes them unique.

How do you spend your free time?
In my free time I like to play table tennis, play chess, try new restaurants and eat new foods, learn about new topics, tune into the news, and go to the gym to exercise.

What are your plans for the future?
In the future, I would like to go to law school. After completing my legal education, I would like to work as a lawyer specializing in criminal law and provide pro-bono legal services for the indigent accused. Eventually, I would also like to work as a foreign service officer as a political officer to interact with foreign governments on policy issues and negotiate policy.

If you could do one super impactful thing to help people, what would it be?
I think what most people desire out of life is happiness. What that means to me is growing up and living in a safe, respectful, and ethical community where peoples’ common needs are met and they have the freedom to live whatever life they please and explore whatever opportunity they want to without unreasonable restriction. As long as someone is not harming another, they should be able to pursue their aspirations in life. Anything that would get us closer to this ideal, anything that safeguards civil liberties, civil rights, and human well-being, would be my choice of action. For example, forming a stronger education system, developing and investing in infrastructure, and expanding access to healthcare are all things that I would strive to do to help people.

Why is the Constitution relevant today?
Although the Constitution is over two-hundred years old, it is still as relevant today as it was at our country’s founding. The Constitution both ensures that power is balanced between the legislative, executive, and judicial branches of government and enshrines to the American people a Bill of Rights to prevent a tyrannical concentration of power. In many places throughout the world, freedom of speech is a concept granted only to supporters of the prevailing government regime, due process is a promise tarnished by bribery and corruption, and governmental power is legitimized not through the consent of the governed, but by the terrorization of the governed.

My name is Honor Cassidy and I am a Seventh Grader at Rainey McCullers School of the Arts down in Columbus Georgia. I have a passion for music, singing, and acting. I have been in multiple plays throughout my life, and many events with chorus and theatre. I learned about the We The Future contest with my school. My teacher mentioned it, and my friend and I decided to film something for it. We were just doing it for fun, and to re-fresh us on this topic of history. We had a great time and are very excited for our trip to Washington DC!

My name is Anna Grace Hollifeld. I am in the 7th grade at Rainey MuCullers School of the Arts. This year, I have participated in 3 plays at my school as well as one at Springer Opera House, where I also do Summer Academy. I enjoy acting and attending productions. I like spending most of my time reading, spending time with family, and doing school! I entered this contest as I was learning more about the Constitution and America and I had a lot of fun doing it!

Watch Honor & Anna’s Winning PSA Below:

Our Interview With Honor

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
Our ELA teacher told us about the contest, and we decided to enter for fun.

What inspired your work?
Of course the constitution inspired most of our work, but also past experiences when we were little, and people telling us we couldn’t “play with them.”

What did you learn while creating your entry?
We learned more about the Constitution and rights.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
We could show them about this contest, and passed winner’s entries which will teach them more about the constitution.

How do your friends respond to history or talking about the Constitution?
My friends care about the constitution a lot, and understand how it is such an important part of our history, and life today.

What do you love about U.S History and the forming of our government?
I love a lot of it because as I learn more about history, I realize how history shaped our whole world and how it is today.

Which U.S. historical site would you like to visit?
The Washington Monument.

Which American historical figure is most influential/inspirational to you?
I love Eliza Hamilton. She made a huge difference in history. I learned lots about her by the musical Hamilton, when they told her story before she passed.

Who is your greatest role model?
My greatest role model would be my parents. They have taught me most of the things I know today.

What in your life are you most passionate about?
I am most passionate about the arts I do. I go to a school of the arts, and want to pursue singing and acting.

How do you spend your free time?
I spend my free time singing, acting, hanging out with my friends and family, and making jewelry.

What are your plans for the future?
I hope to have a career in the arts field or be in the Air Force.

If you could do one super impactful thing to help people, what would it be?
I would want to help all of the people in need around the world, getting them the things they need like food, water, meds, etc.

Why is the Constitution relevant today?
Many of the freedoms and rights that they established a long time ago are still here today. For example, The freedom of speech, press, and the right to bear arms were established when the constitution was made. They are still freedoms that American citizens have today.

 

Our Interview With Anna

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
Our ELA teacher, Mrs. Gebhardt told us about it.

What inspired your work?
We’ve done a lot of skits and plays at my school. We think that acting something out is a great way to convey material.

What did you learn while creating your entry?
We learned more about our rights and freedoms.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Start discussions about how the constitution came to be in the past and how it will affect us in the future.

How do your friends respond to history or talking about the Constitution?
They don’t really talk about it or mention it. Though, whenever they do they act bored.

What do you love about U.S History and the forming of our government?
I love how everyone can have their own personal opinion and we can all freely express how we feel.

Which U.S. historical site would you like to visit?
The White House

Which American historical figure is most influential/inspirational to you?
Eliza Hamilton

Who is your greatest role model?
My mom and my dad because they push me to be the best person I can be.

What in your life are you most passionate about?
Helping others and my family.

How do you spend your free time?
I spend most of my free time hanging out with friends, spending time with family, and performing in plays.

What are your plans for the future?
I would like to be a Neurosurgeon when I grow up.

If you could do one super impactful thing to help people, what would it be?
I would like to make a difference in the foster care and adoptive communities. My siblings were adopted from the foster care system, and there is so much room to make a difference in that area.

Why is the Constitution relevant today?
It protects all of our rights and freedoms.

Alexandra Gusinski is a 16-year old sophomore from Greenwich, Connecticut where she attends Greenwich High School. She won the best High School STEM award for 2023.

Alexandra has a passion for STEM, and wholeheartedly believes that the best way to learn more about this broad web of studies is through interdisciplinary learning. Her website, “Constitution Your Way” is reflective of that. It lets users peruse through pages at their own pace and discover the constitution on their own terms, learning through connections to theater, history, science, law and more!

Within the realm of STEM, Alexandra is especially passionate about medicine. Early in her freshman year, she joined the Greenwich Emergency Medical Services (GEMS) Explorer Post club and has attended numerous volunteer events to teach the community what to do in emergency situations. In late 2023, She took the 4-month intensive EMT course, and completed hours of clinical observation time in the ambulance and hospital emergency room.

Alexandra took the National Registry of Emergency Medical Technicians (NREMT) Exam and the Connecticut State Psychomotor Exam, passing and becoming an officially certified EMT in the state of Connecticut as of January 2024. This marked a significant milestone in her pursuit of serving her community through healthcare. Currently, she volunteers as an EMT at the Greenwich EMS, working on an ambulance and responding to calls.

Alexandra actively participates in the John Hopkins Center for Talented Youth program, being a member since she was 11 years old. She also contributes as a valued member of her high school’s Student Council and Model UN club. Among her freshman achievements are earning the Distinguished English Scholar award and being recognized as a Life Science Achievement Recipient.

Alexandra’s artistic passion encompasses film analysis, scriptwriting, animation, and filmmaking, having studied film since 8th grade, she enrolled in the UConn Early College Experience program, taking an honors Film Production course .

Outside of academics, Alexandra is a licensed PADI open water scuba diver. She became junior certified in 2018, and she completed the adult certification program in 2023. During the summer, she likes to spend her time on the beach playing volleyball. During the winter months, Alexandra enjoys skiing, a pastime she’s cherished since her childhood. Dedicated to a healthy lifestyle and sports, Alexandra has been practicing martial arts for 8 years, and has her second dan black belt in Taekwondo. She also has been a dancer at Greenwich Dance Studio for almost 8 years, practicing various styles from Jazz to Hip hop to Ballet, culminating in a yearly studio production at the SUNY Purchase Performing Arts Center.

Click here to view Alexandra’s Winning STEM Project

Our Interview With Alexandra

Was this the first time you entered the contest?
Nope! I actually entered the contest back in 2019 and won for Middle School Best PSA

How did you hear about the contest?
My babysitter as a kid, Annie Nirschel, won best song when she was in high school, and she told me about it.

What inspired your work?
I am very STEM-oriented, but I also love the arts and humanities. Through my studies, I realized that the most beneficial way to learn was by mixing them both, through what I learned was called “interdisciplinary learning.” And I wanted to implement this to learn the constitution, to get a broader range of people involved in learning about their nation’s most interesting and important document.

What did you learn while creating your entry?
I am actually fairly new to web design, and I learned to make the features I imagined in my mind as I went along. Two of my favorite features to make were probably the embedded google form and the hover-interactive home page.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
By starting the conversation! No one even starts talks about the constitution, and that’s why no one learns more about it. Just sparking the conversation by mentioning it makes plenty of impact. Plus, this year I’ve been taking AP U.S. History, and that gives me the perfect opportunity to talk about the constitution with both my classmates and other peers.

How do your friends respond to history or talking about the Constitution?
I’m friends with a lot of people interested in history, just because of the advanced classes I am taking in humanities. So they respond pretty well since we have to collaborate to study.

What do you love about U.S History and the forming of our government?
I love how amendable the government has been since its creation. America has gone through innumerable changes in how the government functions from the legal perspective—laws and amendments have been changed—to just societal expectation—for example the shift from laissez-faire to government intervention. It’s interesting to see how global political environments impacted our government throughout history.

Which U.S. historical site would you like to visit?
I’ve already visited a few, but I’ve never seen the Grand Canyon or Yellowstone National park (or any national park in general). I’d just love to be able to hike through the park trails and enjoy their views—to see exactly what President Teddy Roosevelt put his conservation efforts toward in his Square Deal.

Which American historical figure is most influential/inspirational to you?
I think it’s so hard to choose just one. As an AP U.S. History student, we’ve learned about so many different people who’ve done amazing things throughout history, and what never ceases to amaze me is how influential women have been. Dorothea Dix, a woman who advocated for change in how the mentally ill were treated in the mid-1800s. Clara Barton, a civil war nurse responsible for the founding of the American Red Cross. Elizabeth Cady Stanton who read the declaration of sentiments, a revised declaration of independence including women’s rights, at the Seneca Falls convention despite nearly no support, even from many fellow activists. It’s not about one person, instead it’s about the collective effort of all these amazing people that makes the world a better place.

Who is your greatest role model?
My Mom. She’s such an accomplished person and she’s done so much in her life. She works so hard and she still finds time to support me and my pursuits. I love her and everything she’s done, and hope that I can grow up to be like her.

What in your life are you most passionate about?
I’m most passionate in my belief that life is about perpetual growth and learning. I’m committed to inspiring others to embrace an ideal of lifelong learning. We change so much throughout our lives—our passions change, our environments change, but your desire to learn is something you can indefinitely pursue and nurture. I, for one, aspire to always continue learning, because our sharpest tool as humans is our curiosity and love for learning.

How do you spend your free time?
Well, I’m an athlete; I like to play volleyball, dance, and ski. But I also love working on my film blog startup and volunteering at Greenwich Emergency Medical Services (GEMS). Lastly, I love listening to music on Spotify, spending time with my family, and hanging out with my friends.

What are your plans for the future?
In the future, I want to go to medical school, and to become a doctor. In regards to the specific field though, I know that as many college students do, I might change my mind a few times along the way. However, I’m also in love with the film industry and all the creativity behind it—all the processes behind the creation of a feature film or a tv show. I would love to be able to pursue my passion for film, along with my passion for medicine, whether that be through scriptwriting, directing, or acting. For instance, a director I look up to, James Cameron, is a filmmaker but he also loves the ocean and exploring the deep waters, and this ended up being the inspiration behind his most famous franchise: Avatar. Perhaps in the future my two interests, medicine and film, might be combined, seeing as movies are often inspired by science and vice versa.

If you could do one super impactful thing to help people, what would it be?
I’d make mental health education more readily available to teenagers, recognizing the immense pressure they face during their four years of high school, where all the decisions made by their still-developing minds can heavily impact their future. With stressors like college acceptance rates being at historic lows and the recent pandemic, this issue is amplified for the youth of today making them increasingly susceptible to mental health struggles like depression and anxiety. One of the ideas I had in mind to individually make a difference is to create animated videos on mental health and neuroscience to educate high schoolers struggling with these issues. Through these efforts, we can increase awareness of resources and coping mechanisms, and combat the high rates of mental illness in our generation.

Why is the Constitution relevant today?
The constitution is relevant today, and will never stop being relevant, because it is the basis of our rights as a citizen in this country. How can you know that you’re being treated fairly, that your rights aren’t being violated, without knowing what your rights even really are? It is with keeping this in mind that I believe that every American citizen should learn about the constitution in school—no exceptions—begging as early as middle school or lower school, even if it’s just learning about the first amendment: the freedom to speech, religion, assembly, press, and petition.

Punarvash Mitta is a current high-school senior in Phoenix, Arizona and attends BASIS Scottsdale. Punarvash is a Certified Nursing Assistant and conducts research at Arizona State University while interning and shadowing with multiple physicians. Aside from his medical interests, he is a National Taekwondo Champion and has his own non-profit organization known as KidsTae. He enjoys playing basketball for his school’s Varsity team and loves thrifting. He plans on pursuing the pre-med track as he hopes to help children with uncommon genetic conditions through clinical treatment and research.

Our Interview With Punarvash

Was this the first time you entered the contest
This was my first time.

How did you hear about the contest?
I found the contest on the online website and I thought it was a super fun idea!

What inspired your work?
Watching captivating social media posts inspired me to do the same for this social media post as well. My past experiences as a social media manager also seemed to help a little.

What did you learn while creating your entry?
I learned how easy it is to be persuasive and how easy it is to make a change in one’s community. I was able to do so with the short amount of time I had.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I plan to spread the word this year to your peers about the importance of the U.S Constitution through discourse. I think the best way for people to learn about the Constitution is by discussing some of its core values, principles, and beliefs, and I plan to do just that.

How do your friends respond to history or talking about the Constitution?
My friends love talking about the Constitution! I believe the biggest thing we talk about is how effective it really is at securing our freedoms, and how these freedoms can contribute to our individual opinions flourishing.

What do you love about U.S History and the forming of our government?
I love how overlapped our U.S. History really is. Every decision impacts the beliefs of a specific group, that specific group calls for action, and these lead to new decisions. Everything is cyclical!

Which U.S. historical site would you like to visit?
The historical site I would love to visit would be Jamestown, a living historical museum of one of the first settlements in the United States.

Which American historical figure is most influential/inspirational to you?
The American historical figure who is most influential/inspirational to you would be Abraham Lincoln. Lincoln wasn’t the most fortunate as a child, however, he managed to change the tide of American history through sheer will and determination.

Who is your greatest role model?
My greatest role model would be my martial arts instructor, John D. Nottingham. He taught me many values I pride myself with.

What in your life are you most passionate about?
I am extremely passionate about the proper medical treatment of underserved populations in the medical field.

How do you spend your free time?
I spend my free time playing basketball, practicing Taekwondo, and thrifting!

What are your plans for the future?
I plan to become a pediatric sports medicine physician in the future.

If you could do one super impactful thing to help people, what would it be?
I hope to create large mental health initiatives that incorporate physical activity to ultimately be able to serve those in need.

Why is the Constitution relevant today?
The Constitution guides our everyday actions. Without it, I wouldn’t be able to enjoy the vast freedom I have gone to love and respect.

Miya is a 16-year-old in Roanoke, Virginia. With a family history that dates back to the beginning of America and a mother who came from Mainland China, Miya has a deep appreciation for the importance of our constitution and freedoms. She is honored to be the winner for Best High School Song. Miya has been playing the piano since she was 5 and writing music since she was 8. She has played as one of two main piano accompanists for Church services since 2020 and plays and sings on Wednesday night in Church youth group’s worship band. She won First prize and Exceptional Young Talent Special Prize, Golden Classical Music Award International Competition in 2021 and had the opportunity to play in the Winner’s Concert at Carnegie Hall on October 31, 2021. In June 2022, Miya sang in Roanoke Valley Children’s Choir Concert Group in New England Symphonic Ensemble at Carnegie Hall. Along with her love for music, Miya also enjoys dancing, drawing, sewing, writing, acting, and track. Last year, she dedicated significant time to make a beautiful Quinceañera dress as a gift to a classmate whose family came from Venezuela. Miya is currently creating her own comic book Between it All on Webtoon, which is an analogy for the story of the Bible. Miya hopes to use the gifts that God has given her to further His Kingdom. With Miya’s full schedule she also excels in academics. She wants to honor God by trying her best at everything she does.

Listen to Miya’s winning song below:

Our Interview With Miya

Was this the first time you entered the contest?
Yes

How did you hear about the contest?
I heard about it from my mom. She came across it when looking for scholarship opportunities for my older brother.

What inspired your work?
I was inspired by the style of music in Hamilton, the musical. I thought the music style would fit a song about the constitution just as well as they fit songs about Alexander Hamilton. I still added my own touch to it though, of course!

What did you learn while creating your entry?
It was fascinating to see how the amendments, especially the first few, hold up each other. The first amendment outlines our basic rights, and the others defend it.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I think, just speaking about it when the topic comes up is a good way to voice how I feel about the Constitution. I can also share my song with my friends.

How do your friends respond to history or talking about the Constitution?
It is not a common topic to come up. I think they would probably be similar to me where they know the gist of some of the amendments, but maybe not the details.

What do you love about U.S History and the forming of our government?
I love how the U.S was based on Christianity. The basis allowed for equality and freedom to be possible.

Which U.S. historical site would you like to visit?
I would like to visit the Lincoln Memorial. Mostly because I want to see the size of the statue, but also because I believe in equality that was fought for when he signed the emancipation proclamation.

Which American historical figure is most influential/inspirational to you?
I am most inspired by George Washington. While he was human and had his flaws, just like anyone else, his leadership skills are something to be admired. He fought in a war and led America to victory to then become the first president of a young and developing nation during an uncertain period where many things still needed to be figured out. Later, when offered the power of a king, he stepped down from power, setting the standard for presidents to come.

Who is your greatest role model?
I would have to say, and I know this is a basic Sunday school answer, but it’s the truth, Jesus. He is a person fully man and fully god whose love is so great he was willing to pay the ultimate sacrifice. I don’t know what more to model myself after since he was the perfect example.

What in your life are you most passionate about?
I have a love for anything creative. Whether it be drawing, playing piano, writing music, singing, dancing, choreographing, making videos, acting, or writing, I like to tell a story through my work. I hope that, one day, I can use my gifts to convey the greatest story ever. I hope to work through my comic, “Between it All”, to do a fantasy parody of the Bible.

How do you spend your free time?
I spend my free time… well, I spend it reading, drawing, playing piano, hanging out with my friends, choreographing, writing, church and the like.

What are your plans for the future?
As of right now, my plan A is to get into the medical field. My true passion is for the arts, but medicine is more stable, and it’s a lot easier to go from a Doctorate to a recording studio than from the writing bench to medical school.

If you could do one super impactful thing to help people, what would it be?
I would spread God’s word. Now, don’t get me wrong. I would love to also help out the needy in a tangible way such as those in need of food or money, but I believe that life here is short and temporary, but where your soul goes is eternal. It won’t be a final fix if I only help with material needs. I would like to play my part in God’s plan to tell as many people as possible about God and let him do his work in their hearts to save their souls.

Why is the Constitution relevant today?
The Constitution is the backbone of our country. It is like the crust to our pie.

Neha Yalamanchi is a Staten Island, New York senior who attends Susan E Wagner High School. During her high school career, she has been a part of the Science Research Club and Debate Club and enjoys other extracurricular activities. Outside of school, Neha has collaborated with numerous community organizations to develop equitable healthcare solutions for her community. She has also led initiatives to improve social service support for young women across New York City. Once she is in college, Neha plans to major in neuroscience and journalism. Her ultimate goal is to strengthen her dedication to community health by pursuing a career as a physician. Neha believes that through this scholarship, she is so thankful to have this chance to educate the community about civic conversations.

Maryam Tunkara is a 16 year old junior from West Chester, Ohio. She attends the Butler Tech Bioscience Center. Maryam is passionate about community education. She is part of a green engineering initiative at her local mosque, aimed at changing the community’s attitude towards waste. She is also junior class representative for her school’s student government. She believes the public should have awareness of government policies and should participate in collaborative change. In her free time, she enjoys lacrosse, portrait painting, and rollerblading. Besides politics, she is also passionate about healthcare, especially in the teenaged population. In the future, she hopes to go into public health.

Watch Maryam’s Winning PSA Below:

Our Interview With Maryam

Was this the first time you entered the contest?
Yes it was!

How did you hear about the contest?
I think I heard about it through my government teacher.

What inspired your work?
I researched a lot of bills and initiatives, both in federal and state governments. I ended up deciding to go with only federal measures, but I still learned a lot about my state and local government.

What did you learn while creating your entry?
I’m hoping to create an educational website/app that makes government and politics accessible to teens. If all goes well, I’d also like to host a Constitutional discussion forum for interested teens and young adults to expand their knowledge of the subject.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Starting conversation about relevant topics of today while intertwining the importance of the Constitution is probably the best way to spread the word. Most of my classes are discussion based, which leaves a lot of room for student driven conversation.

How do your friends respond to history or talking about the Constitution?
It really depends; most of them don’t care much for the Constitution or government at all, some of them like talking about the government/politics but not the constitution. Thankfully I do have a few friends with interests in the Constitution; my freshman year, we started a debate club surrounding it. Unfortunately I left the school after that year, but we keep in touch.

What do you love about U.S History and the forming of our government?
My favorite thing about US History is the complexity of the country on so many different levels. From the smallest towns to the biggest courts, there are so many little facets that go into managing and governing the US. Especially since it’s historically been a cultural melting pot and there are a lot of perspectives to understand.

Which U.S. historical site would you like to visit?
I hope to visit Virginia, so I can see the site of the Jamestown colony.

Which American historical figure is most influential/inspirational to you?
Franklin D. Roosevelt is one of the most inspirational figures to me. In my opinion, the sheer amount that he got done throughout his terms in office was incredible. It really inspires me to think that even in such trying times, dedicated politicians can bring about real results.

Who is your greatest role model?
My greatest role model is probably my older cousin Penda. She’s so passionate about what she does and so kind to everyone she comes across. She’s going into medical school soon, and I have nothing but respect for her since she worked so hard to get there.

What in your life are you most passionate about?
I am passionate about community-driven efforts like my local public garden, community art gallery, and healthcare association.

How do you spend your free time?
I like to spend my free time gardening, roller-blading, playing lacrosse, and painting. I also like watching video essays about various topics.

What are your plans for the future?
In the future, I hope to get a graduate degree in the medical field, and then work as a public health professional. I want to help educate communities and guide regulation relating to the healthcare field.

If you could do one super impactful thing to help people, what would it be?
If I could do anything, I might create a language that all people can understand and speak. But more realistically, I’d like to help make the average working class person’s voice in government matter as much as the large organizations that donate.

Why is the Constitution relevant today?
The Constitution represents the key ideals of our nation. Studying the formation and evolution of the Constitution shows the evolution of the country, and it kind of shows where we are, where we came from, and where we’re going.

Coralyn Cairns is a junior from Evans, Georgia and attends Lakeside High School. She is enrolled in the IB program and also enjoys many extracurricular activities. She is the president of the French National Honor Society, a junior officer of Science National Honor Society, and a member of organizations such as Science Olympiad, Science Bowl, and International Thespian Society. Coralyn also participates in the swim team and musical theater. Outside of school, she volunteers at a local domestic violence shelter and teaches swim lessons. She hopes to get her bachelor’s degree in a pre-medicine pathway and, someday, become a forensic pathologist. Coralyn has been honored by Constituting America twice now, and she is very grateful for this opportunity to educate other young people about the importance of civil civic conversations!

Watch Coralyn’s Winning PSA Below:

Our Interview With Coralyn

Was this the first time you entered the contest?
It is not the first time I entered the contest. I entered in my freshman year and won best high school song, and I also entered last year for the essay category. I think I am better at singing and throwing pies than writing essays, but who can blame me?!

How did you hear about the contest?
I first heard about the contest the summer before I started high school. My school had all the eighth graders sign up for a program that helped with career planning and scholarships, and I stumbled upon this one. It seemed like the perfect fit for my skill set, and I haven’t looked back since!

What inspired your work?
In my English class this year, we did presentations on advertising campaigns, and I wanted to research different PSAs. I found that the ones that stuck with me the most were the ones that had a comedic flare broken up by statistics that sent home the intended message. I highly recommend you watch PSAs like “Pizza Farm” and “What If Bears Killed One In Five People?” They are ridiculously hilarious but also very impactful.

What did you learn while creating your entry?
After writing the script, I knew I wanted the two characters to be me, but I had no idea how to clone myself in a video. It took a lot of trial and error, but I eventually got it right. I also learned a lot more about the state of political discussion in America. From a teenager’s perspective, it is hard to comprehend how disjointed the country is. Most of the civic conversations I experience are in my house where we all love and respect each other. But at school, most teenagers aren’t very invested in politics, so it is rare to hear conversations over politics, and especially not ones that get out of control. So in my research, it was definitely a shock to see the statistics and read the articles about the lack of civility in political conversation in America.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Starting conversation about relevant topics of today while intertwining the importance of the Constitution is probably the best way to spread the word. Most of my classes are discussion based, which leaves a lot of room for student driven conversation.

How do your friends respond to history or talking about the Constitution?
My friends are very intellectually driven people, and so discussion about the Constitution is welcomed with open arms. Finding friends who support your interests and passions is so important to your growth as a student and citizen.

What do you love about U.S History and the forming of our government?
What I love about U.S. History is the fact that, even though I have been learning America’s history since I was in kindergarten, there are always new facets to discover; it is never boring. And you might not find that in other places. Our government has always protected our right to education. My history teacher never shies away from the truth of the matter, even if America was in the wrong. Whether the good, the bad, or the ugly, there is always something you can take and learn from.

Which U.S. historical site would you like to visit?
I would love to visit Ellis Island. Even though I don’t know the exact route my mom’s family took coming to America, I know they immigrated here from Czechoslovakia in the early 1900s. I can imagine them arriving in America at this historical place.

Which American historical figure is most influential/inspirational to you?
I really resonate with a lot of the First Ladies of America, but Eleanor Roosevelt has to be one of my favorites. She was President FDR’s right-hand woman after he contracted polio and became a worldwide sensation until her death in the 60s. Her career extended beyond her husband’s influence, and she always handled her roles with grace.

Who is your greatest role model?
My greatest role model is my mom. She has always been extremely supportive of all of my ventures, and I would not be the person I am today without her guidance. She has made a very blessed life for my siblings and I, despite not growing up with the same comforts and support.

What in your life are you most passionate about?
I am very passionate about a lot of things, a little bit of a jack of all trades. I love anatomy and really all the sciences. I also love learning about history, especially when I can tie it into my other interests. On top of that, I really like singing and musical theater. And above all of this, I greatly enjoy helping other people. I tutor students in the sciences at my school, pick up trash around my community, volunteer at a domestic violence shelter, teach swim lessons, and read at my church.

How do you spend your free time?
Unfortunately, I am a very busy young woman, so I don’t have a lot of free time. But when I do, I like spending time with my mom; we love getting lunch and going thrifting. I also really like sewing my own clothes. This year I recycled some of my old satin fabrics and made a rainbow homecoming dress! And I am currently learning how to play the guitar.

What are your plans for the future?
I would like to go on to get my bachelor’s in a pre-med pathway, and then continue to medical school with the hopes of one day becoming a forensic pathologist. I also love language and would like to minor in French or Spanish so that one day I could volunteer for Doctors Without Borders.

If you could do one super impactful thing to help people, what would it be?
I am a firm believer that everyone should learn how to swim. Every year people drown in the nearby lake because they don’t know how to swim, or they don’t know water safety. And that shouldn’t be the case. My county, even though we are a fairly developed community, does not have a public pool, which makes learning how to swim inaccessible for some people. In many states, water safety classes are required as part of the physical education curriculum, and I think that this should be the case in Georgia.

Why is the Constitution relevant today?
The Constitution is a very special document in that it is flexible, but also firm. In science terms, it’s like the cell membrane. The membrane is fluid and can change depending on cellular requirements, but it is also very specific in how it reacts with certain molecules. This relates to the Constitution because the Constitution has adapted with society. Even though America has changed more than the Founding Fathers could have ever guessed, the Constitution still works for the needs of America, precisely because it was drafted so delicately and intelligently. However, this fluid nature of the Constitution does not mean that it gives space for the government to take away our liberties and rights as citizens.

Niya Torres is 12 years old and is a homeschooled student from Easton, Pa. Niya is so excited to be a part of Constituting America and follow in her uncles’ footsteps as a first place winner of this awesome contest. Niya is an avid performer and loves to sing and dance in musical theater productions. She also loves to express her creativity through drawing, painting, choreographing dances, sewing clothes with her aunt, and creative writing. In her spare time, when she’s not creating something, her favorite thing to do is use her imagination and play pretend with her baby cousin, Cana.

Watch Niya’s Winning PSA Below:

Our Interview With Niya

Was this the first time you entered the contest?
Yes, this is the first time I have entered the contest.

How did you hear about the contest?
I heard about the contest from the uncles because they won in the past.

What inspired your work?
I am very creative and love to use my imagination and think of things from a fantastical point of view. I read a lot of fantasy so the idea came to me very naturally.

What did you learn while creating your entry?
I broke down the first amendment so I could really compare it to the elements of the forest so it made perfect sense.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I am so proud of the video I made and I’ve been showing everyone that I know and when I show them I have to explain it to them most of the time because kids my age don’t have as much of an understanding as I do so it’s been really fun!

How do your friends respond to history or talking about the Constitution?
It depends.. if they are my homeschooled friends they love hearing about history and the constitution. But if they are my regular school friends, they don’t understand and aren’t as interested once I start explaining my video.

What do you love about U.S History and the forming of our government?
I love learning about how we came to be free and about what it took to get where we are today. It’s crazy to think that other kids my age say that they want to move to a new country because I love it here!

Which U.S. historical site would you like to visit?
I would like to visit the White House.

Which American historical figure is most influential/inspirational to you?
George Washington

Who is your greatest role model?
My sister, Leianna.

What in your life are you most passionate about?
I am most passionate about performing on stage in musicals.

How do you spend your free time?
I spend my free time performing, doing arts and crafts, writing stories, drawing, and playing with my baby cousin.

What are your plans for the future?
I would like to own a cafe one day.

If you could do one super impactful thing to help people, what would it be?
I would help to educate kids my age about their first amendment rights and the Constitution.

Why is the Constitution relevant today?
The Constitution is relevant today because there are people in power that think they can control us, the citizens of the United States and if we didn’t have the constitution they would succeed in being able to.

Hi! My name is Emmanuel Mbianda Egbe, but everybody calls me Manny. I am creative, smart, and kind. My dad immigrated from Cameroon, Africa to the United States before I was born. I think what makes our country great is the different cultures, people, and ideas that we have here. I was born and raised in Denver, CO where I am a 7th grader at Hamilton Middle School. Hamilton is my neighborhood public school and has great kids and teachers. My favorite subjects in school are math, language arts, science, and music. I want to thank my music teacher Priscilla Shaw for entering me into this contest. When I’m not in school I like to spend time with friends and family, go to the movies, and play video games. I also like to play basketball and volleyball. After high school I want to go to college and become a mechanical engineer. If I could give any advice to kids I would tell them to keep following their dreams and do what they love.

Hi, I’m Zidane LaPlante-Dorlean, I am thirteen and I am a 7th grader at Hamilton Middle School in Denver, Colorado home of the Denver Broncos with my two moms, my older sister, and three doggies. I am a big sports person and I enjoy many subjects in school. I play baseball, flag football, basketball, and soccer, out of the sports I’ve listed my favorite sport is baseball. I’ve been playing baseball since the age of three and currently, I have been playing on the same team for almost six years. I play many positions on the team like the pitcher, third baseman, and first baseman. My favorite position is first baseman, whilst my favorite school subjects are Math, Robotics, and Social Studies. I love to hang out with my friends and play video games in my free time. My favorite place to travel is San Diago because of the beach. When me and my family go to San Diagio we stay in Carlsbad. I predict I will live near an ocean one day. When I become a 12th grader in high school I want to apply to SDSU and learn and study Ocean Biology. When I grow up I want to be an Ocean Biologist. When I’m older my dream house will be on the side of the ocean in Hawaii.

Listen to Emmanuel and Zidane’s Winning Song Below:

Our Interview With Zidane

Was this the first time you entered the contest
Yes it was

How did you hear about the contest?
My music teacher Priscila Shaw

What inspired your work?
My music teacher, she helps encourage us

What did you learn while creating your entry?
This is a once-in-a-lifetime opportunity

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
That it can help you

How do your friends respond to history or talking about the Constitution?
They’re not so with it

What do you love about U.S History and the forming of our government?
I think that it is pretty good

Which U.S. historical site would you like to visit?
Washington

Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr

Who is your greatest role model?
Martin Luther King Jr

What in your life are you most passionate about?
Baseball

How do you spend your free time?
Friend, video, hanging out with my family

What are your plans for the future?
Be in college

If you could do one super impactful thing to help people, what would it be?
Helping them with thing they need help with

Why is the Constitution relevant today?
To help people indeed

Audrey Gomes is a musician, singer-songwriter and guitarist. She is a junior currently enrolled at California State University Northridge studying Music Industry Studies. Upon releasing her first singles last year under her artist name (Audrey Lisette), she was selected to perform at Grammy award winner Anderson Paak.’s music festival. Audrey hopes to continue to advance her career as an artist, writing her own original music that can be a voice for others.

 

Listen To Audrey’s Winning Song Below

Our Interview With Audrey

Was this the first time you entered the contest
Yes.

How did you hear about the contest?
I heard about it through a suggested scholarship website.

What inspired your work?
The song prompt of having a song regarding using our voices to unite to make a change.

What did you learn while creating your entry?
I was reminded that the voice of American citizens together has so much power to make a difference for our future and also be the voice for others.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I plan to continue to educate myself about the Constitution and talk about what I’ve learned and its relevance today.

How do your friends respond to history or talking about the Constitution?
We discuss history when talking about how certain rights were established, its origin and how we see certain laws and rights still being talked about today.

What do you love about U.S History and the forming of our government?
I like how our Founding Fathers came together to form the Constitution and what it stands for.

Which U.S. historical site would you like to visit?
Statue of Liberty

Which American historical figure is most influential/inspirational to you?
Susan B. Anthony

Who is your greatest role model?
I would say my greatest role model is Adele because her songs inspired me to become a musician.

What in your life are you most passionate about?
Music.

How do you spend your free time?
I really enjoy hanging out with my friends, trying new things or going to the gym.

What are your plans for the future?
I would like to be a professional musician and continue performing/writing my own music.

If you could do one super impactful thing to help people, what would it be?
If I could do one impactful thing, it would be to provide housing or education to those who are unable to afford it. Many people are unable to get a headstart and pursue their interests and make a better life for themselves due to financial circumstances.

Why is the Constitution relevant today?
The Constitution is still relevant today because it still shapes how the American government revises and creates laws. It is also relevant because it grants U.S. citizens our rights for free speech.

I am Samdeesh Thukral, a seventh-grade student at Riverwatch Middle School in Suwanee, Georgia. In my leisure time, I enjoy a diverse range of activities, including creating and playing video games, immersing myself in literature, assembling PC systems, and engaging in cricket matches. My commitment to community service is paramount in my life. I actively participate in meal donation events, contribute to road cleaning initiatives, and have been volunteering for blood donation drives since the tender age of two. Presently, I am an active member of two esteemed clubs, namely Future Business Leaders of America (FBLA) and DECA. Through these affiliations, I have garnered multiple victories in competitions centered around video game and mobile app development and have proudly represented my school at the national level in the History Bee.

My passion for music extends to proficiency in playing the bass clarinet as a member of my school’s band, as well as mastering the intricacies of the Tabla, an Indian percussion instrument, which I have been dedicated to since the age of seven. My journey into the realm of website creation commenced in fourth grade during virtual schooling. Presented with the choice between Google Sites and Google Docs for a project, I opted to explore the former, sparking a newfound fascination that led to the development of numerous websites. The discovery of “We the Future”, facilitated by my social studies teacher, Mrs. Weatherford, captivated me with its unique blend of historical significance and technological innovation. This platform allowed me to meld my passion for website design with my love for history, while deepening my understanding of the constitution.

Being selected as one of the winners of the “We the Future” competition has been a profound and enriching experience. I am immensely grateful to the Constituting America committee and the esteemed judges of “We the Future” for affording me this invaluable opportunity to expand my knowledge and skills. Thank you for considering my contributions and granting me the privilege of being part of this esteemed competition.

 

 

 

Hi there! My name is Sofia Delgado, and I’m currently in 6th grade at Valley View ISD. At school, I’m involved in a variety of activities, including UIL academics and student council, where I hold the position of vice president. I’m also a member of the Mariachi band and love playing the violin while singing and learning new music. Outside of school, I’m a proud member of the Girl Scouts of South Texas, where I work hard to help my community and develop my leadership skills. In my free time, I enjoy reading graphic novels, listening to music, and sketching my own fashion designs. My ultimate dream is to become a famous fashion designer, study in Paris, and create my own line of fashion that represents my unique creativity and style.

Watch Sofia’s Winning PSA Below:

Our Interview With Sofia

Was this the first time you entered the contest?
Yes, this was my first time entering the contest.

How did you hear about the contest?
My school librarian, Mrs.Vela, reached out to me and suggested that I create a video and send it in.

What inspired your work?
My creative freedom inspired me to make my video .

What did you learn while creating your entry?
While creating my video I was able to further my knowledge of the United States Constitution and the Amendments.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
To spread knowledge of the Constitution I plan on showing my peers my video .

How do your friends respond to history or talking about the Constitution?
My friends all enjoy learning about history as we’re curious to learn more about America’s past and the Constitution.

What do you love about U.S History and the forming of our government?
I love learning about important historical figures in U.S. history and how our government was formed to give the people a voice.

Which U.S. historical site would you like to visit?
I think the Lincoln Memorial would be the coolest to visit because I’ve seen the site in so many photos and movies.

Which American historical figure is most influential/inspirational to you?
Ruth Bader Ginsburg is the most influential American figure to me because she was a successful woman who fought for gender equality and women’s rights.

Who is your greatest role model?
My family will always be my biggest role model because they root for me and I want to be successful like them.

What in your life are you most passionate about?
In my life, I am most passionate about anything that allows for me to be creative like further developing at my art and fashion designs.

How do you spend your free time?
My free time is mostly taken up by listening to music while drawing in my sketchbook or creating new fashion designs.

What are your plans for the future?
For my future, I plan on going to school to be a lawyer and or designer.

If you could do one super impactful thing to help people, what would it be?
If I could do one super impactful thing to help people it would be to allow everyone to have a good education. Because when people are educated they can accomplish more.

Why is the Constitution relevant today?
The U.S. Constitution is relevant today because it guarantees every American fundamental rights and protection of life liberty and property.

Hello! My name is Caroline Andrews. I am a 21 year old final year online student at The Master’s University. I was blessed to grow up in a Christian home which cared about politics, which is why I am who I am today.

I love educating students and am currently a private tutor seeking to expand my business and get involved in alternative education systems. Outside of tutoring, I love being involved at my church, baking, lifting weights, reading, and doing puzzles.

I am so grateful to Constituting America for this opportunity, and to the Lord for His provision in bringing me this far.

Click Here to See Caroline’s Winning STEM Project

Maze Gusa, 19, is currently a freshman at Northwood University pursuing her bachelor’s degree in hospitality management. While she has been at Northwood University for less than a year, it is due to the amazing opportunities that have come forth from the university that even made her aware of Constituting America and the mission that they hope to accomplish. Maze would not consider herself a social media expert, but she has always loved putting together messages and finding herself in front of an audience or camera.

Outside of her studies, Maze also serves as the Michigan FFA Association’s State Vice President. In this role, she has had the chance to travel throughout Michigan and even to Indiana and Washington D.C. The whole time she has expanded the impact that agricultural education can have on an individual and shared the FFA’s Mission of “premier leadership, personal growth and career success.”

When she is not busy with school or FFA, Maze loves to grab a good book, go for a walk, or bake up delicious treats like French macarons and cake pops. One day, Maze hopes to become an event planner or an inspirational speaker. It is by the grace of God that Maze has had so many wonderful experiences in her life, and she hopes to continue leaning on her Lord and Savior in everything that she does.

Hi! My name is Emily, and I am a 20-year-old senior at Liberty University Online, pursuing my B.Ed. in Elementary Education. I grew up in a strong Christian conservative home in Colorado, and my family inspired my love of politics. I can’t wait to find ways to integrate my passion for the Constitution and America into my future classroom!

I also love public speaking, and two of my proudest moments include representing Colorado at the 2022 American Legion National High School Oratorical Contest and speaking at the 2023 Western Conservative Summit as their Under 30 Speech Contest winner!

When I’m not doing school, teaching music lessons, or tutoring, you can find me enjoying art, puzzles, audio dramas, and writing songs on my ukulele.

I would like to thank Constituting America for this amazing opportunity, my parents and siblings for always supporting me, and God for His goodness and inspiration in my life!
-Numbers 6:24-26

Watch Emily’s Winning PSA Below:

 

Our Interview With Emily

Was this the first time you entered the contest?
Yes! This was the first time I entered the contest. I realized this was the last year I could enter as a college student, so I even rearranged my class schedule so I could enter!

How did you hear about the contest?
My older sister sent me information about the contest a couple of years ago, but I rediscovered it through a scholarship database.

What inspired your work?
I did a Constitutional speech scholarship in 2022, and that inspired my passion for the Constitution and, specifically, the First Amendment. When I found out I could combine my love of art, video editing, and the First Amendment, I couldn’t resist trying!

What did you learn while creating your entry?
I loved learning and observing how the sections of the First Amendment are so interconnected. Because our freedom of religion is protected, we all have convictions about something. Because we all have convictions, we all have reasons to speak out. Because we have the freedom to do so, we also have the freedom to assemble and petition to attempt to persuade others to consider and make decisions based on our convictions. We can also practice our freedom of speech through the press. I am so thankful the Constitution protects so many of our fundamental freedoms!

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Last summer, I did a Leadership Congress through Patriot Academy, and that inspired me to share more about the Constitution. I have been working on a curriculum for middle school students about the Constitution, civics, and communication, and I hope to complete that and share it with students, particularly in the homeschool community.

How do your friends respond to history or talking about the Constitution?
I know I have a few friends that I can talk politics and the Constitution with, but for some reason it is a touchy subject for many other people. However, when I know someone will be receptive to hearing about the Constitution, I love sharing information with them, and I hope they can sense my excitement!

What do you love about U.S History and the forming of our government?
I love how our country’s Founding Fathers built this country on principles they knew worked – Limited government, Individual liberties, Free enterprise, and Timeless truths (what I learned at Patriot Academy as the LIFT principles). The Constitution was based off of documents that were effective, such as the Magna Carta and the Mayflower Compact, and the Founders also learned from some of our country’s first mistakes, like the Articles of Confederation. Obviously what they instituted was successful – although the average constitution lasts about 17 years, the U.S. Constitution has been in effect for over 230 years!

Which U.S. historical site would you like to visit?
I went to Washington, D.C. with my family a few years ago, and I loved visiting the Washington Monument and the Library of Congress. I would absolutely love to go back!

Which American historical figure is most influential/inspirational to you?
Frederick Douglass is an American historical figure who is incredibly inspirational to me. He became one of the greatest orators of all time, which inspires me because I love public speaking. I hope I can learn and grow from his example and influence.

Who is your greatest role model?
My greatest role models are my parents. They have dedicated their whole lives to help me and my siblings become successful adults, and I am so grateful for everything they have done. My mom even homeschooled us three kids from Kindergarten all the way through high school!

What in your life are you most passionate about?
I would have to say my greatest passion is teaching. I love working with kids and seeing that special expression on their face when they understand what we have been working on. It is my dream to inspire and impact as many lives of the next generation as possible!

How do you spend your free time?
In my free time, I enjoy art (especially painting, drawing, and chalk art), puzzles, listening to music and audio dramas, writing songs on my ukulele, and editing videos. I also love playing board games with my family and friends.

What are your plans for the future?
In May 2024, I will graduate from Liberty University Online with my B.Ed. in Elementary Education. I would like to pursue a few extra certifications to help me become a reading or a math interventionist. I hope to continue developing curricula and grow my online teacher’s store, Emspirations Learning. A huge dream of mine is to travel around the country and speak at political and educational conferences, but I also would love to start a family.

If you could do one super impactful thing to help people, what would it be?
I would become an advocate for human life. The unborn are a huge population, but their rights are still not protected in very many states. I want everyone to know how each of us are fearfully and wonderfully created in the image of God and that every life matters.

Why is the Constitution relevant today?
The Constitution is relevant today because it has been relevant every day since it was enacted. If we as American citizens do not know our Constitutional rights, how are we supposed to stand up for them? How are we supposed to take action when the government tries to usurp their powers and take advantage of us? The Constitution is relevant because it is still holding our country together – as long as we do our part to make sure we do not tear it apart.

My name is Emerson Letz, and I am in the 6th grade at Grapevine Faith Christian School. In my free time, I enjoy playing football and learning more about the game. When I’m older, I hope to study sports broadcasting in college and hopefully have a career in football. For now, I also really enjoy traveling and am looking forward to exploring Washington DC this summer with my family.

 

Watch Emerson’s Winning PSA Below:

Our Interview With Emerson

Was this the first time you entered the contest?
I entered some artwork last year, but this is the first time my project was chosen as a winner.

How did you hear about the contest?
In 5th grade, the winners of the contest gave a speech about their entries into the contest, and that was the first time I heard about it.

What inspired your work?
I am interested in broadcast journalism and I wanted to make my project sound like a news story. I thought the PSA format would work best in that way.

What did you learn while creating your entry?
I would say I learned a lot about how much the amendments to the Constitution matter.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I look forward to giving a speech about Constituting America and about my project to my school.

How do your friends respond to history or talking about the Constitution?
Several of my friends enjoy studying history, and they all think the Constitution is important.

What do you love about U.S History and the forming of our government?
I admire the unity the people who founded our country must have had to decide how to shape the country.

Which U.S. historical site would you like to visit?
I love WW11 History, so I can’t wait to see the WW11 Memorial.

Which American historical figure is most influential/inspirational to you?
George Washington is definitely my favorite American figure.

Who is your greatest role model?
My greatest role model is Jesus, but my dad is a close second.

What in your life are you most passionate about?
I am most passionate about American football.

How do you spend your free time?
In my free time, I enjoy drawing, playing chess and other games, and playing football.

What are your plans for the future?
I hope to get an athletic scholarship to the University of Texas to play football there and then try to go to the NFL after college, but I am also interested in studying finance and sports broadcasting.

If you could do one super impactful thing to help people, what would it be?
I would like to help to change the 2nd Amendment to stop gun violence, especially in schools.

Why is the Constitution relevant today?
The Constitution is still used today to govern our country, so it is important in our everyday lives.

My name is Jalen Hill and I am 17 years old. I live in Oklahoma City, and attend Destiny Christian School as a Junior. My favorite subjects currently are sign language and government. I love getting to know more about how our country works, and trying to find ways to improve it. I love getting to help people whenever I can. Before attending Destiny, I was in the marching band at Moore High School. I played flute and piccolo. After switching schools, I started playing the flute for the orchestra at my church, but I had to give it up when they started remodeling. After high school I plan to attend college in Oklahoma.

My name is Brittani Richards, I’m 16 years old and a junior at Destiny Christian School in Oklahoma City, Oklahoma. I’m on the Varsity cheerleading squad and softball team. In my free time I enjoy playing the guitar and learning about history and seeing how much it has changed throughout the years. I am learning how to speak Spanish and French. I am very active in my church Unity Christian Center where I am a praise dancer and I run the audio visuals and sounds system.

My name is Kamryn Dukes, I’m 17 years old. I am a junior at Destiny Christian School in Oklahoma City, Oklahoma. My favorite subjects are drama and choir. In the future my plan is to go to college to become a lawyer. I want to study to be a prosecuting lawyer and eventually open my very own law firm. My hobbies include songwriting and singing. I am currently singing on the praise and worship team at school, and also in my school choir. Music has always been a huge part of my life. I was so excited to learn that our team won the contest for our category! It was extremely fun being able to blend music with our classwork. Thank you for giving me the opportunity to express myself through songwriting and singing!

 

Listen to their Winning Song Below:

Our Interview Brittani, Jalen & Kamryn: 

Brittani Richards: 

What about your winning contest entry do you think is the most eye-grabbing? We’re looking for the best “clickbait” to get people to open your work on social media!

The beat that plays when the song starts.

Our Interview With Brittani

Was this the first time you entered the contest? 

Yes, it was the first time I entered.

How did you hear about the contest?

My history teacher Mrs.Fellers told my class about it.

What inspired your work?

The idea of getting to voice how I feel about the first amendment.

What did you learn while creating your entry?

More about my rights about the freedom of speech, how I’m allowed to say what I want as long as it does not infringe on someone else’s rights.

How do you plan to spread the word this year to your peers about the importance of the U.S. Constitution?

Encouraging them to learn more about their rights that the first amendments list for them.

How do your friends respond to history or talking about the Constitution?

They respond pretty well, we have different opinions on something but we find common ground between us.

What do you love about U.S. History and the forming of our government?

The things I love about U.S. history is that it shows the struggle of the USA came to be and how we got to where we are. What I love about the forming of the government is how it stood on protecting the well-being of humans.

Which U.S. historical site would you like to visit?

National Museum of African American History and Culture.

Which American historical figure is most influential/inspirational to you?

Jackie Robinson

Who is your greatest role model?

My mother 

What in your life are you most passionate about?

The thing I’m most passionate about softball and how I can keep improving myself at it.

How do you spend your free time?

Listening to music and reading.

What are your plans for the future?

Go to college to be an ultrasound technician and travel across the world.

If you could do one super impactful thing to help people, what would it be?

To donate, whether it be blood, money or clothes.

Why is the Constitution relevant today?

It sets the fundamental law of the U.S. federal government, and it helps with preventing a majority from taking rights away from minorities.

 

Jalen Hill: 

What about your winning contest entry do you think is the most eye-grabbing? We’re looking for the best “clickbait” to get people to open your work on social media!

I think the line about sending a note to Congress is a good one and could be used to get people’s attention. When you hear it all by itself it makes you want to know why.

Our Interview With Jalen

Was this the first time you entered the contest?

Yes. 

How did you hear about the contest?

Our teacher told us about it

What inspired your work?

Our teacher informed us about the contest, and made it an assignment for the class.

What did you learn while creating your entry?

I learned more about what is necessary in creating a song. When we first started, I had no idea what to do. As we got into it more, I began to understand how to put the words to the music.

How do you plan to spread the word this year to your peers about the importance of the U.S. Constitution?

I like telling my friends who are not in government class all of the cool things that I learn. I want people my age to see the fun aspects of government rather than the boring parts. One fun fact about government is that it is not a democracy, or a republic, it is a Constitutional Republic. That means that the people vote on representatives and follow the Constitution.

How do your friends respond to history or talking about the Constitution?

Some of my friends think that government is boring, but the ones who are taking government class with me are more likely to question, debate, or support my ideas as well as provide new perspectives on the topic.

What do you love about U.S. History and the forming of our government?

I think the most interesting thing about how our government was founded is that the American people had to be ruled by a tyrant first. If they had not, our country would be so much different than it is today

Which U.S. historical site would you like to visit?

I think it would be cool to see the Statue of Liberty.

Which American historical figure is most influential/inspirational to you?

The most inspirational figure to me would be George Washington. He commanded the army and led the entirety of the American people. He was respected by everyone around him, not just because of his status, but because he earned their respect.

Who is your greatest role model?

I don’t think that there has been a greatest role model in my life. I learn from the flaws of others, as well as learn from the good that they have done. My role model would be the people as a whole, rather than one person.

What in your life are you most passionate about?

I care the most about the people around me. To me, the welfare and happiness of the majority of the people is to be preserved over my own. I enjoy working with other people in order to come to a common goal because that bonds us together in a way that can not be attributed to a simple friendship. 

How do you spend your free time?

I spend most of my time reading books, doing crossword puzzles, watching tv, and gardening with my grandpa.

What are your plans for the future?

I want to go to college and get a master’s degree in library sciences. Then I want to be a librarian at some university or college.

If you could do one super impactful thing to help people, what would it be?

I’ve always wanted to help the homeless people, whether that is supplying them with a job, food, necessary medicines, or moral support. I see homeless people whenever we go out to the city and it makes me sad to think about myself in their situation.

Why is the Constitution relevant today?

The Constitution is a set of rules that the government has to follow, as well as a book of rights that we as humans have. The Constitution protected unalienable rights when it was first established, and protects those rights today.

Carson is a 16-year-old homeschooled sophomore from Austin, Texas and a dual-credit student at Austin Community College. He is a nationally competitive rower, racing in regattas across the country. In fact, Carson and his teammate are the current US Rowing Junior National champions in the Men’s U17 Double. When he is not rowing, Carson enjoys documentary filmmaking, debate, and chess. This past year, Carson accomplished one of his goals of battling the ferocious-looking sotol plant and completing a 50K ultra-marathon through the Texas Hill Country.

Watch Carson’s Winning PSA Below:

 

Our Interview With Carson

Was this the first time you entered the contest?
This was my second time to enter the contest; last year I was lucky enough to win the “Best Essay on Film” category.

How did you hear about the contest?
My sister competed and won a few years ago. When I learned about the PSA contest, it seemed like a perfect opportunity to practice my documentary filmmaking in a new, shorter format!

What inspired your work?
The amazing resources and learning materials from Constituting America, the Foundation for Economic Education, and dozens of other organizations committed to American liberty provided the basis, inspiration, and information I needed to provide. I’m extremely grateful for the work Constituting America does to teach the next generation about the most important documents in American history.

What did you learn while creating your entry?
I gained a new understanding of the deeper meaning of the U.S. Constitution. Researching, studying, and presenting this material has given me a wonderful opportunity to expand my knowledge of the Constitution and Bill of Rights. In addition, I learned how effective shorter videos can be to disseminate information quickly, efficiently, and effectively.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I want to continue making videos like the Stronger Together PSA to further educate students in America about the U.S. Constitution. In addition to the increased engagement the medium of video can create, I think the short and to-the-point nature of the PSA is a fantastic way to spread the word about the importance of the U.S. Constitution.

How do your friends respond to history or talking about the Constitution?
Most are interested in learning about the Constitution, as long as it is presented in small doses, which is why I find the PSA format so effective. As long as our conversations are short and informative, most of my friends are more than willing to embrace learning about America’s founding documents and the people who wrote them.

What do you love about U.S History and the forming of our government?
I love that you can never learn it all, and no matter how much time you spend, there will always be people who know more about some topics. There’s always a new place to explore or a new historical figure to investigate, and there’s always someone who can help you expand your knowledge.

Which U.S. historical site would you like to visit?
I would love to spend time exploring and learning about the history of Boston. There are, of course, hundreds of monuments, memorials, and memories, but if I had to choose one, I would most like to visit the Granary Burying Ground. Although it may feel like a somber place—it’s where men like Samuel Adams & Paul Revere are buried—it is a solemn reminder that people of such a caliber will be remembered for centuries to come.

Which American historical figure is most influential/inspirational to you?
Abraham Lincoln is the most inspirational American historical figure to me. He, of course, led the American people through likely the most contentious period in our country’s history, laying the groundwork for the abolition of slavery. But I believe that his ability to communicate with the common people, even while debating complicated and contentious issues, was his most important skill. He was so influential in this regard he had one of the most popular debate formats—Lincoln-Douglas—named after a series of his debates.

Who is your greatest role model?
My greatest role model is my grandfather. After serving his country in Vietnam, he became a CAD professor. From always spending time to help me with math homework, to being my first inspiration to start playing chess, he has always provided a shining example for me to live up to. He’s truly the kindest man I’ve ever known.

What in your life are you most passionate about?
I’m most passionate about the American dream and the set of Judeo-Christian values that make such a dream possible.

How do you spend your free time?
Outside of school, I love spending time at church. In addition to this, I spent the majority of time at Texas Rowing Center, training for Youth Nationals in June. When I have the time, I love to read anything and everything about human anatomy, leadership, or whatever else has piqued my interest.

What are your plans for the future?
I would like to be appointed to the Naval academy and row for their men’s heavyweight crew team. After college, I would like to serve and defend the country that has done so much for me.

If you could do one super impactful thing to help people, what would it be?
I would like to spread the message to a wider audience that, in a culture so dismissive of American values, these values still hold true. One of the most crucial missions of this century, and one that Constituting America addresses, is reviving the American spirit that has made this country so great.

Why is the Constitution relevant today?
The Constitution is relevant today for the same reasons it was relevant almost two and a half centuries ago: it guarantees and protects the rights of the American people, constructs a fair and just government, and provides the basis of the American liberty that shines across the world.

Colt is a 17-year-old homeschool student living on a small cattle ranch in Florida. When he is not studying, Colt enjoys making Lego displays for local Lego exhibitions, including the Florida State Fair. Colt has been the worship leader for his youth group, where he sang and played guitar on Wednesday nights and for a children’s youth program on Saturday evenings. Colt now plays on his Church-wide worship team. He grew up in Creation Happened’s creation apologetics ministry (creationhappened.org). Colt has interviewed scientists in the creation apologetics field all over the country. For example, he was present at the opening of the Ark Encounter in Kentucky, where he, at ten years old, interviewed Ken Ham about the attraction.

Additionally, this young man volunteers to help scientist and renowned speaker Dr. Jason Lisle, the Biblical Science Institute founder. Colt has traveled extensively, including in the United States, Central and South America, and Europe. Colt is involved with Turning Point USA, where he serves as a local high school chapter president. Colt has written dozens of songs and hopes to release an album.

Hear his winning song below:

Our Interview With Colt Jaxon

Was this the first time you entered the contest?
No, I entered and won first place last year.

How did you hear about the contest?
I am a “huge” fan of Vince Gill. I saw a video on YouTube of him giving a tour of his guitar room to previous contest winners. That incredible video prompted me to look up the website for Constituting America.

What inspired your work?
Unfortunately, we live in a time when people do not believe the Constitution is still relevant. Our Government seems to be acting to controvert our rights under the Constitution, especially the First Amendment. As a Constitutional Republic, we all must take a stand for the Constitution, which guarantees the rights with which our Creator endowed us.

What did you learn while creating your entry?
I researched the Constitution and realized that we Americans owe a lot to our 4th President, James Madison. He did a lot of hard work on the Constitution and the Bill of Rights.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Honestly, having the songs that I have written about the First Amendment helps. Whenever I sing them for people, I get several questions about why I wrote it and why the First Amendment is important.

How do your friends respond to history or talking about the Constitution?
Most of my friends are very interested in history. I am a home-schooled kid, and most homeschoolers hit United States history pretty hard.

What do you love about U.S. History and the forming of our government?
I think Americans are very fortunate that we chose George Washington as our first President. He could have easily set himself up as a king. Instead, he set the standard for all future Presidents. Clearly, the U.S. Constitution is our forefather’s most impressive achievement. It is the premiere document of its kind in the world. Even though the United States is a relatively young country, our Constitution is the oldest (fully codified) Constitution globally.

Which U.S. historical site would you like to visit?
I have traveled around the United States, from the battle site at Breed’s Hill in Charlestown, Massachusetts, to the Alamo in San Antonio. I have yet to go to Washington, D.C. I would like to go to the National Archives and see the original Constitution.

Which American historical figure is most influential/inspirational to you?
I am a Munroe, so I am very interested in the history of the Munroe family in the United States. Sixteen of the Minute Men at the Battle of Lexington, Massachusetts, the first battle of the Revolutionary War, were from the Munroe family. The Munroe Tavern still stands in Lexington. Family history records that Sergeant “Billy” Munroe fired the famed “shot heard around the world.” Sergeant William Munroe was also the guard stationed outside of the house where Samual Adams and John Hancock were sleeping when Paul Revere came to warn them about the coming invasion of Lexington and Concord. He refused to let Revere into the house, and only after Hancock heard the commotion was Revere allowed to enter. I am a direct descendant of Sergeant William Munroe.
Because there was only one Munro clan in Scotland, all people who are named Munro, Munroe, Monro, Monroe are from the same family. So I have also always been inspired by my ancestor President James Monroe.

Who is your greatest role model?
I am a Christian, so obviously, the greatest role model and the one that we should all strive to emulate is Jesus Christ.

What in your life are you most passionate about?
I am passionate about the Lord Jesus and his plans for me. It is a fantastic feeling to lead a group of my peers to worship Him through my music. While I am passionate about music, I am also grateful and humbled that the Lord gave me this gift.

How do you spend your free time?
I spend a lot of time learning to play music (I recently bought a banjo) and writing songs. I also enjoy making Star Wars Lego displays for Lego shows. In addition, I make videos for our family ministry, Creation Happened, and I have a podcast, Creation Happened’s Believe it or Not. I help with the ministry when we do events. As a family, we often help out Biblical Science Institute started by our friend, astrophysicist Dr. Jason Lisle. In May, I will help him by selling books at his table at the Florida Homeschool Convention. I love doing this because I like to talk to the kids about apologetics and astronomy. I have also been serving as a president of a local high school chapter of Turning Point, the youth organization started by Charlie Kirk.

What are your plans for the future?
I am planning to go to college. I always have thought that I would become an Apologist, but I may also do something in music since this is also my passion.

If you could do one super impactful thing to help people, what would it be?
As a Christian, I am commanded to make disciples, so I plan to use my music to share my faith with others.

Why is the Constitution relevant today?
Our government is a Constitutional Republic. It’s literally the backbone of our political system, the thing our government is based on. The Constitution protects us from tyranny. If interpreted correctly by the Supreme Court, it’s the only hope of sustaining the “American” way of life.

 

Maisie is a twelve-year-old homeschool student who lives on a small cattle ranch in Florida. Maisie enjoys singing, playing guitar, making art, and horseback riding when she is not studying. She is involved with the local 4-H club and will show a steer at next year’s county fair. Maisie has won first place for two years at the Florida Parent Educators’ Sacred Music Contest held every year in Orlando. She regularly sings at Church. Maisie has a unique sound that makes her very popular. Maisie wants to study entomology in college and work as an insect expert for a creation apologetics organization. Living in Florida on a ranch, she certainly has access to a wide variety of insects.

Listen to her winning song below:

Was this the first time you entered the contest?
Yes, this was the first time.

How did you hear about the contest?
My brother entered the contest last year and I was able to travel to Washington D.C. with him. I couldn’t let him be the only one to enter the contest.

What inspired your work?
I love to sing songs to the Lord. Without the first amendment I may not be allowed to do that openly and freely.

What did you learn while creating your entry?
I have seen my brother write many songs. When I wrote this song I discovered that its harder than it looks.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Most kids my age are not very aware of the Constitution or its importance in our life. So just talking to them about the Constitutions is a great starting point.

How do your friends respond to history or talking about the Constitution?
Most of my friends find it interesting.

What do you love about U.S History and the forming of our government?
I love that we stood up to a powerful empire based upon our moral belief in what was correct.

Which U.S. historical site would you like to visit?
I have not been to Lexington, Massachusetts since I was very young. I would like to go back and see the Munroe Tavern again.

Which American historical figure is most influential/inspirational to you?
George Washington could have been named king if he wanted but he decided to step down from power.

Who is your greatest role model?
Our Lord Jesus.

What in your life are you most passionate about?
I really like to sing and I really like horses.

How do you spend your free time?
I like to do artwork and ride horses and study insects.

What are your plans for the future?
I plan to become an entomologist.

If you could do one super impactful thing to help people, what would it be?
There is no greater impact than to lead someone to Jesus.

Why is the Constitution relevant today?
The Constitution is the last defense we have against tyranny.

 

 

 

Hi, my name is Victoria Anyiam. I am a sophomore college student at the Community College of Philadelphia. I love to dance, sing, and play sports. I have done sports collegiately at my previous school, Penn State Brandywine, running for the cross country team. I also did track and field at my alma mater high school, Cardinal O’Hara, located in Springfield. I currently am pursuing Health Care Management and look to excel in numerous areas throughout my career, including in my passions of sports and the arts, singing and dancing. My goal ultimately is to give back and show love to others. I am also a Christian and I give God the credit for all my successes. I try to tie my Christianity into everything, showing who God is to others in whatever way I can.

Our Interview With Victoria

Was this the first time you entered the contest?
Yes it was!

How did you hear about the contest?
I can’t recall, but I know it was during the time I was searching for scholarships to apply for. I liked Constituting America because it allowed me to use my passions to create a piece. That I admire about the organization, their openness to expression and individuality.

What inspired your work?
The opportunity to send a message through music. The requirements that Constituting America asked for resonated with me, and I wanted to be able to express my thoughts on our rights through song.

What did you learn while creating your entry?
I actually didn’t learn anything new! I’ve learned about the Constitution since I was little from my schooling, so all the information was pretty known to me.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I plan to spread the word through social media. Social Media has the capability of reaching various audiences. I would like to use social media to spread awareness of the U.S. Constitution and to use my platform for education on why it is important.

How do your friends respond to history or talking about the Constitution?
My friends respond with open dialogue. My friends want the best for this country. We all are always reflecting on the Constitution as well as work that can be done to better educate others who are unaware of certain aspects in the Constitution

What do you love about U.S History and the forming of our government?
I love that U.S. history covers how everything started from the beginning. It helps reduce the why and how questions that I would ask in regards to things right now.

Which U.S. historical site would you like to visit?
I would love to visit the White House. I have never been to the White House before, so I think that would be a cool experience to get up close to it.

Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr. I admire his bravery and his speeches. Me and my mom still reflect on his speeches to this day.

Who is your greatest role model?
My greatest role model is Jesus Christ. I admire his character and his love towards others. I strive to resemble his image in everything that I do.

What in your life are you most passionate about?
I am most passionate about helping others. I believe we all have a purpose to help each other out, even in the smallest ways. I want to excel in everything I do to inspire others in positive ways as well as be a giver.

How do you spend your free time?
I am currently working on a clothing company on Etsy! So that takes some of my time. I also like to enjoy my hobbies, playing sports, dancing, and hanging out with friends. I also like to have time with God, reflecting on stories or messages in the Bible or listening to worship music.

What are your plans for the future?
I want to pursue Health Care Management as well as my passions of being active, dancing, and being a business owner.

If you could do one super impactful thing to help people, what would it be?
Send them cards of encouraging messages. I actually currently do this. I like to have a list of people I want to give cards to every month, and write encouraging, nice messages to them. It makes me feel whole doing this and seeing their loving reactions when they see the cards.

Why is the Constitution relevant today?
The Constitution is relevant today because it was the foundation of U.S. law. This foundation empower others, and reminds them of their rights and freedoms.

Casey Chapter is a graduate student at Florida State University studying Public Interest Media & Communication. She has previously worked in journalism, reporting on COVID-19 and K-12 education for various media outlets, including USAToday’s Tallahassee Democrat and NPR-affiliated news station WFSU. Casey is interested in producing documentary films in the future.

 

Watch Casey’s Winning Short Film Below:

Steph comes from a background in higher education and education administration. She earned her BS in Recreation Management from the Marriott School of Business at Brigham Young University, and an MA degree in English Literature from the University of New Hampshire. She is currently pursuing a Doctorate degree in Instructional Design and Technology at Idaho State University.

Steph works for the Quantic School of Business and Technology, an online MBA program based in Washington, DC. As a Training Coordinator and Admin Lead, she provides training, administrative, and operational support to the Admissions Team, and oversees the administrative needs of select business-to-business products and services with the Valar Leadership Accelerator program.

Steph loves to learn how people learn and enjoys designing training for new hires and ongoing education for seasoned employees. She hopes to pursue a career in corporate training after she graduates from ISU. Steph lives in Idaho Falls with her husband, son, and two doggos.

Watch Steph’s Winning Short Film Below:

Our Interview With Steph

Was this the first time you entered the contest?
Yes.

How did you hear about the contest?
Social media/Aubrey Jackman.

What inspired your work?
I’ve always enjoyed history, specifically American history. I wanted to create content that was fun and engaging for a range of ages. It seems to me that media has moved from static images and written posts to videos. For instance, I’m old and not hip enough to remember when Instagram was just an app with square-shaped photos. Now you hardly see any photos – they are all just “stories” which are video clips. TikTok captured this trend and took the internet by storm. A recent survey by Business Insider found that the majority of 8 to 12 year-old Americans want to be Youtubers or social media stars. (Whereas the majority of Chinese students the same age want to be astronauts). It’s clear that audiovisual media resonates with youth, especially American youth today.

I’m very interested in how to use multimedia to bring about effective learning outcomes. (That’s what I’m studying this semester in my doctorate program). I also have a great reverence for the Constitution – how many other pieces of written word are still in effect over two centuries later? It made sense to try to create a short film to instill the same excitement I feel for the world’s longest surviving written charter of government.

What did you learn while creating your entry?
I had learned about the Constitution in U.S. History in high school, but that was a while ago. Creating the short film was a great refresher on the genius and significance of the Constitution which influences our lives in substantial ways today. I also learned how to create a short film using PowerPoint and iMovie! I had never made one before now.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I’m using my short film as the basis of my final project for my multimedia authoring course this semester. I will be able to share it with my classmates and smother them with my enthusiasm for the Constitution!

How do your friends respond to history or talking about the Constitution?
Very well! Since entering the Constituting America contest, I’ve been able to bring it up more naturally in conversation.

What do you love about U.S History and the forming of our government?
I love the youthfulness of US History. Compared to many other nations, our history is brief and we have so much more left to write! I come from a more conservative religious background, and people in my faith believe that the Constitution and the forming of our government was divinely inspired. It must have taken real courage and faith to create a form of government that was practically non-existent in the eighteenth century. It also takes great courage and humility to admit when something you painstakingly created is not working. Even though the founders’ first attempt (the Articles of Confederation) did not prove strong enough to unite the fledgling nation, they learned from mistakes rather than giving up hope, and gave us the Constitution.

Which U.S. historical site would you like to visit?
I would like to visit the Lincoln Memorial. President Lincoln’s life was difficult and lonely, but he remained true to what he believed in and sealed his conviction in his blood. I can only imagine the hate and loathing he endured as he tried to keep a divided nation from collapsing in on itself.

Which American historical figure is most influential/inspirational to you?
I greatly admire Abigail Adams. When we speak of the founders of our nation, they are almost singularly male (“founding fathers”). But Abigail was a founder in her own right. She had powerful intellect, shrewd insights, and strong opinions, and she was not afraid to speak her mind. Abigail had little patience for the sexist views of what women could and should do that permeated her time. She was fiercely independent and managed the farm during John’s long absences. She was her husband’s most trusted advisor and supported him throughout his presidency.

Who is your greatest role model?
This may seem un-American, but the late Queen Elizabeth II is my greatest role model. As the longest reigning monarch, she spent an incredible seven decades on the throne. No monarch has been so well-respected and so well-loved. She balanced duty with her own moral compass and continually sacrificed her own desires to serve her country. Throughout her life she made decisions even when it was difficult, she had no personal agenda, and she was consistent in her approach. I don’t understand the draw of monarchy and the thought of bowing to someone is quite odd to me, but I can respect the love she had for her country and her people. I wish more of our presidents loved their people the way she did. Queen Elizabeth II was truly an elect lady.

What in your life are you most passionate about?
I am passionate about family, friends, and creating a good life. I love being in the outdoors away from modern distractions. I love to learn new things which is probably why I’m STILL in school and just started 19th grade! I enjoy serving others and helping those who cannot help themselves. I regularly hold supply drives for children in foster care, and blood drives for the Red Cross. I believe we come to this world with nothing and we leave the world the same. What determines our wealth is the love we leave behind.

How do you spend your free time?
With a young family and a full-time job and going to school, I don’t have as much free time these days, but when I do get a few moments of quiet (usually once everyone’s in bed!) I enjoy sewing (quilting, embroidery, you name it!) I’m also a voracious reader. When the weather is nicer and we’ve made it through the long Idaho winter, I love hiking and kayaking. My husband and I have the goal to visit all 63 national parks in the US. We’ve been fortunate to visit a few, but we still have many more to go!

What are your plans for the future?
I believe in the power of education. To me, learning is a lifelong endeavor and isn’t something that simply ends when you’ve graduated from an institution. You can learn and upskill in whatever field you pursue. Once I receive my doctorate degree, I plan to pursue a career in corporate training.

If you could do one super impactful thing to help people, what would it be?
Reinvent global supply chains. It’s astounding to me that in this day and age with the level of agricultural technology we have, so many people and children across the globe go hungry. So many children and adults in our own country experience food insecurity. The problem isn’t that we don’t have enough food. We do! The problem is getting it to where it needs to be before it is no longer viable.

Why is the Constitution relevant today?
The Constitution remains relevant today because it restricts government from obtaining too much power, provides our country with essential guidelines, and ensures rights and freedoms to its citizens. The very fabric of our nation depends on it. If we ever lose the Constitution, we lose the United States of America.

 

My name is Jonell Adu-Gyamfi, and I am a first-year pre-med student at Johns Hopkins University. My major is Psychology and my minor is Entrepreneurship and management. At Hopkins, I am on the African Dance Team and am a part of the Executive Board for our African Student Association. I also started working as a social media intern for the Baltimore Youth Film Arts Program. I hope to one day become a dermatologist, and mix my love for medicine, with helping to fight disparities in women and people of color. I am very privileged that I was able to use my love for writing to express how lucky I am to be a first-generation American child of Ghanaian immigrants and to freely showcase my freedom of speech. Thank you Constituting America for this scholarship!

 

Kristin is a graduate student at Northwood University, a private, free-enterprise school. She studied economics in her undergrad and is currently working on her master’s degree in science with a concentration in business analytics. She lives in Michigan with her family, although she is a seasoned traveler. She grew up across several states and even spent most Summers in Bulgaria (where her family is originally from). A particular interest of hers is public policy, specifically, the unintended consequences of legislation. She feels fortunate enough to have the ability to pursue internships with various think-tanks, allowing her to analyze and discern the costs that regulations impose on the people.

Since starting her academic career at Northwood at the age of 13, Kristin has enjoyed studying the importance of limited government and has learned to appreciate the values laid out in the Constitution by our founding fathers. In her free time, she enjoys swimming, the outdoors, and traveling around the world with her dog.

Regarding her future, Kristin hopes to pursue a career where she can reach a younger generation and help instill a passion for public policy and the importance of protecting our liberty through video production.

Watch her winning PSA below:

Our Interview With Kristin

Was this the first time you entered the contest?
Yes, for the PSA.

How did you hear about the contest?
One of my professors suggested I enter.

What inspired your work?
Multiple violations of the Constitution by the government over the past few years.

What did you learn while creating your entry?
That Liberty is a fragile thing and needs to be protected and fought for by each new generation.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
By producing short educational/entertaining videos on YouTube.

How do your friends respond to history or talking about the Constitution?
There is a wide variety of reactions among my peers. Some enjoy the discourse and exchange of ideas and opinions on the constitution while others don’t care for the history of our country.

What do you love about U.S History and the forming of our government?
That the founding fathers created a republic and not a democracy as many believe.

Which U.S. historical site would you like to visit?
The freedom trail in Boston, MA has been on my travel list for years!

Which American historical figure is most influential/inspirational to you?
James Madison remains one of the most influential American historical figures in my life.

Who is your greatest role model?
My parents are my greatest role models!

What in your life are you most passionate about?
Spending time with my family.

How do you spend your free time?
I like to spend my free time outdoors (hiking, swimming, etc.)

What are your plans for the future?
I hope to make an impact through my work in advancing liberty.

If you could do one super impactful thing to help people, what would it be?
If I could do one thing to help people, it would be to restrain the “help” by the government – to allow people the liberty necessary to carry out their lives the way they want.

Why is the Constitution relevant today?
It is not just a piece of paper. The values it lays out are essential to a free and prosperous nation today, just the same as the day it was written.

My name is Jayden Mann, I’m 16 years old from Midwest City Oklahoma. I attend Destiny Christian High School as a Junior. History has always fascinated and intrigued me. I participate in art and drama. Some of the plays I’ve acted in are Godspell, The One Act Play That Goes Wrong, Peter Pan and many more. During my free time you can catch me listening to music, reading, or playing with my dogs, Scooby and Chalula. I am passionate about what is going on in America and pray to make a difference in our future.

 

Watch Jayden’s Winning PSA Below:

Our Interview with Jayden

Was this the first time you entered the contest?
Yes!

How did you hear about the contest?
Through my American History teacher! She showed us a video and made it a grade for us to do.

What inspired your work?
The fact that people in this country are having a hard time finding their voice in fear of being shut down. Everyone has an opinion and therefore we should try to meet in the middle and compromise to find a solution.

What did you learn while creating your entry?
That there are multiple articles explaining the importance of freedom of Speech and how many amendments there are to keep and support this valuable right.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
By spreading things that are happening in this country and what our constitution says on how we can help fix it.

How do your friends respond to history or talking about the Constitution?
Most of my friends are into government affairs and our rights so when I get to talking about something they normally join into the conversation even if we have different views. It’s better to know everyone’s views than to be clueless.

What do you love about U.S History and the forming of our government?
That we saw what we want and went after it. We’re still building to make our country strong but the foundation our founding fathers laid out for us is strong.

Which U.S. historical site would you like to visit?
Independence hall in Philadelphia. It is where we officially declared our independence from England.

Which American historical figure is most influential/inspirational to you?
Gertrude Simmons Bonnin. She is a Native American political activists for native Americans rights. She wasn’t allowed to SPEAK her language or practice her culture. She advanced indigenous people’s rights and her work is still in use today.

Who is your greatest role model?
My Mema. She has taught me to fight in what I believe in and to not back down just because of a disagreement. She taught me the value of compromise and understanding one another.

What in your life are you most passionate about?
Indigenous people’s human rights. Our voice is still getting silenced and it is up to us who do have a voice to carry the problems that are being faced.

How do you spend your free time?
I talk to my friends, play video games, and read. Sometimes I go to the gym but that’s not as often.

What are your plans for the future?
I want to teach the importance of art in our culture by becoming a teacher. Art is in everything and is the one language everyone can speak.

If you could do one super impactful thing to help people, what would it be?
To protect the ICWA act. This act helps keep native American families together and preserves our culture.

Why is the Constitution relevant today?
Because it helps preserve what we have right now and helps us make decisions that can better the future of our nation.

 

 

 

Adam Zheng 

Adam Zheng is a 16-year old senior at Williamsville North High School, currently living in Western New York. His love for filmmaking began during the onset of the pandemic, and he has since spent hundreds of hours mastering its art. He enjoys creating films to educate, to raise awareness, and to document memories. 

As an independent filmmaker, Adam’s work has earned him Best Young Live-Action Director in the Don Bosco Global Youth Film Festival, two category awards in the Golden Lion Awards High School Film Festival, Finalist in the New York Times Coming of Age in 2020 Contest, and more. Filmmaking and engineering are his two greatest passions, and although he is planning to pursue a career in engineering, creating films will always be an important part of his life. 

Beyond filmmaking, Adam is also an avid runner, a violinist, an Eagle Scout, a Regional Champion in Science Olympiad, a National Merit Semifinalist, and an AP Scholar with Distinction. With his multitude of interests and abilities, he hopes that, no matter what he pursues, he will one day be able to make a positive impact on the world that will last to benefit generations upon generations into the future.

Watch Adam’s Winning PSA Below:

 

 

Our Interview With Adam

Was this the first time you entered the contest?
Yes, it was.

How did you hear about the contest?
If I’m remembering correctly, it was through a scholarship website called Fastweb.

What inspired your work?
Well, I have always felt strongly about the importance of talking to people with different backgrounds and understanding their opinions. So it was only natural for me to combine it with my love for filmmaking to help others grasp its importance as well.

What did you learn while creating your entry?
While creating my PSA, I had to carefully ponder the reasoning behind why civil civic conversations are so important. It is because our own views tend to be limited by our own experiences, and so in order to gain a more all-encompassing view, we need to understand the opinions and experiences of others by communicating with them.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Many of my peers are taking US government classes right now, so I like to talk with them about the importance of the Constitution because it is often very relevant to what we are learning in class.

How do your friends respond to history or talking about the Constitution?
I think that some of them do enjoy talking about history and government, but some of them aren’t all that interested, and would rather just leave it for school classes.

What do you love about U.S. History and the forming of our government?
I enjoy learning about the past history of our country because it allows me to understand how we got here – how we went from a motley group of colonies to the country that we are today.

Which U.S. historical site would you like to visit?
I would love to go to Philadelphia and visit Independence Hall. It would be absolutely incredible to stand in the same room where, centuries ago, the Founding Fathers convened to debate and adopt both the Declaration of Independence and the US Constitution.

Which American historical figure is most influential/inspirational to you?
This is not a very unique answer per se, but I would have to say George Washington. He led the fight for American independence, and then served as our first president, admirably stepping down after just two terms when he easily could’ve gone on longer.

Who is your greatest role model?
I would say my mother. Among her many other laudable attributes, I have always admired the hard work and dedication she has put forth as a stay-at-home mom to raise me and my two siblings.

What in your life are you most passionate about?
To be honest, probably running. I have run almost every day for the past three years, and it has come to be one of the greatest joys of my life. Even though it can be difficult at times, I love the challenge of it and the satisfaction I get from overcoming its challenges and improving.

How do you spend your free time?
I like to run, create films, play chess, learn about science, and spend time with my family.

What are your plans for the future?
Next year, I’ll be going to college to study engineering. I’m not completely sure which specific field yet, but I’m currently thinking about mechanical or aerospace engineering. Through my undergraduate (and likely also graduate) education, I hope to gain the skills that I will need to establish a career as an engineer. And although my career focus will be in engineering, I do hope to also continue my passion for filmmaking on the side.

If you could do one super impactful thing to help people, what would it be?
I suppose the entire purpose of my engineering endeavor is to do “super impactful things” for the world. One of the most important things I would like to do is to design solutions to help preserve the Earth and keep it as the rich, bountiful home it has long been for humans, as well as millions of other species.

Why is the Constitution relevant today?
Obviously, the Constitution is and has always been very relevant to American society, as it is the supreme law that governs our government and our laws. It functions to preserve the rights and liberties of American citizens, serving an invaluable role in our lives.

Jake R. Cairns
Jake is a 17-year-old from Evans, Georgia who attends Evans High School as a Junior. He has played lacrosse for four years and is currently the varsity goalie for the Evans Knights! Jake’s hobbies are doing anything outdoors and music. He enjoys fishing, camping, hiking, boating, hunting and exploring all over the North Georgia Appalachian Mountains, waterfalls and rivers. When Jake is not busy exploring the great outdoors, you will find him at the piano playing and composing songs. Jake did not find his love for music until the pandemic hit in 2020. Bored and stuck in the house, he taught himself to read, play and compose music on the piano and guitar. Jake has been accepted to Toccoa Falls College where he plans to major in Outdoor Leadership and minor in Worship Music. This path combines both of his passions for the outdoors and music. After college Jake hopes to work for the Georgia Department of Natural Resources as a game warden and continue to play music whenever possible.

Coralyn M. Cairns
Coralyn Cairns is a Freshman at Lakeside Highschool in Georgia and is enrolled in the International Baccalaureate program there. She is involved in Student Government, Science Olympiad, and the school’s production of Aladdin. Some other musicals she has played in are 101 Dalmatians and a Christmas Carol. Because of her love of fine arts, at one-point Coralyn whole-heartedly focused on acting, singing, and modeling. However, she now focuses on academics and is at the top of her class. While her favorite subject is science, she is also very passionate about foreign languages. Currently, she takes both Spanish and French, and hopes to start Latin soon. Additionally, Coralyn is a Sunday School teacher at her church on the weekends. Over the summer, she enjoys swimming competitively with her friends and sewing clothes. In the future, Coralyn wants to go on to be a pathologist. Coralyn’s family is very musical, with her father, who sings and plays the guitar, being her inspiration. He also teaches political science which has helped instill in her the importance of the Constitution.

Jake and Coralyn would also like to say thank you and express how proud they are of their older brother, Wyatt, who is currently serving in the United States Marine Corps.

Listen To Their Winning Song Below:

 

Our Interview With Coralyn & Jake

Was this the first time you entered the contest?
Carolyn: This submission was my first for Constituting America.
Jake: I have not entered this contest before.

How did you hear about the contest?
Carolyn: I have a myOptions account through my school, and I occasionally peruse on there. Over the summer, I saw the contest on the scholarships page, and I was excited because it sounded like something I would really like to do.
Jake: My sister learned about the contest and asked me to partner up and create the song.

What inspired your work?
Carolyn: I think for writing lyrics, you have to find an inspiration that just opens the creative floodgates in your brain. Like a catchy melody or rhyming words that just stick in your mind. That’s what happened for me. Before I wrote the lyrics, we did a lot of research about the actual information, but because most people know the gist of the first amendment, we kind of overlooked it. However, I decided to look back at it, and I found the words press and redress. That immediately brought the building melody that we have in the chorus to my mind and we just built off of that.
Jake: The favorite artist who originally led me to the piano is Elton john. Much of my piano playing is inspired by his music and playing style.

What did you learn while creating your entry?
Carolyn: I have been writing my own lyrics since I was like maybe 7 or 8, but I have never actually put them to music. My brother plays other pieces or creates songs occasionally and then adds lyrics to them, but he doesn’t start with the lyrics. So I think we both learned how to mesh our two styles, musical backgrounds, and ideas together to make something cool.
Jake: I learned a great deal while creating this piece about the composition of a song and how to create distinct sections like a verse, pre chorus, and chorus.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Carolyn: I am currently taking an AP Government and Politics course and it has opened my eyes. I have a dad who teaches these concepts for a living and I couldn’t have told you most of the stuff about the Constitution that I know now a year ago. So for people who want to learn more about our country’s origins, I would recommend they take a Government course. Just learning about all the facets to the Constitution and the intentions behind the words of our Founders instills in you the Constitution’s importance. In the week that I am writing this, my class is talking about the President’s delegated powers along with Federalist 70, and how the Founders had so much for thought and inspiration to come up with a system that made an energetic President, yet still have a Congress that checks their power. To have created this document that has upheld our country’s values for so long, is absolutely crazy to me. For anyone who wants to hear, I can go on.
Jake: I plan to spread the importance of the constitution to my peers by starting conversation about current political issues. If I can shed more light on topics like gun control and social media censorship, the Constitutional Amendments will better be understood among my peers.

How do your friends respond to history or talking about the Constitution?
Carolyn: I moved school zones this year to be able to take part in the IB program in our county. I had to make all new friends. However, the group of people I am surrounded by are extremely bright and curious people. I have always had friends who were invested in their education, but it is refreshing to be around people who also care deeply about truly learning. All year my Government course has challenged us, but we help each other out, not only to receive good grades, but also because we are interested in the Constitution and our history and want to collaborate. It is a difficult class, but most of my friends would say it is one of their favorite classes.
Jake: The majority of my friends enjoy conversation about the constitution and American history, although most lack any concern of it being degraded or taken away.

What do you love about U.S. History and the forming of our government?
Carolyn: I love what I talked about earlier. Just the careful intention behind every single word of our Constitution. And also I think the unity of early America is truly inspiring. As human beings we have always had different opinions, but against all odds we fought for John Locke’s life, liberty, and (Thomas Jefferson’s change) the pursuit of happiness. Plus, after the Constitution’s ratification, the entire country was like, “Yep, we want Washington”. With how fractured America is now, I find the unity very admirable.
Jake: The thing I love most about United States history and the formation of its government is the focus on limited governmental power. The founding fathers’ focus was on individual freedom and liberty. While the government has expanded today the expansions are progressive and are used to help Americans so it still carries on a tradition of a people first government.

Which U.S. historical site would you like to visit?
Carolyn: I would like to visit the White House. I went to Washington, D.C. in 6th grade and we were supposed to visit the White House, but the tour got cancelled. Out of all the places we went, I would have liked that the most. The White House is the home and office of every President to have ever lived, and the President is the energy and face of America.
Jake: I would like to visit Mt. Rushmore and see the massive sculptures of the presidents.

Which American historical figure is most influential/inspirational to you?
Carolyn: I would say the most influential historical figure to me would have to be First Lady Abigail Adams. Not only was she an advocate for women’s education, but also an advocate for women’s rights and the abolition of slavery. #RememberTheLadies
Jake: My most influential and inspiring historical figure is Thomas Jefferson. I completely agree with the stance Jefferson took with keeping a small central government and his focus on free speech.

Who is your greatest role model?
Carolyn: My greatest role model would be my mother. She has always worked so hard for my siblings and I, and is super supportive. When I wanted to focus on acting, singing, and modeling, she was right there. When I’m sad, she uplifts me. When I wanted to switch schools for IB, even though it would be harder to get me there, she was on board. My mom has very few flaws, and I would say that I have corrected most of them. Since I have been able to recommend changes to her outfits, they have been much better. She and I are best friends and I wouldn’t change that for the world.
Jake: Elton John and Billy Joel are my biggest role models, and I hope to one day make as unique and beautiful music as they did in the 1970s.

What in your life are you most passionate about?
Carolyn: I think I am most passionate about medicine and science. A few years ago, I would have said singing was my main passion, but in recent years my love for everything scientific has increased tenfold, specifically in the area of pathology. I am an incredibly curious and analytical person and I feel like that’s where I can make my impact in the world.
Jake: In life, I am most passionate about music and the outdoors. I love to hunt and camp along with playing piano and guitar.

How do you spend your free time?
Carolyn: I spend my free time sewing clothes, bags, stuffed animals, etc. I also like to swim competitively, record songs with my brother (I guess you know that), participate in clubs and plays at school, and volunteer at my church.
Jake: I am the starting goalie of my high school lacrosse team, and when I’m not playing lacrosse I play and write music on my piano.

What are your plans for the future?
Carolyn: When I go off to college, I want to major in some sort of pre-med program and minor in one of my languages. Then I want to go to medical school and hopefully intern at a medical examiner’s office. That’s because, at least right now, I want to be a forensic pathologist. As for short-term, I hope to be at the top of my class and receive an IB diploma when I graduate highschool.
Jake: I would like to become a Georgia park ranger and work in the state parks I frequently go camping and hiking in.

If you could do one super impactful thing to help people, what would it be?
Carolyn: If I could do one super impactful thing in my life, I would establish more medical centers around the globe. The most important aspect of medicine is prevention and there are so many places around the world that need more medical care. The centers would be used to provide yearly check-ups, life-saving services, and education about taboo subjects
clouded with misinformation to communities who don’t have those resources.
Jake: I would like to work as a park ranger and help prevent harm to the forests of America, so often these parks are polluted and misused by people and I would like to help protect them.

Why is the Constitution relevant today?
Carolyn: The Constitution is incredibly relevant today. It was and still is the leading example of a free and democratic government. It provides the blueprint for our expertly balanced government, and even accounts for modern day issues. For modern day issues from taxes to the economy to foreign policy, the Constitution delegates powers to our leaders. Being familiar with the Constitution allows citizens to be able to be active members of America’s political process and understand what’s going on.
Jake: Now more than ever certain constitutional rights are being debated over like the continued push for gun control and censorship on free opinions. I feel more and more Americans are ignorant of the rights they possess and why they are important.

Astha Savalia is a fifth grader from Naperville, Illinois. She proudly serves on the Student Council, plays viola in her school orchestra. and plays chess in an afterschool club. She has already completed over 25 hours of community service during this school year and isn’t showing any signs of slowing down! Astha is actively involved with the InsideOut Club DuPage, local food pantries, Feed My Starving Children, and the Conservation Foundation. She has been learning Spanish in a dual language classroom since Kindergarten and is now almost fluent! She also enjoys Tae Kwon Do, swimming, and rock climbing. Astha loves spending time with her friends and family and keeps them laughing with her funny skits and jokes.

Click here to read Astha’s winning poem!

Our Interview With Astha

Was this the first time you entered the contest?
Yes

How did you hear about the contest?
My mom read about it during a visit to our local public library.

What inspired your work?
Ms. Faria, the librarian, helped me find books about the Constitution. The checks and balances system really stood out to me.

What did you learn while creating your entry?
I got a better understanding of the Constitution and how power was balanced across the three branches of government. This prevented any one person or group from having too much power.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I plan to share my poem at the library and in my classroom. Hopefully that will encourage more kids to learn more about the Constitution and maybe enter the contest.

How do your friends respond to history or talking about the Constitution?
We just started learning about it at school. There is a lot more to learn and talk about. I think most of us are eager to learn more.

What do you love about U.S History and the forming of our government?
I love that we are a democracy and that all citizens have a voice.

Which U.S. historical site would you like to visit?
I would like to visit Washington DC for the first time and get a tour of the White House.

Which American historical figure is most influential/inspirational to you?
Abraham Lincoln. Illinois is known as the Land of Lincoln and he is one of my favorite presidents.

Who is your greatest role model?
It’s hard to pick my greatest role model. So many people inspire me.

What in your life are you most passionate about?
Spending time with my friends and family is really fun for me. I also love to travel.

How do you spend your free time?
I like to volunteer and participate in martial arts.

What are your plans for the future?
I hope to become an engineer.

If you could do one super impactful thing to help people, what would it be?
End hunger. We have a surplus of food, yet people are still dying of starvation every day.

Why is the Constitution relevant today?
Our founding fathers wrote the Constitution and the Bill of Rights so that it could live on and continue to be improved and changed as time passed. I think the Constitution is one of the reasons our country is so great.

Benjamin Moak, age 7, is from Parachute, Colorado. He is an avid video game player, four wheeler rider and loves shark week! His big sister Halley was our inaugural poem winner in 2010, so apparently his talent runs in the family!
Click here to read Benjamin’s winning poem!

Our Interview With Benjamin

Was this the first time you entered the contest?
I entered my poem two times.

How did you hear about the contest?
My sister has been a winner before me.

What inspired your work?
I like the idea that we don’t have a king or queen to boss us. I like to rhyme words!

What did you learn while creating your entry?
I learned that a balance in power is a good thing and that I can say what I want to say (and do it nicely)

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
My teacher and my mom will help me.

How do your friends respond to history or talking about the Constitution?
We are really little. We have not learned about the Constitution except that my family has taught me about it.

What do you love about U.S. History and the forming of our government?
I like George Washington.

Which U.S. historical site would you like to visit?
I think I would like to see where a battle was fought or maybe the White House.

Who is your greatest role model?
My sister is pretty cool.

What in your life are you most passionate about?
I like to play soccer and baseball. I am saving up my chore money for a Playstation 5.

How do you spend your free time?
I play games on my computer with my friends. read. I ride a 4-wheeler.

What are your plans for the future?
I want to be a policeman or a firefighter.

If you could do one super impactful thing to help people, what would it be?
Make them obey the law.

Why is the Constitution relevant today?
Everybody needs to know about their rights and that our law is good…even kids.

Rachel Xu is a sophomore in the International Baccalaureate program at Eastside High School. She is involved with the Student Government Association as the acting vice president representing 10th grade, participates in varsity Girls’ Weightlifting team, having won in district and regionals, serves on the PALS Leadership Council, and is actively involved in Mu Alpha Theta and the Health Occupations Students of America club. Outside of campus, she is a member of the UF Classical Guitar Ensemble and the local Annasemble Orchestra. In her free time, she enjoys volunteering with local churches, nonprofits, and animal shelters, and her hobbies include writing and visual art, of which she has won numerous related essay, poetry, and art contests in the past.

Click Here to Read Rachel’s Winning Essay!

Our Interview With Rachel

Was this the first time you entered the contest?
Yes!

How did you hear about the contest?
Google search

What inspired your work?
Seeing the efforts of American families and active citizens across the country on social media and in the news trying to reassert their unalienable First Amendment rights to free speech, petition, and protest and, in doing so, advocate for the causes they believe to be most important and patriotic.

What did you learn while creating your entry?
By researching the failure of historical empires and the ensuing downfalls of countless political and social revolutions around the world in the last few centuries, I gained a great deal of knowledge about world history, change and continuities in global processes, and, above all else, the ineffable genius of our country’s system of government as delineated in America’s founding document, the Constitution.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Through social media engagement, one-on-one discussions, sharing relevant posts, and visiting historically significant locations and landmarks.

How do your friends respond to history or talking about the Constitution?
Like me, they’re very interested in exchanging ideas and sharing different perspectives on the nature of our Bill of Rights and Constitutional Amendments, especially as they relate to what we’re studying in civics and recent newsworthy events. We often enjoy having discussions about the nuanced modern interpretations of the founding documents, and take pride in being able to analyze and respond to questions about U.S. history in class.

What do you love about U.S. History and the forming of our government?
I love dissecting the fundamental guiding philosophies and ethical principles underlying our Founding Fathers’ central outlooks on how to run this country as a democracy and republic, aligning the dogma of Enlightenment thinkers with radically innovative ideas at the time of civil liberties, religious protections, and legal representation for all.

Which U.S. historical site would you like to visit?
The Statue of Liberty, because of its symbolic relevance as an international talisman of American freedom, justice, and equality, all core principles in the Declaration of Independence, as well as a beacon of hope for generations of immigrant families like my own arriving in this strange new land searching for an opportunity to begin anew and reinvent themselves.

Which American historical figure is most influential/inspirational to you?
Alexander Hamilton, for his role in crafting the building blocks for our federal government, championing the ratification of our Constitution, and altogether embodying the American dream of a man who rose from obscurity and impoverished squalor into the most elevated, stratified political spheres of the greatest country on the face of the Earth.

Who is your greatest role model?
Martin Luther King Jr., a man of impeccable dignity and righteousness who, above all else, viewed peaceful and nonviolent, but altogether meaningful and justified, political protest as the most moral and effective manner of galvanizing legislative and cultural progress.

What in your life are you most passionate about?
Defending the rights of the voiceless, whether that be through my work as a volunteer, my intended career going into the medical field, and, hopefully, through my writing and publications as a student right now.

How do you spend your free time?
In my free time, I enjoy sketching, biking, reading, crafting stories and poetry, badminton, learning languages, volunteering, listening to music, etc.

What are your plans for the future?
I plan on attending university, majoring in the scientific/medical field, and eventually obtaining a career in public health or affiliated clinical practices where I am able to aid epidemiological research efforts and promote the wellbeing of families and neighborhoods in my community.

If you could do one super impactful thing to help people, what would it be?
I would dedicate my weekends to volunteering with local nonprofits, whether that be animal shelters, daycares, churches, food banks, Habitat for Humanity, libraries, retirement homes, etc.

Why is the Constitution relevant today?
It guarantees rights and freedoms to the citizens of this country, and acts as a blueprint for what our leaders and we as citizens should be doing to ensure our liberties and Constitutional privileges moving forward in these trying times as we continue to confront issues of partisan polarization, infringements on free speech, political corruption, inequality, and more.

April 10, 1788

Source: Ashbrook Center – Teaching American History

When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.

Perhaps no restraints are more forcible, than such as arise from responsibility to some superior power. — Hence it is that the true policy of a republican government is, to frame it in such manner, that all persons who are concerned in the government, are made accountable to some superior for their conduct in office. — This responsibility should ultimately rest with the People. To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands. The legislative power should be in one body, the executive in another, and the judicial in one different from either — But still each of these bodies should be accountable for their conduct. Hence it is impracticable, perhaps, to maintain a perfect distinction between these several departments — For it is difficult, if not impossible, to call to account the several officers in government, without in some degree mixing the legislative and judicial. The legislature in a free republic are chosen by the people at stated periods, and their responsibility consists, in their being amenable to the people. When the term, for which they are chosen, shall expire, who will then have opportunity to displace them if they disapprove of their conduct — but it would be improper that the judicial should be elective, because their business requires that they should possess a degree of law knowledge, which is acquired only by a regular education, and besides it is fit that they should be placed, in a certain degree in an independent situation, that they may maintain firmness and steadiness in their decisions. As the people therefore ought not to elect the judges, they cannot be amenable to them immediately, some other mode of amenability must therefore be devised for these, as well as for all other officers which do not spring from the immediate choice of the people: this is to be effected by making one court subordinate to another, and by giving them cognizance of the behaviour of all officers; but on this plan we at last arrive at some supreme, over whom there is no power to controul but the people themselves. This supreme controling power should be in the choice of the people, or else you establish an authority independent, and not amenable at all, which is repugnant to the principles of a free government. Agreeable to these principles I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men, who depend upon the people for their places; and so also should all other great officers in the State, who are not made amenable to some superior officers. This policy seems in some measure to have been in view of the framers of the new system, and to have given rise to the institution of a court of impeachments — How far this Court will be properly qualified to execute the trust which will be reposed in them, will be the business of a future paper to investigate. To prepare the way to do this, it shall be the business of this, to make some remarks upon the constitution and powers of the Senate, with whom the power of trying impeachments is lodged.

The following things may be observed with respect to the constitution of the Senate.

1st. They are to be elected by the legislatures of the States and not by the people, and each State is to be represented by an equal number.

2d. They are to serve for six years, except that one third of those first chosen are to go out of office at the expiration of two years, one third at the expiration of four years, and one third at the expiration of six years, after which this rotation is to be preserved, but still every member will serve for the term of six years.

3d. If vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive is authorised to make temporary appointments until the next meeting of the legislature.

4. No person can be a senator who has not arrived to the age of thirty years, been nine years a citizen of the United States, and who is not at the time he is elected an inhabitant of the State for which he is elected.

The apportionment of members of Senate among the States is not according to numbers, or the importance of the States; but is equal. This, on the plan of a consolidated government, is unequal and improper; but is proper on the system of confederation — on this principle I approve of it. It is indeed the only feature of any importance in the constitution of a confederated government. It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state governments. It is to be regretted, that they were not able to have infused other principles into the plan, to have secured the government of the respective states, and to have marked with sufficient precision the line between them and the general government.

The term for which the senate are to be chosen, is in my judgment too long, and no provision being made for a rotation will, I conceive, be of dangerous consequence.

It is difficult to fix the precise period for which the senate should be chosen. It is a matter of opinion, and our sentiments on the matter must be formed, by attending to certain principles. Some of the duties which are to be performed by the senate, seem evidently to point out the propriety of their term of service being extended beyond the period of that of the assembly. Besides as they are designed to represent the aristocracy of the country, it seems fit they should possess more stability, and so continue a longer period than that branch who represent the democracy. The business of making treaties and some other which it will be proper to commit to the senate, requires that they should have experience, and therefore that they should remain some time in office to acquire it. — But still it is of equal importance that they should not be so long in office as to be likely to forget the hand that formed them, or be insensible of their interests. Men long in office are very apt to feel themselves independent [and] to form and pursue interests separate from those who appointed them. And this is more likely to be the case with the senate, as they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth. For these reasons I would shorten the term of their service to four years. Six years is a long period for a man to be absent from his home, it would have a tendency to wean him from his constituents.

A rotation in the senate, would also in my opinion be of great use. It is probable that senators once chosen for a state will, as the system now stands, continue in office for life. The office will be honorable if not lucrative. The persons who occupy it will probably wish to continue in it, and therefore use all their influence and that of their friends to continue in office. — Their friends will be numerous and powerful, for they will have it in their power to confer great favors; besides it will before long be considered as disgraceful not to be re–elected. It will therefore be considered as a matter of delicacy to the character of the senator not to return him again. — Every body acquainted with public affairs knows how difficult it is to remove from office a person who is [has?] long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it. To prevent this inconvenience I conceive it would be wise to determine, that a senator should not be eligible after he had served for the period assigned by the constitution for a certain number of years; perhaps three would be sufficient. A farther benefit would be derived from such an arrangement; it would give opportunity to bring forward a greater number of men to serve their country, and would return those, who had served, to their state, and afford them the advantage of becoming better acquainted with the condition and politics of their constituents. It farther appears to me proper, that the legislatures should retain the right which they now hold under the confederation, of recalling their members. It seems an evident dictate of reason, that when a person authorises another to do a piece of business for him, he should retain the power to displace him, when he does not conduct according to his pleasure. This power in the state legislatures, under confederation, has not been exercised to the injury of the government, nor do I see any danger of its being so exercised under the new system. It may operate much to the public benefit.

These brief remarks are all I shall make on the organization of the senate. The powers with which they are invested will require a more minute investigation.

This body will possess a strange mixture of legislative, executive and judicial powers, which in my opinion will in some cases clash with each other.

1. They are one branch of the legislature, and in this respect will possess equal powers in all cases with the house of representatives; for I consider the clause which gives the house of representatives the right of originating bills for raising a revenue as merely nominal, seeing the senate be authorised to propose or concur with amendments.

2. They are a branch of the executive in the appointment of ambassadors and public ministers, and in the appointment of all other officers, not otherwise provided for; whether the forming of treaties, in which they are joined with the president, appertains to the legislative or the executive part of the government, or to neither, is not material.

3. They are part of the judicial, for they form the court of impeachments.

It has been a long established maxim, that the legislative, executive and judicial departments in government should be kept distinct. It is said, I know, that this cannot be done. And therefore that this maxim is not just, or at least that it should only extend to certain leading features in a government. I admit that this distinction cannot be perfectly preserved. In a due ballanced government, it is perhaps absolutely necessary to give the executive qualified legislative powers, and the legislative or a branch of them judicial powers in the last resort. It may possibly also, in some special cases, be adviseable to associate the legislature, or a branch of it, with the executive, in the exercise of acts of great national importance. But still the maxim is a good one, and a separation of these powers should be sought as far as is practicable. I can scarcely imagine that any of the advocates of the system will pretend, that it was necessary to accumulate all these powers in the senate.

There is a propriety in the senate’s possessing legislative powers; this is the principal end which should be held in view in their appointment. I need not here repeat what has so often and ably been advanced on the subject of a division of the legislative power into two branches — The arguments in favor of it I think conclusive. But I think it equally evident, that a branch of the legislature should not be invested with the power of appointing officers. This power in the senate is very improperly lodged for a number of reasons — These shall be detailed in a future number.

JANUARY 23, 1944 – NOVEMBER 1, 2021

Constituting America thanks:

Janice Gauntt

Barbara Edstrom

Cathy Gillespie

For your generous donations in Mr. Agee’s name.

 

Mr. Agee was Constituting America Founder Janine Turner’s uncle and board member Janice Gauntt’s brother. “Stan was known for his robust, positive spirit. He was an avid reader, intellectually curious, and a dedicated hard worker. He was a very generous man to many. There was never a doubt of his deep affection for his family, country, state or city. He beamed with pride at the mere mention of his family, who were the center of his life.” Click Here to view Mr. Agee’s Obituary and learn more about his remarkable life and legacy. Click here to make a donation in Mr. Agee’s name.

December 26, 1936 - December 12, 2021

Constituting America thanks:

Don Hay
Mary Jeanne Cooke
Cher McCoy
Mark & Carolyn Clapp
Janet Barton
Chris Burns
Linda Gillespie
Jane Lukes
Sharla Metze Davenport
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LaRawn Scaife Rhea
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Sharyn Taets
Cathy Tripodi

For your generous donations in Mrs. Hay’s name.

Betty Hay was Constituting America President Cathy Gillespie’s mother. She was an active member of the DAR, Dallas’ Jane Douglas Chapter, and volunteered in their school outreach program. Mrs. Hay was an enthusiastic supporter and volunteer for Constituting America and a continual inspiration to Cathy and all who were blessed to have her in their lives.

Click Here to view Mrs. Hay’s Obituary and learn more about her remarkable life and legacy. Click here to make a donation in Mrs. Hay’s name.

March 23, 1979, 1941 – July 24, 2021

Constituting America thanks Bill Kohnke and Nancy Quinn for their generous donation in memory of  SFC Alex J. Hytowitz. Alex served his country for over 20 years as member of the U.S. Army Reserve and a member of the Georgia Army National Guard. He was deployed in two major theaters of operation: Kuwait, in support of the 2003 invasion of Iraq and Bagdad, Iraq in support of Operation Iraqi Freedom. His third deployment was to Afghanistan in support of Operation Enduring Freedom.

Alex was awarded the Combat Infantry Badge in Iraq and the Bronze Star Medal for actions in combat in Afghanistan. Alex achieved the rank of Sergeant First Class and was admired by his peers and subordinates alike.

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September 16, 1941 – April 27, 2021

Constituting America thanks Geyer Dybesland for her generous donation in her mother’s memory.  Mrs. Wise attended Constituting America’s Hamilton/Jefferson debate with her grandchildren and bought many copies of Our Constitution Rocks to distribute to her friends’ grandchildren! She was an active member of the Lady Washington Chapter of the Daughters of the American Revolution and The National Society of The Colonial Dames in the State of Texas. She also served as a docent with the Bayou Bend Docent Organization for many years. She was a long-time board member of the Brown County Museum of History. Mrs. Wise was a patriot, through and through!

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December 19, 1938 – February 4, 2021
Constituting America thanks our board member Mrs. Janice Gauntt and friend Jan Wallace for their generous donation in Mrs. Polk’s memory.  Mrs. Polk was an enthusiastic and generous supporter of Constituting America and a respected Texas real estate broker.
Click Here to view Mrs. Polk’s Obituary and learn more about her remarkable life and legacy.
Essay 90 – Guest Essayist: William B. Allen
The United States Constitution and Declaration of Independence on an American Flag background

On this occasion I beat an old horse, just to prove that he is not dead. In this task I am not unlike the rhapsode, Ion, who kept Homer alive by memorizing Homer’s entire poems and reciting them at every opportunity. Unlike Ion, however, I trust that I do not mistake the wisdom of the authors for the wisdom of the rhapsode.

The relation between the Declaration and the Constitution has a different affect today than it did in 1860, when enemies to the more perfect union could find no pillar bearing more weight – and thus to be dislodged – than what they called the “self-evident lie” that “all men are created equal.” Those critics insisted that men indeed are not by nature made equal, nor should be. Today’s enemies of the more perfect union believe that “all men” in 1776 only meant all white males and, moreover, that not even they were by nature made equal though they should be. These critics insist, however, that what nature and history refused to humankind law can create (and they would indeed have all men equalized, the Constitution notwithstanding).

In 1860 nothing and no one so stoutly resisted the enemies of the Declaration than the Defender of the Constitution. Today nothing and no one so stoutly resist the enemies of the Constitution than the Defender of the Declaration. Abraham Lincoln established at Gettysburg that the nation “conceived in liberty” and confirmed “in the proposition that all men are created equal” must conduct its affairs through limited, constitutional union. Today we require to learn that limited, constitutional union can only be justified on the basis of the Declaration of Independence. What we mean, then, when we say that the Declaration of Independence and the Constitution are best friends, is that they are necessary and reciprocal supports for each other.

Two proofs are necessary to complete this argument: first, that the Declaration requires limited, constitutional union and, second, that the Constitution requires the principle of equality founded in laws of nature and creation.

The First Proof: Limited Constitutional Union Is Required

We may restate the first inquiry in the following form: is it true that the rebellion against British monarchy would have been unjustified on any grounds other than the grounds of natural rights, and that natural rights must disclose not only people’s claims to justice but their capacities to realize those claims?

When stated thus, the first proof becomes, I believe, easily realizable. Let’s start with the negative argument. The British constitution and laws in no way recognized a right of revolution. Accordingly, the act of revolution could not have been founded on any positive authority. Moreover, the Americans were not disproportionately harmed, relative to other subjects of the monarchy. Therefore, as far as the conceded rights of Englishmen went, the Americans could have had no beef against the Crown. Although non tallagio non concedendo (“no taxation without consent”) was an established principle of positive right in Britain, it was honored more in the breach than in the practice (given the pervasiveness of rotten borough representation). Americans were no less well represented than many a Briton. Nor could America make any secession claim, since the colonies could not affect an autonomous status conditioning their place in the empire. To have a right to secede, they would have had to begin with voluntary assimilation into the empire. Political forms, which are themselves artifices, cannot derive principles of their conduct from nature as opposed to their architecture.

If the Americans were justified at all, in other words, their justification had to be extra-judicial, extra-political, extra-historical. When we read the Declaration of Independence, we notice not only the broad language of the exordium (“When in the Course of Human Events…”) and the universal principle of the enunciation (“We hold these truths to be self-evident…”), but we can especially notice the particular charges (“the long train of abuses and usurpations”) leveled against the King. It has been frequently noted that the very form of the Declaration’s indictment identifies the King rather than the Parliament as the enemy to America’s liberty. Sometimes this is thought to be a ruse to avoid acknowledging Parliament’s authority (the Americans claimed an interpretation of the British constitution that made them directly subject to the monarch without intervention of the Parliament). A careful reading, however, discloses a substantive and not merely rhetorical argument that highlights the Declaration as an initial charter of government.

Government for the Good of the People…

The first twelve charges against the King (all of them, that is, until the thirteenth, which associates him with the Parliament in opposition to the colonies) actually condemn the King foremost for ignoring the welfare of his subjects. The language of the very first charge is meant to characterize the particulars in all of those that follow:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

Now, the laws invoked by the colonists here are the laws of their colonial legislatures, not any laws of Parliament. Thus, the substance of the charge is that the King, their sovereign, has declined to cooperate in their exertions of lawful and subordinate self- government with an eye to the public welfare. The implicit argument made here, clearly, is that persons are subject to government only for their good, and that argument is a principle that transcends any charter or act of government. It establishes a standard of judgment to which every government of whatever cast is subject, and in the name of which any people, any time, have the right, nay, the “duty, to throw off such Government, and to provide new Guards for their future security.”

…Or Else Legislative Powers Return to the People

Each of the remaining charges against the King reinforces this same principle; each is a particular proof of the universal truth contained in the Declaration’s enunciation. Perhaps none does so, however, so centrally as that in which they accuse him of neglecting the necessary exercise of legislative powers in such a manner as to cause that “the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise.” But this very observation is followed with the particular notice that the result is to expose the people, inadequately provided, “to all the dangers of invasion from without, and convulsions within.” This observation, then, makes the necessary argument that although in general the purpose of government is to provide for the public welfare, in particular it is to accomplish such acts as the people, otherwise unprovided, cannot so well provide for themselves. And where the constituted government — limited by this purpose — fails, it falls to the people speedily to provide such a government as can respect these limits and accomplish these results.

Each of the charges against the King can be converted into a positive affirmation of the obligations of government. For example, government must respond to “immediate and pressing” needs, relying upon local necessities and judgments wherever delays in execution would be a necessary part of reserving judgment to the highest authority. The needs of people must be accommodated without the cost of them relinquishing “the right of Representation in the Legislature.” Legislatures must operate in such a manner as to remain readily accessible to the people and with recourse to public records. Dissent must be respected within the assemblies that conduct the public business. Free movement of persons into and out of the country is a fundamental part of the liberty of citizens. Judicial powers must be independent of executive will and be empowered to render justice to persons. Citizens should not be burdened with excessive requirements to support public officers. A military administration is incompatible with public liberty, and the military must be subordinate to and dependent upon the civil power.

Architecture of Government Founded in Universal Principles

The architecture of government sought in these affirmations is founded in universal principles and not the English constitution. If there were any doubt about this, the doubt would be resolved not merely by comparing this to the actual English constitution of the day, but also by considering the weighty charge against the King concerning his activities in Canada. For there, the revolutionaries held, he abolished “the free System of English Laws in a neighbouring Province, establishing there in an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.” Note that this produces a different picture of English laws operating in Canada. If Canada, previously French, were being anglicized along lines different from what obtained in the thirteen colonies, the thirteen colonies were not anglicized. Moreover, the demand for a clear-cut demarcation among the powers of government — executive, legislative, and judicial — derived not from English practice but from a universal principle.

This design of limited constitutionalism, further, was nothing less than imitating in human artifice the order of nature reflected in the powers of God affirmed in the Declaration. God held the three powers of effective order, legislative, executive and judicial. He legislated “the Laws of Nature and of Nature’s God;” regarding humans he was the executor, for “they are endowed by their Creator with certain unalienable Rights;” and he was appealed to as “the Supreme Judge of the world for the rectitude of our intentions.” God, in other words, united the three powers of effective order in his own person. He could do so precisely because he exists in an order above man and respecting which no “consent” to his rule could be demanded. No man is God’s equal, while every man is any king’s moral equal.

Therefore, no rule by men could assemble the three powers of effective order in the same man or body of men, without creating the presence of a power superior to man. The necessity of consent derives from the truth that “all men are created equal,” meaning that no one man is by nature the ruler of any other. In that circumstance, just rule among men can eventuate only from consent. To be effective, however, such consent must be limited by prudential separations of power that will prevent god-like domination. Men will fail to obtain such good as God has ordained for them unless they gather together in effective political union, but effective political union requires limited, constitutional government.

The Declaration needs limited, constitutional union in order to realize its promise of goods ordained by God for men. The Constitution responds to that need. The most evident forms of Constitutional response are visible in the architecture itself. The powers of government are divided into legislative, executive, and judicial branches. Among these, the legislative takes pride of place, being elaborated in Article I and bearing the most careful delineation of powers and principles of representation. This satisfies the concerns of the Declaration, in which the particular enumeration of tyrannical oppressions lists fourteen specific legislative power violations, ten executive power violations, and one judicial power violation. The list of legislative powers in Article I, Section 8 serves as a template by which we may assess the charges against the King as mainly of one or the other tendency. The Constitution established bulwarks where the experience recorded in the Declaration identified dangers. This same pattern is evinced in the Bill of Rights, which opens with the powerful stricture, “Congress shall make no law…”

The Second Proof: The Principle of Equality

The most telling evidence of the Constitution’s principles is provided in its architecture. Nevertheless, further, significant dimensions are contained in the language and tenor of the document. The Preamble has oft been noted as keynoting the document in its identification of “We the People” as the authorizing power of the government established under the Constitution. This responds, of course, to the Declaration’s insistence that the public good is the aim of limited, constitutional union. Moreover, it furthers the claim that not artificial, political entities create the United States of America, but the people, exercising a native, God-given right do so. Not less important, however, is the fact that the authorizing people are recognized within the document as fully entitled to serve in the government and to benefit from its ministrations. Those who are eligible to hold office on the Constitution’s own terms are distinguished no further than by reasonable age and citizenship restrictions. No religious test is admitted. No race or gender is excluded. In short, in the vision of the Constitution, “all men are created equal.”

Perhaps the most important affirmation of the Declaration’s constitutionalism is the careful provision for re-balancing, re-forming, and re-directing the government that is contained within the Constitution. The amending provision is evidently the leading, though not the sole, source of this understanding. The constitution is careful to keep the door open to the formation of new political subdivisions within the Union, at the same time as providing guarantees against arbitrary or unwanted re-constitutions of the political subdivisions. In the vision of the Constitution the states are both permanent members of the Union and autonomous members of the Union. The sovereign without their consent may not alter them. Further, political decision making is constrained by a careful regard to establish broad consensus rather than the mere weight of numbers – or, in other words, as nearly as possible all the people must be comprehended in decisions for all and not merely a disproportionate number. Whether the concern is constitutional amendments (which must attract three-fourths of the states), the election of the president (which must attract dispersed majorities throughout the country rather than a merely numerical majority), or the election of representatives (which must work toward broad acceptance rather than merely ideological conformity), the Constitution is a Declaration-minded charter, eager to avoid ever again exposing one part of the empire to the willful neglect or oppression of another part.

The detailed ways in which the Constitution, rhapsode-like, echoes the Declaration are legion and, mercifully, will scarcely reward rehearsal in these premises. (However, an appendix is added to illustrate the relationship.) A notable example is the subordination of the military power to the civil power, and there are many others. Yet, I would insist that nothing so fully explains the Constitution as the Declaration.

What About Slavery?

Now it will be reasonable for anyone to insist that the compromises of the Constitution be brought within the compass of these reflections – most notably, the compromises with slavery. Is not slavery the very denial of the Declaration that the Constitution is otherwise said to have echoed? No, we cannot duck this important challenge, for it is certainly correct to say that, if the Constitution were a slave-holding Constitution, then it could not have been a Declaration Constitution. Benjamin Banneker argued as much when he appealed, in 1792, to the author of the Declaration to take up the work of vindicating that document by using his office (as Secretary of State) and reputation (as author of liberty’s charter) to end the abuse that slavery was. Banneker believed that only by eliminating slavery could the Constitution be a true Declaration charter.

I would readily embrace Banneker’s impassioned plea on behalf of the slaves, if I were not already persuaded that the reciprocal influences of the Declaration and the Constitution alone provided in this world any hope for the eventual renunciation of slavery as a lawful practice among men. Although Christianity long before the founding of the United States inseminated moral consciousness with repugnance for slavery, it is doubtless correct to observe that it was only when Christianity combined with the political architecture of liberty that any real opportunity arose to sustain that moral consciousness through the abolition of slavery.

The Constitution, then, compromised with slavery. But in what did the compromise consist? Could it be fairly said that the Constitution purchased its ratification at the cost of approving slavery? Or, was it rather that slave-holding purchased an extended lease at the cost of approving a Declaration charter? I believe the answer to this question is that the latter is nearer the truth than the former. We have not only the testimony of James Madison in the first Congress, who interpreted the slavery clauses in the Constitution as revealing an opposition to slavery albeit in consciousness of the inability to eliminate it at once. We also have the very language of the Constitution itself. The studious avoidance of the word, “slave” – thus to avoid staining the Declaration charter – testifies volubly. Moreover, the tendency of each of the slave-provisions is to provide direct testimony against slavery. At least some proportion of the slaves should be regarded as human beings, for purposes of representation and direct taxation (based on population numbers). That language, the three-fifths clause, was borrowed from a 1783 measure that dealt only with taxation (and therefore led slave-holders to resist the formula rather than support it) and also made plain that all free persons included black persons not slaves. This meant that it was not a comment on the human value of black persons; it was rather a practical measure of the degree of influence the respective sides of the controversy exercised in making the decision. The slave-trading language (“the migration or importation of such persons”) again affirmed the personhood of the slaves. And it did more; it identified the trade as a thing eventually to be ended rather than an option for the future. And the last compromise, the fugitive slave clause, conceded that general laws regarding property should be enforced without exception (thus preserving comity among the states) while yet speaking of “persons held to service,” which included a class larger than slaves.

The slave compromises passed the Constitution, to be sure. But the slave power took the greater risk in doing so. For the other provisions of the Constitution constantly fostering and even encouraging a spreading democratic sentiment could fairly have been expected to deepen the modulated criticism of slavery contained with the compromise language itself. The fact that changing economic and demographic facts in subsequent decades rendered this a more problematic expectation cannot be employed to discount the initial prospects. Nor can it be fairly denied that Lincoln’s valiant and successful effort to recapture the original perspective owed everything to the prior existence of the Declaration charter. When Lincoln and Douglas debated whether the Constitution could apply to black people, and Lincoln reverted to the “standard maxim of a free society” (“that all men are created equal”) to explain the nature of the constitutional principles, we beheld in purest form the sustained, reciprocal interplay of the Declaration and the Constitution. Such a view should persuade us that they are friends never to be separated, best friends in the cause of liberty.

Author’s Note: Keynote address delivered before the New Hampshire Center for Constitutional Studies at its 2004 Constitution Day Celebration, Concord, New Hampshire, September 21, 2004. I acknowledge with gratitude the editorial assistance of my wife, Carol M. Allen. Published in Original Intent vol. 5, no. 1 (December 2004): 1-3, 5.

William B. Allen is Emeritus Dean and Professor of Political Science at Michigan State University.

 

Podcast by Maureen Quinn.

 

 

Appendix

Declaration                                                         Constitution

He has refused his Assent to Laws, the most wholesome and necessary for the public good. Article. I., Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
He has forbidden his Governors to pass Laws of immediate and pressing im- portance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. … If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it,unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

 

 

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have re- turned to the People at large for their exercise; the State remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. Article III., Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. The Congress shall have Power… To declare War… To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the states respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

 

 

He has affected to render the Military independent of and superior to the Civil power. Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service…
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: Article. VI.
… This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: … no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. [counters the Quebec Act]
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances

 

 

of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

 

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Essay 89 – Guest Essayist: Michael P. Farris

“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

The Declaration of Independence has only one operative paragraph—the last one. All that precedes it is an explanation of the actions taken in that bold final paragraph.

Yet, even in the midst of declaring the United States to be a new, independent nation as a matter of right, in this concluding paragraph there are two important references to God.

The first is an appeal “to the Supreme Judge of the World for the Rectitude of our Intentions.”

This is a remarkable thing for a bunch of “rebels” to proclaim. It is common for a rebel to begin with the rejection of human authority and quickly follow with the rejection of divine authority. This was not the attitude of America’s founders. They believed in the higher law that comes from God, and by this appeal they acknowledge their duty of obedience to God both in word, action, and even in their intentions.

In the midst of declaring their independence from England, they declared their dependence on God.

The reason for this attitude of faith flowed directly from their view of both society and government.

In his Notes on the State of Virginia, Thomas Jefferson made the case that freedom was dependent on the right view of God and man:

And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever.

In a similar vein, George Washington reminded the nation of these truths in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.

In light of the common canard that most of the Founders were deists, it is important to note that this phraseology is utterly inconsistent with deism—a philosophy which contends that God created the world and then walked away and is unconcerned with present human actions.

God is described as the “Supreme Judge of the World.” This acknowledges that God has universal standards and that He will hold all men accountable for their actions. This is not a disconnected, indifferent God.

Indeed, Jefferson’s great-grandson acknowledged his forebear’s unorthodox views on most matters but noted “but he was a firm believer in Divine Providence, in the efficacy of prayer, [and] in a future state of rewards and punishment.”

The founding generation widely believed that there were eternal consequences for improper actions during life. Thus, the signers of the Declaration were not merely willingly accepting the temporal consequences of their bold action, but they were effectively saying that they were willing to stand before the throne of God and accept His judgment of these actions.

They believed they were doing right in the eyes of a holy God.

The second reference to God in this paragraph comes in the last sentence:

And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

This again echoes the theme of dependence on God. In the first instance they proclaimed that their hearts were right before God; this proclaims that the success of their efforts depended entirely on God’s intervening protection.

This was not a mere figure of speech or a rhetorical gesture. They actually believed that God would intervene on their behalf in these dangerous efforts.

George Washington’s letter to Landon Carter on March 27, 1776, describing his capture of Boston clearly demonstrates his belief in God’s intervention:

Upon their discovery of the works next morning, great preparations were made for attacking them; but not being ready before afternoon, and the weather getting very tempestuous, much blood was saved, and a very important blow, to one side or the other, was prevented. That this most remarkable interposition of Providence is for some a wise purpose, I have not a doubt.

Less than a month after the Declaration was signed, Samuel Adams said:

There are instances of, I would say, an almost astonishing providence in our favor; our success has staggered our enemies, and almost given faith to infidels; so we may truly say it is not our own arm which has saved us.

These two passages reflect both parts of the promise that we see in John 15:5:

I am the vine, you are the branches. He who abides in Me, and I in him, bears much fruit; for without Me you can do nothing.

Their appeal to the rectitude of their intentions reflects those willing to abide in Christ. And their acknowledgement of their dependence on God for their success shows that they knew that without Christ, they could do nothing.

These are humble men who lived by profound truths.

Michael P. Farris is president and CEO of Alliance Defending Freedom. As the second CEO of ADF, he brings to the role a diverse background as an effective litigator, educator, public advocate, and communicator, and is widely recognized for his successful work on both the national and international stage.

Farris was founding president of both the Home School Legal Defense Association (1983) and Patrick Henry College (2000) and continues to serve as chairman of the board of HSLDA and chancellor emeritus of PHC.

He graduated from Western Washington State College magna cum laude with a bachelor’s degree in political science, followed by a Juris Doctor from Gonzaga University (with honors). He also earned an LL.M. in public international law (with honors) from the University of London.

Farris has specialized in constitutional appellate litigation. In that capacity, he has argued before the appellate courts of 13 states, eight federal circuit courts of appeal, and the U.S. Supreme Court, where in 2018 he successfully argued NIFLA v. Becerra, resulting in a free speech victory for California’s pro-life pregnancy centers.

Farris has testified many times before both the House and Senate. He was an executive committee member of the Coalition for the Free Exercise of Religion that successfully lobbied Congress for the passage of the Religious Freedom Restoration Act of 1993. He also has substantial experience in international religious freedom advocacy.

Farris is the author of over 15 books, as well as law review and other scholarly and popular articles. He and his wife, Vickie, have 10 children and many grandchildren.

Podcast by Maureen Quinn.

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Essay 88 – Guest Essayist: Tony Williams

Most Americans today see the Declaration of Independence as the handiwork of one man—Thomas Jefferson—that was almost handed down to the Second Continental Congress from on high and adopted for American independence. The truth is much more complex, and ultimately more interesting. The Declaration of Independence was part of a great republican deliberative moment of the people and their representatives in colonial legislatures and the Continental Congress engaging in reflection and debate about their liberties and fate as a people united with a common purpose.

The deliberation about independence took shape over a decade of resistance against British taxes and tyranny. While some colonists spoke of a possible break with Great Britain, most considered themselves English and could not imagine living outside the empire. However, the war forced them to reconsider their ties with the British and provided a moral imperative to protect natural rights against a tyrannical government.

The publication of Thomas Paine’s pamphlet, Common Sense, in January 1776, made independence central to the national conversation. As colonists substituted committees of safety and conventions of representatives of the people for royal rule in several colonies, Congress began to consider independence.

On May 10, Congress adopted a resolution urging each colony to adopt new state governments and write constitutions. Five days later, Congress added a preamble written by John Adams that asserted, “it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies.”

On June 7, Richard Henry Lee rose in Congress and offered a resolution for independence. “That these United Colonies are, and of right ought to be, free and independent States.” Congress appointed a committee to draft a Declaration of Independence while states such as Virginia wrote constitutions and their own declarations of rights.

Jefferson composed the draft of the Declaration and submitted it to his fellow committee members, particularly Benjamin Franklin and Adams, for their review. After making light edits, the committee sent the document to the Congress for its consideration.

The delegates to the Congress were ready to enter the seminal discussion over national independence. Many important founders were not present for these debates, the creation of the Declaration of Independence, or the final vote on Lee’s resolution. For example, George Washington, Alexander Hamilton, and Henry Knox were then preparing the defenses of New York for a massive British invasion.

Others were either opposed to independence or at least hesitant. The middle colonies—New York, New Jersey, Pennsylvania, Delaware, and Maryland—were the center of most of the opposition to independence. Some of the leading statesmen against independence were John Dickinson (PA), James Wilson (PA), Edward Rutledge (SC), and financier Robert Morris (PA). Their viewpoint was predicated on several factors: they thought it imprudent to sever historic ties to Britain, the colonies were insufficiently united, the Continental Army needed decisive victories, and the timing was not just right yet. Moreover, congressional delegations waited for their legislatures to authorize them to vote for independence.

While Thomas Jefferson was drafting the Declaration of Independence, several key colonies authorized their delegates to support independence. In this decisive shift, New Jersey, Pennsylvania, and Delaware delegations were permitted to vote for independence. Maryland and New York still had not changed their mind in time for the final debates over independence.

With more delegations receiving authorization to vote for independence and the tide clearly turning in favor of independence, Rutledge begged his friend, John Jay of New York, who opposed independence, to make haste to Philadelphia for support. But Jay had important business that kept him from the city as it did other delegates through the spring and summer.

On July 1, John Dickinson and Adams engaged in a titanic debate over whether America should declare its independence while a dramatic thunderstorm raged outside. The next day, Congress voted for independence by passing Lee’s resolution. Caesar Rodney of Delaware famously rode through the night to join his delegation to push it in favor of independence. John Rutledge and his fellow South Carolinians decided to switch their vote for the resolution for the good of America.

Dickinson and Morris abstained from the final vote as did the entire New York delegation. The vote was thus unanimous in favor of independence. It was a hard-fought battle over a decisive break with Great Britain between principled men who voted, and had deliberated according to their consciences. They disagreed with one another—sometime vehemently—and then accepted the result.

The Congress then considered and edited the document much to Jefferson’s chagrin.  It adopted the Declaration of Independence on July 4 and enunciated the natural rights principles of the American republic. Congressional president John Hancock and secretary Charles Thomson affixed their signatures to the document that day. New York belatedly voted for independence more than a week later.

Most of the delegates did not sign the document that day, however. Most of them signed the document on August 2. Morris added his signature despite his earlier opposition, though Dickinson never did. Matthew Thornton of New Hampshire was elected to Congress in the fall and retroactively signed the document in early November. Other statesmen who did not sign the document included Robert Livingston, who was recalled to New York, and George Clinton resigned his seat and returned to New York state politics before they could sign.

The debate over independence, the ratification of the Constitution, and the Bill of Rights demonstrated that history is ruled by continency. The fate of America could have turned out very differently had individuals not made certain decisions, or debates took a different turn. Perhaps most importantly, the vigorous debate over independence was proof of the strength of republican principles of self-government during the American founding. The people and their representatives, not a king, would determine their own destiny.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

Podcast by Maureen Quinn. 

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Essay 87 – Guest Essayist: James C. Clinger

George Walton was one of the most fascinating, but puzzling signers of the Declaration of Independence. His life and career included great triumphs and defeats, as well as a number of changes in political course that were thought by some to be rank opportunism. Others believed those choices were principled. He rose to great heights of political and governmental office, but also endured censure and disappointment, losing offices and missing opportunities for greater esteem. He died in relatively modest circumstance after serving as a senator, governor, judge, and militia officer in service to Georgia and his country.

George Walton was born in Virginia sometime between 1740 and 1750.  The exact date is not known.[1] Walton’s father had died before his birth, and his mother died a few years later, so Walton was taken in by his father’s brother, who was also named George Walton. The elder Walton was not a poor man, but he had thirteen children of his own to raise, as well as those of his brother. When he was fifteen, the younger Walton was apprenticed as a carpenter, where he learned that trade. He was released from his apprenticeship while still a teenager, when he moved with an older brother to Savannah, Georgia. There, he became a clerk in an attorney’s office, and began to learn the law while on the job. By 1775, Walton had not only become a practicing attorney, but had also become one of the most sought-out and prosperous lawyers in Savannah.  As his professional success grew, Walton became involved with the young Whigs opposing British rule in America.[2]

There were multiple factions jockeying for influence in Georgia’s colonial politics at the time. Some Loyalists wished to remain a British colony. The Whigs wished to separate, but they were internally divided between more radical and more conservative factions, which were concentrated in different parishes. Walton had relatives who had settled in western Georgia, but he was also connected to more conservative politicians along the Atlantic coast. Walton was elected to the provincial congress in July of 1775 and chosen for the Council of Safety in December. He also became a high-ranking officer in the Georgia militia, where he became a close follower of Colonel Lachlan McIntosh.    Walton was chosen as one of five delegates to the second Continental Congress, but he was one of only three to attend the proceedings and vote on independence. Walton was the last of the three to arrive in Philadelphia, so he missed some of the debate over the motion to break free from Britain. He did arrive in time to hear John Adams’ summation of the arguments for independence. Years later, Walton wrote to Adams telling him that “Since the first day of July, 1776, my conduct, in every station in life, has corresponded with the result of that great question which you so ably and faithfully developed on that day.”[3] Walton remained an enthusiastic Adams supporter for the rest of his life.

Walton served four one-year terms in the Continental Congress, although the terms were not consecutive. Walton spent much of his time in Congress convincing other representatives of the importance of Georgia in the war effort asking for assistance. In late 1777, Walton returned to Savannah and his law practice. Walton married Dorothy Camber, who was said to be in her teens at the time. They had two sons together. Walton soon returned to public office by serving in the General Assembly. He also volunteered in November, 1778, to serve in the militia to repel a British invasion from Florida. In December, the British landed on the Georgia coast to attack Savannah. Walton ordered his militia unit to stop British troops advancing through a swamp. His troops were unable to hold their position and quickly retreated. Walton was left in the field, badly wounded by a bullet wound in his thigh and a fall from his horse. He spent the next ten months as a prisoner of war.[4]

After his release, Walton began a political transformation that perplexed many historians and at times infuriated some of his contemporaries.   Over the next few years, Walton was named to a number of public offices: governor, member of the U.S. House of Representatives, state supreme court chief justice, and United States Senator. Before and during the revolutionary war, Walton had been a political ally of Lachlan McIntosh and a virulent critic of Button Gwinnett, who had joined Walton and Lyman Hall in Philadelphia as Georgia’s representatives to the Second Continental Congress. Walton was even censured for his support of a duel in which McIntosh killed Gwinnett. But after his release by the British in a prisoner exchange, Walton began to re-align himself politically with the factions that he had previously opposed. He turned away from McIntosh and fell in with the more radical faction that Gwinnett had led before his death.[5] Walton allegedly forged a letter ostensibly penned by the speaker of the Georgia house of representatives which urged the removal of McIntosh as commander of Georgia’s military forces. After the speaker reported that he had not signed the damaging letter, Congress repudiated its dismissal and restored McIntosh to his position. Later, the son of Lachlan McIntosh, Captain William McIntosh, reportedly horsewhipped Walton, a crime that led to his court-martial.[6]

Whether this was a strategic, politically opportunistic decision or a principled change of heart is not clear, but there is no doubt that many of Walton’s contemporaries believed that he had betrayed his former allies.   Nonetheless, despite accusations of dishonesty and betrayal, Walton continued to be elected or nominated for public offices. Finally, after serving part of a U.S. Senate term to fill a vacancy, Walton failed to be re-elected in 1795.[7]

Earlier, in 1787, Walton was asked to attend the federal constitutional convention as a delegate from Georgia, but he declined so he could attend to matters of state. In 1789, Walton was named as a delegate to the convention to craft Georgia’s second state constitution.[8] That convention produced a document quite similar in form to the new federal constitution, with a separation of powers and a bicameral legislature.[9]   After the constitutional convention, Walton was elected a second time as governor. During his time in office, the state capital was moved to Augusta, where Walton and many of his relatives had settled. Walton spent much of his time in negotiation with Indian tribes, seeking the ceding of lands to the state. Soon Walton was embroiled in two land sale scandals, one involving the “pine barren speculation” of south-central Georgia, the other, larger scandal involving the Yazoo land sales of territory making up present-day Alabama and Mississippi. Walton approved the Yazoo land sales that had begun under Governor George Mathews and which involved bribery within the state legislature. When the scandal came to light, the Georgia General Assembly enacted a law canceling and revoking the land sales that had already been completed.   This led to a landmark U.S. Supreme Court decision, Fletcher v. Peck, in which the court ruled, for the first time, that a state law violated the federal constitution. Specifically, the court ruled that the Georgia law violated the prohibition of the impairment of the obligation of contracts in Article 1, Section 9, Clause 1.[10]

Unlike most men of property and influence in Georgia, Walton did not own slaves. There is little record of his public views on slavery, but it is known that shortly after leaving the governor’s mansion, Walton spoke out against what he called “barbarian” treatment of members of an African-American Baptist congregation in Yamacraw, Georgia, in 1790.   When the congregation first began to hold services, local whites imprisoned some of the church-goers and whipped about fifty members of the assembly. After Walton spoke out against this outrage, a state court ordered the release of the prisoners and declared that religious services could continue.[11]

In his last years, Walton lived somewhat quietly in a cottage outside of Augusta that was located on confiscated Tory land. He never completely left public life, serving as a superior court judge and speaking out on matters of public concern that received his attention. He became an enthusiastic booster supporting the economic development of Augusta.   He was a founder of Richmond Academy and tried unsuccessfully to have Franklin College, the predecessor of the University of Georgia, located in Augusta. His last years were difficult. He had never completely recovered from his wounds incurred in the revolution and he suffered many illnesses in his final years.[12] He was not well off financially. Walton died in February of 1804, only two months after the death of his oldest son.[13]

George Walton’s reputation was marred by scandal that might have broken many politicians. But Walton continually returned to power after losing office and influence. His resolve to return again and again to the political fray displayed his commitment to the building of a new nation. One of the youngest signers of the Declaration of Independence, George Walton was certainly a skilled statesman who sacrificed much in service to his country and his state of Georgia.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky. 

Podcast by Maureen Quinn.

 

[1] https://www.dsdi1776.com/george-walton/

[2] Bridges, Edwin C.  “George Walton,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[3] Bridges, op cit., page 64.

[4] Bridges, op cit.

[5] Bridges, op cit.

[6] Daughters of the Signers of the Declaration of Independence.  https://www.dsdi1776.com/george-walton/

[7] Daughters of the Signers of the Declaration of Independence. ibid .

[8] Bridges, op cit.

[9] Hill, Melvin B., Jr., and Hill, Laverne Williamson Hill.   “Georgia: Tectonic Plates Shifting.” In George E. Connor and Christopher W. Hammons (editors).  The Constitutionalism of American States. Columbia, MO: University of Missouri Press, 2008.

[10] 10 U.S. 87 (1810).

[11] Whitescarver, Keith. 1993. “Creating Citizens for the Republic: Education in Georgia, 1776-1810.” Journal of the Early Republic 13 (4): 468.

[12] Daughters of the Signers of the Declaration of Independence.  https://www.dsdi1776.com/george-walton/

[13] Bridges, op cit.

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Essay 86 – Guest Essayist: James C. Clinger

Lyman Hall was a multi-talented clergyman, physician, and statesman who served in the Second Continental Congress, signed the Declaration of Independence, and won state office in his adopted state of Georgia.   Repeatedly, Hall faced personal and financial losses as a result of his service to his country and his state, but he emerged as a respected political figure in a politically fractious environment.

Most sources indicate that Hall was born in Connecticut in 1724, although some authorities list a later year of birth. Hall’s family was filled with pious Congregationalists, and his father and uncle served as clergy. To no one’s surprise, Hall studied divinity at nearby Yale University, and then began a career as a parson. He lost his position because of some sort of scandal involving confessed immoral conduct.   The exact nature of the offense is not now known. Whatever the details of the controversy were, Hall’s reputation was not so severely damaged that he was unable to secure some income preaching occasionally at local churches. For a time, he also taught school. Perhaps those careers did not offer much attraction to Hall, since he resolved to learn to practice medicine through an internship with an established physician.[1]   This kind of medical education was not uncommon at that time, even though it would be unthinkable in the United States today.

Hall married Abigail Burr in 1752, but she died a year later. Hall later married Mary Osborne, who bore him a son. Hall and his family moved from Connecticut to Dorchester, South Carolina, in 1756, where he practiced medicine. He later moved to Liberty County, Georgia, where he again set up a medical practice and later acquired a plantation. In both South Carolina and Georgia, Hall settled amongst transplanted New Englanders, descendants of Puritans. Once in Georgia, Hall became active in the push for independence.[2]

In 1775, Hall was elected as a delegate to the First Continental Congress from St. Johns Parish. The colony of Georgia at that time was divided amongst factions that were urging independence and those that wished to become reconciled with the British government. Because he was not chosen state-wide, Hall attended the First Continental Congress as a non-voting member. Hall brought a shipment of rice to Philadelphia to be distributed in Boston which was suffering from the British embargo on foodstuffs from other colonies. Hall served on a scientific committee along with John Adams, Benjamin Franklin, and Patrick Henry.[3]

In 1776, Hall was chosen as one of five delegates to the Second Continental Congress, although only three attended at the time of the debate and to vote on independence. Hall and Button Gwinnet, who were personal friends and members of the same faction in Georgia’s colonial politics, arrived first. George Walton, who represented a different faction and geographic areas of Georgia, arrived only shortly before the vote. Hall served on committees concerned with provision of medical supplies to the continental troops. Hall was regarded as a steady and hardworking committee member.[4] The Georgia delegation was stalwart in its support for the proposal for independence, but according to Thomas Jefferson, the delegations from Georgia and South Carolina led the opposition to his provision “reprobating the enslaving [of] the inhabitants of Africa.”[5]

Hall was steadily re-elected to the Congress through 1780, but he may not have actually served in Philadelphia after February of 1777.   Matters of state and family necessity required him to return to Georgia and later to flee to South Carolina, where he still had friends and supporters. The British issued a bill of attainder directing his arrest and the confiscation of his property. Hall’s plantation house at “Hall’s Knoll” and his home in Sunbury, Georgia, were burned to the ground by British troops.[6] Years later, the United States Constitution would forbid the use of bills of attainder by the federal government (Article I, Section 9, Clause 3) and by the states (Article I, Section 10). In addition to the losses of property, many personal papers and public documents were lost in the flames.

Hall was devastated by the death of Button Gwinnett in a duel in 1777.   Hall made an unsuccessful effort to arrest and prosecute the duelist, Lachlan McIntosh, who killed Gwinnett. Hall briefly returned to his medical practice, but was elected to the Georgia House of Assembly in 1783. One of the first acts of the Assembly was to elect Hall governor.   It was not a position that he had sought. While governor, Hall worked futilely on the state’s finances, which were in a complete shambles. Hall also initiated negotiations with Native American tribes from whom the state wished to gain land concessions.[7] Hall pushed hard for a piety-oriented educational system that would “restrain vice and encourage virtue.” Hall supported the creation of what was originally known as Franklin College, which later became the University of Georgia.[8]

Factional politics in Georgia was fierce, both before and after statehood.   After Hall left office as governor he was taken into custody for contempt because he failed to produce some public documents regarding sequestered estates. He later was cleared of the charge, but the allegations placed great strain on the last years of his life. The estate of a one-time business partner was suing Hall over twenty year old disputes as late as 1786. His loss of property during the revolution and the demands of his public obligations upon his time left him in financial difficulties.[9]

Hall moved to Savannah in 1785, where he once more practiced medicine. He did not leave public service entirely, though, for he supplemented his income as Judge of the Chatham Court. Hall moved to a Burke County plantation shortly before he died in 1790, leaving behind a widow and a son who would both die within three years.[10]

Lyman Hall’s name may be the most well-known of Georgia’s signers of the Declaration of Independence, although much of his fame may be attributed to the stage and movie musical, 1776, in which Hall plays a significant supporting role. Unfortunately, very little about the musical’s portrayal of Hall can be established as factual. Hall’s actual life was certainly dramatic enough to deserve the attention of all Americans, and certainly all Georgians.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky. 

Podcast by Maureen Quinn.

 

[1] Young, James Harvey.  “Lyman Hall,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[2] Krafka, J.. “Lyman Hall-Yale 1747: A Connecticut Doctor Who Mixed Medicine and Politics in Georgia.” Yale Journal of Biology and Medicine 10 (1938): 531-537.

2 Young, James Harvey.  “Lyman Hall,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[4] Young, op cit.

[5] Jefferson, Thomas. “The Declaration of Independence: Thomas Jefferson’s Account.” https://www.ushistory.org/declaration/account/index.html

[6] Young, op cit.

[7] Krafka, op cit.

[8] Whitescarver, Keith. 1993. “Creating Citizens for the Republic: Education in Georgia, 1776-1810.” Journal of the Early Republic 13 (4): 455-479.

[9] Krafka, op cit.

[10] Krafka, op cit.

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Essay 85 – Guest Essayist: James C. Clinger
Nathaniel Hone the Elder (Irish, 1718–1784)Title: Portrait of Button Gwinnett, signer of the Declaration of Independence from GeorgiaMedium: Oil on Canvas Size: 84.5 x 73.7 cm. (33.3 x 29 in.)

Button Gwinnett was one of the three Georgia delegates to the Second Continental Congress who signed the Declaration of Independence. Gwinnett was also was a prominent leader in Georgia’s state government. But despite those prominent achievements, Gwinnett’s life was also full of controversies, scandals, and tragedies. He was the second of the fifty-six signers to die, and his death was caused by internal political and personal feuding within Georgia, not by the new nation’s battles with the British.

Gwinnett was born in Gloucester, England, in 1735, the son of an Anglican vicar. He was named in honor of his godmother, Barbara Button. He married Anne Bourne, and they had three children together. For much of his adult life, he worked as a merchant, but was never consistently successful. In fact, he may have fled England to come to the colonies in order to escape his creditors. After living briefly in Nova Scotia and Jamaica, Gwinnett arrived in Savannah, Georgia, where his business ventures were mostly unsuccessful.[1] Gwinnett did have some success in politics as he quickly became a leader within a faction that favored wresting political control from elites in Christ Church Parish as well as from the British. Georgia was the last of the original thirteen colonies to be organized by the British. The population was concentrated within a few miles of the Atlantic coast, with only sparse settlement in the backcountry. Much of the representation in the colonial assembly was held by landed gentry from Christ Church Parish, while other parishes had little influence.[2] Gwinnett became an outspoken leader of colonists from St. Johns Parish and claimed to represent the common people throughout all of Georgia.

The British presence was led by royal governors, the last of which was a fairly popular and capable administrator, Sir James Wright. Actions by the British government affected all of the American colonies slowly led to opposition in Georgia.[3] The opponents of British rule were known as Whigs, but the group was divided among different factions. The more conservative faction had its base in Christ Church parish, while a more radical faction, which included Button Gwinnett, had more support elsewhere. The radical faction, later known as the Popular Party, gained political strength in Georgia after the Stamp Act was enacted in Britain and after British troops fought with colonists in Lexington and Concord.[4]

Gwinnett rented a store shortly after arriving in Savannah and established himself as a merchant. That venture proved unsuccessful and Gwinnett borrowed money to buy St. Catherine’s Island in St. John’s Parish so that he could become a planter. At that time, he became active in local politics and civic affairs, becoming a justice of the peace and later a representative to the Commons House of Assembly. During his first term in legislative office, he made a name for himself as an advocate for parishes that had taxes imposed upon them without legislative representation. He also became known as an opponent of the royal governor.[5]

Gwinnet left the Assembly after one session to try to return to his plantation and stave off bankruptcy. Soon both his personal property and his land were put up for forced sale to satisfy his creditors in 1773.   Gwinnett returned to politics, claiming that his troubles and those of other Georgians were the doing of the elites from Christ Church Parish and the royal governor. Georgia did not send a delegation to the First Continental Congress, because of divisions between the different Whig coalitions. The St. Johns Parish representatives also boycotted the First Provincial Congress, but later held a Second Provincial Congress in July of 1775 which was attended by all factions, but not by Gwinnett.   Forging an alliance between his supporters in St. John’s Parish and new recruits from the western, rural areas of Georgia, Gwinnett built up a personal following. When the Continental Congress declared that Georgia should raise a continental battalion, the colonial legislature chose Gwinnett as the commander, despite his complete lack of military qualifications. However, Gwinnett never served as commander because the different factions later chose him as a delegate to the Second Continental Congress, joining his friend and political ally, Lyman Hall.   The man then chosen to serve as the battalion commander was Lachlan McIntosh, an officer in George Washington’s continental army, who at the time, at least, was considered to be unaffiliated with any particular faction.[6]

Gwinnett presented his credentials in Philadelphia on May 20, 1776.    He served on some committees, but little is known about his participation in any debates on independence. Gwinnett did vote for the motion in support of independence, and he did sign the Declaration of Independence on August 2. Gwinnet returned to Georgia, probably hoping to re-gain the appointment to the battalion commander, but McIntosh was selected to remain in that position. Gwinnet was soon chosen to participate in a state constitutional convention that would draft the first of Georgia’s constitution. Once he arrived at the convention, Gwinnett was chosen as speaker. Most records of the debates at the convention have not survived to this day, but it appears that the final product was to Gwinnett’s liking. The new state constitution established relatively low property ownership requirements for voting, created a unicameral state legislature, and established a weak chief executive, elected by the legislature, who could not veto legislative actions. The new constitution also abolished the parish system of representation and created counties that would serve as administrative units of the state as well as a basis for representation in the legislature. The new document was approved in February of 1777. By that time, Gwinnett served on the Council of Safety, which assumed governmental power after the Provincial Congress adjourned. The president of the Council of Safety, Archibald Bulloch was the de facto chief executive. Bulloch died suddenly, late in that month. The Council of Safety selected Gwinnett to serve as temporary president. The only dissenting vote was cast by George McIntosh, the brother of Lachlan McIntosh.[7]

Gwinnett urged the Continental Army to form an expedition to attack British troops and sympathizers in what is now St. Augustine, Florida.   But those urgings were ignored or rejected. Gwinnett also urged the Georgia battalion to take action, but was met with resistance from Lachlan McIntosh, who thought the Georgia forces were ill-prepared to mount an operation in that territory far from their sources of supply.   Eventually, an attempt to begin an expedition did occur, but the effort was abandoned before the troops moved more than a few miles from their base of operations.

Gwinnett’s feud with the McIntosh family intensified after he received a packet of documents in March of 1777 that reported that George McIntosh had entered into a business partnership with his brothers-in-law to ship rice first to Dutch Guiana and then to the British West Indies.   The shipment took place before independence was declared, but it was a violation of the Continental Association’s prohibition of trade with British ports. George McIntosh was arrested, but later released on bail, paid for in part by members of the Council of Safety.[8]

By early May, the first assembly under the new constitution met to elect the first governor. Gwinnett expected to be chosen, but the legislature selected another member of the Popular Party, John Adam Treutlen, as governor. The legislature also reported the results of an investigation into the St. Augustine expedition, which upheld Gwinnett’s position and implicitly rejected the stance taken by Lachlan McIntosh. Enraged, McIntosh took to the floor of the Assembly and declared that Gwinnett was “a Scoundrell & Lying Rascal.” Gwinnett was not willing to allow the insult to go unchallenged. On May 15, 1777, he issued a written challenge to McIntosh to a duel on the following day. McIntosh agreed.   The following morning, standing only about a dozen paces apart, Gwinnett and McIntosh fired at one another. Both men hit their target.   McIntosh suffered a flesh wound to his thigh, but his shot shattered bone just above Gwinnet’s knee. McIntosh asked if both parties could re-load and fire again, but the seconds intervened to put an end to the duel. The antagonists shook hands, and their seconds took the wounded men home. McIntosh made a complete recovery, but Gwinnett’s wounds quickly became gangrenous. He died Monday morning, May 19, leaving behind a destitute widow and three orphaned children. He was the second of the signers of the Declaration of Independence to pass away, and the first to die violently.[9]

Gwinnett was an intriguing, controversial figure. He was in many ways politically adroit, but he was an utter failure in business and even in politics his victories were short-lived. He was loved by some of his followers but was hated by his opponents. Lachlan McIntosh was far from the first to accuse him of dishonesty and betrayal. Nonetheless, he is remembered today for his role in crafting, and signing in support of, one of America’s foundational documents, the Declaration of Independence.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.  

Podcast by Maureen Quinn.

 

[1] Davis, Robert Scott.   “The Dark and Heroic Histories of Georgia’s Signers,” Journal of the American Revolution.  February 11, 2019.  https://allthingsliberty.com/2019/02/the-dark-and-heroic-histories-of-georgias-signers/

[2] Jackson, Harvey H.  “Factional Politics in Revolutionary Georgia,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[3] Bridges, Edwin C.  “Prelude to Independence,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[4] Jackson, Harvey H.  “Factional Politics in Revolutionary Georgia,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[5] Jackson, Harvey H.  “Button Gwinnett,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[6] Jackson, ibid.

[7] Jackson, ibid. 

[8] Jackson, ibid.

[9] Fleming, Thomas H. (2011). “When Politics Was Not Only Nasty… But Dangerous”. American Heritage. 61 (1). Retrieved 24 May 2021.

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Essay 84 – Guest Essayist: Edward Lee

Born in Charleston, South Carolina, Arthur Middleton (June 26, 1742-January 1, 1787) was the son of Henry Middleton and Mary Williams Middleton. Arthur’s father, Henry, served as president of the First Continental Congress in 1774 after Peyton Randolph. Arthur Middleton was educated in England at Harrow School, Westminster School, and Cambridge, Class of 1773. He studied law, also, at the Middle Temple and traveled extensively in Europe for two years prior to Independence, developing a strong appreciation of the fine arts such as music, architecture, literature, and learning Latin and Greek.

When Arthur was in his early twenties, he returned from attending school to live in his home state of South Carolina. Soon after returning home, Middleton married, and he and his bride, Mary Izard, settled at Middleton Place. They had nine children together.

Once settled back in South Carolina, Arthur became engaged in politics, interested in the activity of independence. His father, Henry Middleton, viewed negatively the colonies’ Loyalists and wanted his son to succeed him as a member of the Continental Congress to oppose the encroaching policies of the British. Due to Arthur being a vocal critic of England and Parliament’s actions, like his father, this led to the thirteen-member Council of Safety. He served on the council as a delegate of the First and Second Provincial Congresses, then succeeded his father as a delegate to the Continental Congress in 1776. Though a man of great wealth and much to lose, with sober knowledge of the risk to his own life and that of his family, Arthur supported the cause of freedom, voting in favor of independence from Great Britain, leading him to add his signature to the Declaration of Independence.

By the end of 1777, Arthur declined both a further role in Congress, and an election as governor of South Carolina in 1778. As part of his service, Arthur and William Henry Drayton worked together on the Great Seal of South Carolina with a design inspired by the Battle of Sullivan’s Island in June of 1776. The design holds the dates March 26 when the state constitution of South Carolina was ratified, and July 4 to mark the Declaration of Independence, and the year 1776 for the momentous events of that same year. Arthur was also instrumental in constructing the state constitution for South Carolina.

Later, as the British laid siege to Charleston in 1780, Middleton was active in the city’s defense as a member of the militia. His home of Middleton Place was attacked as well. His family escaped, but he, like Rutledge and Heyward, was captured and confined aboard ship in St. Augustine, Florida, and exchanged for British prisoners the following year, 1781, in Philadelphia.

Middleton remained in Philadelphia to continue serving in the Second Continental Congress until 1782. This was a time of discussing and crafting a governing document upon which to get their freedom and independence started even though the American Revolutionary War for independence from Britain was raging, and a better document would be needed, later resulting in the United States Constitution by 1787. In March 1781, the assembly of delegates, though now referred to as under the same Continental Congress, was then known as the Confederation Congress, or Congress of the Confederation (convened from 1781-1789), after the Articles of Confederation were approved by the states in March 1781 to decentralize government and protect their new governing system from repeating what the Americans were fighting against in the current American Revolutionary War. Moreover, the Articles of Confederation were written to unite the thirteen colonies, vest most of the power in the states so that governing remained in the hands of the American people, and limit power of the courts. Upon completing his service in Congress there, Arthur returned home to his family at Middleton Place.

Arthur Middleton accomplished much for the cause and defense of American independence, known for his unwavering patriotism and moral character. When he died, the State Gazette of South Carolina praised him as a “tender husband and parent, humane master, steady unshaken patriot, the gentleman, and the scholar.” Middleton Place passed into the care of his eldest son, Henry, who later was elected Governor of South Carolina, United States Representative, and Minister to Russia. Arthur’s other children were also known to hold positions of honor and service to America, and he was survived by eight children at the time of his passing. Arthur Middleton died at the age of 44 from a fever that would not subside, in 1787, the same year that the United States Constitution was adopted.

J. Edward Lee, Ph.D., is Professor of History at Winthrop University. Lee is a former mayor of the City of York, South Carolina.

 

Podcast by Maureen Quinn.

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(November 1, 1787)

Source: Consource. Click Here to view the original document.

To the CITIZENS of the STATE of NEW-YORK.

I flatter myself that my last address established this position, that to reduce the Thirteen States into one goverment, would prove the destruction of your liberties.

But lest this truth should be doubted by some, I will now proceed to consider its merits.

Though it should be admitted, that the arguement against reducing all the states into one consolidated government, are not sufficient fully to establish this point; yet they will, at least, justify this conclusion, that in forming a constitution for such a country, great care should be taken to limit and define its powers, adjust its parts, and guard against an abuse of authority. How far attention has been paid to these objects, shall be the subject of future enquiry. When a building is to be errected which is intended to stand for ages, the foundation should be firmlylaid. The constitution proposed to your acceptance, is designed not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made-But on this subject there is almost an entire silence.

If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society then is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate. The mutual wants of men, at first dictated the propriety of forming societies; and when they were established, protection and defence pointed out the necessity of instituting government In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend everyone who composed it The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established.1 To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, &c. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression, and violence on the other, that men came together, and agreed that certain rules should be formed, to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.

This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pults of liberty beat high and when an appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand security, to the rights of the people, is not to be found in this constitution.

It has been said, in answer to this objection, that such declaration of rights, however requisite they might be in the constitutions of the states, are not necessary in the general constitution, because, “in the former case, every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government-It reaches to every thing which concerns human happiness-Life, liberty, and property, are under its controul. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individual states, and apply them to the case in question.

For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself-The witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that ofa particular state? The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishment ofa variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall being the state where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New-York, or carried from Kentucky to Richmond for trial for an offence, supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defence by himself or counsel?

For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted-That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.”

These provisions are as necessary under the general government asunder that of the individual states; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other.

For the purpose of securing the property of the citizens, it is declared by all the states, “that in controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”

Does not the same necessity exist of reserving this right, under this national compact, as in that of this state? Yet nothing is said respecting it. In the bills of rights of the states it is declared, that a well regulated militia is the proper and natural defence of a free government-That as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controuled by the civil power.

The same security is as necessary in this constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no controul in the exercise of it; yet nothing of this is to be found in this new system.

I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections should be free, that the liberty of the press should be held sacred; but the instances adduced, are sufficient to prove, that this argument is without foundation.2 -Besides, it is evident, that the reason here assigned was not the true one, why the framers of this constitution omitted bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the 9th section of the 1st article, declared, that the writ of habeas corpus shall not be suspended, unless in cases rebellion-3 that no bill of attainder, or expost facto law, shall be passed-4 that no title of nobility shall be granted by the United States, &c.5 If every thing which is not given is reserved, what propriety is there in these exceptions? Does this constitution anywhere grant the power suspending the habeas corpus, to make expost facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers, which the bills of right, guard against the abuse of are contained or implied in the general ones granted by this constitution.6

So far it is from being true, that a bill of rights is less necessary in the general constitution than in those of the states, the contrary is evidently the fact- This system, if it is possible for the people of America to accede – to it, will be an original compact; and being the last, will, in the nature of things, vacate every former agreement inconsistent with it For it being a plan of government received and ratified by the whole people – , all other forms, which are in existence at the time of its adoption, must yield to it This is expressed in positive and unequivocal terms, in the 6th article, “That this constitution and the laws of the United States, which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or laws of any state, to the contrary notwithstanding.7

“The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound, by oath or affirmation, to support this constitution.” It is therefore not only necessarily implied thereby, but positively expressed, that the different state constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States; of what avail will the constitutions of the respective states be to preserve the rights of its citizens?8 should they be plead, the answer would be, the constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the general or state governments, are bound by oath to support it. No priviledge, reserved by the bills of rights, or secured by the state government, can limit the power granted by this, or restrain any laws made in pursuance of it It stands therefore on its own bottom, and must receive a construction by itself without any reference to any other-And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.9

This will appear the more necessary, when it is considered, that not only the constitution and laws made in pursuance thereof, but all treaties made, or which shall be made, under the authority of the United States, are the supreme law of the land, and supersede the constitutions of all the states.10 The power to make treaties, is vested in the president, by and with the advice and consent of two thirds of the senate. I do not find any limitation, or restriction, to the exercise of this power. The most important article in any constitution may therefore be repealed, even without a legislative act.11 Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought So clear a point is this, that I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution than under those of the states, are wilfully endeavouring deceive, and to lead you into an absolute state of vassalage.

November 1, 1787

Source: Teaching American History 

MR. PRINTER, In order that people may be sufficiently impressed, with the necessity of establishing a BILL OF RIGHTS in the forming of a new constitution, it is very proper to take a short view of some of those liberties, which it is of the greatest importance for Freemen to retain to themselves, when they surrender up a part of their natural rights for the good of society.

The first of these, which it is of the utmost importance for the people to retain to themselves, which indeed they have not even the right to surrender, and which at the same time it is of no kind of advantages to government to strip them of, is the LIBERTY OF CONSCIENCE. I know that a ready answer is at hand, to any objections upon this head. We shall be told that in this enlightened age, the rights of conscience are perfectly secure: There is no necessity of guarding them; for no man has the remotest thoughts of invading them. If this be the case, I beg leave to reply that now is the very time to secure them.—Wise and prudent men always take care to guard against danger beforehand, and to make themselves safe whilst it is yet in their power to do it without inconvenience or risk.—who shall answer for the ebbings and flowings of opinion, or be able to say what will be the fashionable frenzy of the next generation? It would have been treated as a very ridiculous supposition, a year ago, that the charge of witchcraft would cost a person her life in the city of Philadelphia; yet the fate of the unhappy old woman called Corbmaker, who was beaten—repeatedly wounded with knives—mangled and at last killed in our streets, in obedience to the commandment which requires “that we shall not suffer a witch to live,” without a possibility of punishing or even of detecting the authors of this inhuman folly, should be an example to warn us how little we ought to trust to the unrestrained discretion of human nature.

Uniformity of opinion in science, morality, politics or religion, is undoubtedly a very great happiness to mankind; and there have not been wanting zealous champions in every age, to promote the means of securing so invaluable a blessing. If in America we have not lighted up fires to consume Heretics in religion, if we have not persecuted unbelievers to promote the unity of the faith, in matters which pertain to our final salvation in a future world, I think we have all of us been witness to something very like the same spirit, in matters which are supposed to regard our political salvation in this world. In Boston it seems at this very moment, that no man is permitted to publish a doubt of the infallibility of the late convention, without giving up his name to the people, that he may be delivered over to speedy destruction; and it is but a short time since the case was little better in this city. Now this is a portion of the very same spirit, which has so often kindled the fires of the inquisition: and the same Zealot who would hunt a man down for a difference of opinion upon a political question which is the subject of public enquiry, if he should happen to be fired with zeal for a particular species of religion, would be equally intolerant. The fact is, that human nature is still the same that ever it was: the fashion indeed changes; but the seeds of superstition, bigotry and enthusiasm, are too deeply implanted in our minds, ever to be eradicated; and fifty years hence, the French may renew the persecution of the Huguenots, whilst the Spaniards in their turn may become indifferent to their forms of religion. They are idiots who trust their future security to the whim of the present hour. One extreme is always apt to produce the contrary, and those countries, which are now the most lax in their religious notions, may in a few years become the most rigid, just as the people of this country from not being able to bear any continental government at all, are now flying into the opposite extreme of surrendering up all the powers of the different states, to one continental government.

The more I reflect upon the history of mankind, the more I am disposed to think that it is our duty to secure the essential rights of the people, by every precaution; for not an avenue has been left unguarded, through which oppression could possibly enter in any government; without some enemy of the public peace and happiness improving the opportunity to break in upon the liberties of the people; and none have been more frequently successful in the attempt, than those who have covered their ambitious designs under the garb of a fiery zeal for religious orthodoxy. What has happened in other countries and in other ages, may very possibly happen again in our own country, and for aught we know, before the present generation quits the stage of life. We ought therefore in a bill of rights to secure, in the first place, by the most express stipulations, the sacred rights of conscience. Has this been done in the constitution, which is now proposed for the consideration of the people of this country?—Not a word on this subject has been mentioned in any part of it; but we are left in this important article, as well as many others, entirely to the mercy of our future rulers.

But supposing our future rulers to be wicked enough to attempt to invade the rights of conscience; I may be asked how will they be able to effect so horrible a design? I will tell you my friends—The unlimited power of taxation will give them the command of all the treasures of the continent; a standing army will be wholly at their devotion, and the authority which is given them over the militia, by virtue of which they may, if they please, change all the officers of the militia on the continent in one day, and put in new officers whom they can better trust; by which they can subject all the militia to strict military laws, and punish the disobedient with death, or otherwise, as they shall think right: by which they can march the militia back and forward from one end of the continent to the other, at their discretion; these powers, if they should ever fall into bad hands, may be abused to the worst of purposes. Let us instance one thing arising from this right of organizing and governing the militia. Suppose a man alledges that he is conscientiously scrupulous of bearing Arms.—By the bill of rights of Pennsylvania he is bound only to pay an equivalent for his personal service.—What is there in the new proposed constitution to prevent his being dragged like a Prussian soldier to the camp and there compelled to bear arms?—This will depend wholly upon the wisdom and discretion of the future legislature of the continent in the framing their militia laws; and I have lived long enough to hear the practice of commuting personal service for a paltry fine in time of war and foreign invasion most severely reprobated by some persons who ought to have judged more rightly on the subject—Such flagrant oppressions as these I dare say will not happen at the beginning of the new government; probably not till the powers of government shall be firmly fixed; but it is a duty we owe to ourselves and our posterity if possible to prevent their ever happening. I hope and trust that there are few persons at present hardy enough to entertain thoughts of creating any religious establishment for this country; although I have lately read a piece in the newspaper, which speaks of religious as well as civil and military offices, as being hereafter to be disposed of by the new government; but if a majority of the continental legislature should at any time think fit to establish a form of religion, for the good people of this continent, with all the pains and penalties which in other countries are annexed to the establishment of a national church, what is there in the proposed constitution to hinder their doing so? Nothing; for we have no bill of rights, and every thing therefore is in their power and at their discretion. And at whose discretion? We know not any more than we know the fates of those generations which are yet unborn.

It is needless to repeat the necessity of securing other personal rights in the forming a new government. The same argument which proves the necessity of securing one of them shews also the necessity of securing others. Without a bill of rights we are totally insecure in all of them; and no man can promise himself with any degree of certainty that his posterity will enjoy the inestimable blessings of liberty of conscience, of freedom of speech and of writing and publishing their thoughts on public matters, of trial by jury, of holding themselves, their houses and papers free from seizure and search upon general suspicion or general warrants; or in short that they will be secured in the enjoyment of life, liberty and property without depending on the will and pleasure of their rulers.

If we pass over the consideration of this subject so essential to the preservation of our liberties, and turn our eyes to the form of the government which the Convention have proposed to us, I apprehend that changing the prospect will not wholly alleviate our fears.—A few words on this head, will close the present letter. In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great Britain, and a King too of the worst kind;—an elective King.—If such powers as these are to be trusted in the hands of any man, they ought for the sake of preserving the peace of the community at once to be made hereditary.—Much as I abhor kingly government, yet I venture to pronounce where kings are admitted to rule they should most certainly be vested with hereditary power. The election of a King whether it be in America or Poland, will be a scene of horror and confusion; and I am perfectly serious when I declare that, as a friend to my country, I shall despair of any happiness in the United States until this office is either reduced to a lower pitch of power or made perpetual and hereditary.—When I say that our future President will be as much a king as the king of Great-Britain, I only ask of my readers to look into the constitution of that country, and then tell me what important prerogative the King of Great-Britain is entitled to, which does not also belong to the President during his continuance in office.—The King of Great-Britain it is true can create nobility which our President cannot; but our President will have the power of making all the great men, which comes to the same thing.—All the difference is that we shall be embroiled in contention about the choice of the man, whilst they are at peace under the security of an hereditary succession.—To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, some one who will be very unwilling to part with them.—Let us suppose this man to be a favorite with his army, and that they are unwilling to part with their beloved commander in chief; or to make the thing familiar, let us suppose, a future President and commander in chief adored by his army and the militia to as great a degree as our late illustrious commander in chief; and we have only to suppose one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of our late general, and this country will be involved at once in war and tyranny. So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington; that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power. We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting in private life the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt.—Such a man would die a thousand deaths rather than sink from the heights of splendor and power into obscurity and wretchedness. We are certainly about giving our president too much or too little; and in the course of less than twenty years we shall find that we have given him enough to enable him to take all. It would be infinitely more prudent to give him at once as much as would content him, so that we might be able to retain the rest in peace; for if once power is seized by violence not the least fragment of liberty will survive the shock. I would therefore advise my country-men seriously to ask themselves this question;—Whether they are prepared TO RECEIVE A KING? If they are to say at once, and make the kingly office hereditary; to frame a constitution that should set bounds to his power, and, as far as possible secure the liberty of the subject. If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics; but by no means, under pretence of a republic, to lay the foundation for a military government, which is the worst of all tyrannies.

Source: The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago:  The University of Chicago Press, 1981) Volume 3, 34-38.

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LETTER IV.

OCTOBER 12th, 1787.

DEAR SIR, It will not be possible to establish in the federal courts the jury trial of the vicinage so well as in the state courts.

Third. There appears to me to be not only a premature deposit of some important powers in the general government-but many of those deposited there are undefined, and may be used to good or bad purposes as honest or designing men shall prevail. By Art. 1, Sect. 2, representatives and direct taxes shall be apportioned among the several states, &c-same art. sect. 8, the Congress shall have powers to lay and collect taxes, duties, &c. for the common defence and general welfare, but all duties, imposts and excises, shall be uniform throughout the United States: By the first recited clause, direct taxes shall be apportioned on the states. This seems to favour the idea suggested by some sensible men and writers, that Congress, as to direct taxes, will only have power to make requisitions; but the latter clause, power to tax immediately individuals, without the intervention of the state legislatures[;] in fact the first clause appears to me only to provide that each state shall pay a certain portion of the tax, and the latter to provide that Congress shall have power to lay and collect taxes, that is to assess upon, and to collect of the individuals in the state, the states quota; but these still consider as undefined powers, because judicious men understand them differently.

It is doubtful whether the vice president is to have any qualifications; none are mentioned; but he may serve as president, and it may be inferred, he ought to be qualified therefore as the president; but the qualifications of the president are required only of the person to be elected president. By art. the 2, sect. 2. “But the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of the departments:” Who are inferior officers? May not a Congress disposed to vestthe appointment of all officers in the president, under this clause, vest the appointment of almost every officer in the president alone, and destroy the check mentioned in the first part of the clause, and lodged in the senate. It is true, this check is badly lodged, but then some check upon the first magistrate in appointing officers, ought, it appears by the opinion of the convention, and by the general opinion, to be established in the constitution. By art. 3, sect. 2, the supreme court shall have appellate jurisdiction as to law and facts with such exceptions, &c. to what extent it is intended the exceptions shall be carried-Congress may carry them so far as to annihilate substantially the appellate jurisdiction, and the clause be rendered of very little importance.

4th. There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption of the new constitution, its present form will be left unsecured. By article 6, the proposed constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding.

It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New-Hampshire, Massachusetts, &c. but by the people of the United States; and whenever this constitution, or any part of it, shall be incompatible with the antient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and whenever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.

By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution-nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it be practicable to set any bounds to thosewho make treaties, I am not able to say: If not, it proves that this power ought to be more safely lodged.

The federal constitution, the laws of congress made in pursuance of the constitution, and all treaties must have full force and effect in all parts of the United States; and all other laws, rights and constitutions which stand in their way must yield: It is proper the national laws should be supreme, and superior to state or district laws; but then the national laws ought to yield to alienable or fundamental rights and national laws, made by a few men, should extend only to a few national objects. This will not be the case with the laws of congress: To have any proper idea of their extent, we must carefully examine the legislative, executive and judicial powers proposed to be lodged in the general government, and consider them in connection with a general clause in art. 1 sect. 8.in these words (after enumerating a number of powers) “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof-The powers of this government as has been observed, extend to internal as well as external objects, and to those objects to which all others are subordinate; it is almost impossible to have a just conception of these powers, or of the extent and number of the laws which may be deemed necessary and proper to carry them into effect, till we shall come to exercise those powers and make the laws. In making laws to carry those powers into effect, it will be expected, that a wise and prudent congress will pay respect to the opinions of a free people, and bottom their laws on those principles which have been considered as essential and fundamental in the British, and in our government: But a congress of a different character will not be bound by the constitution to pay respect to those principles. It is said, that when the people make a constitution, and delegate powers, that all powers not delegated by them to those who govern, is reserved in the people; and that the people, in the present case, have reserved in themselves, and in there state governments, every right and power not expressly given by the federal constitution to those who shall administer the national government. It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefullynever infringe. It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder, or EXPOST FACTO law; that no tax shall be laid on articles exported, &c. The establishing of one right implies the necessity establishing another and similar one.

On the whole, the position appears to me to be undeniable, that this bill of rights ought to be carried farther, and some other principles established, as a part of this fundamental compact between the people of the United States and their federal rulers.

It is true, we are not disposed to differ much, at present, about religion; but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons. The trials by jury in civil causes, it is said, varies so much in the several states, that no words could be found for the uniform establishment of it. If so the federal legislation will not be able to establish it by any general laws. confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons before mentioned. When I speak of the jury trial of the vicinage, or the trial of the fact in the neighbourhood-I do not lay so much stress upon the circumstance of our being tried by our neighbours: in this enlightened countrymen may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighbourhood is of great importance in other respects. Nothing can be more essential than the cross examining witnesses, and generally before the triers of the facts in question. The common people can establish facts with much more ease with oral than written evidence; when trials of facts are removed to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex-parte, and but very seldom leads to the proper discovery of truth.

The trial by jury is very important in another point of view. It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department – To hold open to them the offices of senators, judges, and officers to fill which an expensive education is required, cannot answer any valuable purposes for them; they are not in a situation to be brought forward and to fill those offices; these, and most other offices of any considerable importance, will be occupied by the few. The few, the wellborn, &c. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favour those of their own description.

The trial by jury in the judicial department, and the collection of the people by their representatives in the legislature, are those fortunate inventions which have procured for them in this country, their true proportion of influence, and the wisest and most fit means of protecting themselves in the community. Their situation, as jurors and representatives, enables them to acquire information and knowledge in the affairs and government of the society; and to come forward, in turn, as the centinels and guardians of each other. I am very sorry that even a few of our countrymen should consider jurors and representatives in a different point of view, as ignorant, troublesome bodies, which ought not to have any share in the concerns of government.

I confess I do not see in what cases the Congress can, with any pretence of right, make a law to suppress the freedom of the press; though I am not clear, that Congress is restrained from laying any duties whatever on printing and from laying duties particularly heavy on certain pieces printed, and perhaps Congress may require large bonds for the payment of these duties. Should the printer say, the freedom of the press was secured by the constitution of the state in which he lived, Congress might, and perhaps, with great propriety, answer, that the federal constitution – is the only compact existing between them and the people in this compact the people have named no others, and therefore Congress, in exercising the powers assigned them, and in making laws to carry them into execution, are restrained by nothing beside the federal constitution, anymore than a state legislature is restrained by a compact between the magistrates and people of a county, city, or town of which the people- in forming the state constitution, have taken no notice.

It is not my object to enumerate rights of inconsiderable importance; but there are others, no doubt, which ought to be established as a fundamental part of the national system.

It is worthy of observation, that all treaties are made by foreign nations with a confederacy of thirteen states-that the western country is attached to thirteen states-thirteen states have jointly and severally engaged to pay the public debts-Should a new government be formed of nine, ten, eleven, or twelve states, those treaties could not be considered as binding on the foreign nations who made them. However, I believe the probability to be, that if nine states adopt the constitution, the others will.

It may also be worthy our examination, how far the provision for amending this plan, when it shall be adopted, is of any importance. No measures can be taken towards amendments, unless two-thirds of the Congress, or two-thirds of the legislatures of the several states shall agree-While power is in the hands of the people, or democratic part of the community, more especially as at present, it is easy, according to the general course of human affairs, for the few influential men in the community, to obtain conventions, alterations in government, and to persuade the common people they may change for the better, and to get from them a part of the power: But when power is once transferred from the many to the few, all changes become extremely difficult; the government, in this case, being beneficial to the few, they will be exceedingly artful and adroit in preventing any measures which may lead to a change; and nothing will produce it, but great exertions and severe struggles on the part of the common people. Every man of reflection must see, that the change now proposed, is a transfer of power from the many to the few, and the probability is, the artful and ever active aristocracy, will prevent all peaceable measures for changes, unless when they shall discover some favorable moment to increase their own influence. I am sensible, thousands of men in the United States, are disposed – to adopt the proposed constitution, though they perceive it to be essentially defective, under an idea that amendment of it, may be obtained when necessary. This is a pernicious idea, it argues a servility of character totally unfit for the support of free government; it is very repugnant to that perpetual jealousy respecting liberty, so absolutely necessary in all free states, spoken of by Mr. Dickinson.-However, if our countrymen are so soon changed, and the language of 1774, is become odious to them, it will be in vain to use the language of freedom, or to attempt to rouse them to free enquiries: But I shall never believe this is the case with them, whatever present appearances may be, till I shall have very strong evidence indeed of it.

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(Continued. )

I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. The business of this paper will be to illustrate this, and to shew the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing. The judges in England, it is true, hold their offices during their good behaviour, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.-I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to controul them by adjudging that they are inconsistent with the constitution- much less are they vested with the power of giving an equitable construction to the constitution.

The judges in England are under the controul of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will controul the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to sit aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behaviour, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark. Though in my opinion the judges ought to hold their offices during good behaviour, yet I think it is clear, that the reasons in favour of this establishment of the judges in England, do by no means apply to this country.

The great reason assigned, why the judges in Britain ought to be commissioned during good behaviour, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will. – They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favour of liberty. When they obtained the appointment of the judges, during good behaviour, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behaviour, lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shewn, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above controul.

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will shew-That there is no power above them that can controul their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.

1st. There is no power above them that can correct their errors or controul their decisions- The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.-In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a dimunition of their salaries, for any error in judgement or want of capacity.

It is expressly declared by the constitution,-“That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that “the president, vice president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.” By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. – Errors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will shew, that the judges commited the error from wicked and corrupt motives.

3d. The power of this court is in many cases superior to that of the legislature. I have shewed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs-both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.-The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgement of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme-and no law, explanatory of the constitution, will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

I have, in the course of my observation on this constitution, affirmed and endeavored to shew, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally agreed-and this has been uniformly denied by its advocates in public. Some individuals, indeed, among them, will confess, that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adopted without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people, that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accomodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion. The people will be told, that their state officers, and state legislatures are a burden and expence without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature. If to those who will be interested in the change, be added, those who will be under their influence, and such who will submit to almost any change of government, which they can be persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable.-In this situation, the general legislature, might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.-If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.

Source: The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago:  The University of Chicago Press, 1981) Volume Four, 81-83.

To the People.

There cannot be a doubt, that, while the trade of this continent remains free, the activity of our countrymen will secure their full share. All the estimates for the present year, let them be made by what party they may, suppose the balance of trade to be largely in our favour. The credit of our merchants is, therefore, fully established in foreign countries. This is a sufficient proof, that when business is unshackled, it will find out that channel which is most friendly to its course. We ought, therefore, to be exceedingly cautious about diverting or restraining it. Every day produces fresh proofs, that people, under the immediate pressure of difficulties, do not, at first glance, discover the proper relief. The last year, a desire to get rid of embarrassments induced many honest people to agree to a tender-act, and many others, of a different description, to obstruct the courts of justice. Both these methods only increased the evil they were intended to cure. Experience has since shewn, that, instead of trying to lessen an evil by altering the present course of things, every endeavour should have been applied to facilitate the course of law, and thus to encourage a mutual confidence among the citizens, which increases the resources of them all, and renders easy the payment of debts. By this means one does not grow rich at the expense of another, but all are benefited. The case is the same with the states. Pennsylvania, with one port and a large territory, is less favourably situated for trade than the Massachusetts, which has an extensive coast in proportion to its limits of jurisdiction. Accordingly a much larger proportion of our people are engaged in maritime affairs. We ought therefore to be particularly attentive to securing so great an interest. It is vain to tell us that we ought to overlook local interests. It is only by protecting local concerns, that the interest of the whole is preserved. No man when he enters into society, does it from a view to promote the good of others, but he does it for his own good. All men having the same view are bound equally to promote the welfare of the whole. To recur then to such a principle as that local interests must be disregarded, is requiring of one man to do more than another, and is subverting the foundation of a free government. The Philadelphians would be shocked with a proposition to place the seat of general government and the unlimited right to regulate trade in the Massachusetts. There can be no greater reason for our surrendering the preference to them. Such sacrifices, however we may delude ourselves with the form of words, always originate in folly, and not in generosity.

Let me now request your attention a little while to the actual state of publick credit, that we may see whether it has not been as much misrepresented as the state of our trade.

At the beginning of the present year, the whole continental debt was about twelve millions of pounds in our money. About one quarter part of this sum was due to our foreign creditors. Of these France was the principal, and called for the arrears of interest. A new loan of one hundred and twenty thousand pounds was negotiated in Holland, at five per cent. to pay the arrears due to France. At first sight this has the appearance of bad economy, and has been used for the villainous purpose of disaffecting the people. But in the course of this same year. Congress have negotiated the sale of as much of their western lands on the Ohio and Mississippi, an amount nearly to the whole sum of the foreign debt; and instead of a dead loss by borrowing money at five per cent. to the amount of an hundred and twenty thousand pounds, in one sum, they make a saving of the interest at six per cent. on three millions of their domestick debt, which is an annual saving of an hundred and eighty thousand pounds. It is easy to see how such an immense fund as the western territory may be applied to the payment of the foreign debt. Purchasers of the land would as willingly procure any kind of the produce of the United States as they would buy loan office certificates to pay for the land. The produce thus procured would easily be negotiated for the benefit of our foreign creditors. I do not mean to insinuate that no other provision should be made for our creditors, but only to shew that our credit is not so bad in other countries as has been represented, and that our resources are fully equal to the pressure.

The perfection of government depends on the equality of its operation, as far as human affairs will admit, upon all parts of the empire, and upon all the citizens. Some inequalities indeed will necessarily take place. One man will be obliged to travel a few miles further than another man to procure justice. But when he has travelled, the poor man ought to have the same measure of justice as the rich one. Small inequalities may be easily compensated. There ought, however, to be no inequality in the law itself, and the government ought to have the same authority in one place as in another. Evident as this truth is, the most plausible argument in favour of the new plan is drawn from the inequality of its operation in different states. In Connecticut, they have been told that the bulk of the revenue will be raised by impost and excise, and therefore they need not be afraid to trust Congress with the power of levying a dry tax at pleasure. New-York, and Massachusetts, are both more commercial states than Connecticut. The latter, therefore, hopes that the other two will pay the bulk of the continental expense. The argument is in itself delusive. If the trade is not over-taxed, the consumer pays it. If the trade is over-taxed, it languishes, and by the ruin of trade the farmer loses his market. The farmer has in truth no other advantage from imposts than that they save him the trouble of collecting money for the government. He neither gets or loses money by changing the mode of taxation. The government indeed finds it the easiest way to raise the revenue; and the reason is that the tax is by this means collected where the money circulates most freely. But if the argument was not delusive, it ought to conclude against the plan, because it would prove the unequal operation of it, and if any saving is to be made by the mode of taxing, the saving should be applied towards our own debt, and not to the payment of the part of a continental burden which Connecticut ought to discharge. It would be impossible to refute in writing all the delusions made use of to force this system through. Those respecting the publick debt, and the benefit of imposts, are the most important, and these I have taken pains to explain. In one instance indeed, the impost does raise money at the direct expense of the seaports. This is when goods are imported subject to a duty, and re-exported without a drawback. Whatever benefit is derived from this source, surely should not be transferred to another state, at least till our own debts are cleared.

Another instance of unequal operation is, that it establishes different degrees of authority in different states, and thus creates different interests. The lands in New-Hampshire having been formerly granted by this state, and afterwards by that state, to private persons, the whole authority of trying titles becomes vested in a continental court, and that state loses a branch of authority, which the others retain, over their own citizens.

I have now gone through two parts of my argument, and have proved the efficiency of the state governments for internal regulation, and the disadvantages of the new system, at least some of the principal. The argument has been much longer than I at first apprehended, or, possibly, I should have been deterred from it. The importance of the question has, however, prevented me from relinquishing it.

Source: Consource. Click Here To View Original Document.

To the PEOPLE of the State of NEW-YORK.

It was intended in this Number to have prosecuted the enquiry into the organization of this new system; particularly to have considered the dangerous and premature union of the President and Senate, and the mixture of legislative, executive, and judicial powers in the Senate.

But there is such an intimate connection between the several branches in whom the different species of authority is lodged, and the powers with which they are invested, that on reflection it seems necessary first to proceed to examine the nature and extent of the powers granted to the legislature.

This enquiry will assist us the better to determine, whether the legislature is so constituted, as to provide proper checks and restrictions for the security of our rights, and to guard against the abuse of power-For the means should be suited to the end; a government should be framed with a view to the objects to which it extends: if these be few in number, and of such a nature as to give but small occasion or opportunity to work oppression in the exercise of authority, there will be less need of a numerous representation, and special guards against abuse, than if the powers of the government are very extensive, and include a great variety of cases. It will also be found necessary to examine the extent of these powers, in order to form a just opinion how far this system can be considered as a confederation, or a consolidation of the states. Many of the advocates for, and most of the opponents to this system, agree that the form of government most suitable for the United States, is that of a confederation. The idea of a confederated government is that of a number of independent states entering into a compact, for the conducting certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments. But whether the system proposed is of this nature cannot be determined without a strict enquiry into the powers proposed to be granted.

This constitution considers the people of the several states as one body corporate, and is intended as an original compact, it will therefore dissolve all contracts which may be inconsistent with it. This not only results from its nature, but is expressly declared in the 6th article of it. The design of the constitution is expressed in the preamble, to be, “in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.” These are the ends this government is to accomplish, and for which it is invested with certain powers, among these is the power “to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”1 It is a rule in construing a law to consider the objects the legislature had in view in passing it, and to give it such an explanation as to promote their intention. The same rule will apply in explaining a constitution. The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and an express power being vested in the legislature to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the general government. The inference is natural that the legislature will have an authority to make all laws which they shall judge necessary for the common safety, and to promote the general welfare. This amounts to a power to make laws at discretion: No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose. It may be said, that this way explaining the constitution, is torturing and making it speak what it never intended. This is far from my intention, and I shall not even insist upon this implied power, but join issue with those who say we are to collect the idea of the powers given from the express words of the clauses granting them; and it will not be difficult to shew that the same authority is expressly given which is supposed to be implied in the forgoing paragraphs.

In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare”-And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.2 It is true the 9th section restrains their power with respect to certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter shew. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, &c. in order to provide for the common defence and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and submit to the public, whether the construction I have given it is not the most natural and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to shew, that the same powers are substantially vested in the general government, by several other articles in the constitution. It invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defence, and promote the general welfare, and to pass all laws which may be necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will be requisite to examine 1st. what is included in this power to lay and collect taxes, duties, imposts and excises.

2d. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into execution.

3d. What limitation, if any, is set to the exercise of this power by the constitution.

1st. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a newspaper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by director indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property:-It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, news-papers, almanacks, and books:-It comprehends an excise on all kinds of liquors, spirits, wines, cyder, beer, &c. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of these general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States. Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.

2d. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution.

It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modern times, and especially in the English nation on the subject-If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into execution? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it.-He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.

Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to such as take things upon trust, nothing will awaken them to reflection, until the iron hand oppression compel them to it.

I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the state legislatures. There cannot be a greater solecism in politics than to talk of power in a government, without the command of any revenue. It is as absurd as to talk of an animal without blood, or the subsistence of one without food. Now the general government having in their controul every possible source of revenue, and authority to pass any law they may deem necessary to draw them forth, or to facilitate their collection; no source of revenue is therefore left in the hands of any state. Should any state attempt to raise money by law, the general government may repeal or arrest it in the execution, for all their laws will be the supreme law of the land:4 If then anyone can be weak enough to believe that a government can exist without having the authority to raise money to pay a door-keeper to their assembly, he may believe that the state government can exist, should this new constitution take place.

It is agreed by most of the advocates of this new system, that the government which is proper for the United States should be a confederated one; that the respective states ought to retain a portion of their sovereignty, and that they should preserve not only the forms of their legislatures, but also the power to conduct certain internal concerns. How far the powers to be retained by the states shall extend, is the question; we need not spend much time on this subject, as it respects this constitution, for a government without the power to raise money is one only in name. It is clear that the legislatures of the respective states must be altogether dependent on the will of the general legislature, for the means supporting their government. The legislature of the United States will have a right to exhaust every source of revenue in every state, and to annul all laws of the states which may stand in the way of effecting it; unless therefore we can suppose the state governments can exist without money to support the officers who execute them, we must conclude they will exist no longer than the general legislatures choose they should.5 Indeed the idea of any government existing, in any respect, as an independent one, without any means of support in their own hands, is an absurdity. If therefore, this constitution has in view, what many of its framers and advocates say it has, to secure and guarantee to the separate states the exercise of certain powers of government it certainly ought to have left in their hands some sources of revenue. It should have marked the line in which the general government should have raised money, and set bounds over which they should not pass, leaving to the separate states other means to raise supplies for the support of their governments, and to discharge their respective debts. To this it is objected, that the general government ought to have power competent to the purposes of the union; they are to provide for the common defence, to pay the debts of the United States, support foreign ministers, and the civil establishment of the union, and to do these they ought to have authority to raise money adequate to the purpose.6 On this I observe, that the state governments have also contracted debts, they require money to support their civil officers, and how this is to be done, if they give to the general government a power to raise money in every way in which it can possibly be raised, with such a controul over the state legislatures as to prohibit them, whenever the general legislature may think proper, from raising any money. It is again objected that it is very difficult, if not impossible, to draw the line of distinction between the powers of the general and state governments on this subject. The first, it is said, must have the power of raising the money necessary for the purposes of the union, if they are limited to certain objects the revenue may fall short of a sufficiency for the public exigencies, they must therefore have discretionary power. The line may be easily and accurately drawn between the powers of the two governments on this head. The distinction between external and internal taxes, is not a novel one in this country, it is a plain one, and easily understood. The first includes impost duties on all imported goods; this species of taxes it is proper should be laid by the general government; many reasons might be urged to shew that no danger is to be apprehended from their exercise of it. They may be collected in few places, and from few hands with certainty and expedition. But few officers are necessary to be imployed in collecting them, and there is no danger of oppression in laying them, because, if they are laid higher than trade will bear, the merchants will cease importing, or smuggle their goods. We have therefore sufficient security, arising from the nature of the thing, against burdensome, and intolerable impositions from this kind of tax. But the case is far otherwise with regard to direct taxes; these include poll taxes, land taxes, excises, duties on written instruments, on every thing we eat, drink, or wear; they take hold of every species of property, and come home to every man’s house and packet. These are often so oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them. The great and only security the people can have against oppression from this kind of taxes, must rest in their representatives. If they are sufficiently numerous to be well informed of the circumstances, and ability of those who send them, and have a proper regard for the people, they will be secure. The general legislature, as I have shewn in a former paper, will not be thus qualified, and therefore, on this account, ought not to exercise the power of direct taxation. If the power of laying imposts will not be sufficient, some other specific mode of raising a revenue should have been assigned the general government; many may be suggested in which their power may be accurately defined and limited, and it would be much better to give them authority to lay and collect a duty on exports, not to exceed a certain rate per cent, than to have surrendered every kind of resource that the country has, to the complete abolition of the state governments, and which will introduce such an infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and excisemen, that when a man can number them, he may enumerate the stars of Heaven.

I shall resume this subject in my next, and by an induction of particulars shew, that this power, in its exercise, will subvert all state authority, and will work to the oppression of the people, and that there are no restrictions in the constitution that will soften its rigour, but rather the contrary.

November 15, 1787

Source: Consource. Click Here To View Original Document.
To the CITIZENS of the STATE of NEW-YORK.

In the investigation of the constitution, under your consideration, great care should be taken, that you do not form your opinions respecting it, from unimportant provisions, or fallacious appearances.

On a careful examination, you will find, that many of its parts, of little moment, are well formed; in these it has a specious resemblance of a free government-but this is not sufficient to justify the adoption of it-the gilded pill, is often found to contain the most deadly poison.

You are not however to expect, a perfect form of government, any more than to meet with perfection in man; your views therefore, ought to be directed to the main pillars upon which a free government is to rest; if these are well placed, on a foundation that will support the superstructure, you should be satisfied, although the building may want a number of ornaments, which, if your particular tastes were gratified, you would have added to it: on the other hand, if the foundation is insecurely laid, and the main supports are wanting, or not properly fixed, however the fabric may be decorated and adorned, you ought to reject it.

Under these impressions, it has been my object to turn your attention to the principal defects in this system.

I have attempted to shew, that a consolidation of this extensive continent, under one government, for internal, as well as external purposes, which is evidently the tendency of this constitution, cannot succeed, without a sacrifice of your liberties; and therefore that the attempt is not only preposterous, but extremely dangerous; and I have shewn, independent of this, that the plan is radically defective in a fundamental principle, which ought to be found in every free government; to wit, a declaration of rights.

I shall now proceed to take a nearer view of this system, to examine its parts more minutely, and shew that the powers are not properly deposited, for the security of public liberty.

The first important object that presents itself in the organization of this government, is the legislature. This is to be composed of two branches; the first to be called the general assembly, and is to be chosen by the people of the respective states, in proportion to the number of their inhabitants, and is to consist of sixty five members, with powers in the legislature to encrease the number, not to exceed one for every thirty thousand inhabitants. The second branch is to be called the senate, and is to consist of twenty-six members, two of which are to be chosen by the legislatures of each of the states.1

In the former of these there is an appearance of justice, in the appointment of its members-but if the clause, which provides for this branch, be stripped of its ambiguity, it will be found that there is really no equality of representation, even in this house.

The words are “representatives and direct taxes, shall be apportioned among the several states, which may be included in this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.”-What a strange and unnecessary accumulation of words are here used to conceal from the public eye, what might have been expressed in the following concise manner. Representatives are to be proportioned among the states respectively, according to the number of freemen and slaves inhabiting them, counting five slaves for three free men.

“In a free state,” says the celebrated Montesquieu, “everyman, who is supposed to be a free agent, ought to be concerned in his own government, therefore the legislature should reside in the whole body of the people, or their representatives.” But it has never been alledged that those who are not free agents, can, upon any rational principle, have any thing to do in government, either by themselves or others. If they have no share in government, why is the number of members in the assembly, to be increased on their account? Is it because in some of the states, a considerable part of the property of the inhabitants consists in a number of their fellow men, who are held in bondage, in defiance of every idea of benevolence, justice, and religion, and contrary to all the principles of liberty, which have been publickly avowed in the late glorious revolution? If this be a just ground for representation, the horses in some of the states, and the oxen in others, ought to be represented-for a great share of property in some of them, consists in these animals; and they have as much controul over their own actions, as these poor unhappy creatures, who are intended to be described in the above recited clause, by the words, “all other persons.”2 By this mode of apportionment, the representatives of the different parts of the union, will be extremely unequal; in some of the southern states, the slaves are nearly equal in number to the free men; and for all these slaves, they will be entitled to a proportionate share in the legislature-this will give them an unreasonable weight in the government, which can derive no additional strength, protection, nor defence from the slaves, but the contrary. Why then should they be represented? What adds to the evil is, that these states are to be permitted to continue the inhuman traffic of importing slaves, until the year 1808-and for every cargo of these unhappy people, which unfeeling, unprincipled, barbarous, and avaricious wretches, may tear from their country, friends and tender connections, and bring into those states, they are to be rewarded by having an increase of members in the general assembly.3 There appears at the first view a manifest inconsistency, in the apportionment ofrepresentatives in the senate, upon the plan of a consolidated government. On every principle of equity, and propriety, representation in a government should be in exact proportion to the numbers, or the aids afforded by the persons represented. How unreasonable, and unjust then is it, that Delaware should have a representation in the senate, equal to Massachusetts, or Virginia? The latter of which contains ten times her numbers, and is to contribute to the aid of the general government in that proportion?4 This article of the constitution will appear the more objectionable, if it is considered, that the powers vested in this branch of the legislature are very extensive, and greatly surpass those lodged in the assembly, not only for general purposes, but, in many instances, for the internal police of the states. The other branch of the legislature, in which, if in either, a feint spark of democracy is to be found, should have been properly organized and established-but upon examination you will find, that this branch does not possess the qualities of a just representation, and that there is no kind of security, imperfect as it is, for its remaining in the hands of the people.

It has been observed, that the happiness of society is the end of government-that every free government is founded in compact; and that, because it is impracticable for the whole community to assemble, or when assembled, to deliberate with wisdom, and decide with dispatch, the mode of legislating representation was devised. The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them-a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives. They are the sign-the people are the thing signified. It is absurd to speak of one thing being the representative of another, upon any other principle. The ground and reason of representation, in a free government, implies the same thing. Society instituted government to promote the happiness of the whole, and this is the great end always in view in the delegation of powers. It must then have been intended, that those who are placed instead of the people, should possess their sentiments and feelings, and be governed by their interests, or, in other words, should bear the strongest resemblance of those in whose room they are substituted. It is obvious, that for an assembly to be a true likeness of the people of any country, they must be considerably numerous.-One man, or a few men, cannot possibly represent the feelings, opinions, and characters of a great multitude. In this respect, the new constitution is radically defective.-The house of assembly, which is intended as a representation of the people of America, will not, nor cannot, in the nature of things, be a proper one-sixty-five men cannot be found in the United States, who hold the sentiments, possess the feelings, or are acquainted with the wants and interests of this vast country.5 This extensive continent is made up of a number of different classes of people; and to have a proper representation of them, each class ought to have an opportunity choosing their best informed men for the purpose; but this cannot possibly be the case in so small a number. The state of New-York, on the present apportionment, will send six members to the assembly: I will venture to affirm, that number cannot be found in the state, who will bear a just resemblance to the several classes of people who compose it. In this assembly, the farmer, merchant, mecanick, and other various orders of people, ought to be represented according to their respective weight and numbers; and the representatives ought to be intimately acquainted with the wants, understand the interests of the several orders in the society, and feel a proper sense and becoming zeal to promote their prosperity. I cannot conceive that any six men in this state can be found properly qualified in these respects to discharge such important duties: but supposing it possible to find them, is there the least degree of probability that the choice of the people will fall upon such men? According to the common course of human affairs, the natural aristocracy of the country will be elected. Wealth always creates influence, and this is generally much increased by large family connections: this class in society will for ever have a great number of dependents; besides, they will always favour each other-it is their interest to combine-hey will therefore constantly unite their efforts to procure men of their own rank to be elected- they will concenter all their force in every part of the state into one point, and by acting together, will most generally carry their election. It is probable, that but few of the merchants, and those the most opulent and ambitious, will have a representation from their body-few of them are characters sufficiently conspicuous to attract the notice of the electors of the state in so limited a representation. The great body of the yeoman of the country cannot expect any of their order in this assembly-the station will be too elevated for them to aspire to-the distance between the people and their representatives, will be so very great, that there is no probability that a farmer, however respectable, will be chosen-the mechanicks of every branch, must expect to be excluded from a seat in this Body-It will and must be esteemed a station too high and exalted to be filled by any but the first men in the state, in point of fortune; so that in reality there will be no part of the people represented, but the rich, even in that branch of the legislature, which is called the democratic.-The well born, and highest orders in life, as they term themselves, will be ignorant of the sentiments of the midling class of citizens, strangers to their ability, wants, and difficulties, and void of sympathy, and fellow feeling. This branch of the legislature will not only be an imperfect representation, but there will be no security in so small a body, against bribery, and corruption- It will consist at first, of sixty-five, and can never exceed one for every thirty thousand inhabitants; a majority of these, that is, thirty-three, are a quorum, and a majority of which, or seventeen, may pass any law-a majority of the senate, or fourteen, are a quorum, and eight of them pass any law-so that twenty-five men, will have the power to give away all the property of the citizens of these states-what security therefore can there be for the people, where their liberties and property are at the disposal of so few men?6 It will literally be a government in the hands of the few to oppress and plunder the many. You may conclude with a great degree of certainty, that it, like all others of a similar nature, will be managed by influence and corruption, and that the period is not far distant, when this will be the case, if it should be adopted; for even now there are some among us, whose characters stand high in the public estimation, and who have had a principal agency in framing this constitution, who do not scruple to say, that this is the only practicable mode of governing a people, who think with that degree of freedom which the Americans do-this government will have in their gift a vast number of offices of great honor and emolument. The members of the legislature are not excluded from appointments; and twenty-five of them, as the case may be, being secured, any measure may be carried.

The rulers of this country must be composed of very different materials from those of any other, of which history gives us any account, if the majority of the legislature are not, before many years, entirely at the devotion of the executive-and these states will soon be under the absolute domination of one, or a few, with the fallacious appearance of being governed by men of their own election.

The more I reflect on this subject, the more firmly am I persuaded, that the representation is merely nominal-a mere burlesque; and that no security is provided against corruption and undue influence. No free people on earth, who have elected persons to legislate for them, ever reposed that confidence in so small a number. The British house of commons consists of five hundred and fifty-eight members; the number of inhabitants in Great-Britain, is computed at eight millions-this gives one member for a little more than fourteen thousand, which exceeds double the proportion this country can ever have: and yet we require a larger representation in proportion to our numbers, than Great-Britain, because this country is much more extensive, and differs more in its productions, interests, manners, and habits. The democratic branch of the legislatures of the several states in the union consists, I believe at present, of near two thousand; and this number was not thought too large for the security of liberty by the framers of our state constitutions: some of the states may have erred in this respect, but the difference between two thousand, and sixty-five, is so very great, that it will bear no comparison.

Other objections offer themselves against this part of the constitution-I shall reserve them for a future paper, when I shall shew, defective as this representation is, no security is provided, that even this shadow of the right, will remain with the people.

To the CITIZENS of the State of NEW-YORK.

In my last number I endeavored to prove that the language of the article relative to the establishment of the executive of this new government was vague and inexplicit, that the great powers of the President, connected with his duration in office would lead to oppression and ruin. That he would be governed by favorites and flatterers, or that a dangerous council would be collected from the great officers of state;—that the ten miles square, if the remarks of one of the wisest men, drawn from the experience of mankind, may be credited, would be the asylum of the base, idle, avaricious and ambitious, and that the court would possess a language and manners different from yours; that a vice-president is as unnecessary, as he is dangerous in his influence-that the president cannot represent you, because he is not of your own immediate choice, that if you adopt this government, you will incline to an arbitrary and odious aristocracy or monarchy—that the president possessed of the power, given him by this frame of government differs but very immaterially from the establishment of monarchy in Great-Britain, and I warned you to beware of the fallacious resemblance that is held out to you by the advocates of this new system between it and your own state governments.

And here I cannot help remarking, that inexplicitness seems to pervade this whole political fabric: certainty in political compacts which Mr. Coke calls the mother and nurse of repose and quietness, the want of which induced men to engage in political society, has ever been held by a wise and free people as essential to their security; as on the one hand it fixes barriers which the ambitious and tyrannically disposed magistrate dare not overleap, and on the other, becomes a wall of safety to the community—otherwise stipulations between the governors and governed are nugatory; and you might as well deposit the important powers of legislation and execution in one or a few and permit them to govern according to their disposition and will; but the world is too full of examples, which prove that to live by one man’s will became the cause of all men’s misery. Before the existence of express political compacts it was reasonably implied that the magistrate should govern with wisdom and justice, but mere implication was too feeble to restrain the unbridled ambition of a bad man, or afford security against negligence, cruelty, or any other defect of mind. It is alledged that the opinions and manners of the people of America, are capable to resist and prevent an extension of prerogative or oppression; but you must recollect that opinion and manners are mutable, and may not always be a permanent obstruction against the encroachments of government; that the progress of a commercial society begets luxury, the parent of inequality, the foe to virtue, and the enemy to restraint; and that ambition and voluptuousness aided by flattery, will teach magistrates, where limits are not explicitly fixed to have separate and distinct interests from the people, besides it will not be denied that government assimilates the manners and opinions of the community to it. Therefore, a general presumption that rulers will govern well is not a sufficient security. —You are then under a sacred obligation to provide for the safety of your posterity, and would you now basely desert their interests, when by a small share of prudence you may transmit to them a beautiful political patrimony, which will prevent the necessity of their travelling through seas of blood to obtain that, which your wisdom might have secured:—It is a duty you owe likewise to your own reputation, for you have a great name to lose; you are characterised as cautious, prudent and jealous in politics; whence is it therefore, that you are about to precipitate yourselves into a sea uncertainty, and adopt a system so vague, and which has discarded so many of your valuable rights:—Is it because you do not believe that an American can be a tyrant? If this be the case you rest on a weak basis, Americans are like other men in similar situations, when the manners and opinions of the community are changed by the causes I mentioned before, and your political compact inexplicit, your posterity will find that great power connected with ambition, luxury, and flattery, will as readily produce a Caesar, Caligula, Nero, and Domitian in America, as the same causes did in the Roman empire.

But the next thing to be considered in conformity to my plan, is the first article of this new government, which comprises the erection of the house representatives and senate, and prescribes their various powers and objects of legislation. The most general objections to the first article, are that biennial elections for representatives are a departure from the safe democratical principles of annual ones—that the number of representatives are too few;1 that the apportionment and principles of increase are unjust;2 that no attention has been paid to either the numbers or property in each state in forming the senate;3 that the mode in which they are appointed and their duration, will lead to the establishment of an aristocracy;4 that the senate and president are improperly connected, both as to appointments, and the making of treaties, which are to become the supreme law of the land;5 that the judicial in some measure, to wit, as to the trial of impeachments is placed in the senate a branch of the legislative, and some times a branch of the executive:6 that Congress have the improper power of making or altering the regulations prescribed by the different legislatures, respecting the time, place, and manner of holding elections for representatives; and the time and manner of choosing senators;7 that standing armies may be established, and appropriation of money made for their support, for two years;8 that the militia of the most remote state may be marched into those states situated at the opposite extreme of this continent;9 that the slave trade, is to all intents and purposes permanently established;10 and a slavish capitation, or poll-tax, may at any time be levied-11these are some of the many evils that will attend the adoption of this government. But with respect to the first objection, it may be remarked that a well digested democracy has this advantage over all others, to wit, that it affords to many the opportunity to be advanced to the supreme command, and the honors they thereby enjoy fills them with a desire of rendering themselves worthy of them; hence this desire becomes part of their education, is matured in manhood, and produces an ardent affection for their country, and it is the opinion of the great Sidney, and Montesquieu that this is in a great measure produced by annual election magistrates.

If annual elections were to exist in this government, and learning and information to become more prevalent, you never will want men to execute whatever you could design Sidney observes that a well governed state is as fruitful to all good purposes as the seven headed serpent is said to have been in evil; when one head is cut off, many rise up in the place of it. He remarks further, that it was also thought, that free cities by frequent elections of magistrates became nurseries of great and able men, everyman endeavoring to excel others, that he might be advanced to the honor he had no other title to, than what might arise from his merit or reputation, but the framers of this perfect government, as it is called, have departed from this democratical principle, and established bi-ennial elections, for the house representatives, who are to be chosen by the people, and sextennial for the senate, who are to be chosen by the legislatures of the different states,12 and have given to the executive the unprecedented power of making temporary senators, in case of vacancies, by resignation or otherwise, and so far forth establishing a precedent for virtual representation (though in fact, their original appointment is virtual) thereby influencing the choice of the legislatures, or if they should not be so complaisant as to conform to his appointment—offence will be given to the executive and the temporary members, will appear ridiculous by rejection; this temporary member, during his time of appointment, will of course act by a power derived from the executive, and for, and under his immediate influence.13

It is a very important objection to this government, that the representation consists of so few; too few to resist the influence corruption, and the temptation to treachery, against which all governments ought to take precautions—how guarded you have been on this head, in your own state constitution, and yet the number of senators and representatives proposed for this vast continent, does not equal those of your own state; how great the disparity, if you compare them with the aggregate numbers in the United States.14 The history of representation in England, from which we have taken our model of legislation, is briefly this, before the institution of legislating by deputies, the whole free part of the community usually met for that purpose, when this became impossible, by the increase of numbers, the community was divided into districts, from each of which was sent such a number of deputies as was a complete representation of the various numbers and orders of citizens within them; but can it be asserted with truth, that six men can be a complete and full representation of the numbers and various orders of the people in this state? Another thing may be suggested against the small number of representatives is, that but few of you will have the chance of sharing even in this branch of the legislature; and that the choice will be confined to a very few; the more complete it is, the better will your interests be preserved, and the greater the opportunity you will have to participate in government, one of the principal securities of a free people; but this subject has been so ably and fully treated by a writer under the signature of Brutus, that I shall content myself with referring you to him thereon, reserving further observations on the other objections I have mentioned, for my future numbers.

Mr. PRINTER, This is certainly very important crisis to the people of America; experience seems to have convinced everyone, that the articles of confederation, under which Congress have hitherto attempted to regulate the affairs of the United States, are insufficient for the purposes intended; that we are a ruined people unless some alteration can be effected. The public mind has therefore been raised to the highest pitch expectation, and the evident need of relief from the many distresses , public and private, in which we are involved has reduced us to such a state, that we can hardly endure a disappointment. Scarcely anything that could be proposed by the convention, in this state of people’s minds, would fail of being eagerly embraced. Like a person in the agonies of a violent disease, who is willing to swallow any medicine, that gives the faintest hope of relief; the people stood ready to receive the new constitution, in almost any form in which it could be presented to them. The zealous supporters of the proposed constitution, seem to be not unwilling to avail themselves of this disposition: and therefore it is strongly inculcated, that if we do not adopt this constitution, we shall not be able to establish another, but be left to our present weakness, confusion and distress. If I was pursuaded that this is really the case, I hardly know whether I should vote for rejecting any government however unfriendly to the liberties of the people, which promised to give vigour to the councils of this country; for any government is better than none. However, I do not see that it is by any means impracticable, for us yet to correct such errors and imperfections, as appear to exist in the proposed constitution; and whilst there is a possibility of procuring better a constitution, it is the duty of every good man to accomplish it.

By the proposed constitution, every law, before it passes, is to undergo repeated revisions; and the constitution of every state in the union provide, for the reversion of the most trifling laws, either by their passing through different houses of assembly and senate, or by requiring them to be published for the consideration of the people. Why then is a constitution which affects all the inhabitants of the United States, which is to be the foundation of all laws and the source of misery or happiness to one quarter of the globe; why is this to be so hastily adopted or rejected, that it cannot admit of a revision?- If a law to regulate highways, requires to be liesurely considered and undergo the examination of different bodies of men, one after another, before it be passed, why is it that the framing of a constitution for the government of a great people; a work which has been justly considered as the greatest effort of human genius, and which, from the beginning of the world has so often balled the skill of the wisest men in every age, shall be considered as a thing to be thrown out, in the first shape which it may happen to assume? Where is the impracticability a revision? Cannot the same power which called the late convention, call another? Are not the people still their own masters? If when the several state conventions come to consider this constitution, they should not approve of it, in its present form, they may easily apply to Congress and state their objections. Congress may as easily direct the calling another convention, as they did the calling the last. The plan may then be reconsidered , deliberately received and corrected; so as to meet the approbation of every friend to his country. A few months only will be necessary for this purpose; and if we consider the magnitude of the object, we shall deem it well worth a little time and attention- It is much better to pause and reflect beforehand, than to repent when it is too late; when no peaceable remedy will be left us, and unanimity will be forever banished. The struggles of the people against a bad government, when it is once fixed, afford but a gloomy picture in the annals of mankind. They are often unfortunate, they are always destructive of public and and private happiness; but the peaceable consent of a people to establish a free and effective government, is one of the most glorious objects that is ever exhibited in the theatre of human affairs. Some I know, have objected, that another convention will not be likely to agree upon any thing-I am far however from being of that opinion. The public voice cries so loudly for a new constitution, that I have no doubt we shall have one of some sort.- My only fear is, that the impatience of the people will lead them to accept the first that is offered them, without examining whether it is right or wrong; and after all, if a new convention cannot agree upon any amendments in the constitution, which is at present proposed, we can still adopt this in its present form; and all further opposition being vain, it is to be hoped we shall be unanimous in endeavouring to make the best of it. The experiment is at least worth trying, and I shall be much astonished, if a new convention called together for the purpose of revising the proposed constitution, do not greatly reform it.

I find that a number of pens are employed, in pointing out the defects in the proposed constitution- Without descending therefore, into minute particulars, I shall confine the remainder of my observations in this letter, to one or two of the most important considerations.

It is beyond a doubt that the new federal constitution, if adopted, will in a great measure destroy, if it do not totally annihilate, the separate governments of the several states. We shall, in effect, become one great Republic.- Every measure of any importance, will be Continental What will be the consequence of this? One thing is evident- that no Republic of so great a magnitude, ever did, or ever can exist.1 But a few years elapsed, from the time in which ancient Rome extended her dominions beyond the bounds of Italy, until the downfal of her Republic; and all political writers agree, that a Republican government can exist only in a narrow territory: but a confederacy of different Republics has, in many instances, existed and flourished for a long time together- The celebrated Helvetian league, which exists at this moment in full vigor, and with unimpaired strength, whilst its origin may be traced to the confines of antiquity, is one, among many examples on this head; and at the same time furnishes an eminent proof of how much less importance it is, that the constituent parts of a confederacy of Republics may be rightly framed than it is, that the confederacy itself should be rightly organized;- for hardly any two of the Swiss cantons have the same form of government, and they are almost equally divided in their religious principles, which have so often rent asunder the firmest establishments. A confederacy Republics must be the establishment in America, or we must cease altogether to retain the Republican form of government. From the moment we become one great Republic, either in form or substance, the period is very shortly removed, when we shall sink first into monarchy, and then into despotism. -If there were no other fault in the proposed constitution, it must sink by its own weight. The continent of North-America can no more be governed by one Republic, than the fabled Atlas could support the heavens. Is it not worthy few months labour, to attempt the rescuing this country from the despotism, which at this moment holds the best and fairest regions of the earth in thraldom and wretchedness?- To attempt the forming plan confederation, which may enable us at once to support our continental union with vigor and efficacy, and to maintain the rights of the separate states and the invaluable liberty of the subject? These ideas of political felicity, to some people, may seem like the visions of an Utopian fancy; and I am persuaded that some amongst us have as little disposition to realize them, as they have to recollect the principles, which inspired us in our revolt from Great-Britain. But there is at least, this consolation in aiming at excellence, that, if we do not obtain our object, we can make considerable progress towards it.- The science of politics has very seldom had fair play. So much of passion, interest and temporary prospects of gain are mixed in the pursuit, that a government has been much oftener established, with a view to the particular advantages or necessities of a few individuals, than to the permanent good of society. If the men, who, at different times, have been entrusted to form plans of government for the world, had been really actuated by no other views than a regard to the public good, the condition of human nature in all ages would have been widely different, from that which has been exhibited to us in history. In this country perhaps we are possessed of more than our share of political virtue. If we will exercise a little patience, and bestow our best endeavours on the business, I do not think it impossible, that we may yet form a federal constitution, much superior to any form of government, which has ever existed in the world;- but, whenever this important work shall be accomplished, I venture to pronounce, that it will not be done without a careful attention to the framing of a bill of rights.

Much has been said and written, on the subject of a bill of rights;- possibly without sufficient attention to the necessity of conveying distinct and precise ideas of the true meaning of a bill of rights. Your readers, I hope, will excuse me, if I conclude this letter with an attempt to throw some light on this subject.

Men when they enter into society, yield up a part of their natural liberty, for the sake of being protected by government. If they yield up all their natural rights hey are absolute slaves to their governors. If they yield up less than is necessary, the government is so feeble, that it cannot protect them. To yield up so much, as is necessary for the purposes of government; and to retain all beyond what is necessary, is the great without exception, we ought carefully to guard ourselves by a BILL OF RIGHTS, against the invasion of those liberties which it is essential for us to retain, which it is of no real use to government to strip us of; but which in the course of human events have been too often insulted with all the wantonness of an idle barbarity.

SOURCE: HERBERT J. STORING, ED., THE COMPLETE ANTI-FEDERALIST, VOL. 2, 136-143.


To the Freemen of Pennsylvania

Friends, Countrymen and Fellow Citizens, Permit one of yourselves to put you in mind of certain liberties and privileges secured to you by the constitution of this commonwealth, and to beg your serious attention to his uninterested opinion upon the plan of federal government submitted to your consideration, before you surrender these great and valuable privileges up forever. Your present frame of government, secures to you a right to hold yourselves, houses, papers and possessions free from search and seizure, and therefore warrants granted without oaths or affirmations first made, affording sufficient foundation for them, whereby any officer or messenger may be commanded or required to search your houses or seize your persons or property, not particularly described in such warrant, shall not be granted. Your constitution further provides “that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.” It also provides and declares “that the people have a right of FREEDOM OF SPEECH, and of WRITING and PUBLISHING their sentiments, therefore THE FREEDOM OF THE PRESS OUGHT NOT TO BE RESTRAINED.” The constitution of Pennsylvania is yet in existence, as yet you have the right to freedom of speech, and of publishing your sentiments. How long those rights will appertain to you, you yourselves are called upon to say, whether your houses shall continue to be your castles; whether your papers, your persons and your property, are to be held sacred and free from general warrants, you are now to determine. Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare.

Without presuming upon my own judgment, I cannot think it an unwarrantable presumption to offer my private opinion, and call upon others for theirs; and if I use my pen with the boldness of a freeman, it is because I know that the liberty of the press yet remains unviolated, and juries yet are judges.

The late Convention have submitted to your consideration a plan of a new federal government — The subject is highly interesting to your future welfare — Whether it be calculated to promote the great ends of civil society, viz.[1] the happiness and prosperity of the community; it behoves you well to consider, uninfluenced by the authority of names. Instead of that frenzy of enthusiasm, that has actuated the citizens of Philadelphia, in their approbation of the proposed plan, before it was possible that it could be the result of a rational investigation into its principles; it ought to be dispassionately and deliberately examined, and its own intrinsic merit the only criterion of your patronage. If ever free and unbiased discussion was proper or necessary, it is on such an occasion. — All the blessings of liberty and the dearest privileges of freemen, are now at stake and dependent on your present conduct. Those who are competent to the task of developing the principles of government, ought to be encouraged to come forward, and thereby the better enable the people to make a proper judgment; for the science of government is so abstruse, that few are able to judge for themselves; without such assistance the people are too apt to yield an implicit assent to the opinions of those characters, whose abilities are held in the highest esteem, and to those in whose integrity and patriotism they can confide; not considering that the love of domination is generally in proportion to talents, abilities, and superior acquirements; and that the men of the greatest purity of intention may be made instruments of despotism in the hands of the artful and designing. If it were not for the stability and attachment which time and habit gives to forms of government it would be in the power of the enlightened and aspiring few, if they should combine, at any time to destroy the best establishments, and even make the people the instruments of their own subjugation. . . .

I am fearful that the principles of government inculcated in Mr. [John] Adams’s treatise,[2] and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.

I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams’s sine qua non[3] of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He asserts that the administrators of every government, will ever be actuated by views of private interest and ambition, to the prejudice of the public good; that therefore the only effectual method to secure the rights of the people and promote their welfare, is to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government; he indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical[4] and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? not a day — for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equality of power and distinction of interests, in the three orders of government, they exist but in name; the only operative and efficient check, upon the conduct of administration, is the sense of the people at large.

Suppose a government could be formed and supported on such principles, would it answer the great purposes of civil society; If the administrators of every government are actuated by views of private interest and ambition, how is the welfare and happiness of the community to be the result of such jarring adverse interests?

Therefore, as different orders in government will not produce the good of the whole, we must recur to other principles. I believe it will be found that the form of government, which holds those entrusted with power, in the greatest responsibility to their constituents, the best calculated for freemen. A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided; in such a government the people are the sovereign and their sense or opinion is the criterion of every public measure; for when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin. The highest responsibility is to be attained, in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on — If you complicate the plan by various orders, the people will be perplexed and divided in their sentiments about the source of abuses or misconduct, some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility, for then, whenever the people feel a grievance they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people.

Having premised this much, I shall now proceed to the examination of the proposed plan of government, and I trust, shall make it appear to the meanest capacity, that it has none of the essential requisites of a free government; that it is neither founded on those balancing restraining powers, recommended by Mr. Adams and attempted in the British constitution, or possessed of that responsibility to its constituents, which, in my opinion, is the only effectual security for the liberties and happiness of the people; but on the contrary, that it is the most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed.

I shall previously consider the extent of the powers intended to be vested in Congress, before I examine the construction of the general government.

It will not be controverted[5] that the legislative is the highest delegated power in government, and that all others are subordinate to it. The celebrated Montesquieu[6] establishes it as a maxim, that legislation necessarily follows the power of taxation. By sect. 8, of the first article of the proposed plan of government, “the Congress are to have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises, shall be uniform throughout the United States.” Now what can be more comprehensive than these words; not content by other sections of this plan, to grant all the great executive powers of a confederation, and a STANDING ARMY IN TIME OF PEACE, that grand engine of oppression, and moreover the absolute control over the commerce of the United States and all external objects of revenue, such as unlimited imposts upon imports, etc. — they are to be vested with every species of internal taxation — whatever taxes, duties and excises that they may deem requisite for the general welfare, may be imposed on the citizens of these states, levied by the officers of Congress, distributed through every district in America; and the collection would be enforced by the standing army, however grievous or improper they may be. The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.

The judicial power by 1st sect. of article 3 “shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

The judicial power to be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish.

The objects of jurisdiction recited above, are so numerous, and the shades of distinction between civil causes are oftentimes so slight, that it is more than probable that the state judicatories would be wholly superseded; for in contests about jurisdiction, the federal court, as the most powerful, would ever prevail. Every person acquainted with the history of the courts in England, knows by what ingenious sophisms they have, at different periods, extended the sphere of their jurisdiction over objects out of the line of their institution, and contrary to their very nature; courts of a criminal jurisdiction obtaining cognizance in civil causes.

To put the omnipotency of Congress over the state government and judicatories out of all doubt, the 6th article ordains that “this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.”

By these sections the all-prevailing power of taxation, and such extensive legislative and judicial powers are vested in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories; and that such was in the contemplation of the framers of it, will appear from the provision made for such event, in another part of it; (but that, fearful of alarming the people by so great an innovation, they have suffered the forms of the separate governments to remain, as a blind.) By sect. 4th of the 1st article, “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators.” The plain construction of which is, that when the state legislatures drop out of sight, from the necessary operation [of] this government, then Congress are to provide for the election and appointment of representatives and senators.

If the foregoing be a just comment — if the united states are to be melted down into one empire, it becomes you to consider, whether such a government, however constructed, would be eligible in so extended a territory; and whether it would be practicable, consistent with freedom? It is the opinion of the greatest writers, that a very extensive country cannot be governed on democratical principles, on any other plan, than a confederation of a number of small republics, possessing all the powers of internal government, but united in the management of their foreign and general concerns.

It would not be difficult to prove, that any thing short of despotism, could not bind so great a country under one government; and that whatever plan you might, at the first setting out, establish, it would issue in a despotism.

If one general government could be instituted and maintained on principles of freedom, it would not be so competent to attend to the various local concerns and wants, of every particular district, as well as the peculiar governments, who are nearer the scene, and possessed of superior means of information, besides, if the business of the whole union is to be managed by one government, there would not be time. Do we not already see, that the inhabitants in a number of larger states, who are remote from the seat of government, are loudly complaining of the inconveniencies and disadvantages they are subjected to on this account, and that, to enjoy the comforts of local government, they are separating into smaller divisions.

Having taken a review of the powers, I shall now examine the construction of the proposed general government.

Art. 1. Sect. 1. “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and house of representatives.” By another section, the president (the principal executive officer) has a conditional control over their proceedings.

Sect. 2. “The house of representatives shall be composed of members chosen every second year, by the people of the several states. The number of representatives shall not exceed one for every 30,000 inhabitants.”

The senate, the other constituent branch of the legislature, is formed by the legislature of each state appointing two senators, for the term of six years.

The executive power by Art. 2, Sect. 1. is to be vested in a president of the United States of America, elected for four years: Sect. 2. gives him “power, by and with the consent of the senate to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law,” etc. And by another section he has the absolute power of granting reprieves and pardons for treason and all other high crimes and misdemeanors, except in case of impeachment.

The foregoing are the outlines of the plan.

Thus we see, the house of representatives, are on the part of the people to balance the senate, who I suppose will be composed of the better sort, the well born, etc. The number of the representatives (being only one for every 30,000 inhabitants) appears to be too few, either to communicate the requisite information, of the wants, local circumstances and sentiments of so extensive an empire, or to prevent corruption and undue influence, in the exercise of such great powers; the term for which they are to be chosen, too long to preserve a due dependence and accountability to their constituents; and the mode and places of their election not sufficiently ascertained, for as Congress have the control over both, they may govern the choice, by ordering the representatives of a whole state, to be elected in one place, and that too may be the most inconvenient.

The senate, the great efficient body in this plan of government, is constituted on the most unequal principles. The smallest state in the union has equal weight with the great states of Virginia, Massachusetts, or Pennsylvania—The Senate, besides its legislative functions, has a very considerable share in the Executive; none of the principal appointments to office can be made without its advice and consent. The term and mode of its appointment, will lead to permanency; the members are chosen for six years, the mode is under the control of Congress, and as there is no exclusion by rotation, they may be continued for life, which, from their extensive means of influence, would follow of course. The President, who would be a mere pageant of state, unless he coincides with the views of the Senate, would either become the head of the aristocratic junto in that body, or its minion, besides, their influence being the most predominant, could the best secure his re-election to office. And from his power of granting pardons, he might screen from punishment the most treasonable attempts on liberties of the people, when instigated by the Senate.

From this investigation into the organization of this government, it appears that it is devoid of all responsibility or accountability to the great body of the people, and that so far from being a regular balanced government, it would be in practice a permanent ARISTOCRACY.

The framers of it, actuated by the true spirit of such a government, which ever abominates and suppresses all free enquiry and discussion, have made no provision for the liberty of the press, that grand palladium of freedom, and scourge of tyrants, but observed a total silence on that head. It is the opinion of some great writers, that if the liberty of the press, by an institution of religion, or otherwise, could be rendered sacred, even in Turkey, that despotism would fly before it.

And it is worthy of remark, that there is no declaration of personal rights, premised in most free constitutions; and that trial by jury in civil cases is taken away; for what other construction can be put on the following, viz. Article 3. Sect. 2d. “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases above mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact”? It would be a novelty in jurisprudence, as well as evidently improper to allow an appeal from the verdict of a jury, on the matter of fact; therefore, it implies and allows of a dismissal of the jury in civil cases, and especially when it is considered, that jury trial in criminal cases is expressly stipulated for, but not in civil cases.

But our situation is represented to be so critically dreadful that, however reprehensible and exceptionable the proposed plan of government may be, there is no alternative, between the adoption of it and absolute ruin.

My fellow citizens, things are not at that crisis, it is the argument of tyrants; the present distracted state of Europe secures us from injury on that quarter, and as to domestic dissensions, we have not so much to fear from them, as to precipitate us into this form of government, without it is[7] a safe and a proper one. For remember, of all possible evils that of despotism is the worst and the most to be dreaded.

Besides, it cannot be supposed, that the first essay on so difficult a subject, is so well digested, as it ought to be, — if the proposed plan, after a mature deliberation, should meet the approbation of the respective States, the matter will end, but if it should be found to be fraught with dangers and inconveniencies, a future general Convention being in possession of the objections, will be the better enabled to plan a suitable government.

Who’s here so base, that would a bondsman be?

If any, speak; for him have I offended.

Who’s here so vile, that will not love his country?

If any, speak; for him have I offended.

—Julius Caesar, Act 3, Scene 2

Essay 83 – Guest Essayist: Edward Lee

Thomas Lynch, Jr. (August 5, 1749 – late 1779), of Irish descent, was born in Prince George’s Parish (present day Georgetown County). Lynch was the son of Thomas Lynch and Elizabeth Allston Lynch. His mother died when he was a young child. He was educated at Georgetown’s Indigo Society School and earned honors at England’s Eton College and Cambridge. He studied law and political philosophy at London’s Middle Temple, like the other South Carolina Declaration of Independence signatories, Edward Rutledge, Thomas Heyward, and Arthur Middleton.

In South Carolina on the eve of the Revolution, Lynch enjoyed the life of a planter, farming and discussing politics, rather than practicing law as his father hoped he would along with becoming engaged in public life, after having received a good education and studying law. He allied himself with figures such as Charles Cotesworth  Pinckney, Christopher Gadsden, Arthur Middleton, and Thomas Heyward, Jr. He was a staunch advocate of South Carolina’s right to form its own independent government, regardless of the wishes of the other British colonies. He found the talk by the British politicians distasteful toward the colonists which served to strengthen his views for supporting independence.

In 1772, Lynch married his longtime sweetheart, Elizabeth Shubrick. Elizabeth’s sister, Mary, married one of the other South Carolina signers, Edward Rutledge, after Edward’s first wife, Henrietta, passed away.

He soon after became involved in public service as his father had encouraged him to do, having served in South Carolina’s First and Second Provincial Congresses, and on the state constitutional committee. During these roles, he was commissioned in the First South Carolina Regiment as a company commander in the summer of 1775.

Eventually Thomas Lynch, Jr. was appointed to the Second Continental Congress where his father, Thomas Lynch, Sr. was also serving. Thomas Lynch, Sr. was known and respected as an effective statesman for working with George Washington and influencing the appointment of Washington to the Continental Army as Commander-in-Chief.

Although he was ill as was his father, Thomas Lynch, Jr. signed the Declaration of Independence the following year in 1776, having stood in for his father, Thomas Lynch, Sr., who was unable to represent South Carolina by the time the vote for independence would be taken, and the signatures placed. Lynch was one of the youngest of the South Carolina signers, said to be in his twenties.

Having resigned his commission in 1776, and plagued with bad health, Lynch and his wife eventually sailed to the West Indies for a change in climate in late 1779 as advised by physicians, in hopes of restoring his health. The vessel was reported as lost, and the young signatory and his wife died childless, unfortunately having disappeared at sea, as the Revolution raged.

J. Edward Lee, Ph.D., is Professor of History at Winthrop University. Lee is a former mayor of the City of York, South Carolina.

 

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Essay 82 – Guest Essayist: Edward Lee

Thomas Heyward, Jr. (July 28, 1746-March 6, 1809) was born in St. Luke’s Parish (present day Jasper County). Heyward was the son of Colonel Daniel Heyward and Mary Miles Heyward who were planters. Educated at home, Thomas Heyward, Jr. traveled to England where he studied law and became a member of the Honourable Society of the Middle Temple. Despite his family’s wealth, he cherished scholarship and traveled to Europe during his studies. He valued setting an example of placing importance on educating oneself as his father encouraged.

Heyward was married twice: the first time in 1773 (some records say 1774) to Elizabeth Mathews. Her brother, John Mathews, was governor of South Carolina. After her death in childbirth, Heyward married another Elizabeth, this time Elizabeth Savage Heyward in 1786. He was the father of a total of nine children. Only one of the six children from his first marriage lived to adulthood. The three children from his second marriage all lived to adulthood.

Heyward voiced early his opposition to British rule and the control being forced upon the colonies through such methods as the Stamp Act. Soon after becoming a member of the Continental Congress, Heyward signed the Declaration of Independence, standing with Richard Henry Lee’s Resolution for Independence. Disagreements about whether to support independence included a warning from his father that voting for it could result in being hung. Still, Thomas Heyward believed independence for the colonies was acting in good judgment. With a strong sense of duty, he took notice of the abuses upon his fellow countrymen by the British Crown, further solidifying his resolve to discuss and accomplish independence.

Heyward, like Edward Rutledge, was in the South Carolina Militia. Heyward served as a Captain of Artillery. Both were taken prisoner by the British when Charleston fell in 1780, and considered a “ringleader of the rebellion.” He was eventually released through a prisoner exchange. While heading back, Heyward fell off the ship and nearly drowned. He held onto the ship’s rudder to stay alive until he could be rescued. After his release in a prisoner exchange, and much property damage, Heyward eventually served as a criminal court judge until his retirement in 1798, and also assisted forming a new state constitution as part of his final duties. He also served in the state legislature and presided over the Agricultural Society of South Carolina. While serving as a judge in the new government, Heyward was charged with the difficult task, which he took seriously, of trying, followed by execution for being found guilty, people who were in contact with the British for treasonous reasons.

Heyward was regarded as a strong statesman, of whom Dr. Benjamin Rush, a signer from Pennsylvania described as “a firm Republican of good education and most amicable manners. He possessed an elegant political genius, which he sometimes exercised with success upon the various events of the war.” Heyward died in Jasper County in 1809.

J. Edward Lee, Ph.D., is Professor of History at Winthrop University. Lee is a former mayor of the City of York, South Carolina.

 

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Essay 81 – Guest Essayist: Edward Lee

In the summer of 1776, four well-educated men of social, economic, and political prominence stepped forward in Philadelphia to place their names on the Declaration of Independence. These Founding Fathers hailed from the rice-rich, slave-holding South Carolina Low Country. They, and the other signatories, boldly and courageously risked their lives and property by endorsing a formal break from the Mother Country’s North American Empire. Three of them would be imprisoned by England aboard a vessel harbored at St. Augustine when Charleston was besieged in 1780, and the fourth would be lost at sea the previous year, while the Revolution was underway.

These four signatories were connected by family ties, the land, and the economic power of the Low Country of South Carolina. They were well-educated advocates for their state and ably spoke for the colony’s planters and legal community. By July 1776, all of them grasped that the time had come for independence which manifest itself in Mr. Thomas Jefferson’s timeless explanation of an abusive Mother Country, Great Britain, which was trampling on the rights of its American children.

The first South Carolina signer, who is the focus of this essay, is Edward Rutledge (November 23, 1749-January 23, 1800), one of the youngest South Carolina signatories. Rutledge was the last of seven children born in Charleston to physician Dr. John Rutledge and Sarah Hext Rutledge. Like his two older brothers, John and Hugh, Edward studied law in London at Oxford’s Inns of Court. During his time in London, he witnessed Parliament’s debates concerning the colonies. In 1772, he was admitted to the English bar (Middle Temple) and returned to South Carolina where in 1774 he was married to Henrietta Middleton, the sister of signer Arthur Middleton. Edward and Henrietta had three children, one of whom died in infancy.

In Charleston, Edward had a successful law practice and owned more than fifty slaves. From 1774-1776, he and older brother, John, represented their state in the Continental Congress. He advocated the expulsion of African Americans from the newly formed Continental Army.

As a delegate to the Congress, Rutledge initially opposed Virginian Richard Henry Lee’s June 1776 plan for independence, arguing that the time was not yet “ripe.” Persuaded that the urgency of independence and the actions of Parliament called for southerners like himself to line up in the pro-Revolution group, he argued that the vote by Congress be unanimous and became the first South Carolina delegate to affix his signature. His oratorical style was said to resemble Cicero.

Returning to South Carolina in November, Rutledge served in the state’s General Assembly. He served as captain of the 2nd Independent Company of artillery in the militia and saw action at the 1779 Battle of Beaufort. He and signatories Arthur Middleton and Thomas Heyward were captured the following year when Charleston fell to the British. During July 1781, the men were released in a prisoner exchange.

Returning to the General Assembly where he served until 1796, Rutledge supported the harsh confiscation of Loyalist property. That year, he supported Thomas Jefferson’s unsuccessful presidential bid. He differed with Jefferson’s pro-France position and found himself often allied with President John Adams despite the latter’s support of England in its war with France. He served as a state senator for two years and was elected South Carolina’s governor in 1798. He did not complete his term and died in Charleston in 1800. It was said that his stroke was aggravated by the previous year’s death of George Washington.

Edward Lee, Ph.D., is Professor of History at Winthrop University. Lee is a former mayor of the City of York, South Carolina.

 

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Essay 80 – Guest Essayist: Barb Zakszewski

John Penn was a lawyer, North Carolina delegate to the Continental Congress, patriot, and some might say a bit of a rebel. Most importantly, he was one of 56 men who pledged to each other, “our lives, our fortunes and our sacred honor” by signing the Declaration of Independence.

John Penn was not the most famous of the 56 signers. In fact, not much is written about him in the usual literature; however, from what is known and written, Mr. Penn led a fairly fascinating life. He was born May 17, 1741 (his birth has also been recorded as May 6, 1740) in Port Royal Virginia to Moses and Catherine Penn, an only child. The family was not wealthy and since the senior Mr. Penn did not see value in a formal education, John attended only two years of school before working with his father on the family farm. John’s father died when John was 18; he then went to live with his uncle, Edmund Penderton, where he completed his education by entering law school. In 1762, Penn became an attorney in Virginia.

After marriage to Susanna Lyne in 1763, and 2 children, the family moved to North Carolina in 1774, where they purchased a farm in Granville County. It was in North Carolina that Penn developed some very patriotic views about taxation especially, and firmly believed the only way to resolve the problems with the mother country of Great Britain was complete separation from her. He was vehemently against the Stamp Act and King George III, and some would say almost to the point of being disrespectful. As a consequence of his outspokenness, Penn was brought up on charges and found guilty. However, a sympathetic judge set Penn’s sentence at ONE CENT which Penn refused to pay on principle.

Subsequently, Penn entered a career in politics where he served in various capacities until his untimely death in 1788. Penn was elected to the Third Provincial Congress in 1775. These provincial congresses were governmental bodies that led the transition from royal government to states governments. The Third Congress established an executive committee and six military districts. Bills of credit that were issued were used as currency to fund organized armies in defense of the colonies. From there, Penn was sent as a delegate to the Continental Congress where he served until 1780.

Penn was a supporter and signer of a document called the Olive Branch Petition. Adopted in July of 1775, this petition was considered a last chance effort to appeal to the King of England and avoid war. The Petition contained a Declaration of Causes and outlined the necessity and reasons for the 13 colonies to take up arms in the American Revolutionary War. The King ultimately rejected the Olive Branch petition and the formal push for Independence from England began.

In 1776, as a champion of liberty, John Penn affixed his signature, along with 55 other men, to the Declaration of Independence. Continuing his belief that a permanent union of states was necessary, he also signed the Articles of Confederation.

Penn served in the Continental Congress until 1780. During that time, Penn, a very zealous man when it came to the Colonies separating from England, clashed with other members of the Congress who were not as convinced. This included the President of the Congress, Henry Laurens. As it turned out, Mr. Penn and Mr. Laurens roomed together during this time. Mr. Laurens, who was much older than Penn and in disagreement with his views, challenged Penn to a duel. But the duel was canceled the morning of, as Mr. Penn suggested such an idea was just foolish. Mr. Laurens agreed and the duel was canceled.

British victory at Camden in august of 1780 paved the way for the British invasion of North Carolina. Because the governor did not seem to have adequate emergency powers, he requested the formation of a Board of War, a three-member board, on which Penn was appointed to serve. Because the other two members rarely attended meetings, Penn had extra latitude to decide on several courses of action including where to send military supplies, and the coordination of military activities. The State assembly abolished the Board in January 1781 after complaints from military officers who opposed civilian interference and supposed usurpation of power.

Penn continued to hold various positions in government until his death in 1788, at the young age of 47. Originally, he was buried near his home in Granville County. In 1894, his remains were reinterred at Guilford Courthouse National Military Park, in North Carolina, site of one of the turning-point battles late in the American Revolutionary War.

Barb Zakszewski is a wife, mother and grandmother, lifelong conservative, regular civic volunteer and writer.

 

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Essay 79 – Guest Essayist: Jeff Broadwater

History remembers Joseph Hewes as one of the three North Carolina signers of the Declaration of Independence. John Adams, who served in the Continental Congress with Hewes and who would later become president, believed Hewes was critical in persuading moderate members of Congress to support the break with Great Britain.

Raised on his family’s estate near Kingston in what was then West Jersey, Hewes received a classical education in a Quaker grammar school. Rather than obtaining a degree at the nearby College of New Jersey, the forerunner of Princeton University, however, Hewes, in 1749, apprenticed himself to Joseph Ogden, a Philadelphia merchant. Five years later, Hewes declined an offer to join Ogden as a partner, and with money from his father’s estate, went into business for himself. Hewes’s work for Ogden had taken him to North Carolina, and apparently dissatisfied with his Philadelphia enterprise, Hewes moved in 1755 to Edenton, a small but prosperous commercial center on the Carolina coast.

With a likeable, easy-going personality; a natural head for business; and a vigorous work ethic, Hewes quickly rose to the top of Edenton society. He formed a close friendship with Samuel Johnston, one of the colony’s most influential lawyers and political leaders, becoming engaged to Johnston’s younger sister, Isabella, in 1760. She died before they could be wed, but Hewes never married and was treated as a member of the Johnston family for the rest of his life. The year Isabella died, Hewes replaced Johnston as Edenton’s representative to the colonial assembly and served on committees on appropriations and finance, appropriate assignments considering his commercial background.

Hewes eventually became involved in the Whig resistance to British imperial policies, especially the Tea Act of 1773 and the punitive Coercive Acts of 1774, which had been adopted in response to the Boston Tea Party, and he was an original member of North Carolina’s Committee of Correspondence. In June 1774, the committee endorsed a Massachusetts’s proposal for a continental congress, and in August of that year, assembly members meeting in New Bern approved the committee report and elected Hewes, along with William Hooper and Richard Caswell, to represent North Carolina in a meeting in Philadelphia of all the colonies.

While some members of the First Continental Congress seemed ready to resort to force, the North Carolina delegates sided with moderates who held out hope for a peaceful resolution of the crisis. Hewes admired Britain’s constitutional monarchy and feared a violent revolution could lead to virtual mob rule, but he later wrote that he could accept any government the people supported. Despite their differences, the delegates did approve the Continental Association, proclaiming a boycott of British goods as long as Parliament’s objectionable policies remained in place.

Hewes returned to Edenton in late November 1774, suffering from a fever, probably malaria, that would continue to plague him intermittently. He nevertheless remained active, serving on Edenton’s Committee of Safety, which had the responsibility for enforcing the Continental Association in Edenton. The outbreak of fighting at Lexington and Concord, Massachusetts and King George III’s subsequent refusal to negotiate with the colonies undermined the position of moderates like Hewes and led him to act more aggressively. When Congress reconvened in May 1775, Hewes recruited two Presbyterian ministers to rally support for the American cause among Highland Scots in the North Carolina backcountry. Mainly Presbyterians, the Scots had long been estranged from the colony’s politically dominant English Anglican faction to their east. Hewes also served as secretary to Congress’s Naval Board and helped secure John Paul Jones’s commission in the Continental Navy.

In the first half of 1776, Hewes found himself overtaken by events. Parliament’s Prohibitory Act of 1775, outlawing trade with the colonies, had created widespread resentment. In January 1776, Thomas Paine published Common Sense, his fiery call for American independence; Hewes reluctantly forwarded it to North Carolina. In February, the victory of North Carolina militia over a Loyalist force at the Battle of Moore’s Creek Bridge emboldened the colony’s Whigs. In April, the Fourth Provincial Congress, meeting in Halifax, authorized North Carolina’s congressional delegation to support independence. Reserved by nature, preoccupied with his committee assignments, and at the moment the only North Carolina delegate in Philadelphia, Hewes did not introduce the so-called Halifax Resolves in Congress until May 27, when Richard Henry Lee of Virginia presented a similar resolution.

Hewes readily signed the Declaration of Independence and thereafter worked tirelessly for the success of the Revolution, particularly in securing ships and supplies for the American cause, but his conservatism created enemies for him at home. In November 1776, a Fifth Provincial Congress met to draft a constitution for what was now the independent state of North Carolina. The convention split between what historians have traditionally labeled “conservative” and “radical” factions. Conservatives favored a strong executive and property qualifications for voting and holding political office. Radicals wanted to concentrate power in the legislature and to expand the political rights of the less affluent. The result was a compromise that pleased neither side. Hewes had identified with the conservatives, and when the state’s new General Assembly met in April 1777, the radicals, alleging Hewes had enriched himself in his business dealings with Congress and violated the ban in the recently adopted constitution on dual office-holding, defeated his bid for reelection to the Continental Congress.

Hewes might have made a political comeback if not for his failing health. Still popular in Edenton, he was elected to the General Assembly in 1779, and the assembly almost immediately returned him to Congress. An arduous trip to Philadelphia in the summer heat weakened his delicate constitution. By late September he was virtually bed-ridden, and in October he resigned from Congress. Too sick to come home, Hewes died in November at the age of 49 and was buried in the graveyard of Christ’s Church in Philadelphia.

Jeff Broadwater is professor emeritus of history at Barton College in Wilson, North Carolina, where he taught courses on the American Revolution and on the history of the American South. His publications include Jefferson, Madison, and the Making of the Constitution (2019); James Madison, A Son of Virginia and a Founder of of the Nation (2012); and George Mason, Forgotten Founder (2006). He also co-edited, with Troy Kickler, North Carolina’s Revolutionary Founders (2019).

Podcast by Maureen Quinn.

 

Bibliography:

Martin, Michael G. “Hewes, Joseph.” In William Powell, ed. Dictionary of North Carolina Biography, 6 vols. Chapel Hill: University of North Carolina Press, 1979-1991, 3: 123-125.

Mitchell, Memory F. North Carolina’s Signers: Brief Sketches of the Men Who Signed the Declaration of Independence and the Constitution. Raleigh, N.C.: State Department of Archives and History, 1964.

Morgan, Daniel T. and William J. Schmidt. North Carolinians in the Continental Congress. Winston-Salem, N.C.: John F. Blair, 1976.

Sikes, E.W. and S.A. Ashe. “Joseph Hewes.” In S.A. Ashe, ed. Biographical History of North Carolina: From Colonial Times to the Present, 8 vols. Greensboro, N.C.: Charles L. Van Nappen, 1906, 3: 172-80.

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Essay 78 – Guest Essayist: Jeff Broadwater
William Hooper at Guilford Courthouse National Military Park

William Hooper is generally considered to have been one of the most impressive North Carolinians to have served in the Continental Congress. Yet his career is marked by irony. Initially a key figure in mobilizing opposition to Great Britain, Hooper nevertheless struggled after 1776 to adjust to the politics of a revolutionary era.

Born in Boston in 1742, Hooper was educated first by his father, the Reverend William Hooper of Trinity Episcopal Church, and later at Boston’s Public Latin School. At the age of 15, he entered Harvard College as a sophomore and graduated in 1760. Hooper continued his studies at Harvard, receiving a master’s degree in 1763, and read law with James Otis, an early defender of American rights and an obvious influence on Hooper’s political views.

Shortly after completing his studies, Hooper moved to Wilmington. The North Carolina seaport had fewer lawyers than did Boston, and it offered Hooper other advantages. The Boston merchant James Murray was a family friend, and Murray’s brother-in-law, Thomas Clark, lived in Wilmington and served as his business agent. Clark’s family provided Hooper invaluable support, and in August 1767, he married Clark’s much-admired daughter, Anne.

Hooper prospered in Wilmington and became identified with the colony’s eastern faction. Appointed deputy attorney general for the Salisbury District, he clashed on more than one occasion with the Regulators, backcountry farmers who protested—sometimes violently—against taxes, debt collection, and political corruption at the local level. In 1773, Hooper entered the colonial assembly as a representative of what is today the city of Fayetteville, and at about the same time, he began buying land south of Wilmington on Masonboro Sound, where he would eventually build a house he called Finian.

As a member of the assembly, Hooper became embroiled in the foreign attachment controversy, which involved the power of colonial courts to seize the North Carolina property of debtors in Great Britain who owed money to North Carolina residents. The royal governor Josiah Martin had been instructed by the crown to end the practice. In response, Hooper wrote a series of essays under the pseudonym “Hampden” that demonstrated considerable learning and eloquence in defending the jurisdiction of North Carolina’s courts.

Hooper returned to the assembly from New Hanover County in December 1773 and was appointed to the colony’s Committee of Correspondence. Britain’s closing of the port of Boston after the Boston Tea Party helped radicalize him. He sensed as early as April 1774 that events were driving the American colonies to independence, an end he did not relish. But he considered “the cause of the Town of Boston” to be “the common cause of British America,” and in Wilmington he led a call for a provincial congress and helped raise money and supplies for the citizens of Boston.

North Carolina’s First Provincial Congress met in New Bern in August 1774, and elected Hooper to North Carolina’s delegation to the Continental Congress. In November, he was elected to Wilmington’s Committee of Safety. Hooper became a regular fixture in North Carolina’s provincial congresses, which, as royal authority disintegrated, governed the colony until a new state government could be organized. He authored several important public papers defending American rights, but by the end of 1775, Hooper privately grew disillusioned. Politics, he wrote, “drives men to expedients that morality must condemn.”

Hooper’s defense of American rights did not spring from a hostility to the British constitution. Consistent with the classical republicanism then common in America, he believed Britain’s commercial success had produced a widespread luxury that had undermined civic virtue. The resulting corruption manifested itself in the oppression of the colonies.  Oppression in America, Hooper seemed to believe, could spread to Britain itself, making the survival of colonial liberty essential to the survival of British liberty. Hooper envisioned for North Carolina, should it become independent, a British-style government purged of corruption. This, he thought, required a strong executive, an independent judiciary, a bicameral legislature, and popular deference to an educated elite.

His service in the Fourth Provincial Congress of April 1776 only increased his frustration. He served on a committee that tried but failed to produce a new state constitution. As prospects for reconciliation with Great Britain evaporated, Hooper supported the Halifax Resolves, endorsing independence, but his presence at the North Carolina congress meant he missed the Continental Congress’s debate over the Declaration of Independence. He did, however, participate in the general signing of the document on August 2.

Hooper struggled as the Revolutionary War went on with no end in sight. Early in 1777, he contracted yellow fever and sometime later, malaria. In April he resigned his seat in the Continental Congress, partly because the new General Assembly failed to reelect his friend and congressional colleague, the Edenton merchant Joseph Hewes. Hooper remained in the state assembly, but fearing British warships, he abandoned Finian for Wilmington and then fled Wilmington before it fell to the British in January 1781. He, Anne, and their three children eventually settled in Hillsborough. There he resumed a profitable law practice while his political fortunes declined.

In 1782, Hooper won a Hillsborough seat in the General Assembly, but lawmakers voided the election results, and the next year he lost a race to tavern keeper Thomas Farmer. Hooper returned to the state legislature in 1784, but it was a last hurrah. His elitism and his support for the lenient treatment of former Loyalists and a stronger national government alienated many North Carolina voters, and in 1788 he lost his last election: a bid for a seat in the Hillsborough convention called to consider ratification of the United States Constitution. Undeterred, he continued to champion the Constitution and received a measure of vindication when a second convention, meeting in Fayetteville, ratified the document. Weakened by disease, sometimes delirious, and drinking heavily, the 48-year-old Hooper died in 1790, the day before his daughter was to be married.

Jeff Broadwater is professor emeritus of history at Barton College in Wilson, North Carolina, where he taught courses on the American Revolution and on the history of the American South. His publications include Jefferson, Madison, and the Making of the Constitution (2019); James Madison, A Son of Virginia and a Founder of of the Nation (2012); and George Mason, Forgotten Founder (2006). He also co-edited, with Troy Kickler, North Carolina’s Revolutionary Founders (2019).

Podcast by Maureen Quinn.

 

Bibliography:

Engstrom, Mary Claire. “Hooper, William.” In William Powell, ed. Dictionary of North Carolina Biography, 6 vols. Chapel Hill: University of North Carolina Press, 1979-1991, 3: 199-202.

Ashe, S.A. “William Hooper.” In S.A. Ashe and Stephen B. Weeks, eds. Biographical History of North Carolina: From Colonial Times to the Present, 8 vols. Greensboro, N.C.: Charles L. Van Nappen, 1906, 7: 233-244.

Watson, Alan D. Harnett, Hooper and Howe: Revolutionary Leaders in the Lower Cape Fear. Wilmington, N.C.: Lower Cape Fear Historical Society, 1979.

Williams, Patrick G. “Hooper, William.” In John A. Garraty and Mark C. Carnes, eds. American National Biography, 26 vols. New York: Oxford University Press, 1999, 3: 145-147.

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Essay 77 – Guest Essayist: Jay McConville

When studying history, it is important to remember a few things. First, historic events were not singular moments as we often view them; instead, they developed as events today do, over time, and as a result of many influences.

Second, it is important to not oversimplify the past because people and events then were as complicated, conflicted, and convoluted as they are today. How people lived, the decisions they made, and the challenges they faced were complex, even if some of the details may have been lost to history.

When reading of the life of Carter Braxton, a signer of the Declaration of Independence from Virginia, it is important to keep these considerations in mind. Born into wealth, Braxton did not, however, live an easy life though it may have been privileged and full of material comforts. He died at an early age, having lost his once significant fortune, yet given the struggles he faced throughout his life, he might be excused for some of these failures.

Braxton was born on September 10, 1736 into one of the wealthiest and most distinguished families in the colonies. He was born on the Newington Plantation, east of Richmond on the Mattaponi River, which connects to the York River and Chesapeake Bay, and sits at the western end of Virginia’s beautiful Middle Peninsula. He was a planter and merchant. His grandfather had immigrated from England, and his father, who received a large land grant from George II, would expand the family’s wealth and prestige, serving frequently in the House of Burgesses from 1718 to 1734. His grandfather on his mother’s side was Robert “King” Carter, a man of great wealth and prominence, who also served in the House of Burgesses, including as Speaker. King Carter even served as the colony of Virginia’s Acting Governor for a year.

From this auspicious beginning, one might assume that Carter led a happy and contented life of comfort. Yet his wealth did not shield him from tragedy. His mother died just a week following his birth, and his father passed away when Carter was only 13. He married Judith Robinson upon leaving the College of William and Mary after only one year, but sadly she also died after they had been married for only two years. Perhaps to ease his grief, he traveled to Europe and England where he learned a great deal about the rulers of his colonial home, knowledge and perspective that would inform his decisions when revolutionary fervor gripped the colonies. After two years in Europe, he returned, marrying a second time in 1760 to Elizabeth Corbin. It is reported that they had 16 children together.

In keeping with family tradition, Braxton served in the House of Burgesses following his return, beginning in 1761. Then, when Peyton Randolph died suddenly in October 1775, he was made a member of Virginia’s delegation to the Second Continental Congress where he would serve for two years.

Carter was loyal to Virginia, but also to the Crown, at first. He was a reluctant revolutionary and argued against independence, fearing that it, and specifically a republican government, would lead to disaster and despotism in the colonies. While disinclined, he continued to work alongside the familiar names of the eventual revolution, including George Washington and Peyton Randolph. He did not relish conflict with the British, and worked to quell it when he could.

One historical incident shows the character and conservative nature of the man, when he worked with Patrick Henry to avoid direct conflict with the Royal Governor Lord Dunmore. Following the events at Lexington and Concord, Dunmore had confiscated gunpowder stored in Williamsburg, Virginia. Militia units were ready to fight over their lost supplies, led by the fiery Patrick Henry. Braxton was able to use the good connections he had through his father-in-law, Richard Corbin, who was serving as receiver general of the Colony, to pay the militia for the gunpowder, thus avoiding a military confrontation.

While Braxton was reluctant, he was not without independence sentiments. While a member of the House of Burgesses, likely as a result of his knowledge of the financial designs England had for the colonies which he learned through his travels there, he signed the Virginia Resolves which asserted that only the House of Burgesses had the right to tax Virginians. He also signed the Virginia Association, a non-importation agreement, and in 1775 became a member of the Virginia Colonial Convention.

Students of history know that there was a raging debate in the colonies at that time regarding independence. Many American leaders wanted England to change its policies toward the American Colonies, but did not support independence, nor did they desire revolution. Carter Braxton was initially of that opinion, and advocated a conservative approach. His essay which was published in June 1776, however, an excerpt of which is below, demonstrates his eventual acceptance of the need for independence:

When depotism had displayed her banners, and with unremitting ardour and fury scattered her engines of oppression through this wide extended continent, the virtuous opposition of the people to its progress relaxed the tone of government in almost every colony, and occasioned in many instances a total suspension of law. These inconveniencies, however, were natural, and the mode readily submitted to, as there was then reason to hope that justice would be done to our injured country; the same laws, executed under the same authority, soon regain their former use and lustre; and peace, raised on a permanent foundation, bless this our native land.

But since these hopes have hitherto proved delusive, and time, instead of bringing us relief, daily brings forth new proofs of British tyranny, and thereby separates us further from that reconciliation we so ardently wished; does it not become the duty of your, and every other Convention, to assume the reins of government, and no longer suffer the people to live without the benefit of law, and order the protection it affords?

So, rather hesitatingly, but eventually, he came to support the Revolution, voted for the Declaration of Independence on July 4, 1776, and signed it on August 2, 1776.

In response to his cautious and conservative views about democracy, Braxton was not initially returned to Congress after 1776. He did, however, remain active in Virginia politics and eventually returned to Congress where he served until 1783. He died of a stroke at the age of only 61 in 1797.

Like many of the founders, the revolution was not kind to Braxton. He lent significant financial support to the American Independence effort, including both money and ships, many of which were destroyed. His business was greatly curtailed, and his lands and plantations ransacked and pillaged. He made some unfortunate financial decisions of his own, as well, and ended his life in debt. His reputation as a clear thinker, honorable public servant, and patriot did not suffer, however, from his lack of financial success. He was described by his peers as a sensible and accomplished gentleman, and by others as a man of cultivation and talent. Despite the many challenges and tragedies that punctuated his life, he is remembered most for his honorable service to the cause of liberty.

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He has a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and two grandchildren.

Podcast by Maureen Quinn.

 

References:

Cruz, Shelly (2014). Carter Braxton, Descendant, Descendants of the Signers of the Declaration of Independence (DSDI), https://www.dsdi1776.com/carter-braxton/

Revolutionary War (2020). Carter Braxton, Revolutionary War: A colorful, story-telling overview of the American Revolutionary War, https://www.revolutionary-war.net/carter-braxton/

Hyneman, C., & Lutz, D. (1983). American Political Writing During the Founding Era, 1760-1805. Liberty Fund, Incorporated. https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1

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Essay 76 – Guest Essayist: Andrew Langer

Any successful enterprise, whether it be a large business or a political movement, will have within it the widest cross section of people both leading that effort or participating within it—individuals who bring a multitude of different skills and experiences to the table in order to make certain that the endeavor will succeed. This is the true definition of “diversity,” something that looks past the cosmetic and draws on the outlook and experience of its participants.

This is certainly true with our founders, men who couldn’t have been more different than each other, despite their similarities. The authors of the Declaration of Independence:  Jefferson (the principal author), John Adams, Benjamin Franklin, Robert Livingston and Roger Sherman (who were all on the Continental Congress’ Declaration Committee), all brought with them unique perspectives.

These differences extended to the pair of brothers who signed the Declaration, Richard Henry Lee and Francis Lightfoot Lee, both of Virginia. The only pair of brothers to sign the Declaration of Independence, both brought with them different outlooks and temperament.

The older brother, Richard Henry Lee, with his European education and charming likeability, became a major political force in the budding liberty movement in Virginia—especially with his writing and speaking.

But Francis Lightfoot Lee, a planter born in 1734 in Westmoreland, Virginia, contemporarily known as Frank, the second-youngest of the Lee brothers, was a determined worker, someone who did things out of duty and a devotion to getting done whatever task lay before him. He didn’t seek the spotlight, but was seen as a tireless worker. A leader, certainly, but one who led by doing.

Political movements need both, and while much praise and attention is bestowed on the former, it is the latter which is just as important (if not more so).

It is important to note that this branch of the Lee family played a prominent role in the first three centuries of not only American history, but Virginia history as well. The Lees were what is known as “FFVs” one of the “First Families of Virginia”—the families who first settled Virginia in Colonial Times. Richard Lee I, the first Lee in Virginia, migrated to the Colonies in 1639, and served as Virginia’s Attorney General several years after his arrival. His grandson was Thomas Lee, who became Governor in 1749, and was the father of both Frank Lee and Richard Henry Lee (among the other descendants of Richard Lee I are both Gen. Robert E. Lee and President Zachary Taylor, as well as Chief Justice of the U.S. Supreme Court, Edward Douglass White).

Frank Lee served as a member of the Virginia House of Burgesses, the elected legislature that was Colonial Virginia’s precursor to today’s House of Delegates. But from his statements, it is clear that he did so out of a duty to serve, and not to satisfy any greater political ambition. Lee wrote to his older brother at one point, when it looked like he might not get re-elected:

The people are so vexed at the little attention I have given them that they are determined it seems to dismiss me from their service, a resolution most pleasing to me, for it is so very inconvenient to me that nothing should induce me to take a poll, but a repeated promise to my friends there, enforced by those here who consider me as a staunch friend to Liberty.

Lee was focused on achieving the cause of liberty for the American Colonies, as he (like others) had grown both frustrated and dismayed by the increasing mistreatment of the Colonial Citizens by the British Crown.

He continued to serve and was eventually sent as a delegate to the Continental Congress—and John Adams remarked at the constancy of both Lee brothers who were in service together.

Frank Lee signed the Declaration and continued to serve as a Delegate to the Continental Congress, but he grew increasingly frustrated with the ambition and mismanagement of those around him. He wrote to Richard Henry Lee, his brother, again, saying:

I am as heartily tired of the knavery and stupidity of the generality of mankind as you can be; but it is our duty to stem the Current, as much as we can and to do all the service in our power, to our Country and our friends. The consciousness of having done so, will be the greatest of all rewards… [W]e may give a fair opportunity to succeeding Patriots, of making their Country flourishing and happy, but this must be the work of Peace.

He returned to Virginia following his service in the Continental Congress and served as a member of the Virginia State Senate. He retired from public and political life in 1785, having seen his deliberate “work of Peace” achieve the end he so desired. He and his wife died within one week of each other in 1797.

Andrew Langer is President of the Institute for Liberty.

 

Podcast by Maureen Quinn.

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Essay 75 – Guest Essayist: Val Crofts

Thomas Nelson Jr. of Virginia gave his fortune and his health to further the cause of American Independence. When he and his fellow signers pledged “our lives, our fortunes and our sacred honor,” the men of the Second Continental Congress took that risk seriously. Some paid more than others and Thomas Nelson Jr. may have paid more than all of them. He was never a healthy man, but the mission of independence took much of the health that he did have, resulting in an early death at the age of 50. He also sacrificed his family’s fortune, spending and donating it to help win the War of Independence. This was truly a man who risked and gave all so that we could live in the nation that we do today.

Nelson was born in Yorktown, Virginia in 1738 to a very wealthy family. As many members of wealthy Virginia families were, Thomas was sent to England for his education. He graduated from Cambridge and returned to Virginia soon after. He married Lucy Grymes, a young widow who was a member of Virginia’s Randolph family, in 1762 and they had 13 children. The young family settled down as Nelson became a planter and an estate manager.

He was elected to Virginia’s House of Burgesses and was a very outspoken opponent of Britain and their policies toward the colonies and was one of the first leaders in the colonies to entertain the idea of an independency for the colonies. He believed that it was absurd to have the colonists hold an “affection for a people who are carrying on the most savage war against us.” On November 7, 1774, Nelson was a member of the Yorktown Tea Party. Citizens of York County, Virginia had passed a non-importation boycott in response to the Tea Act of 1773. When the British ship Virginia docked at Yorktown, enraged citizens marched onto the ship and dumped two imported half-chests of tea into the water.

Nelson was appointed as a member of the Second Continental Congress in mid-1775, replacing George Washington when Washington left the Congress to go to Boston to take command of the Continental Army. He had returned to Virginia and was in Williamsburg on May 15, 1776 when the Fifth Virginia Convention passed a series of resolutions declaring Virginia was no longer a part of the British Empire. Nelson immediately carried the news from Virginia to Philadelphia where Richard Henry Lee on June 6, 1776 made the official resolution for independence within the Second Continental Congress, that would lead to the Declaration of Independence. He eventually had to resign from the Congress due to poor health.

Nelson was later appointed a brigadier general in the Continental Army and commanded the Virginia militia during the battle of Yorktown in 1781 during the American Revolutionary War. It was here that one of the most selfless acts of his life took place as he ordered the artillery of the Continental Army to fire on his home, where several British officers were headquartered. The home was heavily damaged. The surrender of the British troops at Yorktown occurred soon after.

In June of 1781, Nelson became the second governor of Virginia, succeeding Thomas Jefferson. He had to resign in November of 1781 due to poor health. By this point in his life, he had lost almost everything. His businesses were destroyed. He was owed over two million dollars by the United States government for his loans to help finance the French fleet and their aid to the war effort. He was never repaid and his financial well-being was destroyed.

Nelson passed away at his home at the age of 50 in 1789 from severe asthma. His body was originally buried in an unmarked grave in Yorktown because of a fear that creditors may hold his body for collateral until his debts were paid. He now rests under a fitting stone that pays tribute to him and his service to the United States, including honoring his service as a signer of the Declaration of Independence.

Once, after the war, when he was asked if his treatment was worth it, Nelson replied that if he had to, he “would do it all over again.” After his countless sacrifices, Thomas Nelson Jr. still believed in his nation and his service to it.

Val Crofts serves as Chief Education and Programs Officer at the American Village in Montevallo, Alabama. Val previously taught high school U.S. History, U.S. Military History and AP U.S. Government for 19 years in Wisconsin, and was recipient of the DAR Outstanding U.S. History Teacher of the Year for the state of Wisconsin in 2019-20. Val also taught for the Wisconsin Virtual School as a social studies teacher for 9 years. He is also a proud member of the United States Semiquincentennial Commission (America 250), which is currently planning events to celebrate the 250th birthday of the Declaration of Independence.

Podcast by Maureen Quinn.

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Essay 74 – Guest Essayist: William Rasmussen

One of the most influential and conspicuous of the delegates at the 1775 Second Continental Congress was Benjamin Harrison V of Berkeley (1726-1791). Elected Chairman of the Congress’s Committee of the Whole, he presided, with flair, over the final deliberations that shaped the Declaration of Independence. Harrison was given that important position because he was “a favorite of the day,” stated Edmund Randolph, his colleague from Virginia: “With strong sense and a temper not disposed to compromise with ministerial power, he scruples not to utter any untruth.”

To explain the respect that Harrison received in Philadelphia, Randolph pointed to his colleague’s years of legislative experience in Virginia: “During a long service in the House of Burgesses, his frankness, though sometimes tinctured with bitterness, has been the source of considerable attachment [to him].” The “bitterness” had resulted when Harrison said whatever he pleased, with sometimes brutal frankness. John Adams used the words “obscene,” “profane,” and “impious” to describe the sometimes-boisterous behavior of Harrison that was the antithesis of what the New Englander considered proper. Adams even compared Harrison—an obese man—to Shakespeare’s comical figure Falstaff, although—in confirmation of Edmund Randolph’s observations—he admitted that “Harrison’s contributions and many pleasantries steadied rough sessions” of the Congress.

Harrison’s conspicuousness at the Congress was confirmed by accounts of the time and by the painter John Trumbull’s famous canvas of 1818 that recreates the “Signing of the Declaration of Independence.” Harrison is pictured at the table on the extreme left, easy to spot. The “Signers” passed in front of him to sign what they feared might be a death warrant. According to delegate Benjamin Rush, there was a “pensive and awful silence” that Harrison dared to interrupt. His best-known exchange was with Eldridge Gerry, a slight man: “I shall have a great advantage over you, Mr. Gerry, when we are all hung for what we are now doing. From the size and weight of my body I shall die in a few minutes and be with the Angels, but from the lightness of your body you will dance in the air an hour or two before you are dead.”

The fact that Benjamin Harrison is little known today would have shocked his contemporaries. The explanation, however, is simple: Harrison has been overshadowed by the fame of Virginia colleagues who became some of the most illustrious figures in all of American history—George Washington, Thomas Jefferson, James Madison, Patrick Henry, George Mason, and John Marshall. In addition, it is easy to lose sight of Harrison because he was fifth in his family line to carry exactly the same name, as did his oldest son, Benjamin Harrison VI. (The Roman numerals have been added by modern historians; the confusion was even greater without the numerals.)

All six of the Benjamin Harrisons were active in public service. For that reason, the fifth Benjamin Harrison is generally dubbed “Benjamin Harrison the Signer.” Benjamin I (who arrived in the colony c. 1630) became Clerk of the Governor’s Council, and Benjamin II, III, and IV all served in the House of Burgesses. Benjamin IV built the house at Berkeley plantation, where in 1745, at age fifty-one, he—and a child he had with him—died when struck by lightning while closing an upstairs window. Son Benjamin V, the principal heir, inherited at age nineteen a vast empire of land and slaves. For the next forty-six years, however, Harrison spent little of his time and energy managing the vast operations at both Berkeley and other plantations he had inherited on both sides of the James River. Instead, Harrison gave his time to public service.

The decades prior to 1775 formed a tumultuous period in American history when Harrison involved himself in numerous pursuits that culminated in the decisions of the Second Continental Congress and the establishment of a new nation. Those experiences developed Harrison into an effective legislator, and they made him as well the “favorite” that Edmund Randolph recognized.

Harrison served three decades in the Virginia House of Burgesses, representing Surry County and Charles City County. In 1752, as a member of the Committee of Propositions and Grievances, he assisted in drafting a complaint to the governor and to King George and Parliament regarding the taxing of land patents—that was taxation without representation. Harrison with that stance became one of the earliest of the patriots. A decade later, when Britain passed the Townsend Acts in 1767 that asserted Parliament’s right to tax the colonies, he helped draft a response from the Virginia Burgesses that claimed the opposite—British subjects can be taxed only by their elected representatives.

In the next decade, as more issues came to the fore, Harrison became more involved in the resistance. In 1770, he joined an association of Virginia lawmakers and merchants that boycotted British imports until the British Parliament repealed its tea tax. He was as well a sponsor of a bill that declared illegal any laws passed by Parliament without the consent of the colonists. In 1772, Harrison and Jefferson were among six Virginians who petitioned the King to end the importation of slaves from Africa. Although Harrison sided with the East India Company’s demand for payment when its tea was dumped into the Boston harbor in 1773, he condemned the Intolerable Acts that were the response of the British Parliament. He was among eighty-nine Virginia Burgesses who denounced the new policy—and invited colonies to convene a Continental Congress. It followed that Harrison was selected as one of Virginia’s delegates to that gathering.

On the eve of the Second Continental Congress, Harrison was present when Patrick Henry presented his “Give me liberty, or give me death!” speech at a March 1775 convention in Richmond. Two months later when the Second Continental Congress convened, Harrison’s choice of roommates signaled his importance there. They were his brother-in-law Peyton Randolph, who was elected president of both the First and the Second Continental Congresses (he died in October 1775), and George Washington, who soon left to take command of the Continental Army. Harrison served on a committee that reviewed the needs and morale of that army.

For his prominence at the Second Continental Congress and the signing, Harrison won election to positions in the newly formed state of Virginia, but he also paid a price—when the British ravaged his Berkeley plantation. In 1777 Harrison was elected Speaker of the Virginia House of Delegates, soundly defeating Thomas Jefferson for that position, to which he was reelected several times. He next served as Virginia’s fifth governor, from 1781 to 1784. It was early in 1781 that Benedict Arnold led a British force of 1,600 up the James River in an effort to shift both the setting and course of the Revolutionary War, and to punish the rebellious leaders of Virginia. A specific target was Harrison’s plantation, which Arnold succeeded in only partially burning, though he was able to burn its furnishings, including the family portraits on its walls. (A rare and priceless miniature painting of Benjamin the Signer is in the collection of the Virginia Museum of History & Culture.)

Before he died in 1791, Harrison was elected to the Virginia House for two additional terms. In 1788 he cast one of his last votes in opposition to ratification of the new Constitution, due to its lack of a bill of rights.

Harrison and his wife Elizabeth Bassett, who married in 1848, were blessed with eight children during their 40-year marriage. The youngest was William Henry Harrison (1773-1841), who served as a congressional delegate for the Northwest Territory, became a governor of the Indiana Territory, then a general who turned back Indian uprisings, and, finally, became the ninth president of the United States. Benjamin Harrison’s great-grandson (1833-1901), also named Benjamin Harrison (probably to no family member’s surprise), was a Union general in the Civil War, a senator, and, finally, the twenty-third U.S. president.

William M.S. Rasmussen serves as Senior Museum Collections Curator & Lora M. Robins Curator of Art at the Virginia Museum of History & Culture. He is co-author of The Story of Virginia, Highlights from the Virginia Museum of History & Culture, with Jamie O. Bosket, among many other books and articles on Virginia history.

Podcast by Maureen Quinn.

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Essay 73 – Guest Essayist: Tony Williams

Colonial Virginia was a hierarchal society in which wealthy, slave owning planters provided political and civil leadership. Their financial independence gave them the leisure to serve in the House of Burgesses, local offices such as the militia, and Anglican parishes as vestrymen, to name a few. These planter-statesmen were the leaders of the patriot resistance movement to British tyranny in the 1760s and 1770s: George Washington, James Madison, Patrick Henry, Richard Henry Lee, and Thomas Jefferson.

On April 13, 1743, Jefferson was born to Peter and Jane at Shadwell Plantation on the Virginia frontier. His father was a planter-statesman who passed away in 1757, leaving Thomas and his brother significant landholdings. Jefferson was destined to become a planter-statesman in his own right, though the imperial crisis and American Revolution would provide him an opportunity for greatness on a world stage as a founder and lawgiver.

In 1825, Thomas Jefferson wrote to his friend, Henry Lee, reflecting on the meaning of the Declaration of Independence. He disclaimed originality in the ideas that shaped the Declaration of Independence.

This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c. ….”

Jefferson disclaimer to any originality in writing about the principles of natural rights republicanism in the Declaration of Independence was based upon the “harmonizing sentiments of the day” circulating in colonial newspapers, pamphlets, taverns, and colonial legislatures.

The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest proponents of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.” The speeches of Patrick Henry, the debates in the House of Burgesses and Continental Congresses, and the pamphlets of John Dickinson, Alexander Hamilton, and Thomas Paine expressed many of the same natural rights sentiments.

Jefferson also discovered these “harmonizing sentiments” during his classical education and in the books he read. He studied with Rev. William Douglas and Rev. James Maury. They provided young Jefferson with a rigorous classical education. He studied Latin and Greek, and read the poetry of Horace and Virgil, the Roman historians, and the political ideas of Cicero and Aristotle. He derived much of his thinking about natural law and political principles from these sources.

During his time with these tutors, Jefferson did not neglect his study of modern languages and political thought. He learned French and began his reading in the thinkers of the Enlightenment such as John Locke. He continued his study of the Enlightenment, especially the ideas of the Scottish Enlightenment, when he went to the College of William and Mary. While he was at college, he studied and read English law with George Wythe.

Jefferson said of his beloved teacher, Wythe, “No man ever left behind a character more venerated than George Wythe…and, devoted as he was to liberty, and the natural and equal rights of man, he might truly be called the Cato of his country.”

Jefferson’s education thus had a strong foundation in the study of natural law and popular government from a variety of traditions: ancient Greece and Rome, the English tradition, the ideas of John Locke and other Enlightenment thinkers combined with Protestantism woven together into a rich tapestry.

By the mid-1770s, Jefferson was ready to join the arguments of other patriots as a writer and statesman in the Second Continental Congress. In 1774, he authored a pamphlet entitled Summary View of the Rights of British America. He wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

At the Second Continental Congress, Jefferson and John Dickinson wrote the Declaration of the Causes and Necessity of Taking Up Arms. Congress resolved, “The arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live as slaves.”

Almost exactly a year later, the Congress declared independence and the ideas liberty and self-government. On June 7, 1776, Virginian Richard Henry Lee rose in Congress and offered a resolution for independence. “That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” Congress appointed a committee to draft a Declaration of Independence including thirty-three-year-old delegate, Jefferson.

John Adams later explained why he and the committee asked Jefferson to draft the Declaration of Independence. Among the several reasons, Adams stated, “I had a great opinion of the elegance of his pen and none at all of my own.” The elegance of Jefferson’s writing—and of his mind and political thought—was deeply rooted in his classical education.

The committee submitted the document to Congress, where it was considered, edited, and then adopted on July 4, 1776, enunciating the natural rights principles of the American republic. The Declaration claimed that the natural rights of all human beings were self-evident truths that were axiomatic and did not need to be proven. They were equally “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The equality of human beings meant that they were equal in giving consent to their representatives in a republic to govern. All authority flowed from the sovereign people equally. The purpose of that government was to protect the rights of the people. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The people had the right to overthrow a government that violated the people’s rights with a long train of abuses.

Thomas Jefferson’s early life and classical education prepared him to author the Declaration of Independence. After this watershed contribution to the creation of the American republic, Jefferson led a life of patriotic public service as a member of Congress, diplomat, Secretary of State, Vice-President, and President during the early republic that witnessed the creation of American institutions, the formulation of domestic and foreign policies, and the expansion of the new nation.

Jefferson died providentially on July 4, 1826 along with his friend, John Adams. It was fitting that Jefferson and Adams died on the fiftieth anniversary of the Declaration of Independence that they submitted to the Continental Congress, the American people, and the world.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

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Constituting America Founder, Actress Janine Turner


 

Constituting America first published this message from Founder Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization. We are pleased to share it with you again, as we celebrate our 13th birthday!  

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Essay 72 – Guest Essayist: Joerg Knipprath

If one lived in Virginia during the first couple of centuries or so of European settlement, one could do much worse than being born into the Lee family. Founded in the New World by the first Richard Lee in 1639, its wealth was based initially on tobacco. From that source, the family expanded, intermarried with other prominent Virginians, and established its prominence in the Old Dominion State. Richard Henry Lee and his brother Francis Lightfoot Lee, both signatories of the Declaration of Independence and the Articles of Confederation, were scions of one branch of the family. Henry “Light-Horse Harry” Lee III was a son of Richard Henry Lee’s cousin. Henry III was a precocious officer in the Continental Army, major-general in the United States Army, governor of Virginia, and father of Confederate States Army General Robert E. Lee.

Despite this illustrious background, Richard Henry Lee was in relatively straightened financial circumstances, compared to others in his political circle. Though he was the son of a royal governor of Virginia and plantation owner, Lee inherited no wealth other than some land and slaves. He rented those assets out for support, but depended on government jobs to help maintain his participation in politics. Although Lee studied law in Virginia after returning from an educational interlude in England, it appears he never practiced law. Still, his training became useful when he was appointed Justice of the Peace in 1757 and elected to the House of Burgesses in 1758.

Once in politics, Lee quickly took on radical positions. In September, 1765, he protested the Stamp Act by staging a mock ritual hanging of the colony’s stamp distributor, George Mercer, and of George Grenville, the prime minister who introduced the Stamp Act. Soon it was discovered that Lee himself had applied for that distributor position, which proved rather awkward for his bona fides as a fire-breathing patriot. After a mea culpa speech delivered with the trademark Lee passion, he was absolved and, indeed, lauded for his honesty.

He escalated the protest in 1766 by writing the Westmoreland Resolves, which promised opposition to the Stamp Act “at every hazard, and, paying no regard to danger or to death.” Further, anyone who attempted to enforce it would face “immediate danger and disgrace.” The signatories, prominent citizens of Westmoreland County, Lee’s home, pledged that they would refuse to purchase British goods until the Stamp Act was repealed. Eight years later, this type of boycott was the impetus for the Continental Association, an early form of collective action by the colonies drafted by the First Continental Congress and signed by Lee to force the British to repeal the Coercive Acts.

On March 12, 1773, Lee was appointed to Virginia’s Committee of Correspondence. The first such committee was established in Massachusetts the previous fall under the leadership of Sam Adams to spread information and anti-British propaganda to all parts of the colony and to communicate with committees in other colonies. The trigger was the Gaspee affair. The British cutter Gaspee, enforcing custom duties off Rhode Island, ran aground on a sand bar. Locals attacked and burned the ship and beat the officer and crew. The government, keen on punishing the destruction of a military vessel and the assault on its men, threatened to have the culprits tried in England. The specter of trial away from one’s home was decried by the Americans as yet another violation of the fundamental rights of Englishmen. Other colonies soon followed suit and established their own committees. Letters exchanged between Lee and Adams expressed their mutual admiration and laid the foundation for a lifelong friendship between the two.

Amid deteriorating relations between Britain and her American colonies, Parliament raised the ante by adopting the Coercive or Intolerable Acts (Boston Port Act, Massachusetts Government and Administration of Justice Act, Quartering Act) against Massachusetts Bay. Virginia’s House of Burgesses responded with the Resolve of May 24, 1774, concocted by Lee, his brother Francis Lightfoot Lee, Thomas Jefferson, Patrick Henry, and George Mason, which called for a day of “Fasting, Humiliation, and Prayer” for June 1. Time being of the essence, the authors were not above a dash of plagiarism. They took the language from a similar resolution made by the House of Commons in the 1640s during their contest with King Charles I. The Resolve denounced the British actions as a “hostile invasion.” It called for the Reverend Thomas Gwatkin to preach a fitting sermon. The reverend declined the invitation, not eager to have his church drawn into what he viewed as a political dispute. The royal governor, the Earl of Dunmore, reacted by dissolving the Burgesses. Lee and other radicals thereupon gathered at Raleigh’s Tavern in Williamsburg on May 27. They adopted a more truculent resolution, which declared that “an attack made on one of our sister Colonies, to compel submission to arbitrary taxes, is an attack made on all British America.”

Lee’s visibility in the colony’s political controversies paid off, in that he was selected by Virginia as a delegate to the First Continental Congress and, the following year, to the Second Continental Congress. It was in that latter capacity that Lee made his name. In May, 1776, the Virginia convention instructed its delegates to vote for independence. On June 7, Lee introduced his “resolution for independancy [sic].” The motion’s first section, adopted from the speech by Edmund Pendleton to the Virginia convention, declared:

“That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”

Debate on the motion was delayed until July due to the inability or unwillingness of some delegations to consider the issue.

In the meantime, colonies were declaring themselves independent and adopting constitutions of their own. With events threatening to bypass Congress, a committee was selected to draft a declaration of independence. Lee was unavailable. He had hurried back to Virginia, apparently to attend to his wife who had fallen ill. That absence prevented him from participating in the debate on his resolution on July 2. He returned in time to sign the Declaration of Independence.

Lee’s terms in Congress demanded much from him. He was what today would be described as a “workaholic.” On several occasions, this led to illness and absence due to exhaustion. He served in numerous capacities, including as chairman of the committee charged with drafting a plan of union, though most of the work on that project was done by John Dickinson as the principal drafter of the eventual “Articles of Confederation.” Lee was one of sixteen delegates who signed both the Declaration and the Articles.

From 1780 to 1782, Lee put his position in Congress on hold to tend to political matters in Virginia. The state was in relatively sound financial shape and keeping up with its war debt obligations. Lee opposed making the highly-depreciated Continental Currency legal tender. He also took the unpopular position of denouncing the law to cancel debts owed by Virginians to British creditors. “Better to be honest slaves of Great Britain than to become dishonest freemen,” he declared.

On the topic of slaves, Lee inherited 50 from his father. Despite that, he had strong anti-slavery sentiments. In 1769, he proposed that a high tax be assessed against importation of slaves, in order to end the overseas slave trade. Some critics grumbled that he did this only to make his own slaves more valuable, the same charge made against those Virginians who supported the provision in the Constitution which ultimately ended the trade after 1808. His pronouncements on the moral evil of slavery continued. It is unclear if Lee ever manumitted his slaves. The charge of hypocrisy is readily leveled at someone like Lee. But this history also demonstrates the difficulty of extricating oneself from an economic system on which one’s livelihood depends.

One pressing problem at the time was the parlous state of Congress’s finances, made even more dire by the looming obligations of the war debt. Lee’s role in stabilizing the financial situation in Virginia added to his stature in Congress. His fellow-delegates elected him their president during the 1784-1785 session. He was the sixth to serve as “President of the United States in Congress Assembled” after approval of the Articles of Confederation in 1781. Despite the impressive-sounding title as used in official documents, the position was mainly ceremonial. However, a skillful politician such as Lee could use it to guide the debates and influence the agenda of Congress.

Lee opposed proposals to give Congress a power to tax, especially import duties. He also believed that borrowing from foreign lenders would corrupt. Instead, he aimed to discharge the war debts and fund Congress’s needs through sales of land in the newly-acquired western territory. With the end of British anti-migration policy, millions of acres were potentially open to settlers. He hoped that the Western Land Ordinance of 1785, with its price of $1 per acre of surveyed land would raise the needed cash. Alas, poor sales soon dashed those hopes. Indian tribes and the pervasive problem of squatters who simply occupied the land mindful of the government’s lack of funds for troops to evict them contributed to uncertainty of land titles. With Lee’s prodding, Congress belatedly adopted the Land Ordinance of 1787, better known as the Northwest Ordinance. This law, reenacted by the Congress under the new Constitution of 1787, provided some needed stability, but it came too late to benefit the Confederation.

When Virginia accepted the call in Alexander Hamilton’s report on the Annapolis Convention of 1786 to send delegates to a convention to meet the following May in Philadelphia to consider proposals to amend the Articles of Confederation, Lee was elected as one of those delegates. Lee declined the position, as did his political ally Patrick Henry and a number of prominent men in other states. Henry summed up the views of many non-attendees. When asked why he did not accept, Henry, known as a man of many words over anything or nothing, stepped out of character and declared simply, “I smelt a rat in Philadelphia, tending toward the monarchy.”

Once the draft Constitution was approved, the Philadelphia convention sent it to the states for ratification as set out in Article VII. They also sent a copy to the Confederation Congress, with a letter that requested that body to forward its approval of the proposed charter to the states. Lee now attempted a gambit, innocuous on its face, which he hoped would nevertheless undo the convention’s plan. He moved to have Congress add amendments before sending the Constitution to the states. Taking clues from his friend George Mason, the most influential delegate at the convention who refused to support its creation, Lee submitted proposals on free exercise of religion, a free press, jury trials, searches and seizures, frequent elections, ban on a peace-time army, excessive fines, among others. These particulars echoed portions of Mason’s Declaration of Rights which he had drafted for Virginia in 1776.

Lee’s strategy was that the states should ratify either the original version, or a revised one with any or all of the proposed amendments. If no version gained approval, a second convention could be called which would draft a new document that took account of the states’ recommendations. One facet of this “poison pill” approach alone would have doomed the Constitution’s approval. As drafted, assent of only nine states’ conventions was needed for the new charter to go into effect among those states. For anything proposed by Congress, the Articles of Confederation required unanimous agreement by the state legislatures. Since support of a bill of rights, which the Constitution lacked, was a popular political position, it was likely that enough states would vote for proposed amendments to that end. In that event, the original Constitution would fall short of the nine states requirement, and Lee’s approach would require a second convention. It was feared—or hoped, depending on one’s view of the proposed system—that this would doom the prospect of change to the structure of governing the United States.

The pro-Constitution faction had the majority among delegations to Congress. Lee’s clever maneuver was defeated. However, rather than conveying the “Report of the convention” to the states with its overt approval, Congress sent it on September 28, 1787, without taking a position.

In the Virginia ratifying convention, Henry and others continued on the path Lee had laid out, of seeking to derail the process and to force a second convention. Like many other Americans, Lee was not opposed to all of the new proposals, but believed that, on the whole, the general government was given too much power. The new Constitution was a break with the revolutionary ethos that had sparked the drive to independence and was alien to the republicanism which was a part of that ethos. The opponents’ conception of unitary sovereignty clashed with that of the Constitution’s advocates who believed, such as Madison asserted in The Federalist, that the new government would be partly national and partly confederate. To the former, such an imperium in imperio was a mirage. Sooner or later, the larger entity would obliterate the smaller, the general government would subdue the states. Likewise, in the entirety of human history, no political entity the size of the United States had ever survived in republican form. To the classic republicans rooted in the struggle for independence who now were organizing to oppose the Constitution, the very existence of an independent central government threatened the republic. Of course, if any version of such a government were to be instituted, a bill of rights was indispensable.

The writings of an influential Antifederalist essayist, The Federal Farmer, have often been attributed to Lee. As with the works of William Shakespeare, historians debate these essays’ authorship. The claim that Lee wrote them was first made nearly a century after these events. No contemporary sources, including Lee or his political associates, mention him as the writer. The essays, presented in the form of letters addressed to The Republican, were collected and published in New York in late 1787 to influence the state ratifying convention. The Republican is Governor George Clinton, a committed Antifederalist who was the presiding officer of that convention and a powerful politician who remains the longest-serving governor in American history. Clinton himself is believed to have authored a number of important essays under the pseudonym Cato. Both Federal Farmer and Cato were so persuasive that they alarmed the Constitution’s supporters to the point that The Federalist addresses them by name to dispute their assertions.

Lee was in New York attending Congress during this time, and he was a prolific writer of letters, so it is possible he composed these, as well. Moreover, the arguments in the essays paralleled Lee’s objections about the threat the new system posed to the states and to American republicanism. The similarity extended even to the specific point that Lee made that the composition of the House of Representatives was far too small to represent adequately the variety of interests and classes across the United States.

However, Lee never wrote anything as systematic and analytically comprehensive as the Federal Farmer letters. What he intended for public consumption, such as his resolves, motions, and proclamations were comparatively brief and, like his rhetoric, to the point and designed to appeal to emotions. John Adams wrote during the First Continental Congress, “The great orators here are Lee, Hooper and Patrick Henry.” St. George Tucker, a renowned attorney from Virginia and authority in American constitutional law, described Lee’s speeches: “The fine powers of language united with that harmonious voice, made me sometimes think that I was listening to some being inspired with more than mortal powers of embellishment.” Historian Gordon Wood has contrasted Lee’s passionate style with the moderate tone and thoughtfulness of the Federal Farmer letters and asserts that Lee did not write them.

If not Lee, who? More recent scholarship has claimed that Melancton Smith, a prominent New York lawyer who attended the state convention, wrote these essays. Smith eventually voted for the Constitution in the narrow 30-27 final vote, which might explain the essays’ moderation in their critiques of the Constitution. His background as a lawyer might account for the close analysis of the document’s provisions. That said, the case for Smith and against Lee is also based on conjecture.

Once the Constitution was adopted, Lee, like Patrick Henry, made his peace. Henry used his influence in the state legislature to take the “unusual liberty” of nominating Lee to become one of Virginia’s two initial United States Senators. In that position Lee supported the Bill of Rights, although he considered its language a weak version of what it was supposed to achieve. Soon, however, Lee parted ways with his old political ally Henry and sided with Hamilton’s expansionist vision of the national government and its financial and commercial policies.

Lee died, age 62, on June 19, 1794. Thus ended the life of a man whose advice still commands attention: “The first maxim of a man who loves liberty, should be never to grant to rulers an atom of power that is not most clearly and indispensably necessary for the safety and well being of society.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Essay 71 – Guest Essayist: Suzanne Harman Munson

George Wythe, Thomas Jefferson’s surrogate father, is recognized as the Godfather of the Declaration of Independence by such authorities as Supreme Court Justice Lewis F. Powell, Jr. and other scholars. Wythe’s significant contributions to America’s founding document include: serving as Jefferson’s influential mentor; co-authoring a precursor to the Declaration; and organizing the Declaration’s legal brief of grievances.

Wythe is also known as the Prophet of the American Revolution for his early call for independence and for his resistance to taxation without representation. In honor of his unflagging contributions to the Revolution, Wythe’s signature was given the top place of honor among Virginia signers of the Declaration, above that of the younger Jefferson. On July 4, 1776, Wythe at age fifty was considered Virginia’s senior statesman, while Jefferson, only thirty-three, was just beginning his career in public life. Wythe was revered for his unflinching patriotism, honorable character, and principled statecraft.

Wythe and his friend John Adams of Massachusetts had been among the indefatigable workers in the Continental Congress in Philadelphia during the months leading to independence. They and their committee members labored daily to raise funds and provide supplies for General George Washington as he prepared for a David and Goliath contest against the western world’s mightiest military force.

Later, Adams was irritated that Jefferson, who had been a quiet member of Congress and also absent much of the time, “ran away with all the glory of it,” simply by putting pen to paper to draft the Declaration. Yet, Adams had strongly asserted that Jefferson should compose the document, as he was the best writer in their group and from Virginia, considered the thought-leader among Southern colonies necessary to win the Revolution.

Years later, Jefferson acknowledged that the ideals he expressed in the lofty preamble were not necessarily original, but reflected thinking prevalent at the time. Specifically, his work drew from that of John Locke, the influential English philosopher who had articulated mankind’s basic rights to life and liberty some decades earlier. During his five years as Wythe’s legal apprentice in Williamsburg, young Jefferson studied Locke, other Enlightenment thinkers, and eminent Greek philosophers. The Declaration of Independence reflects Jefferson’s comprehensive education in the humanities under Wythe’s direction.

When Jefferson began his association with Wythe in his mid-teens, he had recently lost his beloved father, Peter, at age fourteen and was in need of an excellent adult role model. Wythe had no surviving children from his marriage and took the youth under his wing, leading him on a path to greatness. Jefferson referred to him as “my second father,” “my beloved Mentor,” and “one of the greatest men of the age.”

In Philadelphia, when Jefferson was tasked with writing the Declaration of Independence, he studied a document drafted a short time earlier by a committee consisting of Wythe, Edward Rutledge, Sam Adams, and himself, considered a precursor to the Declaration. On May 29, the Continental Congress resolved to publish a “animated address” to the inhabitants of the colonies to “impress the minds of the people with the necessity of their now stepping forward to save their country, their freedom and property.” Significant numbers of Americans were not convinced of the need to sever ties with the Mother Country. The address persuaded the colonies that they must act to deliver their country from bondage by “uniting firmly, resolving wisely, and acting vigorously.” The surviving draft is in Wythe’s handwriting, and Jefferson preserved it among his most important papers.

In another contribution to the Declaration of Independence, attorney Wythe considered this document to be America’s legal brief before the court of world opinion. As such, its accusations against King George III had to be credible and verifiable. The Declaration includes a second part, after Jefferson’s inspired preamble. This consists of a long list of grievances against the king and his military, in acts of plunder, assault, murder, and other atrocities. Several months earlier, Wythe had sent letters to officials in the colonies soliciting their documented grievances.

Wythe was also instrumental in the success of the United States Constitution. If Virginia failed to ratify during the Constitution’s ratification rounds among the thirteen states, the document would have become effectively worthless; Virginia at the time was America’s largest, richest, and most powerful state. Wythe had served as chairman of the Rules Committee at the national Constitutional Convention in 1787 in Philadelphia and was a forceful advocate for a more unified nation.

At the Richmond, Virginia, Ratifying Convention in 1788, Wythe served as chairman of the Committee of the Whole. Patrick Henry and other states’ rights activists threatened to torpedo the ratification vote, fearing an over-reaching federal government. At the end of weeks of heated dispute, senior statesman George Wythe swayed the vote in favor, 89 to 79, with the promise of the addition of a Bill of Rights and a vision for a stronger America under the Constitution. “But for Wythe’s services in the Convention of 1788, Virginia would not have ratified the Constitution of the United States as it stood . . . The entire course of American history may have been materially changed,” noted Oscar Shewmake, former dean of the School of Law at the College of William and Mary.

Wythe served at William and Mary as America’s first collegiate professor of law between 1779 and 1789. He quickly turned his law school into the nation’s first leadership training program for future statesmen. At his death in 1806, his former pupils virtually ran the country, with Jefferson as president, John Marshall as influential chief justice of the Supreme Court, Henry Clay as a rising statesman, and a host of other former students in high offices at every level of the government and judiciary. Wythe arguably ranks as the most influential teacher in American history. He is recognized as the Father of American Jurisprudence.

George Wythe was born near Hampton, Virginia, spent his middle years in Williamsburg as attorney, professor, and leading legislator, and his last two decades in Richmond as a prominent judge in Virginia’s High Court of Chancery. Today, NASA’s Langley Research Center stands near his birthplace, and he would have been fascinated by his beloved country’s advancement in the greater world.

Suzanne Munson is author of the George Wythe biography, Jefferson’s Godfather: The Man Behind the Man. She lectures frequently on the Wythe-Jefferson legacy at university affiliates, historical societies, and other venues. She is currently writing a new book, America’s First Leadership Crisis: 1776.

Podcast by Maureen Quinn.

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Essay 70 – Guest Essayist: Colleen Sheehan

Charles Carroll of Carrollton was a third generation American.  His grandfather emigrated from Great Britain to America in the late seventeenth century, procuring a large tract of land in Maryland. At ten Charles was sent to a Jesuit school, subsequently attending Jesuit colleges in French Flanders and Reims, and then attending the College Louis le Grand in Paris. The next few years he studied law in France and then in England, at the Temple, London.

Charles Carroll was impeccably educated in the classics. He spoke five languages and, according to Tocqueville, personified the “European gentleman.” In 1764, with his education completed, he crossed the Atlantic and returned to his native Maryland. In 1768, he married Mary Darnall, with whom he had seven children, three of whom survived beyond childhood.

Charles Carroll was a member of the Continental Congress, a framer of the Maryland Constitution of 1776, a member of the Maryland legislature, and a member of the U.S. Senate. The respect he earned among his peers was not easily obtained, for Carroll was of Irish descent (originally of County Offaly, between Dublin and Galway), and a Catholic – or Papist, as Roman Catholics were often then called – the pariah of 18th century Anglo-American Protestant society. Even in his home state of Maryland, which had the largest concentration of Roman Catholics of any of the states, Catholics were denied the right to vote and to hold office. Carroll set about to change that, penning the “First Citizen” letters, ultimately succeeding in placing a provision in the Maryland Constitution of 1776 guaranteeing all Christians (i.e., including Catholics) the right to participate in public life.

The years leading up to the American Revolution were for Carroll a time of intense public spiritedness in defense of the rights and liberties of the colonists. Among many posts of leadership, Carroll was a member of a Committee of Correspondence, of the Maryland Convention of 1775, and of the delegation to Canada (with Benjamin Franklin and Samuel Chase) seeking Canadian support for the American war for independence. Like many others, Carroll pronounced the doctrine of no taxation without representation, and he prodded and provoked, persuaded and led his fellow Marylanders to join the cause of independence.

Elected delegate to the Continental Congress on July 4, 1776, Carroll took his seat on the 18th and signed the Declaration of Independence on August 2nd, when the engrossed parchment copy was presented for signature.

After the war, the implementation of the Articles of Confederation, and finally the establishment of the new Constitution, Carroll became a Senator in the first Congress of the United States. Supportive of Alexander Hamilton’s national and financial program (and opposed to the Republican financial and foreign policy agenda), Carroll became a member of the Federalist Party, helping broker deals such as placing the temporary capital in Philadelphia and the permanent one on the Potomac, and adjusting land claims between Virginia and his home state of Maryland.

One of the wealthiest families in America at the time of the founding – some would say the wealthiest, with an estate estimated at over 2 million pounds sterling at that time – Charles Carroll was in a position to contribute substantially to the financing of the war. At the same time, he did not take his good fortune for granted. In the old world, the family has been systematically stripped of their holdings by hostile Protestant Englishmen. In the new world, the security of property, freedom of religion, and equal treatment before the law was a work in progress.  Writing to James Warren in 1776, John Adams noted that Charles Carroll “continues to hazard his all: his immense Fortune, the largest in America, and his Life. This Gentlemans Character, If I foresee aright” Adams remarked, “will hereafter make a greater Figure in America.”

Charles Carroll inherited a ten-thousand-acre plantation from his father, and with that estate, hundreds of slaves. He was a slaveholder; he was also an abolitionist. He worked for the gradual abolition of slavery, sponsoring a bill in the Maryland legislature that required all slave girls to be educated and then at 28 years old set free, that they may in turn educate their husbands and children.

Charles Carroll was the last surviving signer of the American Declaration of Independence, called by one contemporary “the last of the Romans.” Of the principles of the Declaration, he said, “I do hereby recommend [them]to the present and future generations…as the best earthly inheritance their ancestors could bequeath to them.”

While the name Carroll may not be as renown as Washington, Jefferson, Adams, or Franklin, or as familiar as Kennedy or Reagan, and though there be no cities, states, rivers or colleges that serve as eternal reminders of his deeds and sacrifices, that does not make us any the less in his debt.

Indeed, if some Americans look to the presidential election of John F. Kennedy as the moment that marked the acceptance of Irish Catholics in the Anglo-Protestant dominated political mainstream of 20th century America, the possible pathway for an Irish Catholic president in America was originally paved by the Carroll family, particularly Charles Carroll and his cousin Daniel, a signer of the U.S. Constitution.

The war for independence and the founding of the United States was a work that could only have been accomplished by the dedicated work of many minds and many hands. Charles Carroll was one of the men who made this land we call America and who left to us the earthly inheritance – and the ongoing work – of keeping alive the principles of ’76.

 

Colleen A. Sheehan is Professor and Director of Graduate Studies with the School of Civic and Economic Thought and Leadership of Arizona State University.

Podcast by Maureen Quinn.

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Essay 69 – Guest Essayist: Ron Meier

Mary Land, the State of Maryland, was originally established in the early 17th century as a haven for Catholic immigrants to the American colonies. It was named after Henrietta Maria who was married to King Charles I, and was also a tribute to the Virgin Mary. But the American colonies were largely settled by Protestants with Puritans to the north, Anglicans to the South. Maryland, in spite of its Catholic heritage, tolerated religious diversity, so it was just a matter of time until Protestants dominated in Maryland. By the end of the 17th century, it had become largely inhabited by Protestants.

In 1688, the Glorious Revolution in England resulted in the Catholic King being replaced by Protestant monarchs. The proprietary Catholic colony in Maryland reverted to the British Crown.

In 1689, following the spirit of the Glorious Revolution in the mother country, Protestants in Maryland revolted and established a new Protestant government in the colony. Catholics were removed from office, prohibited from holding public office in the future, from practicing law, and from voting. Maryland’s citizens became loyal to the Crown over the next several generations before the onset of differences with the Crown in the 1760s.

Maryland’s principal cash crop was tobacco.  Disputes among the growers in the colonies and the merchants in Britain who controlled the trade grew over time. After the French and Indian War, when Britain imposed taxes on the colonies to pay for Britain’s costs in prosecuting the war, additional disputes with Britain grew and a Sons of Liberty chapter was formed in Maryland.

Maryland citizens sympathetic to the patriot cause joined with other colonies in establishing Committees of Correspondence and its merchants joined with merchants in other colonies to boycott British imports. Sensing problems, Maryland’s Royal Governor prorogued the Colonial Assembly in the spring of 1774. Taking their cue from the Boston Tea Party, Maryland’s patriots held their own protests, the Chestertown Tea Party and the Annapolis Tea Party, against the British Tea Act.

A Provincial Convention was formed in Annapolis by the former members of the Colonial Assembly in 1774 and served as the patriots’ governing body until the signing of the Declaration of Independence.  Delegates were sent to the First and Second Continental Congress. The Annapolis Convention, in January 1776, firmly instructed its delegates which included Thomas Stone, to attempt reconciliation with Britain and to not join in any attempt of the Continental Congress to declare the independence of the colonies. In spite of these instructions, Maryland already had its soldiers in the field with George Washington. Maryland’s soldiers became some of Washington’s most reliable Continentals after the “Maryland 400” held the line in Brooklyn allowing Washington and the remainder of his forces to escape annihilation by crossing the East River to Manhattan.

It was not until June 28, 1776 that Maryland’s Convention instructed its delegates to vote for Independence; this is the same day that Jefferson and the Committee of Five charged with drafting the document presented its draft of the Declaration of Independence to the Congress.  Interestingly, not all delegates who voted for the Declaration on July 2 were official signatories. For example, John Rogers voted for independence on behalf of Maryland, but due to subsequent illness, was unable to sign the document.

Many delegates to the First and Second Continental Congresses considered themselves British citizens and sought reconciliation with Britain rather than revolution.

Thomas Stone was among those preferring reconciliation. He was born in Maryland in 1743 into a wealthy family which emphasized a classical education for Thomas who, like many other young men of the time, used their classical education as a springboard into the study of law.

In 1764, he entered the practice of law and spent the subsequent decade focused on serving his legal clients. Little is known about his life until his marriage in 1768 to seventeen-year-old Margaret Brown, daughter of a prominent and wealthy Maryland family. Thomas and Margaret purchased land on which to build their home and establish their family.  The family owned slaves to work the large tobacco plantation established on the land and because Thomas was often absent riding the law circuit, his brother managed the plantation.

In 1774, Thomas was chosen to be on his county’s Committee of Correspondence, the vehicle through which patriots in the colonies communicated with each other. Think of the Committees of Correspondence as a Private Facebook Group of the 18th century – not providing instantaneous communication among the colonies, but enabling each of the colonies to coordinate their efforts to reconcile with the British Crown and simultaneously provide support to those colonies already engaged in conflict with the British military and blockades.

Stone is variously known as a “Reluctant Revolutionary,” a “Quiet Patriot,” and a “Moderate” who used his legal skills in the background rather than as a great orator, like Patrick Henry and John Adams, whose names are more recognizable as the movers and shakers of the Revolution.

He was then appointed to represent Maryland at the Second Continental Congress. Even after the battles at Lexington, Concord, and Boston, Stone and most members of the Continental Congress strove for reconciliation. Stone strongly supported the 1775 Olive Branch Petition, which King George refused to read and which was rejected by Parliament. Even after rejection of the Olive Branch Petition, as noted above, the Annapolis Convention in January 1776 instructed its delegates to the Continental Congress to vote against independence.

As the British Navy, with more than 30,000 troops aboard hundreds of ships, assembled in New York’s harbor to prepare to do battle with Washington’s troops, including the Maryland Line, on Long Island, reconciliation appeared hopeless and sentiment among the delegates to the Congress moved more towards independence. Virginia’s Richard Henry Lee introduced the independence resolution to the Congress in early June and Jefferson began writing the Declaration of Independence.  Thomas Stone moved ever so slowly, but firmly, in favor of independence, and cast his Yea vote on July 2. He returned on August 2 to sign the Declaration.

The next year, after having been appointed to the committee to draft the Articles of Confederation, he declined reappointment to the Congress because of health problems his wife experienced due to complications from smallpox. He returned to Maryland and was appointed to the Maryland Senate, where he served for the rest of his life. Maryland’s commitment to the Confederation was weak, but Stone used his persuasive powers to support the Confederation, which Maryland ratified in February 1781, the last state to do so almost two years after the 12th state.

Stone was appointed to represent Maryland at the Constitutional Convention, but his wife died in June, 1787, causing him to decline appointment. He became deeply depressed upon the death of Margaret and died just four months later with a “broken heart” apparently being the cause. He and Margaret were buried on their plantation which is administered today by the National Park Service.

Ron Meier is a West Point graduate and Vietnam War veteran.  He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.  Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Podcast by Maureen Quinn.

 

Sources:

https://en.wikipedia.org/wiki/Maryland_in_the_American_Revolution

Protestant Revolution (Maryland) – Wikipedia

https://msa.maryland.gov/msa/mdmanual/01glance/chron/html/chron17.html

https://en.wikipedia.org/wiki/Annapolis_Convention_(1774%E2%80%931776)

https://digital.lib.niu.edu/islandora/object/niu-amarch%3A103286

https://msa.maryland.gov/msa/mdstatehouse/html/independence.html

https://en.wikipedia.org/wiki/John_Rogers_(Continental_Congress)

https://www.nps.gov/people/thomas-stone.htm

https://en.wikipedia.org/wiki/Thomas_Stone

https://www.nps.gov/articles/000/a-reluctant-revolutionary.htm?utm_source=article&utm_medium=website&utm_campaign=experience_more&utm_content=small

https://www.thebaynet.com/articles/0616/the-quiet-patriot-thomas-stone-of-haberdeventure.html

http://colonialhall.com/stone/stone.php

https://en.wikipedia.org/wiki/Olive_Branch_Petition

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Essay 68 – Guest Essayist: Val Crofts
Signer William Paca 1823 by Charles Willson Peale - Public Domain Image in the United States https://en.wikipedia.org/wiki/William_Paca#/media/File:William_paca.jpg

Benjamin Rush once referred to his fellow signer of the Declaration of Independence, William Paca, as “beloved and respected by all who knew him, and considered at all times as a sincere patriot and honest man.” John Adams called Paca the “great deliberator,” for the work that Paca did during the First and Second Congressional Congresses. William Paca was a tireless advocate for freedom and justice for Maryland and the 13 colonies, as well as a brilliant lawyer and champion for veterans’ benefits. He was one of four signers of the Declaration from Maryland. He was also one of two signers, Caesar Rodney being the other, who were of Italian heritage.

Paca was born in Maryland in 1740 and very little is known about his early life and education. Most of his papers and diaries were destroyed in a fire at his former home in Maryland in 1879. As a result, we do not have the volumes of information on William Paca that we have regarding other members of the Founding generation.

William Paca graduated from the College of Philadelphia (now the University of Pennsylvania) in 1759, and he soon moved to Annapolis, Maryland to begin his legal career. He wanted to become a lawyer, which he did, and in the process of doing so he became very good friends with Samuel Chase and Thomas Stone, two fellow lawyers who would both sign the Declaration of Independence with Paca in 1776.

Paca and Chase also started a Sons of Liberty organization in Annapolis in 1765 to protest the passage of the Stamp Act. Here is where William began his career in politics and his strong opposition to the policies of the British crown. He was a strong early supporter of independence and a lifelong advocate for states’ rights and a person’s individual rights. Paca had a reputation for being more of a quiet, behind the scenes type of a politician, but on one noteworthy occasion, he proved that he could stand in the spotlight to protest a cause as well as anyone. The governor of Maryland refused to rule favorably on a law that Chase and Paca wanted him to support. As a result, and to protest the ruling, Paca and Chase protested the governor’s ruling by “hanging” a paper copy of the law in a public ceremony, then burying it in a tiny coffin with a cannon firing in the distance. A very theatrical and powerful way to prove your point!

William Paca was known as a very charming man who dressed well and married well (twice). He came from a very wealthy family and he married into two wealthy families. He married Mary Chew, known as Molly in 1763 and she passed away in 1774, possibly due to childbirth complications. His second wife, Ann Harrison also passed away at a young age. Paca fathered six children and never re-married after Ann died.

William Paca served in both the First and Second Continental Congresses as a delegate from Maryland. During the debate over independence in the Second Continental Congress, Maryland was a colony that had much debate over whether or not to vote in favor of independence. As Paca waited for word on how to vote on the matter, instructions eventually arrived in Philadelphia that Maryland had agreed to vote for independence and have its delegates sign the document. Paca then cast his vote in favor of independence on July 2, 1776 and he signed the Declaration of Independence on August 2, 1776.

William Paca cared deeply for the veterans of the American Revolution and he did everything possible after the war to help them in any way that he could, personally, legally and financially. As a result of these actions, in 1783, he became an honorary member of the society of the Cincinnati. Membership in the Society was usually reserved for Revolutionary War officers, but Paca was given this honor due to his constant efforts to support the Revolutionary war veterans.

After the Revolutionary War ended, Paca served in various legal roles within the state of Maryland, including serving as their third governor. He would also later help to push forward many of the amendments to the constitution that would become the Bill of Rights. His commitment to personal and individual freedoms in the Bill of Rights is part of his lasting legacy. William Paca died in 1799.

Val Crofts serves as Chief Education and Programs Officer at the American Village in Montevallo, Alabama. Val previously taught high school U.S. History, U.S. Military History and AP U.S. Government for 19 years in Wisconsin, and was recipient of the DAR Outstanding U.S. History Teacher of the Year for the state of Wisconsin in 2019-20. Val also taught for the Wisconsin Virtual School as a social studies teacher for 9 years. He is also a proud member of the United States Semiquincentennial Commission (America 250), which is currently planning events to celebrate the 250th birthday of the Declaration of Independence.

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Essay 67 – Guest Essayist: Joerg Knipprath

In his work E Pluribus Unum, the historian Forrest McDonald provides a succinct profile of Samuel Chase: “But for Samuel Chase, Maryland’s immediate postwar history would have been dull in the extreme….At the time, all that seemed to be happening—or most everything with salt and spice, anyway—appeared to revolve around Samuel Chase….

“Chase was a man of peculiar breed, perfectly consistent by his own standards but wildly inconsistent by any other….[W]henever he appeared in public life in the capacity of an elected official, he artfully duped the people, led them by demagoguery into destructive ways, and exploited them without mercy; and they loved him and sang his praises and repeatedly reelected him….

“But when he appeared in public life in a different capacity, the capacity of institution-maker or institution-preserver, he worked with sublime statesmanship to protect the people against themselves, which is to say, against the like of himself. Thus in 1776, as the principal architect of Maryland’s revolutionary constitution, he created a system so fraught with checks and balances, and with powers so distributed between aristocracy and people, that destructive radicalism seemed impossible. Less than a decade later, as a member of the state’s House of Delegates, he engineered a movement to subvert that very constitution, and did so for the most flagrantly corrupt reasons and with the enthusiastic support of ‘the people,’ in whose name he did it….

“As a rogue who exploited public trust, Chase pursued private gain, but he probably did so more because he enjoyed the role than because he really coveted its fruits. Whatever his motives, he led Maryland’s proud and pretentious aristocrats by the nose for nearly a decade, and in so doing executed a dazzling series of maneuvers that accounted for most of the state’s major policy decisions.”

A physically large man, “Old Baconface,” a sobriquet he was given as a young attorney for his ruddy complexion, was in many ways, then, a larger-than-life character in Maryland. And that all happened before Chase’s rise to high federal judicial office, and the vortex of controversy in which he placed himself once more, precipitating an existential institutional crisis for the Supreme Court.

The expulsion in 1762 of Chase, the young attorney, from a debating club was for unspecified “extremely irregular and indecent behavior.” The founding of the local Sons of Liberty in 1765 was with another eventual signer of the Declaration of Independence, his friend William Paca, a wealthy planter and future governor, who was himself no stranger to political corruption. There was a failed attempt to corner the grain market through inside information after being elected to the Second Continental Congress. These incidents were the overture to the dynamic that marked the increasingly consequential relationship between Samuel Chase and the established political and social order.

Chase’s scheming then moved to the Maryland legislature, which, in the 1781-1782 session, adopted two laws favorable to Chase. The first was the creation of the office of Intendant of the Revenues, which placed in one office complete control over the state’s finances. The appointment went to a Chase associate, Daniel of St. Thomas Jenifer, a future signer of the U.S. Constitution. The second deprived Loyalists of their rights and confiscated their property with a value of more than 500,000 Pounds Sterling at the time. That property was to be sold at public auction. Chase and various associates placed their men in crucial administrative positions and manipulated the sales to their advantage. Among those associates was Luther Martin, an influential Antifederalist who began a long tenure as Maryland’s attorney general in 1778 through Chase’s influence. Another was Thomas Stone, who also had signed the Declaration of Independence.

The Chase syndicate acquired confiscated property valued between 100,000 and 200,000 Pounds Sterling, an amount far beyond what they could pay. Their solution was to choreograph the auction process with the help of Intendant of Finance Jenifer so as to cancel that sale through questionable legal technicalities and end up, in a second sale, with a price that was one-tenth that of the original auction price. Even that amount was more than the syndicate had, so they undertook a several-year-long effort to delay payment and procure a law that would enable them to pay their obligation with an issue of depreciated Maryland paper currency.

Chase’s questionable dealings and political scheming caused him and his associates trouble at times. In the end, however, the scandals, investigations, and attendant calumnies did him no harm. The personal charm he could invoke when needed, the political demagoguery to which he freely resorted to portray himself as a tribune of the people and an opponent of aristocracy and Toryism, and the willingness to deflect attention from the negative consequences of a failed political scheme by fomenting another even more base and outrageous, served him well.

It is a cliche of a certain genre of entertainment that a plot featuring a lovable scoundrel or band of misfits needs a straight-laced, establishment foil. In the tale of Samuel Chase, that part was played by Charles Carroll of Carrollton. Carroll came from the leading family of Maryland Catholics. He was a wealthy planter, thought to have been the wealthiest person in the new nation, worth about $400 million in today’s money. He was also the most lettered of the generally well-educated signers of the Declaration of Independence. Carroll was an early pro-independence agitator. As the leader of the Maryland Senate during the 1780s, he jousted politically with Chase and his allies over Chase’s schemes. While Carroll was able to blunt some of those schemes, Chase, in turn, succeeded in painting Carroll as a Tory. This was a supreme irony, indeed, in light of Carroll’s bona fides as a patriot who had been advocating violent revolution against Britain when Chase was still urging discussions.

In 1791, Chase became chief justice of the Maryland General Court, where he stayed until he was appointed to the United States Supreme Court by President George Washington in 1796. Chase served in that capacity until his death in 1811.

As the political temperature in the country heated up after passage of the Alien and Sedition Acts in 1798, Chase was drawn into the rhetorical clashes between Federalists and Jeffersonians. With relish, Chase denounced Jefferson’s Democratic Republicans as the party of “mobocracy.” Drawing on his experience as a partisan brawler during his days in Maryland politics, he denounced Jefferson, the Republicans, and Jeffersonian policies with his accustomed sharp tongue. Crucially for the events to follow, he did so while performing his judicial duties.

The nature of his position as a supposedly impartial and nonpolitical jurist had no impact on him.

Examples were Chase’s ham-handed actions in the trials in 1800 of, respectively, Thomas Cooper and James Callender for publishing libelous materials about John Adams and Alexander Hamilton. While Cooper was a sympathetic figure, Callender was a scandalmonger whose fate in the courtroom probably would not have stirred anyone, had Chase not made him a political martyr. Callender’s attacks on Hamilton had impressed Jefferson, who was pleased with anyone willing to sling rhetorical mud at the Federalists. Jefferson encouraged and subsidized Callender’s efforts and later pardoned him for his conviction in Chase’s courtroom. However, Jefferson soon became much less enchanted with Callender when the latter demanded he be appointed to a federal office. Upon Jefferson’s refusal, Callender switched political allegiances and, as a Federalist Party newspaper editor, published scurrilous articles that claimed Jefferson’s paternity of children born to Sally Hemings, one of his slaves.

Chase, meanwhile, continued his political activism. Not content to campaign as a sitting judge for President Adams’s reelection, he harangued a Baltimore grand jury in 1803 with a long charge which criticized the Jeffersonians for having repealed an Adams-era judiciary statute that Chase favored, and which condemned the idea of universal suffrage as unrepublican. The last was particularly ironic in light of his public persona as a man of the people and opponent of Toryism in his earlier political career in Maryland.

Having made himself the lightning rod for the Jeffersonians’ fury at what they saw as the Federalists entrenching themselves in the judiciary following the latters’ election loss in 1800, Chase became the target of an impeachment effort in the House of Representatives. The grand jury charge in 1803 may have been the catalyst, but Jefferson’s distaste for his cousin Chief Justice John Marshall and outrage at Marshall’s lectures to the executive branch in Marbury v. Madison that same year, helped produce the reaction. Indeed, it was broadly understood that a Chase impeachment was a dry-run for a more consequential attempt to remove Marshall.

Led by another of Jefferson’s cousins, the flamboyant ultra-republican majority leader John Randolph of Roanoke, Virginia, the House voted out eight articles of impeachment on March 12, 1804. The first seven denounced Chase’s “oppressive conduct” in the Sedition Act trials. The eighth dealt with the “intemperate and inflammatory political harangue” in Baltimore which was intended to “excite the fears and resentment…of the good people of Maryland against their state government…[and] against the Government of the United States.” In short, the Jeffersonians accused Chase of the seditious speech they previously claimed Congress could not prohibit under the Sedition Act. With that statute no longer in effect, there was no criminal act on which the impeachment was based. More significantly, since the Republicans had claimed that a federal law that targets seditious speech violates the First Amendment, Chase’s remarks were not even potentially indictable offenses. The vote was a strict party-line matter, 73-32. If party discipline held in the Senate trial, where the Republicans enjoyed a 25-9 advantage, Chase’s judicial tenure was doomed.

The trial was held in February, 1805, supervised by Vice-President Aaron Burr, still under investigation for his killing of Alexander Hamilton in a duel. Chase’s lawyers, including his old political crony, close friend, and successful Supreme Court litigator, Luther Martin, argued that conviction required proof of an act that could be indicted under law. The House managers claimed that impeachment was not a criminal process. Since impeachment was the only way to remove federal judges, they asserted that “high Crimes and Misdemeanors” must include any willful misconduct or corrupt action that made the person unfit for judicial office. Their charges met that test, they averred, because Chase had acted as prosecutor as well as judge in the trials.

The effort failed. Even on the eighth charge, the Baltimore grand jury speech, six Republican Senators voted to acquit, leaving the prosecution four votes short of the necessary two-thirds vote for conviction. On the other, weaker, charges, the House fared worse. Chase’s acquittal diminished the threat which impeachment posed to the independence of the judiciary. Still, the two sides’ respective arguments over the purpose of impeachment and the meaning of the phrase “high Crimes and Misdemeanors” were replayed in subsequent such proceedings and continue to be contested today. After his trial, Chase stayed on the Court another six years. He remains the only Supreme Court justice to have been impeached.

Samuel Chase died in Baltimore in 1811 at the age of 70.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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Essay 66 – Guest Essayist: Gordon Lloyd
SignerThomasMcKean1787CharlesWPeale Public Domain Image - https://en.wikipedia.org/wiki/Thomas_McKean#/media/File:Thomas_McKean_by_Charles_Willson_Peale.jpg

Thomas McKean (1734-1817) was born of Scotch-Irish ancestry in New London, eastern Pennsylvania near the border of New Jersey and Delaware. He married Mary Borden with whom he had six children. Mary was the sister of Francis Hopkinson’s wife. Hopkinson was a signer from New Jersey. After Mary died, McKean married Sarah Armitage and together they had five children.

McKean practiced law in both Pennsylvania and Delaware, and served as a colonel in the New Jersey militia. He was politically active in all three states, even while elected to federal office. In 1756, he became deputy Attorney General in Pennsylvania. In 1757, he was admitted to the Bar of the Supreme Court of Pennsylvania and appointed clerk of the Delaware Assembly.

In 1762, the Assembly appointed McKean and Caesar Rodney, another signer of the Declaration of Independence, to revise and publish the laws of the province of Delaware. Also in 1762, he was elected to the Delaware Assembly, and re-elected for seventeen years despite a six-year residence in Philadelphia during that time. No other Signer of the Declaration took part in so many different State activities simultaneously as did McKean.

In 1775, he represented Delaware at the Stamp Act Congress in New York and then Pennsylvania at the Continental Congress from 1774-1777. On July 1, 1776, two of the three Delaware delegates were in attendance. McKean voted in favor of Independence and George Read voted against it. McKean strongly opposed the power that the British were imposing upon the colonies. He sent an urgent message to Caesar Rodney in Dover to come at once to Philadelphia to break the deadlock. Rodney rode overnight in a rainstorm, having arrived wearing boots and spurs as described by McKean, and the deadlock was broken on July 2.

McKean also served on the Congressional committee that drafted the Articles of Confederation. In 1777, he was appointed Chief Justice of Pennsylvania, an office that he held for nearly twenty years. He was elected President of the Continental Congress in 1781. In 1787, he attended the Pennsylvania ratifying convention and voted in favor of ratification. In 1789, he was elected Governor of Pennsylvania and served in that office before retiring in 1812, but his governorship was controversial as he survived an impeachment effort due to strife within differing partisan viewpoints.

Toward the end of his life, though McKean had mostly retired, he participated in a discussion to guard against possible British invasion of Philadelphia in the War of 1812. McKean admonished the people to set aside differences and consider there were only two parties which consisted of America and its invaders.

McKean died in Philadelphia on June 24, 1817 at the age of 83.

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

Podcast by Maureen Quinn.

 

 

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Essay 65 – Guest Essayist: Gordon Lloyd

George Read (1733-1798) was born in Maryland from a line of Irish and Welsh immigrants. However, he was raised in Delaware. He died in New Castle and is buried in Immanuel Episcopal Churchyard in Newcastle. Read was educated in Pennsylvania where he studied law and admitted to the Philadelphia Bar at age 20. In 1754, he returned to Delaware. In 1763, he married the widowed sister of George Ross, fellow signer of the Declaration of Independence from Pennsylvania and uncle of Betsy Ross. What is impressive is Read’s forty-year involvement in local, state, and national politics during which time he embraced both the politics of reconciliation with Britain in 1776 and the politics of change from 1786.

Read was attorney general in the colonial government from 1763-1774, but opposed the Stamp Act despite his reputation as a moderate. He was elected to the first and second Continental Congress from 1774-1776 along with Thomas McKean. The third delegate, Caesar Rodney, attended at the conclusion of the discussions. Read initially voted against Richard Henry Lee’s Resolution for Independence on July 2; he was the only eventual signer to do so. He preferred to continue pursuing possible reconciliation with Britain rather than agreeing to a complete break.

McKean sent an urgent message to Rodney in Delaware to come to Philadelphia to break the tie in the Delaware vote on independence because of Read’s reluctance to make the final step to endorse independence. Rodney’s vote broke the tie. When Lee’s Resolution was adopted, however, Read accepted the vote of his two Delaware colleagues and signed the Declaration.

In 1776, Read was selected to the Constitutional Convention in Delaware, where he served on the committee to draft the new Delaware Constitution. In 1777, the British captured Delaware President (Governor) John McKinley and Read became emergency governor replacing Thomas McKean who served as acting president for a short time prior.

Read was twice elected State Senator under the new Delaware Constitution. Between 1782-1788, he devoted himself to political activities in Delaware.

Read attended the Annapolis Convention in 1786 that called for a Grand Convention to meet in Philadelphia May 1786 to reconsider the structure and powers of the general government under the Articles of Confederation. He then represented Delaware at the Constitutional Convention, where he signed the Constitution, attended the 1787 Delaware Ratifying Convention, served in the United States Senate (1789-1793), and then as Chief Justice of Delaware. George Read was among six delegates who signed both the Declaration of Independence in 1776 and then, eleven years later, the United States Constitution in 1787.

Read actually signed the Constitution twice, signing once for himself and once for fellow Delaware delegate John Dickinson who was at home sick with a migraine. William Pierce, a delegate from Georgia at the Constitutional Convention, penned sketches of fellow delegates to the 1787 Convention. According to William Pierce, Read’s “legal abilities are said to be very great, but powers of Oratory are fatiguing and tiresome to the last degree.”

Yet George Read was known for his consistency in moral duties and benevolent ways. He was respected for setting standards Delaware would find as useful precedents or even authoritative. Having lived to the age of 65, Read died on September 21, 1798.

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

Podcast by Maureen Quinn.

 

 

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Essay 64 – Guest Essayist: Robert M. S. McDonald

Can one person’s vote make a difference? Just ask Caesar Rodney.

One of Delaware’s three delegates to the Continental Congress, in July 1776 he broke the tie within his delegation on the question of independence. This was a vote that mattered.

By no means was independence a foregone conclusion—even though Great Britain, for more than a decade, had trampled on Americans’ rights. It placed off limits to Americans lands they helped conquer in the French and Indian War, subjected colonists to taxation without representation, disregarded the right to trial by jury, closed down Boston harbor, dissolved elected legislatures, banned town meetings, and in April 1775 sent troops from Boston to Concord to seize the Massachusetts militia’s arms and ammunition, triggering a war.

Attempts to end the conflict while restoring American liberties went nowhere.

On June 7, 1776, Virginia delegate Richard Henry Lee advanced the momentous proposition that “these United Colonies are, and, of right, ought to be, Free and Independent States.”

Congress, which was meeting in Philadelphia, tabled the motion to give members time to consult with their colonies’ legislatures.

It also appointed Benjamin Franklin, John Adams, Roger Sherman, Robert Livingston, and Thomas Jefferson to draft a declaration of independence in the event that Lee’s motion won Congress’s approval. Jefferson did nearly all the work, but it could have been a wasted effort.

Indeed, it almost was. On July 1 members of Congress took a non-binding test vote. While the delegations of nine colonies stood ready to vote for independence, New York—still awaiting instructions from its provincial assembly—had to abstain. Worse, the Pennsylvania and South Carolina delegations opposed independence.

And then there was Delaware. One delegate, Thomas McKean, supported cutting ties with Great Britain. The other, George Read, opposed the move.

McKean, anticipating this result, had already dispatched an urgent message to the colony’s third delegate, Caesar Rodney, who had absented himself from Congress to thwart a potential uprising of Delaware colonists still loyal to the king.

Learning that Congress would vote the next day on the question of independence, Rodney, a 47-year-old lawyer, rode more than 70 miles through thunder and lightning. He crossed several swollen rivers and fast-moving creeks. One account has him making the journey by carriage. Another has him on horseback and notes that he arrived the next morning, just in the nick of time, wearing his boots and spurs.

As he took his seat at the Pennsylvania State House (which, thanks in part to him, is now known as Independence Hall), all eyes focused on the unlikely hero. He was frail and suffered from chronic asthma. Worse still, advanced skin cancer had disfigured his nose and one side of his face, which he covered with a green silk scarf tied across his head.

John Adams, one of the fiercest proponents of independence, had described him uncharitably as “the oddest looking Man in the World.” On the morning of July 2, however, Adams must have considered him one of the most important men in the world.

Addressing the Continental Congress, Rodney declared that “I believe the voice of my constituents and of all sensible and honest men is in favor of Independence.” Adding that “my own judgment concurs with them,” he announced that “I vote for Independence.”

Delaware was now the tenth colony ready to declare itself an independent state.

To anxious supporters of independence, it must have seemed as if, after the previous night’s storm, the clouds had parted.

South Carolina delegate Edward Rutledge, who had hesitated the day before, moved South Carolina to favor breaking from Britain as well. Then Pennsylvanians John Dickinson and Robert Morris, who in the July 1 test vote had also opposed Lee’s resolution, rose from their chairs and left the remainder of Pennsylvania’s delegation to make theirs the twelfth to support independence.

With twelve colonies in favor of independence, none opposed, and New York’s delegation abstaining (until July 15, when finally it received instructions to favor independence as well), the United States of America was born.

Adams wrote home to predict that July 2 “will be celebrated, by succeeding Generations, as the great anniversary” and “the Day of Deliverance.” He predicted future “Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other.”

Instead, of course, the significance of July 2 is now largely forgotten. July 4—when Congress ratified Jefferson’s Declaration of Independence—came to be celebrated as the anniversary of America’s birth.

Like July 2, Caesar Rodney is now also largely forgotten. That’s a shame since his life was one of consequence. His epic ride alone earns him a place in America’s pantheon of heroes. He was also a militia officer, a member of his colony’s legislature, a delegate to the 1765 Stamp Act Congress, a judge, “president” (i.e., governor) of Delaware, and a member of Congress under the Articles of Confederation before succumbing to cancer in 1784.

In 1999 Rodney was honored when he was featured (on horseback) on the special-edition Delaware state quarter. In 2020, however, his statue (also on horseback) was removed from its pedestal in Rodney Square in Wilmington, Delaware’s capital city. The fundamental reason for this controversial decision is that he lived and died as a slaveholder.

Slavery as well as many other abhorrent forms of inequality were considered normal in the eighteenth century. Monarchy and tyranny were common nearly everywhere. To Caesar Rodney’s credit, he helped to establish the United States as an exception to this rule. He not only voted to break free from Britain but also signed the Declaration of Independence, which asserted the “self-evident” “truths” that all mankind are equally “endowed by their Creator with certain unalienable rights.” Almost immediately, states with fewer slaves began either to abolish slavery or enact plans for gradual emancipation. Eventually, as the Civil War concluded, President Abraham Lincoln invoked the ideas of the American Revolution to outlaw slavery throughout the United States. The Revolution sparked many other gains for equality, as well. Even today, people appropriate its principles in support of liberty and equal rights.

Whether or not Caesar Rodney returns to his pedestal, his efforts in behalf of independence laid the foundation for a nation that continues to set an example for the world in the messy, dangerous, and uncertain struggle for individual rights.

Robert M. S. McDonald is Professor of History at the United States Military Academy at West Point, where he has taught since 1998. A specialist in the eras of the American Revolution and the Early American Republic, he is a graduate of the University of Virginia, Oxford University, and the University of North Carolina at Chapel Hill, where he earned his Ph.D. Professor McDonald is editor of the audio series, Thomas Jefferson: American Revolutionary (2020). He is the author of Confounding Father: Thomas Jefferson’s Image in His Own Time (2016) and editor of Thomas Jefferson’s Lives: Biographers and the Battle for History (2019), The American Revolution: Core Documents (2019), Sons of the Father: George Washington and His Protégés (2013), Light & Liberty: Thomas Jefferson and the Power of Knowledge (2012), and Thomas Jefferson’s Military Academy: Founding West Point (2004). He has published articles in the Journal of the Early Republic, The Historian, and Southern Cultures. A native of Stratford, Connecticut, he lives with his family in Cornwall-on-Hudson, New York.

Podcast by Maureen Quinn.

 

 

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Essay 63 – Guest Essayist: Gary Porter
* Printmakers include Asher B. Durand, Henry Bryan Hall, Albert Rosenthal and Max Rosenthal. Draughtsmen include David McNeely Stauffer. Title from Calendar of Emmet Collection. Includes some photomechanical reproductions. Citation/reference : EM391 - This image is available from the New York Public Library's Digital Library under the digital ID 79df7b90-c605-012f-73bc-58d385a7bc34: digitalgallery.nypl.org → digitalcollections.nypl.org

Every American has heard the name Elizabeth Griscom, right? No? Perhaps you will recognize her by her married name: Elizabeth “Betsy” Ross, wife of John Ross. Ah, now we’re getting somewhere. Yes, Mrs. Ross was an accomplished seamstress and her particular work on a particular flag immortalized her name in American history. But Betsy also had a not-so-distant relative who should be just as famous, but is not. This relative is her uncle, George Ross, Jr. George Ross, Jr. signed an important American document in the summer of 1776.[i] It is to this “Colonel Ross” we turn today.

There were three sorts of delegates who attended the Continental Congress in the early to mid-summer of 1776. The first were those who took part in the debates over independence and were able to eventually sign the Declaration of Independence which resulted from those debates. The second were those who took part in the debates over independence and would not or never got to sign the declaration. The third were those who did not take part in the debates themselves but nevertheless had the opportunity to sign the final document. George Ross of Pennsylvania falls into the third category.

George Ross Jr. was born May 10, 1730, in Newcastle, Delaware, into a large family that could trace its lineage back to 1226 when Farquhar Ó Beólláin (1173-1251) was named the 1st Earl of Ross by King Alexander II of Scotland. Reverend George Ross Sr., with a fresh degree from Edinburgh, had arrived America in 1705[ii] as a missionary sent by the Society for the Propagation of the Gospel.[iii] He served first as rector for Immanuel Church in Newcastle, Delaware[iv] from 1705 until 1708 and then again from 1714 to 1754. Ross served in other area churches as well. At St. James’ Mill Creek Church in Wilmington, Delaware, he conducted their first service on July 4, 1717. Reverend Ross thought highly enough of learning to see that each of his sixteen children (by two successive wives) received a solid homeschool education. George Jr. reportedly became proficient in Latin and Greek.[v]

At age twenty, without attending college (that we can document), George Jr. was admitted to the Pennsylvania Bar after two years of study in his half-brother John’s law office, and soon set up his own practice in nearby Lancaster, Pennsylvania. At some point Ross took on a client, a young lady, named Ann Lawler. A romance soon blossomed and they were married August 14, 1751. Ann was reportedly a strikingly beautiful young woman, the only child of a prominent local family. Together, George and Ann produced two sons and a daughter. “Beauty was a word that defined Ann Lawler Ross and her children, in particular. Tradition states that prior to 1760 the artist Benjamin West came to make the portraits of the Ross family at their lovely country home in Lancaster… Mr. Flower, a friend of both George Ross and Benjamin West stated, ‘The wife of Mr. Ross [Ann] was greatly celebrated for her beauty and she had several children so remarkable in this respect as to be objects of general notice.’”[vi] George, Ann and their growing family attended St. James Episcopal Church in Lancaster,[vii] where George became a vestryman.[viii]

Ross’ skill as a lawyer was quickly noticed, resulting in his appointment as Crown Prosecutor (Attorney General) for Carlisle, Pennsylvania, serving for 12 years. In 1768, he was elected to the Pennsylvania legislature, representing Lancaster. There his Tory politics began to change and he was soon heard supporting the growing calls for American independence.

On May 30, 1773, Ann Ross died unexpectedly at age 42, and was buried at Saint James Church Cemetery in Lancaster.

The next year George was elected to the First Continental Congress, receiving one less vote than Benjamin Franklin himself.[ix] The Congress opened on September 5, 1774 in Philadelphia and was notable for producing a compact among the colonies to boycott British goods unless parliament rescinded the Intolerable Acts (which they did not). The Congress is also notable for producing the Declaration and Resolves[x] which laid out the grievances of the colonies. While at the Congress, Ross continued to serve as a member of Pennsylvania’s Committee of Safety.

“Both his own State Legislature and the National Council (i.e. the Continental Congress), made [Ross] a mediator in difficulties which arose with the Indians, and he acted the noble part of a pacificator, and a true philanthropist.”[xi]

The Second Continental Congress convened May 10, 1775, in response to the skirmishes at Lexington and Concord. A commission as a Colonel in the Continental Army was soon added to Ross’ resume although there is no indication he saw combat. The following year, on June 7, 1776, Richard Henry Lee of Virginia offered a resolution in the Congress declaring the colonies independent. In the debate which ensued, it quickly became apparent that some delegations needed time to communicate with their legislatures, so a vote on the measure was postponed until July 1. News that the resolution had been introduced spread quickly and Ross was noted to be “a warm supporter of the resolution of Mr. Lee.”[xii]

On July 15, 1776, the Pennsylvania Legislature appointed Benjamin Franklin and George Ross president and vice-president, respectively, of a convention to draft Pennsylvania’s first state constitution. The convention meeting “above stairs” in the State House (above the room Congress was using) adopted a new constitution for the state on September 28, 1776.

The journal of Congress for July 19, 1776 reports: Resolved, That the Declaration passed on the 4th, be fairly engrossed on parchment, with the title and stile of “The unanimous declaration of the thirteen United States of America,” and that the same, when engrossed, be signed by every member of Congress.” It is this record which gives historians reason to claim that the Declaration was not signed on July 4, as was long the traditional narrative; the signing actually began much later after the engrossed copy was delivered.

There are 56 signatures on the engrossed copy of the Declaration. Eight men who had taken part in the July 4 vote to approve the Declaration never signed the document they debated.[xiii]

On July 20, Ross was appointed to replace either John Dickinson, Charles Humphreys or Thomas Willing (we are not sure which) as part of Pennsylvania’s delegation to the Congress.

John Dickinson presents an interesting case: Married to a Quaker, Dickinson strongly opposed going to war with Great Britain in order to obtain independence. When the July 1 vote took place – a non-binding, “test vote” in the Committee of the Whole – after an impassioned speech against the measure, Dickinson voted “No,” joining three other members of the Pennsylvania delegation in doing so. This made the delegation’s vote 4-3 against Lee’s resolution and a “No” vote was recorded for Pennsylvania (each colony got a single vote). Lee’s resolution passed, with nine of the thirteen colonies in favor, but the hoped-for unanimity had not materialized, as both Pennsylvania and South Carolina voted against it, New York’s delegation abstained since new instructions from their state had not yet arrived, and Delaware entered a null (split) vote as the votes of the two delegates who were present canceled each other.  South Carolina requested the formal vote, as the Congress, be delayed to the following day, July 2.

On July 2, several “providential” events occurred. First, Caesar Rodney of Delaware walked in, still in his spurs. Rodney was a Delaware delegate, but was too sick to attend the Congress the previous day.  Someone had ridden to his house the previous evening and informed him of Delaware’s split vote. Hearing this, Rodney had roused himself from his sickbed and ridden all night to Philadelphia. His vote in favor tipped the Delaware delegation’s vote to “Yes.” Over at the Pennsylvania table, there were two empty chairs where the day before had sat John Dickinson and Robert Morris, two of the previous day’s “No” votes.  Without these two gentlemen present, Pennsylvania’s delegation vote changed from 4-3 against the measure to 3-2 in favor of the measure.  South Carolina’s delegation had had an overnight change of heart and now voted in favor of the resolution. This left New York. Without new instructions (they did not arrive until July 19), New York had to once again abstain. This put the vote at twelve colonies in favor and one abstention. This was as close to the unanimity they were going to get that day, so President of Congress, John Hancock, declared the measure passed.

Dickinson promptly resigned his position in the Pennsylvania delegation, as did Humphreys and Willing. On July 20, George Ross joined the rest of the Pennsylvania delegation. Returning members were Dr. Benjamin Franklin, George Clymer, Robert Morris, Colonel James Wilson, John Morton, Dr. Benjamin Rush; and new members, Colonel James Smith, and George Taylor.

It was not unusual in that period for competent gentlemen to be given multiple, important responsibilities or postings. From July 20 to September 28, Franklin and Ross must have been quite the sight, walking upstairs and down, attending to their concurrent responsibilities in the Congress and the Pennsylvania Constitutional Convention. In addition to presiding as Vice-President, Ross also participated in drafting Pennsylvania’s Declaration of Rights.[xiv]

On August 2, George Ross joined the assembled delegates in adding his signature to the “Unanimous Declaration,” the last of the Pennsylvania delegation to do so.

The following year, 1777, Ross was reelected to the Continental Congress, but was forced to resign his seat before the session ended due to a recurrence of his chronic gout. The next year, he was elected Vice President of the Pennsylvania Assembly. In March of 1779, he was appointed a judge in the Pennsylvania Court of Admiralty, but four months later, on July 14, he died at the ripe young age of 49.[xv] He is buried in Philadelphia’s Christ Church Burial Ground.

The good citizens of Lancaster thought so highly of George Ross and his service to his country that they passed the following resolution:

“Resolved, that the sum of one hundred and fifty, pounds, out of the county stock, be forthwith transmitted to George Ross, one of the members of assembly for this county, and one of the delegates for this colony in the continental congress; and that he be requested to accept the same, as a testimony from this county, of their sense of his attendance on the public business, to his great private loss, and of their approbation of his conduct. Resolved, that if it be more agreeable, Mr. Ross purchase with part of the said money, a genteel piece of plate, ornamented as he thinks proper, to remain with him, as a testimony of the esteem this county has for him, by reason of his patriotic conduct, in the great struggle of American liberty.”[xvi]

Ross, however, declined this generous gift, stating to the committee which presented the resolution that his services to his country had been overrated, that he had been driven simply by his sense of duty, and that every man should contribute all his energy to promote the public welfare, without expecting pecuniary rewards.[xvii]

Visit Lancaster, Pennsylvania today and you will encounter George Ross Elementary School, Ross Street, and several historical markers commemorating “The Patriot George Ross.”

Many men seek greatness; a few of them find it. Some men have greatness thrust upon them. Other men quietly do their duty, to God and their country; George Ross was one of these men.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

Podcast by Maureen Quinn.

 

[i] Interestingly, George Ross’ sister, Gertrude, married George Read, who also went on to sign the Declaration.

[ii] https://www.immanuelonthegreen.org/.

[iii] https://en.wikipedia.org/wiki/United_Society_Partners_in_the_Gospel.

[iv] The church had been founded in 1689.

[v] J. B. Lossing, Signers of the Declaration of Independence, New York: Derby & Jackson, 1856, p. 130.

[vi] Descendants of the Signers of the Declaration of Independence – George Ross, accessed on 14 April 2021 at https://www.dsdi1776.com/signers-by-state/george-ross/.

[vii] St. James Episcopal Church of Lancaster was founded in 1744, also by a Church of England missionary.

[viii] https://www.hmdb.org/m.asp?m=5204.

[ix] https://lifewithldub.blogspot.com/2014/10/the-lancasters-hero-and-patriot-george.html.

[x] Read the Declaration at https://avalon.law.yale.edu/18th_century/resolves.asp.

[xi] Ibid p. 132.

[xii] Op cit.

[xiii] Those unable or unwilling to sign the Declaration were John Alsop, George Clinton, Robert R. Livingston and Henry Wisner of New York; John Dickinson, Charles Humphreys and Thomas Willing of Pennsylvania; and John Rogers of Maryland.  All had left the Congress by August 2nd when the signing of the engrossed copy began.

[xiv] https://teachingamericanhistory.org/library/document/pennsylvania-declaration-of-rights-and-constitution/

[xv] One source sets Ross’ death in 1780 and the age of 50.  See https://www.patriotacademy.com/george-ross-lives-fortunes-sacred-honor/.

[xvi] http://colonialhall.com/ross/ross.php.

[xvii] Robert R. Conrad, ed, Sanderson’s Biography of the Signers to the Declaration of Independence, Philadelphia, 1846. P.439

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Essay 62 – Guest Essayist: Joerg Knipprath
Declaration of Independence Signer James Wilson and a Framer of the U.S. Constitution, Supreme Court Justice appointed by George Washington, and author of Lectures on Law.

James Wilson was one of the most intellectually gifted Americans of his time. His cumulative influence on pre-Revolutionary War political consciousness, formation of the governments under the Constitution of 1787 and Pennsylvania’s constitution of 1790, and early Supreme Court jurisprudence likely is second-to-none. Along the way, he amassed a respectable fortune, and took his place as a leading member of the political and economic elite that played such a critical role in the events leading to American independence. That said, he was not immune to the “slings and arrows of outrageous fortune,” in the words of the Bard, but, for the most part, he did not suffer them in the mind. Rather, more often, he chose “to take arms [sometimes literally]…and, by opposing, end them.”

Wilson moved to Philadelphia from his native Scotland in 1766, at age 24. Prior to emigrating, he was educated at Scottish universities. There, he was influenced by the ideas of Scottish Enlightenment thinkers, such as David Hume and Adam Smith. Their ruminations about human nature, the concept of knowledge, and the ethical basis of political rule shaped Wilson’s intellectual ideas which he made concrete in later political actions and judicial opinions.

It appears that Smith’s influence was more constructive than Hume’s. The latter denied the essential existence of such concepts as virtue and vice. Hume instead characterized them as artificial constructs or mere opinion. Wilson was critical of Hume’s patent skepticism, deeming it flawed and derogatory of what Wilson saw as the moral sensibilities integral to human nature. He considered Hume’s skepticism inconsistent with what he viewed as the ethical basis of the political commonwealth, that is, consent of the governed. As he wrote later, “All men are, by nature equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it.” However, Wilson also believed, along with John Adams and many other republicans of the time, that such consent could only be given by a virtuous people. In short, Wilson’s democratic vision was elitist in practice. The governed whose consent mattered were the propertied classes. The others might register their consent, but only under the watchful eyes of their virtuous betters in society.

After arriving in Pennsylvania, he studied law under John Dickinson, another member of the emerging political elite. While so occupied, he also lectured, mostly on English literature, at the College of Philadelphia, site of the first medical school in North America. He had arrived at an institution that was connected to an astonishing number of American founders. Despite its relatively recent founding in 1755, it counted 21 members of the Continental Congress as graduates; nine signers of the Declaration of Independence were alumni or trustees; five signers of the Constitution held degrees from the College, and another five were among its trustees.

There, Wilson successfully petitioned to receive an honorary Master’s degree, to remedy his failure to complete his studies for a formal degree at the Scottish universities. His scholarly association with the College of Philadelphia continued the rest of his life, including after its merger into the University of Pennsylvania in 1791. At that time, Wilson took on a lectureship in law for a couple of years, only the second such position established in the United States, after the Chair in Law and Police held by George Wythe at the College of William and Mary. The University of Pennsylvania traces its eventual law school to Wilson’s position.

Wilson practiced law in Reading, Pennsylvania. His talent and connections quickly produced financial security. He turned his attention to politics amid the stirrings of conflict with the British government. In 1768, he wrote, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament.” In this pamphlet, Wilson denied the authority of Parliament to tax the American colonists because of the latters’ lack of representation in that body. Perhaps because it was too early to mount a direct constitutional challenge to the authority of Parliament to govern, this seminal work was not published until 1774. Despite his negation of Parliamentary authority, Wilson did not advocate sundering all ties with the mother country. Rather, he emphasized the connection between England and her colonies through the person of King George. Wilson’s union cemented by a pledge of allegiance to the king was a rudimentary plan for the type of dominion system that John Adams and Thomas Jefferson also proposed in separate missives that same year. In an ironic postscript, the British ministry offered, too late, a similar structure as a way to end the war in 1778. It was a system the British a century later instituted for other parts of their empire.

In 1774, Wilson was elected to the local revolutionary Committee of Correspondence. When the Second Continental Congress was called in 1775, Wilson was elected to the Pennsylvania delegation. With the Adamses—John and Sam—, Jefferson, the Lees of Virginia— Richard Henry and Francis—, and Christopher Gadsden—the “Sam Adams of the South” and designer of the Gadsden Flag—Wilson was among the most passionate pro-independence voices as that Congress deliberated.

Then occurred an odd turn of events. When Richard Henry Lee’s motion for independence came up for debate on June 7, 1776, consideration had to be postponed because Pennsylvania, along with four other colonies, was not prepared to vote in favor. John Dickinson, Wilson’s close friend and law teacher, was part of the peace faction. Did that influence Wilson’s vote? Was Wilson really a pro-independence radical, as his writings and soaring rhetoric in Congress indicated? Or was he an elite conservative reluctantly floating along with the tide of opinion among others of his class? Wilson and others in his delegation claimed that they merely wanted clearer instructions from their colony’s provincial congress. In a preliminary vote within the Pennsylvania delegation on July 1, 1776, Wilson broke with Dickinson and voted for independence. When Congress voted on Lee’s motion the next day, Dickinson and Robert Morris stayed away. Wilson, Benjamin Franklin, and John Morton then cast Pennsylvania’s vote in favor of the motion and independence.

During the Revolutionary War, Wilson divided his time between Congress and opposing Pennsylvania’s new constitution. He also returned to private law practice and served on the board of directors of the Bank of North America. That bank was the brainchild of fellow-Pennsylvanian Robert Morris, another personal friend with whom Wilson also worked closely on the financial matters of the United States.

Wilson continued his life-long practice of land speculation, the vocation of some among the American elite, and the avocation of most others, elite or not-so-elite. The country was land-rich and people-poor. Investors gambled that, after peace was restored, the British pro-Indian and anti-settlement policy of the Proclamation of 1763, which had prohibited American settlement of the interior, would be overturned. Western lands finally would be opened to immigrants. Wilson, along with Robert Morris and many other prominent Americans and some foreigners, had organized the largest of the land companies, the Illinois-Wabash Company, even before the war. Wilson eventually became its head and largest investor. The intrigue among the Company, politicians in various states, delegates to Congress, and agents of foreign governments to gain access to large tracts of trans-Appalachian lands presents a fascinating tale of its own.

The Illinois-Wabash Company was not Wilson’s only venture in land speculation. He co-founded another company and also purchased rights to large tracts individually or in partnership with others. It has been estimated that, directly or through investment entities, Wilson had interests in well over a million acres of Western land. Much of this land bounty was financed through debt. Creditors want cash payment, and highly-leveraged debtors are particularly vulnerable to economic contractions. Land values drop as land goes unsold, and cash in the form of gold and silver specie becomes scarce. Bank notes no longer trade at par, reflecting the financial instability of their issuers. Like his business associate and political ally Robert Morris, Wilson was hit hard by the Panic of 1796-7. He was briefly incarcerated twice in debtor’s prison, even after fleeing Pennsylvania for North Carolina to avoid his creditors. More astounding even was that these events occurred while he was on the U.S. Supreme Court and performing his circuit riding duties.

One sling of outrageous fortune against which Wilson literally took arms occurred on October 4, 1779. After the British abandoned Philadelphia, the revolutionary government undertook to exile Loyalists and seize their property. As John Adams had done for the British soldiers accused of murder in the Boston Massacre in 1770, Wilson successfully took up the unpopular cause of defending 23 of the Loyalists. The public response to Wilson’s admirable legal ethics was more militant than what Adams had experienced. Incited by the speeches of Pennsylvania’s radical anti-Loyalist president, Joseph Reed, a drunken mob attacked Wilson and 35 other prominent citizens of Philadelphia. The mob’s quarry managed to barricade themselves in Wilson’s house and shot back. In the ensuing melee, one man inside the house was killed. When the mob tried to breach the back entrance of the house, the attackers were beaten back in hand-to-hand combat. The fighting continued, with the mob using a cannon to fire at the house. At that point, a detachment of cavalry appeared, led by the same Joseph Reed, and dispersed the mob. It is estimated that five of the mob were killed and nearly a score wounded. Members of the mob were arrested, but no prosecutions were launched, allegedly to calm the situation. Eventually, all were pardoned by Reed.

The Fort Wilson Riot, as it became known colloquially, had more complicated origins and produced more profound changes than one can address in detail in an essay about Wilson. It arose from difficult economic circumstances and rising prices due to food shortages. The lower classes were particularly hard hit, and popular resentment simmered for months, punctuated by gatherings and publications which none-too-subtly threatened upheaval. During that volatile time, Wilson was accused of “engrossing,” that is, hoarding goods with the intent to drive up prices. This may have made him an even more likely target for the mob’s wrath than having defended Loyalists.

As well, the friction between the lower classes and the merchant bourgeoisie was manifested in competing political factions, the Constitutionalists and the Republicans. The former supported the radically democratic Pennsylvania constitution of 1776, which placed power in a unicameral legislature closely monitored through frequent elections. They stressed the need for sacrifice for the common good, done on a voluntary basis or by government force. The latter opposed that charter as the cause of ineffective government and destructive policies which threatened property rights. In the end, the two competing visions of republicanism settled their political conflict during the riot. The mob had violated an unwritten rule of protest, and popular opinion shifted against the Constitutionalists. Wilson’s Republicans had won. They would determine the subsequent political direction of the state, which became the critical factor in Pennsylvania’s struggle to approve the proposed U.S. Constitution in the fall of 1787. The shift in political fortunes culminated in 1790 in a significantly different constitution, one of more balanced powers controlled by the political elite and containing explicit protections of property rights.

Perhaps Wilson’s greatest contribution to America’s founding was his participation in the constitutional convention in Philadelphia in May, 1787. He became one of only six to sign both the Declaration of Independence and the Constitution, the others being George Clymer, Benjamin Franklin, Robert Morris, George Read, and Roger Sherman.

One of the most accomplished lawyers in the country, John Rutledge of South Carolina, future Supreme Court justice and, briefly, the Court’s chief justice, stayed at Wilson’s home during this time. The historian Forrest McDonald describes a plan by Rutledge and Wilson to “manage” the convention. Apparently, Wilson made similar plans with James Madison, Robert Morris, and Gouverneur Morris (no relation). Rutledge, in turn, was scheming with others. To complete the intrigue, Wilson and Rutledge kept their side discussions secret from each other. The plan seemed to bear fruit when Wilson and Rutledge were appointed to the Committee of Detail, charged with writing the substantive provisions of the Constitution from the delegates’ positions manifested in the votes of the state delegations. Considering the committee’s final product, however, their success appears to have been less than spectacular. It was not for lack of trying, however. Wilson spoke 165 times at the convention, more than anyone other than Gouverneur Morris.

Like his fellow connivers, Wilson took a very strong “nationalist” position in the convention. He was instrumental in the creation of the executive branch. Reacting against the weakness of the multiple executive structure of the Pennsylvania executive council model and the lack of an effective balance of power among the branches of government under his state’s constitution, he, like Alexander Hamilton, believed a unitary executive to be essential. The necessary “energy, dispatch, and responsibility to the office” would be assured best if a single person were in charge of the executive authority. As well, such a person would be positioned to blunt the self-interest of political factions which are endemic to legislatures. Wilson objected to the original proposal to have the president elected by the whole Congress or by the Senate alone. Instead, he proposed, the president should be elected by the people. Very few delegates had a taste for such unbridled democracy. Wilson then fell back to his second line of argument, that the president be selected by presidential electors chosen by the people of the states, but with the states divided into districts proportioned by population, like today’s congressional districts. This, too, was defeated by eight states to two. The matter was tabled for weeks. In the end, the current system, one that dilutes majoritarian control and favors the influence of states in their corporate capacity, prevailed.

An explanation of the term “nationalist.” As used herein, it has the classic meaning associated with the concept as it relates to the period of the founding of the United States and subsequent decades. It describes those who identified more with the new “nation,” i.e. the United States, than with the individual colonies, soon to become states, of their birth. Generalizations are, by definition, imprecise. Still, the most ardent American nationalists of the time were those who, like Wilson, Robert Morris, and Hamilton, were born abroad; those who, like Rutledge and Dickinson, had traveled or otherwise spent considerable time in Europe; and those who had significant business connections abroad. They also tended to be younger. The difference between these outlooks was less significant for the process of separating from Britain, than it was for the controversies over forming a “national” government and an identity of the “United States” through the Articles of Confederation and, subsequently, the Constitution of 1787. The nationalists sought to amend and, later, to abandon the Articles. As to the Constitution, the nationalists at the Philadelphia convention supported a stronger central government and, on the whole, more “democratic” components for that government than their opponents did. They also generally opposed a bill of rights as ostentatious ideological frippery. In the struggle over the states’ approval of the Constitution, they styled themselves as “Federalists” as a political maneuver and characterized their opponents as “Anti-Federalists.” After the Constitution was approved, most of them associated with Hamilton’s policies and the Federalist Party. In the sectionalist frictions before the Civil War, they were the “Unionists.” Regrettably, like other words in our hypersensitive culture, the term has been ideologically corrupted recently, so that its obvious meaning has become slanted. Paradoxically, even as the central government becomes powerful beyond the wildest charges of the Constitution’s early critics, the very concept of the United States as a “nation” is today under attack.

In the long wrangling over the structure of Congress, Wilson urged proportional representation, as he had done unsuccessfully a decade earlier in the debate over the Articles of Confederation. He also supported direct election of Congress by the people. In light of his moderate democratic faith in the consent of the governed, and coming as he did from a populous state, his position is hardly surprising. That noted, he favored a bicameral legislature with an upper chamber that would restrain the more numerous lower chamber and its tendency towards radical policies. The insecurity of property rights that resulted from the policies of the Constitutionalist-dominated unicameral Pennsylvania legislature had alarmed Wilson. Wilson adhered to his support for proportional representation in the Senate and direct popular election. Like his fellow large-state delegates Madison and Hamilton, eventually he resigned himself to the state-equality basis of the Senate under Roger Sherman’s Connecticut compromise and to election of that body by the state legislatures. He also supported the three-fifths clause of counting slaves for the purpose of apportionment of representatives. The purpose of that clause, first presented in 1783 as a proposed amendment to the Articles of Confederation, originally was part of a formula to assess taxes on the states based on population rather than property value. That purpose is also reflected in Article I of the Constitution.

During the debate in the Pennsylvania convention over the adoption of the Constitution, Wilson delivered his famous Speech in the State House Yard, a precursor to many arguments developed more fully in The Federalist. Wilson systematically addressed the claims of the Constitution’s critics. He defended his opposition to a Bill of Rights, declaring such a document to be superfluous and, indeed, inconsistent with a charter for a federal government of only delegated and enumerated powers. Copies of the speech were circulated widely by the Constitution’s supporters.

There were those, like Richard Henry Lee of Virginia, who claimed that the drafting convention in Philadelphia had gone beyond its mandate to propose only amendments to the Articles of Confederation and that, as a consequence, the proposed Constitution was revolutionary. Wilson drew on his philosophical roots to declare that “the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.” This notion of popular constitutional change outside the formal amendment method set out in Article V of the Constitution was a self-evident truth to many Americans at the time. It has become much more controversial, as Americans have moved from the revolutionary ethos of the 1780s and a robust commitment to popular sovereignty to today’s more pliant population governed by an increasingly distant and unaccountable elite.

Wilson next turned his attention to the adoption of a new state constitution in Pennsylvania. At the same time, he sought the chief justiceship of the United States Supreme Court. Although that office went to John Jay of New York, President Washington appointed Wilson to be an associate justice. In that capacity, he participated in several significant early cases. As expected, he consistently took a nationalistic position. Thus, in 1793 in Chisholm v. Georgia, he joined the majority of justices in holding that the federal courts could summon states as defendants in actions brought by citizens of other states and to adjudicate those states’ obligations without their consent. Wilson reasoned that the Constitution was the product of the sovereignty of the people of the United States. This sovereignty, exercised for purposes of Union, had subordinated the states to suits in federal court as defined in Article III. The decision ran contrary to the long-established common law doctrine of state sovereign immunity. Swift and hostile political reaction in Georgia and Congress culminated in the adoption of the Eleventh Amendment to overturn Chisholm.

Wilson joined two other nationalistic decisions. One was the unpopular Ware v. Hylton in 1796, which upheld the rights of British creditors to collect fully debts owed to them. Those rights were guaranteed under the Paris Treaty that ended the Revolutionary War, but conflicted with a Virginia law that sought to limit those rights. Like his fellow-justices, Wilson applied the Supremacy Clause to strike down the state law. But he also recognized the binding nature of the law of nations, which had devolved to the United States on independence. The other was Hylton v. U.S. the same year, which upheld the constitutionality of the federal Carriage Tax Act. The case was an early exercise of the power of constitutional review by the Court over acts of Congress and a precursor to Marbury v. Madison. That power was one which Wilson had strenuously urged in the constitutional convention nine years earlier in support of a strong federal judiciary.

Depressed about his precarious economic situation and worn out from the rigors of circuit-riding duties as a Supreme Court justice, Wilson died from a stroke in 1798.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

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Essay 61 – Guest Essayist: Tom Hand

George Taylor was a foreign-born patriot who began his adult life as an indentured servant, but rose to be one of the 56 Signers of the Declaration of Independence. This relatively unknown man’s life is emblematic of the many everyday Americans who helped in our cause for independence.

Taylor’s story began in Ireland where he was born sometime in 1716, though we do not know the exact date or location. Interestingly, Taylor was one of eight foreign-born Signers. Button Gwinnett, Francis Lewis, Robert Morris, James Smith, George Taylor, Matthew Thornton, James Wilson, and John Witherspoon were the others, all from the British Isles.

It is generally agreed that his father was a Protestant minister, but not much else of his childhood was documented. We do know that to obtain the money required for passage to America in 1736, Taylor agreed to become an indentured servant to Samuel Savage, Jr., an ironmaster at Coventry Forge near Philadelphia.

Indentured servitude was a system by which a person would agree to teach someone (the indentured servant) a profession or pay the fare for them to come to America and, in return, the indentured servant would agree to work for room and board, but no wages, for that person for a period of about three to five years.

Interestingly, this practice of indentured servitude was quite common in early America. It is estimated over half of all European immigrants to America between the early 1600s and the 1770s came as indentured servants. Not surprisingly, they tended to be the very poor. Taylor was the only one of the Signers who was ever an indentured servant.

In any event, Taylor began his time for Mr. Savage as a shoveler of coal into the blast furnace at the forge. Probably owing to some education he received as a boy, Taylor was brighter than most and soon moved into a clerk’s position. He must have done well and impressed those around him because when his boss died in 1742, Taylor married Savage’s widow, Ann, just a few months later. Eventually, they had two children together.

Incredibly, in the space of six years, Taylor had gone from a penniless laborer who could not afford passage to America to the ironmaster of two iron works with a wealthy wife thrown into the bargain. Moreover, in 18th century British America, Taylor’s position as ironmaster, which was essentially an entrepreneur of a large-scale operation, made him a person of significance in the local community. Not surprisingly, Taylor was the one and only ironmaster among the Signers.

In 1752, when Taylor’s stepson, Samuel Savage III, came of age, Taylor had to relinquish the family business to him. The next year, George and Ann moved to Durham, Pennsylvania, and took out a five-year lease with an option for five more at the Durham Iron Works. The business prospered and even manufactured munitions for the Pennsylvania Provincial militia during the French and Indian War.

In 1763, when the Durham lease expired, the Taylors moved to Easton, about ten miles away. Here, George got more involved in politics and was elected to the Provincial Assembly from 1764-1772 and was elected as Justice of the Peace for Northampton County. He also built a beautiful stone mansion which still stands today overlooking the Lehigh River. Unfortunately, Ann died soon after completing the house. George lived there for a couple years before moving in with his son James in Allentown, Pennsylvania.

Perhaps bored and missing work, Taylor returned to Durham in 1774 and took out another five-year lease at the iron works. By 1775, relations with England had deteriorated and war had broken out at Lexington and Concord on April 19. Taylor soon signed a contract to produce cannon balls for the Continental Army, becoming the first foundry in America to supply this new force.

In the summer of 1776, the Second Continental Congress was prepared to declare our independence from England. Unfortunately, five of the nine delegates, a majority, from Pennsylvania were opposed to this declaration. The Pennsylvania Assembly quickly fired these unwilling men and found five that were more willing to vote in favor of the resolution. George Taylor was one of these new delegates and he proudly signed his name to our Declaration of Independence.

Taylor’s health soon declined and his time in Congress was limited to only seven months. When his lease at Durham expired in 1779, Taylor returned to Easton where he leased a small stone house. When he died on February 23, 1781, George was with his companion and housekeeper, Naomi Smith, a woman he met after Ann passed away and by whom he had fathered five children.

WHY IT MATTERS: So why should George Taylor and what he did for America matter to us today?

George Taylor was a patriot who began his adult life as an indentured servant, but rose to be one of the 56 Signers of the Declaration of Independence. Perhaps no other Signer so greatly exemplifies the opportunity our great country affords to those willing to work to better themselves.

While most people are unfamiliar with George Taylor, he was a significant man and a great patriot, nonetheless. George Taylor was there when his country needed him and you cannot ask more than that of anyone.

SUGGESTED READING: The History of Weapons of the American Revolution by George Newman is an excellent book published in 1967. It provides a thorough analysis of the weaponry of the 1700s.

PLACES TO VISIT: Hopewell Furnace National Historic Site near Elverson, Pennsylvania (50 miles east of Philadelphia) is a beautifully restored “iron plantation” of over 800 acres and includes 14 buildings from the early 1800s. Founded in 1781, this sort of site was key to America’s Industrial Revolution. It is a great place to visit.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page Americana Corner. Click Here to follow Tom’s Instagram Account.

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Essay 60 – Guest Essayist: Ertis Tereziu

James Smith was born in Ireland in 1719. He spent his formative years in Ireland, arriving in Pennsylvania between the ages of ten to twelve.  James’ father was a humble farmer but was able to put James through an average education from a local Church Minister. As James grew older, he started to take interest in the law. Through his hard work, James was admitted to the Pennsylvania Bar at the age of twenty-six. He set up his practice in Cumberland County, near Shippensburg. However, business was slow in Cumberland County, so, after four years James made the choice to move to the more populated New York. During the 1760s Smith joined the local Whig party, quickly rising to leadership.

As relations with Great Britain deteriorated, Smith emerged as an advocate of ideas that would soon come to define the new nation. For example, in 1774, he attended a provincial assembly where he offered a paper titled: “Essay on the Constitutional Power of Great Britain over the Colonies in America.” James recognized the purchasing power of the colonies and sought to leverage that against the British. As such, his paper spoke on a boycott of British goods. Mercantilism had built Great Britain into an empire and James Smith wanted mercantilism to do the same for the colonies. He saw Parliament’s policies as stifling to colonial trade.  The paper advocated for a boycott because Smith believed a boycott would force Parliament to acquiesce to colonial demands by applying pressure to the British economy.

The paper also spoke on a more independent version of the colonies, promoting the idea of a General Congress of the Colonies. The best way to protect one’s rights is to be in charge of them, to keep them as a bundle of sticks in one’s own bag. These ideas would become major points in the First Continental Congress adjourned in Philadelphia in the Fall of 1774.

Always the leader, James Smith then went on to organize a volunteer militia company in New York. Earning the respect of his men, he was elected as Captain. Smith was also a great recruiter, growing the company into a battalion. He understood the concept of the price of freedom. He also understood the age-old truth that the pen is mightier than the sword. James Smith would pass leadership of the militia to younger men so that he could focus on rallying the young nation around the ideas of freedom and self-determination.

While still serving the state assembly in 1775, Smith made a name for himself as a supporter of the causes of American freedom which now appeared to be possible only by separation. Thomas Paine’s articles in Common Sense began to turn public opinion to the idea of independency. The Second Continental Congress had been meeting in Philadelphia since May 10, 1775. Soon after, the colonies would raise their own army, appointing George Washington as its General.

James Smith was appointed to the provincial convention in Philadelphia in 1775, then the state constitutional convention in 1776, and eventually was elected to the Continental Congress the same year. Smith was in Congress for only two years, retiring in 1777. He then served in a few public offices: one term in the State assembly, a few months as a judge of the state High Court of Appeals. In 1782, Smith was appointed Brigadier General of the Pennsylvania militia. He was reelected to Congress in 1785, but declined to attend due to growing old in age.

However, a fire destroyed his office and papers shortly before he passed away. Because of this incident, not much is known about James Smith’s work. The result is that historians study Smith not through his journals, but through his actions. And his act of bravely signing the Declaration of Independence shows the world that James Smith believed that all men are created equal and are endowed with certain unalienable rights.

Ertis Tereziu came to America as a child, and he possesses a background that gives him a unique appreciation for the United States system of government. Ertis is currently an attorney at Novara Tesija Catenacci McDonald & Baas, where he loves getting lost in the law. Connect with Ertis on LinkedIn at ertistereziu.

Podcast by Maureen Quinn.

 

Sources:

  1. https://www.archives.gov/founding-docs/declaration-transcript
  2. https://www.ushistory.org/declaration/signers/smith.html
  3. https://www.dsdi1776.com/james-smith/

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Essay 59 – Guest Essayist: Gordon Lloyd

George Clymer (1739-1813) was born in Philadelphia, orphaned the next year, and then mentored to be a merchant and responsible citizen by his wealthy uncle. He died in Morrisville, Pennsylvania at age 74 and was buried in Trenton, New Jersey. In addition to being economically, and politically, active, Clymer supported the abolition of slavery and the development of the practical arts and sciences.

Clymer was an early supporter of the movement for independence; he opposed both the Tea Act and the Stamp Act in the early 1770s. He served as Continental treasurer, a representative in the Pennsylvania legislature, and delegate to the Second Continental Congress.

He was one of six delegates to sign the 1776 Declaration of Independence, and then the 1787 Constitution as part of the Constitutional Convention. The other five delegates who signed both documents included Benjamin Franklin, Robert Morris, George Read, Roger Sherman, and James Wilson.

Clymer was elected to the United States House of Representatives in 1789 where he supported Sherman in the successful effort to pass the Bill of Rights in 1791. He also helped President George Washington enforce whiskey excise taxes in Pennsylvania.

Despite Clymer’s extensive involvement in the story of the American founding, he is not on the list of influential, or even underrated founders.  We attribute this to Clymer’s inclination to work behind the scenes on the various committees to which his colleagues elected him. He reminds us of the steady and vital work done by individuals who do not seek the limelight. Contemporary William Pierce of Georgia, who provided character sketches of multiple founders, portrayed him as “a respectable man, and much esteemed.”

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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Essay 58 – Guest Essayist: Ron Meier
Public Domain in the United States - John Morton, Signer of the Declaration of Independence

In the 2016 and 2020 general elections, Pennsylvania was considered a “battleground state” and a “swing state.”  It seems that not much has changed since 1776.

Pennsylvania’s political landscape and physical location insulated it to some extent from the revolutionary fever of New England. The stability of the Colonial government was popular among many Pennsylvanians, with the Penn family ruling over the colony since 1681 when William Penn received the land grant from King Charles II.  Revolutionary activists were considered a threat to this stability and a personal threat to the power and wealth of the Penn family. Even in the spring of 1776, Pennsylvania’s official political position was opposition to independence. Fortunately, Philadelphia was somewhat central among the colonies and was chosen as the place where delegates from each of the colonies would meet.

The state with the most signers of the Declaration of Independence was Pennsylvania with nine, leading one to believe that the colony was among the most united in favor of independence. However, six of the nine were not even present on the critical days of voting for independence. In the spring of 1776, a more apt description of the situation in Pennsylvania might be “chaos.” A clash of the more radical against the ruling class was in play. John Dickinson and Robert Morris were strong supporters of the status quo, preferring reconciliation with Britain rather than revolution. Pennsylvania’s provincial legislature had instructed its delegates to the Second Continental Congress to vote against independence.

In late May, with the backing of the Second Continental Congress, the radicals effectively orchestrated a coup to create a new constitution and government. A newly created and short-lived Provincial Conference, consisting of those arguing for independence, replaced the existing legislature and, as one of the existing legislature’s last acts, the Assembly gave new instructions to the delegates at the Continental Congress to vote for independence. Among the five delegates to the Continental Congress remaining on July 1, only two of them, Ben Franklin and James Wilson were in favor of independence; John Dickinson and Robert Morris were not in favor when the first vote for independence was taken on July 1. John Morton was on the fence, somewhat surprising since, in his last act as Speaker of the Pennsylvania Assembly, he signed the document giving instructions to the Pennsylvania delegation to vote in favor of independence. Several other delegates opposed to independence had become frustrated and either resigned or simply ceased attending the Congress.

When the final vote for independence was taken in the Congress on July 2, Dickinson and Morris abstained, Morton finally declared support, ensuring a 3-0 vote for independence. Thus, John Morton became Pennsylvania’s swing vote and the man largely responsible for ensuring a “yes” vote for independence on July 2, 1776. So, who was this swing voter?

John Morton was born in 1725. He was a descendent of a Finnish family which had come to the colonies in the mid-17th century. His father died while John’s mother was pregnant. His mother remarried an English farmer and surveyor. John had little formal education, but his stepfather home-schooled John, giving him the ethical and practical education he needed to succeed in life.

At 31, he was elected to the Pennsylvania Assembly, Pennsylvania’s legislative branch, where he remained for all but two years until the Assembly’s dissolution in 1776, at which time he was the Assembly’s Speaker. His two years outside of the Assembly were when his county’s sheriff died and Morton was appointed sheriff.

Among his other political positions, he was Justice of the Peace, Presiding Judge of the Court of General Quarters Session, Common Pleas of the County of Chester, Associate Judge of the Supreme Court of Pennsylvania and Justice of Orphan’s Court.

Morton’s first responsibility for petitioning the King for redress of rights was his appointment to the Stamp Act Congress in 1765. From that first act of the colonists until the final vote on July 2, 1776, the colonists’ primary objective was not to seek independence, but to protest unjust actions of the British Parliament and to remain loyal to the mother country by seeking reconciliation. The repeated refusal of the British Parliament and King to consider their requests over the subsequent 10 years drove the colonists to unite for independence in the end.

So highly regarded was Morton in Pennsylvania’s Assembly that he was chosen to represent Pennsylvania in both the First and Second Continental Congresses. His decisiveness on July 2 was critical since only Pennsylvania and Delaware had not yet committed to approving Richard Henry Lee’s resolution “that these united colonies are and of right ought to be free and independent states.” Morton’s Yea vote may have been the primary reason the resolution was approved by the Congress and for our annual celebration of Independence Day on July 4. Unfortunately, Morton is not represented on John Trumbull’s famous portrait of the Continental Congress meeting on June 28, 1776, when the Committee of Five presented its draft to the Congress.

Morton thereafter served as Chairman of the Committee of the Whole that wrote the Articles of Confederation, the document under which the United States operated during the Revolutionary War. He was the first of the signers of the Declaration of Independence to die, in 1777, not living to see the adoption of the Articles of Confederation.

During the Revolutionary War, the British destroyed the Morton family home and its contents, including many of Morton’s papers, leaving little documentary evidence of his role in state and national politics. Morton is one of the least known signers of the Declaration of Independence, but one without whom the document may not have come into existence.

Ron Meier is a West Point graduate and Vietnam War veteran.  He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.  Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Podcast by Maureen Quinn.

 

Sources:

https://www.nps.gov/inde/learn/historyculture/resources-declarationofindependence.htm

http://dev.ushistory.org/pennsylvania/birth2.html

https://en.wikipedia.org/wiki/List_of_colonial_governors_of_Pennsylvania

https://founders.archives.gov/documents/Franklin/01-22-02-0280

https://declaration.fas.harvard.edu/blog/facts-1776

https://declaration.fas.harvard.edu/blog/trumbull

https://archive.schillerinstitute.com/educ/hist/eiw_this_week/v1n17_jul1_1776.html

https://en.wikipedia.org/wiki/Signing_of_the_United_States_Declaration_of_Independence

https://en.wikipedia.org/wiki/List_of_delegates_to_the_Continental_Congress#Pennsylvania

https://staffweb.wilkes.edu/harold.cox/legis/indexcolonial.html

https://www.revolutionary-war.net/john-morton/

https://www.dsdi1776.com/john-morton/

http://dev.ushistory.org/declaration/signers/morton.html

https://en.wikipedia.org/wiki/Stamp_Act_Congress

https://archive.org/details/biographicalsket00lossing/page/262/mode/2up?q=morton

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Essay 57 – Guest Essayist: Val Crofts
"A republic, Madam, if you can keep it."

Benjamin Franklin has always seemed to be the most “approachable” of the Founding Fathers. While most of the Founding Fathers can appear unapproachable and distant in their biographies and portraits (students of mine always seemed to think that the Founding generation were all 50 plus years old at birth), Franklin’s slight smile and grandfatherly appearance reaches out to us 231 years after his death and invites us into a conversation with him. He was the Founder who felt that our nation’s new Republic in 1787 would thrive and succeed as long as we, the people, took care of it and kept it going. Dr. Franklin was also a valuable part of the process and completion of the Declaration of Independence. As the only delegate to be known worldwide in 1776, he helped to guide discussions and bring about compromises to unite the 55 delegates to the Second Continental Congress. He understood that the delegates must hang together or most assuredly, they would all “hang separately.”

Although he is now a synonymous figure with Philadelphia, Franklin was actually born in Boston in 1706. He was one of seventeen children born to Josiah and Abiah Franklin. The original plan was to have young Benjamin study to be a minister, which did not exactly fit with Franklin’s unique skill set so he needed to try other career paths. He became an apprentice for his brother James, who was a printer. This was a perfect trade for young Benjamin as he was an excellent writer and loved books and reading. At age 16, he began writing a series of essays under the pseudonym of “Mrs. Silence Dogood.” His character was a middle-aged widow who had humorous opinions to share with “her” readers. Franklin wrote 14 of these letters and his brother (who did not know who the author of them was) published them in his Boston newspaper. In 1723, Benjamin Franklin left his brother’s printing business and ran away to Philadelphia.

After not immediately finding a printing job that he liked, Franklin traveled to London where he worked in printing houses for a short time and then returned to Philadelphia which he then felt was his home. He became the publisher of the Pennsylvania Gazette which became the most popular newspaper in the colonies. Franklin married Deborah Reed in 1730 and the couple eventually had 2 children, Francis and Sarah. Deborah also raised Franklin’s illegitimate son, William. Franklin and his wife were apart for large portions of their marriage. She died in 1774 when Dr. Franklin was in England.

In 1732, Franklin began the publication of Poor Richard’s Almanac. It was published annually until 1758 and it became a must-have of colonial society. It contained news, weather forecasts, farming and domestic advice, poetry and other sections. It appealed to the normal, everyday person and many of Franklin’s most iconic sayings come from within its pages.

Benjamin Franklin also lived approximately 30 years in Europe where he was awarded honorary doctorates from British universities in 1759 and 1762.The title of Dr. Franklin comes from these awards. He also was in England during the passing of the Stamp Act in 1765 when the word of colonial uproar towards the legislation reached England. Franklin was, at first, unaware of the colonists’ hatred of the Stamp Act and went back and forth on the matter which caused him problems in the colonies. Later, he was of the opinion that the best way to get the act repealed was to boycott or not purchase the good affected. He also began to argue in England for colonial representation in Parliament if taxes were to be levied against the colonies. His idea fell on deaf ears.

As Dr. Franklin gradually became a supportive voice of the American colonies in England, his residency there was becoming less comfortable. This culminated in 1774 when he was brought in front of the Privy Council in London and was absolutely humiliated in front of the audience there. The speaker, Alexander Wedderburn, attacked his character and integrity over the emergence of a series of letters that were in Franklin’s possession. The letters somehow got released, angering the colonists further, due to their content that said some colonial rights may be further curtailed. Franklin chose not to speak on his own behalf. The next day, he was removed as Postmaster to the colonies. Franklin was furious and it is from this point that he tirelessly devotes himself to the idea of colonial independence. He returned home to the colonies in 1775, possibly to retire. He was sixty-nine years old.

Franklin’s arrival back in the colonies was celebrated in New York and Philadelphia. He was the world’s most famous American citizen and he was elected to the Second Continental Congress in 1775 as a representative of Pennsylvania. He advocated for the appointment of George Washington as the Commander of the Continental Army and was instrumental in helping to provide support and money for the Continental Army throughout the war.

Franklin was later appointed to the “Committee of Five” to draft a declaration of independence for the colonies. He served on the committee with Thomas Jefferson, John Adams, Roger Sherman and Robert Livingston. Jefferson was the primary author, but Franklin did suggest some important edits. His most famous edit was changing the phrase, “We hold these truths to be sacred and undeniable” to “We hold these truths to be self-evident.” Franklin believed that the term “sacred” sounded too religious and that “self-evident” sounded more scientific. Even though he was not the primary author, many of the ideas within the Declaration of Independence had been spoken by Dr. Franklin in the previous months and years. He wholeheartedly supported the document and voted in favor of Independence on July 2, 1776.

Throughout the Revolutionary War, Dr. Franklin was constantly working in some way toward American independence: from helping gain funds to finance it to traveling to France in efforts to help convince them to be our ally against Britain. He was extremely popular in France and was a large factor in the United States’ alliance with them which helped the colonies to win the war. He was a rock star in France, to use today’s expression. His face was on merchandise there and he claimed he was quite prominent there.

Franklin was called upon again in 1787 to be a part of the Constitutional Convention which resulted in our Republic that we are now entrusted to keep. Upon the Convention’s end, he is noted for his response to a woman asking what type of government the delegates had formed, whether a republic or a monarchy, to which Franklin replied, “A republic, Madam, if you can keep it.”

Benjamin Franklin seemed to do everything in his lifetime. In his 84 years he was a printer, publisher, writer, scientist (maybe most famous for his experiments with electricity), inventor, philanthropist, politician, diplomat, musician (he also created his own instrument, the glass armonica), postmaster and even a volunteer fireman. His lasting impact on Philadelphia is felt even today. He helped to create the first hospital there in 1751. He also strongly believed that books, ideas and information should be readily available to everyone and not just a select few. As a result, he created the first lending library in Philadelphia in 1731. He was part of the group that created Philadelphia’s first volunteer fire department. He also helped to create what is now the University of Pennsylvania, as well as founding the American Philosophical Society. He seemed to be the proudest of his earliest job which was that of a printer. As a result, he signed many letters as, “Ben Franklin, Printer.”

When Franklin died in 1790, an estimated 20,000 people attended his funeral in a city whose population in 1790 was around 28,000. His legacy in Philadelphia and the United States was secure then and should still be celebrated today.

Val Crofts serves as Chief Education and Programs Officer at the American Village in Montevallo, Alabama. Val previously taught high school U.S. History, U.S. Military History and AP U.S. Government for 19 years in Wisconsin, and was recipient of the DAR Outstanding U.S. History Teacher of the Year for the state of Wisconsin in 2019-20. Val also taught for the Wisconsin Virtual School as a social studies teacher for 9 years. He is also a proud member of the United States Semiquincentennial Commission (America 250), which is currently planning events to celebrate the 250th birthday of the Declaration of Independence.

Podcast by Maureen Quinn.

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Essay 56 – Guest Essayist: William J. Federer

John Adams wrote from Philadelphia, June of 1776: “Our misfortunes in Canada are enough to melt a heart of stone. The smallpox is ten times more terrible than Britons, Canadians, and Indians together. This was the cause of our precipitate retreat from Quebec.”

George Washington wrote his concerns regarding inoculating his troops: “Should we inoculate generally, the enemy, knowing it, will certainly take advantage of our situation.”

The threat of smallpox did not lessen until widespread inoculations were called for by Dr. Benjamin Rush, born January 4, 1745. Dr. Benjamin Rush was a surgeon general of the middle department of the Continental Army, tending to wounded soldiers during the Battle of Princeton, including General Hugh Mercer. Dr. Rush personally inoculated Virginia Governor Patrick Henry against smallpox, as well as Pennsylvania troops, resulting in their low rate of illness.

Skepticism of vaccines haunted the British in other colonies. A century later, the British faced an accusation in India, as recorded in The Indian Medical Gazette, “Dr. K. C. Bose on Small-pox in Calcutta” (March 1890, 82): “The affection for their children has driven them to regard vaccination as an operation intended by government to thin the number of its poor subjects.”

Trinidad and the West Indies continued this skepticism, as William Tebb’s The Recrudescence of Leprosy and Its Causation: A Popular Treatise (1893) recounted Dr. Bakewell’s testimony before the Select Vaccination Parliamentary Committee in 1871: “There is a very strong opinion prevalent in Trinidad, and in the West Indies generally, that leprosy has been introduced into the system by vaccination.”

Dr. Benjamin Rush had studied medicine in Philadelphia, then in Europe under the world’s foremost physicians, and then returned to Philadelphia in 1769. Though his practices were archaic by today’s standards, he is considered by some as the “Father of American Medicine” for his work on staff at the Pennsylvania Hospital, where he opened the first free medical clinic.

He was among the first to recognize alcoholism as a disease and began to promote temperance. Dr. Rush wrote the first textbook on mental illness and psychiatry, recommending treatment with kindness, earning him the title “Father of American Psychiatry.”

He was a member of the Continental Congress and signed the Declaration of Independence. His wife was Julia, was the daughter of Richard Stockton, also a signer of the Declaration of Independence.

Thomas Paine consulted with Dr. Benjamin Rush when writing his stirring pamphlet Common Sense. Rush helped write Pennsylvania’s Constitution and was as a member of the Pennsylvania State Convention which ratified the U.S. Constitution in 1787. He was Treasurer of the U.S. Mint. Rush helped found Dickinson College to train physicians, and the Philadelphia Dispensary. A statue of Dr. Benjamin Rush stands on the campus of Dickinson College.

During the dread summer of 1793, Dr. Rush stayed in Philadelphia battling the disease of Yellow Fever which killed thousands. He was the first to recognize that yellow fever was not contagious, leading to the later discovery that it was spread by mosquito bites.

Dr. Benjamin Rush supported ending slavery prior to the Revolution, forming a Society for the Abolition of Slavery. He founded a Sunday School Union and the Philadelphia Bible Society.

Perhaps Dr. Benjamin Rush’s most beloved contribution to American history was in 1812 encouraging John Adams to write to Thomas Jefferson, breaking the silence which had existed between them for years due to earlier political differences.

A proponent of public education for young women as well as men, Dr. Benjamin Rush wrote his Thoughts Upon the Mode of Education Proper in a Republic, 1786:

“I proceed … to inquire what mode of education we shall adopt so as to secure to the state all of the advantages that are to be derived from the proper instruction of the youth; and here I beg leave to remark that the only foundation for a useful education in a republic is to be laid on the foundation of religion.

… Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments. But the religion I mean to recommend in this place is that of the New Testament … Its doctrines and precepts are calculated to promote the happiness of society and the safety and well-being of civil government.”

Dr. Benjamin Rush wrote in A Plan for Free Schools, 1787:

“Let the children … be carefully instructed in the principles and obligations of the Christian religion. This is the most essential part of education.”

Rush wrote to Jeremy Belknap, July 13, 1789: “The great enemy of the salvation of man, in my opinion, never invented a more effectual means of extirpating (removing) Christianity from the world than by persuading mankind that it was improper to read the Bible at schools.”

Dr. Benjamin Rush wrote in an essay, “A Defense of the Use of the Bible as a School Book,” included in his 1798 work, Essays, Literary, Moral and Philosophical:

“The Bible, when not read in schools, is seldom read in any subsequent period of life … It should be read in our schools in preference to all other books from its containing the greatest portion of that kind of knowledge which is calculated to produce private and public temporal happiness.”

Rush wrote in Essays, Literary, Moral, and Philosophical, 1798:

“I know there is an objection among many people to teaching children doctrines of any kind, because they are liable to be controverted. But let us not be wiser than our Maker. If moral precepts alone could have reformed mankind, the mission of the Son of God into all the world would have been unnecessary. The perfect morality of the Gospel rests upon the doctrine which, though often controverted has never been refuted: I mean the vicarious life and death of the Son of God.”

“Vicarious” is defined in Merriam-Webster’s Dictionary as: “suffered by one person as a substitute for another or to the benefit or advantage of another: substitutionary.”

Dr. Rush stated: “Without religion, I believe that learning does real mischief to the morals and principles of mankind.”

He wrote his Thoughts Upon the Mode of Education Proper in a Republic, 1786: “A Christian cannot fail of being a republican … for every precept of the Gospel inculcates those degrees of humility, self-denial, and brotherly kindness which are directly opposed to the pride of monarchy … A Christian cannot fail of being useful to the republic, for his religion teaches him that no man ‘liveth to himself.’ And lastly a Christian cannot fail of being wholly inoffensive, for his religion teaches him in all things to do to others what he would wish, in like circumstances, they should do to him.”

Dr. Benjamin Rush explained in Essays, Literary, Moral, and Philosophical, 1798: “Christianity is the only true and perfect religion, and that in proportion as mankind adopts its principles and obeys its precepts, they will be wise and happy … In contemplating the political institutions of the United States, I lament that we waste so much time and money in punishing crimes and take so little pains to prevent them.

… We profess to be republicans, and yet we neglect the only means of establishing and perpetuating our republican forms of government, that is, the universal education of our youth in the principles of Christianity by the means of the Bible. For this Divine book, above all others, favors that equality among mankind, that respect for just laws, and those sober and frugal virtues, which constitute the soul of republicanism.”

On July 9, 1788, in a letter to Elias Boudinot regarding a parade in Philadelphia, Dr. Benjamin Rush stated: “The Rabbi of the Jews locked arms of two ministers of the Gospel was a most delightful sight. There could not have been a more happy emblem.”

Dr. Benjamin Rush wrote:

“I have been alternately called an Aristocrat and a Democrat. I am neither. I am a Christocrat. I believe all power … will always fail of producing order and happiness in the hands of man. HE alone who created and redeemed man is qualified to govern him.”

Rush died in Philadelphia on April 19, 1813, and was buried in the yard of Christ’s Church.

Thomas Jefferson wrote:

“Another of our friends of seventy-six is gone, my dear Sir, another of the co-signers of the Independence of our country …

… A better man than Rush could not have left us, more benevolent, more learned, of finer genius, or more honest. I know of no Character living or dead who has done more real good in America.”

Memorials to Dr. Benjamin Rush stand on Navy Hill in Washington, D.C., and near the Harvard Square Library.

During his final illness, he wrote to his wife:

“My excellent wife, I must leave you, but God will take care of you.

By the mystery of Thy holy incarnation;

by Thy holy nativity;

by Thy baptism, fasting, and temptation;

by Thine agony and bloody sweat;

by Thy cross and passion;

by Thy precious death and burial;

by Thy glorious resurrection and ascension, and

by the coming of the Holy Ghost, blessed Jesus, wash away all my impurities, and receive me into Thy everlasting kingdom.”

Excerpt reprinted with permission from: The American Minute with Bill Federer, “‘Smallpox Is Ten Times More Terrible!’– Diseases During the Revolution, Dr. Benjamin Rush” https://americanminute.com/blogs/todays-american-minute/smallpox-is-ten-times-more-terrible-diseases-during-the-revolution-dr-benjamin-rush-american-minute-with-bill-federer

William J. Federer is a nationally known speaker and best-selling author of many books including “America’s God and Country Encyclopedia of Quotations” which has sold over a half-million copies. He is president of Amerisearch.net, a publishing company dedicated to researching America’s Christian heritage. Bill’s American Minute radio feature is broadcast daily across America and via Internet. His Faith in History television program airs on the TCT Network on stations across America and via DIRECTV. A former U.S. Congressional Candidate, Bill has appeared on CSPAN, FOXNews, MSNBC, ABC, CBN, FamilyNet, The Eric Metaxas Show, Prager U, Starnes Country on FOX Nation, Coral Ridge Hour, 700 Club, and Focus on the Family. He has been quoted or referenced in USA Today, Human Events, New York Times, Washington Times, Washington Post, to name a few, among numerous other television shows and documentaries, publications, and radio programs.

Podcast by Maureen Quinn.

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Essay 55 – Guest Essayist: Joerg Knipprath
https://en.wikipedia.org/wiki/Robert_Morris_(financier)#/media/File:Robert_Morris.jpg Robert Morris of Pennsylvania: Merchant, Superintendent of Finance, Agent of Marine, and Signer of the Declaration of Independence – Guest Essayist: Joerg Knipprath

Robert Morris, Jr., is one of only two men who signed the Declaration of Independence, the Articles of Confederation, and the Constitution of 1787. He thus was present at three critical moments in the founding of the United States. His most significant contributions to that founding occurred during the decade of turmoil framed by the first and last of these, that is, the period of the Revolutionary War and the Confederation.

Morris was of English birth, but came to Pennsylvania as a child. He inherited a substantial sum of money when his father, a tobacco merchant, died prematurely. After serving an apprenticeship with his father’s former business partner, Morris started a firm with that partner’s son. The firm became a success in the tobacco trade, marine insurance, and commerce in various merchant goods. For these reasons, Morris opposed British taxes on merchants and laws that hindered trade, especially that done with American vessels.

After the skirmishes at Lexington and Concord, Morris was selected to Pennsylvania’s Committee of Safety. His efforts to secure ammunition for the Continental Army led to his appointment to Pennsylvania’s delegation to the Second Continental Congress, which met in the capital at Philadelphia. Morris was torn between opposition to the British government’s actions and his loyalty to the Crown. He sought to mediate between the radicals pressing for independence and the traditionalists seeking to negotiate continued connection with the motherland. When it came time to vote on Richard Henry Lee’s motion for independence on July 2, 1776, Morris and fellow Pennsylvania moderate John Dickinson absented themselves to allow that colony’s delegation to vote in favor. Independence having been declared, Morris went with the tide and signed the Declaration the following month.

During the Revolutionary War, the very wealthy Morris assumed two roles befitting his talents, finance and shipping. Even before independence, he served on the Committee of Trade and the Marine Committee. Once the Articles of Confederation were finally approved in 1781, he was given more formal executive offices, Superintendent of Finance, analogous to the current Secretary of the Treasury, and Agent of Marine, the former version of the Secretary of the Navy. As well, he continued his efforts to secure supplies for the Continental Army through those positions.

It was particularly in the former capacity that he excelled and later received the appellation “Financier of the Revolution.” The new country was, not to mince words, a financial basket case. To term the promissory notes of the Confederation “junk bonds” would be flattery. The British had refused to allow the creation of a domestic banking system in the colonies, in order to maintain control over the economy, thwart independence, and promote the ascendancy of London as the world’s financial center over Amsterdam. Each colony had had its separate financial relationship with London. In the colonies themselves, someone wanting credit had to obtain loans from local merchants. The country was utterly without even a rudimentary integrated banking system.

Commerce, as well, had been regulated by the British to their advantage. Restriction on colonial trade with the West Indies and with continental European countries had been a recurring source of friction in the decade before the War. Shortly before American independence was declared, Parliament in December, 1775, had passed the Prohibitory Act, which outlawed commerce even between the colonies and England. With independence, the gloves came off entirely. The British navy threw a blockade around American ports, which brought legal sea-borne trade to a standstill. American efforts to avoid this blockade through smuggling and eventual licensing of privateers were spirited, but nothing more than a nuisance to the British maritime stranglehold on American commerce.

Money itself was both scarce and overabundant. Scarce, in the form of gold and silver; overabundant in the form of paper currency. Not only British coins circulated, but also those from many other European countries, especially Spanish silver pieces-of-eight (akin to the future silver dollar) and gold doubloons. States issued a few small copper coins along with significant amounts of “bills of credit,” that is, paper scrip which depreciated in value and was at the center of much commercial speculation, economic chaos, and political intrigue over the first decade of independence.

The Confederation’s currency, the Continental Dollar, was, if anything, even more pathetic. Aside from a few pattern coins struck in 1776 mostly in base metals, the currency was issued as paper. Although historians’ research has not been able to reach a definitive conclusion, it appears that, over the course of about five years, about 200 million dollars’ worth was printed. To put this in perspective, the population of the United States at the time was about .8% of that of today. The current purchasing power of the dollar is about one-thirtieth of the value of coins then, and the value of gold was about a hundred times the current nominal value. Due to massive British counterfeiting, even more than that amount of Continental currency actually may have circulated. Congress had no domestic sources of income, because it lacked the power to tax directly. Instead, it must seek requisitions from the states. Although the states were obligated under the Articles of Confederation to pay those requisitions, their performance was unsteady and varied from state to state, especially as the financial demands of the war, the turmoil of military campaigns, and the strangulation of commerce by the British blockade took their toll on their economies.

The printing of vast amounts of currency, out of proportion with what the country could back up with hard assets, such as gold and silver, led to serious inflation. The currency depreciated to such a point that, by 1781, it ceased to be used as a medium of exchange. It did, however, gain linguistic currency through the commonly-used contemptuous aphorism, “Not worth a Continental” to signify something of no value.

Enter Robert Morris. Congress appointed him Superintendent of Finance in 1781. Attempting to ameliorate the desperate financial situation of a bankrupt country, he began to finance the Continental Army’s supplies and payroll himself through “Morris notes” backed by his own credit and resources. His efforts over the next three years, while crucial in averting political disaster, still fell short. The seriousness of the matter was underscored by several near-mutinies among elements of the officer corps of the Army: the Pennsylvania Line Mutiny of January, 1781, the McDougall delegation’s delivery to Congress in December, 1782, of an ominous petition signed by a number of general officers, and the Newburgh Conspiracy by a large contingent of Army officers in early 1783. They all showed the simmering threat to the young republic from Congress’s broken promises caused by the lack of funds to pay the military. Morris’ correspondence with some staff officers at General Washington’s headquarters revealed a desire for new ways to force Congress to compel the states to meet their financial obligations. This gave rise to unsubstantiated rumors that the military’s discontent, especially the Newburgh Conspiracy, was supported, or even instigated, by Morris and other “nationalist” members of Congress.

In other financial matters, Morris directed his efforts to create a banking system, in order to improve access to private credit and to stabilize public credit. In this matter he was assisted by his able protege, Alexander Hamilton, himself trained in business and finance before joining the military. Morris issued a “Report on Public Credit” in 1781, which proposed that Congress assume the entire war debt and repay it fully through new revenue measures and a national bank. The first part of this ambitious endeavor failed when, in 1782, Rhode Island alone refused to approve an amendment to the Articles of Confederation to give Congress the power to tax imports at 5% as a source of revenue.

However, Morris did obtain a charter from the Confederation Congress on May 26, 1781, for the Bank of North America. Modeled after the Bank of England, it began its operation as the first commercial bank in the United States in early 1782. It also took on some functions of a proto-central bank in its attempt to stabilize public credit. About one-third of the bank shares were purchased by private entities, the rest by the United States. Morris used $450,000 of silver and gold from loans to Congress by the French government and Dutch bankers to fund the government’s purchase of its bank shares. He then issued notes backed by that gold and silver for loans, including to the United States. When Congress appeared unable to repay the loans, Morris sold portions of the government’s shares to investors to raise funds. Using those funds, he repaid the bank and then issued more notes to lend to the government to meet its financial obligations.

Unfortunately, despite Morris’ energy and financial wizardry, the Confederation’s debts continued to expand, with no clear way to repay them that was constitutionally permitted and politically feasible. European lenders had reached the end of their patience. Unwilling to remain a part of this calamitous system, Morris resigned from Congress in 1784, having been preceded in exit by Hamilton for similar reasons a year earlier.

As a constitutional matter, the Bank’s charter was challenged early as beyond Congress’ limited powers under the Articles of Confederation. Morris obtained a second charter, from Pennsylvania, in 1782. That state’s legislature briefly revoked the charter in 1785, before reinstating it in 1786. With the end of the Confederation in 1788 due to the adoption of the new Constitution, the Bank’s charter under the Articles expired. It continued to operate as a state institution within Pennsylvania. Through a series of mergers and acquisitions since then, the Bank’s remains are part of Wells Fargo & Co. today. Its role as a national bank, but one supported by a much sounder constitutional and economic foundation, was recreated by the Bank of the United States, chartered by Congress in 1791 at the urging of Alexander Hamilton, and by-then, Senator Robert Morris.

In his role as official Agent of Marine, as well as in an informal capacity before then, it was Morris’ job to supervise the creation of a navy and to direct operations. Congress authorized the construction of more than a dozen warships. These were no match for the Royal Navy. They were primarily used as commerce raiders to capture British merchant ships. Almost all were sunk, scuttled, or captured by 1778. Most American naval ships were armed converted merchant vessels often owned by private individuals. The most effective raiders, favored by Morris, were privateers, which were private vessels licensed by Congress to attack British shipping. Nearly 2,000 such letters of marque were issued by Congress, which caused an estimated $66 million of losses to British shipping. Privateering was so profitable for a time that Morris and other investors built and sent out their own privateers.

After the Revolutionary War, Morris focused on private business, including the favorite investment activity of moneyed Americans, land speculation. On the political side, he was selected by Pennsylvania for its delegation to the Constitutional Convention of 1787. He presided at the opening session on May 25, where he moved to make George Washington the presiding officer. He was a nationalist in outlook and, based on his experience as Superintendent of Finance under the Confederation, wanted to assure the general government a power to tax. He favored replacing the Articles, rather than just amending them. Beyond that, he had no real philosophical commitment to the particulars of the new constitution. Not being a politician or political theorist, he had little influence on the proceedings.

With the new government in place, the Pennsylvania legislature elected Morris to the United States Senate. President Washington wanted to make Morris Secretary of the Treasury. Morris demurred and recommended Hamilton in his stead. The two were closely aligned on economic and commercial policy. Hamilton’s “First and Second Reports on the Public Credit” in 1790 reflected Morris’ own “Report” of a decade earlier respecting the assumption and funding of war debts and the creation of a national commercial bank.

Morris’ genius in financial matters did not save him from economic disaster. He overextended himself in his land speculation. His company owned millions of acres of land. The Panic of 1797, triggered by the damage to international trade and immigration caused by the Napoleonic Wars in Europe, left Morris land-rich and cash-poor. As a consequence of depreciating land values and insufficient cash to pay creditors and taxes, he spent three and a half years in debtor’s prison. The incarceration only ended in August, 1801, after Congress passed a bankruptcy law for the purpose of obtaining his release. He was adjudged bankrupt, and his then-almost inconceivable remaining debt of nearly $3 million was discharged. Still, Morris and his wife were left virtually penniless, having received just a small pension. He died in 1806.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

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Essay 54 – Guest Essayist: Heather B. Bailey

A Founder for the Common Man

If you’ve ever spoken with someone who lives in New Jersey, you may know that many of us introduce ourselves by explaining what exit we’re from off the New Jersey Turnpike or the Garden State Parkway.

It’s a way to identify ourselves and our connection to the state. It’s also a source of humor, especially to those who do NOT reside in New Jersey.

If you happen to be traveling thru New Jersey on the Garden State Parkway and find yourself at Exit 135 – Clark/Westfield, then you are at a place rich in our nation’s history and a crossroads of the American revolution formerly known as the 5th Ward of Rahway.

It’s worth noting, by the way, that in 1864 – amid the Civil War – 357 5th Ward residents declared independence from Rahway and established the town – Clark, New Jersey, named after Abraham Clark, delegate to the Second Continental Congress, one of the 56 men to have signed America’s Declaration of Independence, and my ancestor.

My father’s family – the Brubakers of Somerset County in Pennsylvania, are Clark relations. Before writing this essay, I took some time to journey into his past and found it a rewarding experience. Abraham was a person dedicated to fairness and service and was esteemed by the members of his community. Learning about him enriched me and inspired me to find ways to honor the life of this brave, just, and extraordinary, common man and patriot.

Taking time to reread the Declaration of Independence every once in a while, is time well spent. Many of us lead busy lives and haven’t thought about it or what it means or the dangers the men who signed it were inviting since we were in school. Looking at it again, with the school years so far behind me, was a new and meaningful experience I can highly recommend.

In these unsettling times, this piece of history and its vision for America we all share is the common thread that ties us together as one people and one nation. There is a beautiful quote in Barb Baltrinic’s book: A Founder for All: Abraham Clark, Signer of the Declaration of Independence: “Those who do not know the history of their land will certainly display a lack of commitment in protecting it when time demands.”

Knowing that Abraham Clark and the other signers were not presidents, royalty or celebrities, makes them relatable. These were common citizens who made the decision to protect their land at unimaginable risk when the time demanded. Their legacy is now ours to protect and to do that, we need to know, as a people, from where we came.

Having some relation, even if distant or as a collateral descendant has always been a personal source of pride. It has added some dimension to my family’s lineage.

Taking this journey was a reminder that the study of history is a study of common people who did extraordinary things. The dates are incidental.  When we take the time to learn about these Founders, we see that it was many small heroic decisions and acts over a lifetime. One cannot help but be inspired to do one’s best in small ways over the course of a lifetime and to strive to be there if called upon – when times demand.

They say human nature doesn’t change. When you examine the events leading up to the American Revolution, it is not hard to see how a dedicated servant of the Crown, like Abraham Clark, would be compelled to risk all in the name of fairness. His story and his part in the revolution relate strongly to things we speak of in conversation today, about themes that are still relevant to life in this country. The signers were extraordinary people, carrying along with them on their journey to sign the Declaration, a family, a community, a legacy, and a life each put at risk, completely. Captured by the British during the war, as happened to at least one other New Jersey signer, was an unenviable event.

A Journey in Lineage and Profession

Abraham Clark was born on February 15, 1726, and lived in Elizabethtown New Jersey, now “Elizabeth,” located approximately 7 miles from what is now Clark, situated across the river from Staten Island.

He was the only child of Thomas Clark and Hannah Winans, but his ties to New Jersey extend back at least two generations. His paternal grandfather, Richard Clark, emigrated in 1643 from England via Barbados then to Long Island. Richard fought in the Indian Wars and worked as a shipbuilder and planter. It is estimated that he and his wife moved the family to Elizabethtown in 1675 where the family became well established and was known for their service to the community.

Abraham’s mother, Hannah Winans, was also from deeply grounded New Jersey colonial stock. Her parents and great grandparents were among Elizabethtown’s founding families, present at the creation in 1664.

Today, over one hundred and fifty Winans family members are buried in the cemetery adjacent to the First Presbyterian Church, still in operation today. This is the same church where the Clark and the Winans families worshiped during the Revolutionary War period. It is also a site of critical points during the revolution that, no doubt, influenced Abraham Clark’s resolve and dedication to the cause that led him to become one of the signers.

History records that Abraham was too frail for farming, but excelled in math and studies. As the only son of a farming family, we can assume much was expected of Abraham as a helper on the farm. With college being expensive, even in those times, it is noteworthy that Abraham’s father supported his natural abilities and hired a tutor to teach him math and surveying rather than expecting him to take up the business of the family farm. This would set Abraham up well for a respected and much-needed profession, and one to which he was well suited.

The Poor Man’s Lawyer

Always a studious person, Abraham later fervently studied law and cases that were naturally related to his work, surveying land, even though he had little formal education.

It was assumed by many that he was never admitted to the New Jersey bar but, through his work as a surveyor, he was naturally involved in legal matters like the preparation of deeds, mortgages, and the drafting of legal papers. In these ways, he became a respected and trusted legal counselor in the community – a role that placed him at the very heart of the highly critical civil disputes developing in his community and across the colonies.

Through his work, Abraham had the opportunity to witness firsthand the misuse of authority and abuse of the poor at the hands of the privileged. He was deeply troubled by how poor people were cheated out of their land because of their inability to read or understand deeds and, by their lack of representation. Clark began to represent his poorer neighbors free of charge, leading his friends and neighbors to call him the “Poor Man’s Counselor” after he began to refuse to accept payment for legal advice.

Sarah

At the age of 22, Abraham Clark married Sarah Hatfield (or Hetfield). The Hetfield’s were considered a well-to-do and respectable family of Essex County, New Jersey. Together, they had ten children, two of whom (Thomas and Aaron) served as First Lieutenants and Captains during the revolution, both of whom, history tells us, were captured and singled out for torture because their father had signed the Declaration. At one point, the British offered to release them both if Abraham agreed to renounce the document but, nobly, he refused.

It was reported that Sarah was a resourceful, energetic woman with a large family within Elizabeth. As civil tensions began to mount, Clark’s oldest sons were in their teens and able to work the farm. Additionally, Sarah had many family members around her. This strong family support enabled her to manage the home front and remain supportive of Abraham’s involvement in Public Service, a role that kept him away for long periods and largely unpaid.

Always the Quest for Fairness

Through his profession and commitment to community, Abraham was placed in a position to observe and become a part of the budding conflicts that were beginning to take shape as the inevitability of a Revolution began to loom.

Abraham’s role as a public servant began in support of the Crown and he served as a clerk of the New Jersey Colonial Legislature. As British control over the trade and finances of the Colonies intensified, Abraham was called upon to act as High Sheriff of Essex County.

No doubt the proximity of tensions created by British Control were driving forces behind his decisions, at the time, again to pursue fairness, even if that meant risking all and joining forces to work toward independence.

According to various sources, he remained in the Continental Congress through 1778 when his election to the New Jersey Legislative Council brought him home. As one of the state’s three representatives at the aborted Annapolis Convention of 1786 – an early attempt to repair the Articles of Confederation – James Madison recalled Clark as having been the delegate who formally motioned for the Constitutional Convention because New Jersey’s instructions allowed for consideration of non-commercial matters.

More than many of his contemporaries, Clark is regarded by scholars of the period as a man who was a friend to farmers and mechanics because they produced things. In his eyes, this made them virtuous when compared to those in more learned professions like the law, finance, and medicine. He actively encouraged the involvement of his fellow citizens in the affairs of government and was an enthusiastic advocate of the petition to recommend a needed change to elected officials.

Abraham Clark retired from public life in 1794, just before New Jersey’s Constitutional Convention, and died later that year at his home from sunstroke.

Under the pen name, A Fellow Citizen, he wrote several books or pamphlets including: The True Policy of New-Jersey, Defined; or, Our Great Strength led to Exertion, in the Improvement of Agriculture and Manufactures, by Altering the Mode of Taxation, and by the Emission of Money on Loan, in IX Sections in February 1786.

Heather Brubaker Bailey, who now lives in New Jersey, is a descendent of Abraham Clark. Heather graduated from Elizabethtown College and now works as a real estate agent in Morristown, New Jersey.

Podcast by Maureen Quinn.

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Essay 53 – Guest Essayist: James C. Clinger

John Hart of New Jersey was one of the lesser-known signers of the Declaration of Independence. He was also among the oldest, being one of seven signers who was sixty years of age or older.[1] His life prior to his attendance at the Second Continental Congress was full of public service, primarily to his local community and the colony, and then the state of New Jersey. He died before the final battles of the Revolutionary War were fought and won.

His exact date of birth is subject to some dispute. Most sources claim that he was born in 1713, but some have his birth listed as 1711 or even earlier. He grew up in Hopewell Township, New Jersey, and resided in that area virtually his entire life. His father was active in civic affairs, serving as a justice of the peace, assessor, and farmer.[2] Hart had relatively little formal education, but was considered well-read, knowledgeable about the law, and possessed with business acumen.   Like his father, John Hart was a farmer, raising cattle, sheep, hogs, and poultry. He also owned and operated grist mills, some of which were co-owned by his brother. At one time, Hart owned four slaves.[3] Slavery had not yet been abolished in all of the northern colonies. New Jersey did not begin a gradual abolition of slavery until 1804. Under that law, children born to slaves after July 4, 1804 would gain their freedom after serving the master of their mother for twenty-five years for males and twenty-one years for females.[4]

Hart was a Presbyterian, but he donated land from the lower meadow in front of his home to a Baptist congregation in 1747. A Baptist Meeting House was constructed there, and Baptists were enthusiastic in their support of Hart when he began his political career. Hart was elected to the Hunterdon County Board of Chosen Freeholders in 1750 and as Justice of the Peace in 1755. He served on the Colonial Assembly from 1761 to 1771, and was appointed to the Court of Common Pleas in 1768.   He was selected for a committee to appoint delegates to the First Continental Congress. In 1775, he was elected to the New Jersey Committee of Correspondence and later served on the Committee of Safety.[5] The committees of correspondence were designed to maintain communication among the colonies and to oppose British customs enforcement and bans on paper money issued by the colonies.[6]

In 1776, Hart was elected to the New Jersey Provincial Congress which was created to supersede the power of the royal governor. The Provincial Congress designated Hart to sign “Bill of Credit” notes issued by New Jersey.[7] These notes were a form of paper money that would later be forbidden for state governments by Article 1, Section 10 of the United States Constitution.

The New Jersey delegates to the First Continental Congress had not supported independence for the American colonies but, on June 22, Hart along with four other delegates from New Jersey were elected to the Second Continental Congress. Hart arrived so late in the proceedings that he had little opportunity to participate in the deliberations over the Declaration, but he voted to approve the document on July 4. Benjamin Rush, another signer of the Declaration, described Hart as “a plain, honest, well-meaning Jersey farmer, with but little education, but with good sense and virtue enough to pursue the interests of his country.”[8]

On August 13, Hart was elected to the State Assembly of New Jersey and on August 29 he was elected Speaker of the General Assembly.   Hart presided over the Assembly briefly but was called home to care for his sick wife. He returned to the Assembly on October 7, but was called home once more. The Assembly adjourned on August 8, the same day that his wife died, leaving behind her husband and thirteen children, two of whom were still minors. In November, the British army invaded New Jersey and Hart was forced to hide out in some rock formations in the nearby Sourwood Mountains to escape British soldiers and Hessian mercenaries who damaged, but did not destroy, the farm.[9]

The British forces retreated after American victories at Trenton and Princeton, after which Hart returned to his home and then to the General Assembly. Hart was re-elected twice as Speaker of the Assembly. In June 1778, Hart invited George Washington to have his troops encamp at the Hart farm. Washington accepted the invitation, and around 12,000 soldiers rested there before fighting and winning the Battle of Monmouth on June 26. A few months later, on May 11, 1779, Hart died painfully from kidney stones. Hart was in debt at the time of his death, and the war, currency of dubious value, and damage to his property, forced his heirs to sell most of his assets. Hart had spent much of his life in some form of public service for which he was given little monetary compensation. He did not live to see final victory in the war for independence, but his role in the creation of the new republic and the early government of the state of New Jersey should not be forgotten.[10]

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Podcast by Maureen Quinn.

 

[1] Marberry, Mark, “The 56 Men who Signed the Declaration of Independence.”  Farmington Press.   July 11, 2019.  https://dailyjournalonline.com/community/farmington-press/news/the-56-men-who-signed-the-declaration-of-independence/article_a2641ea9-9158-5aee-a9b2-6ebca5c6fe3f.html#:~:text=A%20third%20of%20the%20signers,Seven%20were%20over%2060.

[2] Staller, Grace Keiper, “John Hart,” Descendants of the Signers of the Declaration of Independence.  https://www.dsdi1776.com/john-hart/

[3] Ibid.

[4] Gigantino, James J. 2014. “‘’The Whole North Is Not Abolitionized’’.” Journal of the Early Republic 34 (3): 411–37. doi:10.1353/jer.2014.0040.

[5] Staller, op cit.

[6] “Committees of Correspondence.” The History Channel.   https://www.history.com/topics/american-revolution/committees-of-correspondence.  Retrieved 4/24/2021.

[7] Staller, op cit

[8] Staller, op cit.

[9] http://www.doublegv.com/ggv/JHart.html

[10] Staller, op cit.

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Essay 52 – Guest Essayist: Ron Meier

To a twenty-first century political strategist, the summer of 1776 would seem like a foolish time to have voted for independence. Little had gone well so far and a large force of the British Navy and Army was assembling in New York’s harbor to launch a decisive attack on Washington’s ragtag army. Only an Act of God could have prevented Washington’s defeat – in fact, an Act of God did prevent defeat two months later.

New Jersey had not yet been in the fight. The significant military action so far had been in New England and Canada. While Thomas Jefferson was busy writing the Declaration of Independence in June, New Jersey was one of three colonies that had not yet authorized its delegates to vote for independence, largely because of internal discord between the patriots; the loyalists; and New Jersey’s Royal Governor, William Franklin, Ben Franklin’s son. Its five delegates to the Continental Congress also opposed secession. On June 21, the New Jersey Provincial Congress authorized secession, named five new delegates all in favor of secession, to the Continental Congress, and ordered the imprisonment of Loyalist Governor Franklin. Among those new delegates was Francis Hopkinson.

Hopkinson was born in Philadelphia in 1737. His father was a friend of Benjamin Franklin who helped young Francis pursue his college studies. Hopkinson graduated from the College of Philadelphia, after which he studied law and began his life in Colonial public service as Secretary of the Pennsylvania Provincial Council, where he negotiated treaties with native American tribes.

He then turned his public service focus to trade and became Collector of Customs in Salem, New Jersey in 1763. Customs agents in the American colonies were not always diligent in executing their assigned duties, resulting in a loss of revenue for London at a time when additional revenue was needed to pay for the costs of the French and Indian War. Wanting to expand his role in Customs, he spent 15 months in London during 1766 and 1767, hoping to be appointed one of five Commissioners of Customs for North America, posts created under the despised 1767 Townsend Acts which attempted to enhance customs enforcement in the colonies. Hopkinson failed in his attempt to be named a Commissioner, which was a good thing in the long run, given the soon-to-be enhanced collection efforts that would antagonize the colonists and, in short order, lead to war. However, during his stay in London, he learned much about British politics and politicians, including Lord North, which would soon prove valuable as the Revolutionary flames rose.

Hopkinson’s interests outside the law included music, writing, and art. From 1759 to 1766, he served as secretary of the Philadelphia Library. His poems and other writings inspired patriots during the Revolutionary War. He used those literary and artistic talents while serving on the Navy Board in 1780 to design the first American flag, a fact not discovered until well after Betsy Ross had gained fame for having created the original design. He later designed the Great Seal, among other devices.

Hopkinson returned from London to Philadelphia where he became a successful merchant in 1768 and married Ann Borden, daughter of a wealthy family that had founded Bordentown, New Jersey. During this time, he continued to pursue public service opportunities. Four years later, he relocated to Delaware to resume his public service role for one year as Collector of Customs.

At this time, Revolutionary fervor was accelerating in the colonies over customs fees and Hopkinson relinquished his role as Customs Collector when New Jersey Royal Governor, William Franklin, well aware of Hopkinson’s apparent loyalty to the British government and of his political connections in London, named him to the New Jersey Provincial Council, the upper house of the New Jersey Legislature, in 1773. Hopkinson then moved his family to his wife’s hometown of Bordentown, New Jersey where he once again entered the practice of law. During this time, he became disenchanted with the British government’s hostility to Americans’ rights and freedoms and joined the patriot cause, writing many patriotic pamphlets and satires, employing a common practice of using a variety of pseudonyms, that were widely circulated in the colonies.

Hopkinson took his seat as a New Jersey delegate to the Second Continental Congress on June 22, 1776. Soon after, Congress passed the Declaration of Independence. He remained a member of the Congress for only five months, leaving to serve on the Navy Board in Philadelphia. Later, Hopkinson was appointed treasurer of the Continental Loan Office in 1778, and judge of the Admiralty Court of Pennsylvania in 1779.

The British and Hessians pillaged and burned much of Bordentown, New Jersey during the war; Hopkinson’s home was spared burning because of his extensive library. The British then used the home as their headquarters during the town’s occupation.

Although Hopkinson was not a Delegate to the Constitutional Convention, he was a member of the Pennsylvania Convention that ratified the Constitution and Chairman of the Committee of Arrangement which organized the grand July 4, 1788 celebration in honor of the ratification of the Constitution, officially ratified on June 21. Today, it may be difficult to envision a parade that included members of 44 trades and professions in addition to the traditional military units and political luminaries.

Francis Hopkinson died in 1791 at the age of 53, young for a man with such a distinguished career. While the names of Hopkinson, Stockton, Clark, Hart, and Witherspoon are immortalized on the Declaration of Independence after less than a week of service on the Second Continental Congress, the names of the dismissed members, Sergent, DeHart, Smith, Cooper, and Livingston, who had the opportunity for immortality, tend toward being forgotten.

Ron Meier is a West Point graduate and Vietnam War veteran.  He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.  Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

Podcast by Maureen Quinn.

 

Sources:

New Jersey State Library:  https://www.njstatelib.org/research_library/new_jersey_resources/highlights/american_revolution/

Hopkinson Biography:  https://www.revolutionary-war.net/francis-hopkinson/

Customs:  Commissioners of Customs Act (revolutionary-war-and-beyond.com)

Townshend Acts:  https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/customs-commissioners

Ann Borden Hopkinson Biography:  https://www.womenhistoryblog.com/2009/12/ann-borden-hopkinson.html

Hopkinson’s American Flag Design:  https://blog.usaflagco.com/francis-hopkinson/

http://www.virtualology.com/francishopkinson.com/

https://bordentownhistory.org/francis-hopkinson-1737-1791/

Miracle at Philadelphia by Catherine Drinker Bowen

Order of Procession: https://www.loc.gov/resource/bdsdcc.c1501/

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Dr. Barbara Bowie-Whitman is an economist and a retired Foreign Service Officer. She was educated at the College of William and Mary and Southern Methodist University and earned her doctorate in economics from the George Washington University.

Dr Bowie-Whitman was a Fulbright Scholar to Guatemala following the completion of her first master’s degree. She served in US Embassies in Mexico, Bogota and London, and was Economic Counselor to the US Mission to the Organization of American States. Her last position in government was as Trade Policy Coordinator for the Western Hemisphere in the US Department of State, where she served as the senior State Department negotiator on free trade agreements with 9 countries.

Barbara has been active in politics and community service and leadership for over six decades, beginning as an eleven year old who wrote a campaign song for Dwight Eisenhower. She was Miss National Young Republican in 1971. She is the widow of Lt.Col.John Whitman, an Army Airborne Ranger and military historian.

Barbara resides in Alexandria Virginia, and represented Virginia as a delegate to the 2020 Republican National Convention in Charlotte,North Carolina.

Essay 51 – Guest Essayist: Tony Williams

Despite the best efforts of several excellent historians, the contributions of the dissenting Protestant clergy, known as the “Black Robe Regiment” or “Black Regiment,” to the dissemination of revolutionary principles has largely gone unnoticed. The ministers were instrumental in propagating the ideas of John Locke from the pulpit for congregations that were consistent with the revolutionary ideas they read about in pamphlets and newspapers and heard in taverns and legislative halls that formed “the American mind.”

The ministers preached about the ideas of natural rights, self-government by consent, and the right of revolution against tyranny. They urged the young men in their congregations to pick up their muskets and go to war in the defense of their sacred rights from God. The clergy delivered what are called political sermons as they easily wove together their religious and political ideals with their covenant theology that Americans were a new Chosen People.

George III recognized the significance of the clergy and American Revolution and specifically labeled it a “Presbyterian Rebellion.” Scottish Presbyterianism had a strong strain of fierce individualism that blended well with the ideas of the Scottish Enlightenment. The character of Scottish Presbyterianism was particularly strong on the American frontier among a people who defended their liberty against all forms of spiritual and civil tyranny.

Reverend John Witherspoon was born in Scotland in 1723 and educated at the University of Edinburgh, the center of the Scottish Enlightenment. Rev. Witherspoon’s ideas were particularly influenced by thinker, Francis Hutcheson’s System of Moral Philosophy. He emigrated to the American colonies in 1768 to become the President of the College of New Jersey (Princeton) at the urging of Benjamin Rush; First Great Awakening Preacher, Rev. George Whitefield; and the college trustees.

Under Rev. Witherspoon’s brilliant leadership and guidance, Princeton students were inculcated with the ideas of the Scottish Enlightenment and Presbyterianism that supported the revolutionary principles they embraced. Indeed, Witherspoon’s Princeton became a nursery of statesmen as his students included a future president (James Madison), a vice-president (Aaron Burr), a secretary of state, three attorneys general, two foreign ministers, forty-nine U.S. Representatives, twenty-eight U.S. Senators, twelve members of the Continental Congress, five delegates to the Constitutional Convention, and fourteen delegates to state ratifying conventions.

Rev. Witherspoon did not just train revolutionary statesmen for the new republic, he served as an important statesman as well. He served in the New Jersey Provincial Congress, the Continental and Confederation Congress, and the New Jersey ratifying convention. His revolutionary credentials were impeccable and noted by other founders. John Adams thought that, “Dr. Witherspoon enter with great spirit into the American Cause. He seems a Friend as any of the [native colonists]—an animated friend of liberty.” Adams also said that Rev. Witherspoon was a “clear, sensible” minister and, “as high a Son of Liberty, as any Man in America.”

During a congressional day of fasting and prayer in May 1776, Rev. Witherspoon preached a sermon entitled, “Dominion of Providence Over the Passions of Men.” The sermon was a prime example of covenant theology between the American colonists and God. The colonists were bound to have firm beliefs in God and to act with civic virtue which was the basis for good republican government. “They must renounce sin and corruption and virtuously act with justice, prudence, firmness, selflessness, and patience.” Governing themselves and their passions would “make you truly independent in yourselves.” A providential God would bless the American cause of liberty if they followed their part of the covenant, Rev. Witherspoon explained.

In late June 1776, Rev. Witherspoon joined the Continental Congress just as the body was preparing to discuss Richard Henry Lee’s resolution for independence and the draft of the Declaration of Independence. He participated in the debates and said the colonies were “in danger of becoming rotten for want of [independence].” The Congress adopted Lee’s resolution and Jefferson’s Declaration.

In 1782, Rev. Witherspoon was honored to write the congressional proclamation for a day of thanksgiving and continued to proclaim covenant theology in the American republic. He urged his fellow Americans to the “practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness.” He said in a sermon associated with the day of thanksgiving: “Civil liberty cannot long be preserved without virtue…a republic once equally poised, must either preserve its virtue or lose its liberty.”

Perhaps a British officer summed up Witherspoon’s significance as a member of the Black Regiment and influence as president of Princeton had in advancing revolutionary principles and independence. “Dr. Witherspoon…the political firebrand who perhaps had not a less share in the Revolution as Washington himself. He poisons the minds of his young students and through them the Continent.”

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

Podcast by Maureen Quinn.

 

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Essay 50 – Guest Essayist: Daniel A. Cotter

New Jersey had five signers to the Declaration of Independence, including Richard Stockton. Stockton’s statue is one of two from New Jersey in the United States Capitol as part of the National Statuary Hall Collection.

Stockton was born on October 1, 1730, near Princeton, New Jersey, to John and Abigail Stockton. A wealthy landowner, John donated land to the town of Princeton to help attract the College of New Jersey located in Newark to Princeton, later changing its name to Princeton University.

Stockton attended the College of New Jersey and after graduating, studied law with David Ogden, a prominent lawyer in Newark. Stockton was admitted to the bar in 1754 and began a prominent legal career.

In 1766, Stockton traveled to London and spent significant time in London, Scotland and Ireland. Eventually, he was able to convince John Witherspoon, a Presbyterian minister, to move to New Jersey to become President of the College of New Jersey. While on the trip, Stockton acquired his personal coat of arms and motto, “Omnia Deo Pendent,” meaning all depends on God.

Upon his return, in 1768 Stockton was elevated to a seat in the New Jersey Provincial Council, and in 1774, he was placed on the bench of the New Jersey Supreme Court.

In the same year, he drafted and sent to Lord Dartmouth, Secretary of the Colonies, “An Expedient for the Settlement of the American Disputes,” which would have provided for self-government for America without renouncing Great Britain. That proposal was rejected.  Stockton initially was advocating for representation in Parliament by the colonies and a more moderate approach to peace with Great Britain. That changed over time with the Stamp Act and other initiatives by Great Britain.

In June 1776, Stockton was elected to the Second Continental Congress.  Stockton and Witherspoon were elected to the Congress to replace two other members after New Jersey learned that the delegates were against independence. Stockton, along with his friend, Witherspoon, signed the Declaration of Independence. Stockton was the first to sign for New Jersey. One thing that Stockton requested and Congress agreed to do was to allow both sides of the argument to present reasoning. As noted, Stockton was convinced of the need and signed the Declaration.

Congress sent Stockton and a fellow signer to Fort Ticonderoga, Saratoga and Albany, New York on a fact-finding tour. When he returned to New Jersey, the British had overrun New Jersey. Stockton quickly moved his family to safety, but the British captured him. Originally, he was jailed at Perth Amboy, then moved to Provost Prison.

Stockton was the only person who was arrested by the British for adding his name to the Declaration. Reportedly, he had agreed to recant his support and signed an oath of allegiance to King George III.

After five weeks in prison, Stockton was released on parole, returning to his estate, Morven, which had been looted and much of the furnishings destroyed, his extensive library burned. While Stockton was the only person arrested, others in the fifty-six signers knew when they agreed to the action that they were subjecting their lives, their liberties, their properties to danger, including death, having committed treason, defined as “the betrayal of allegiance toward one’s own country, especially by committing hostile acts against it or aiding its enemies in committing such acts.”

These brave patriots did in fact suffer, Stockton not being the only person to suffer losses. Five signers reportedly were captured by the British and brutally tortured as traitors. Nine signers fought in the Revolutionary War and died from wounds or hardships. A large number of the 56, a dozen or more, had their homes pillaged and burned. Benjamin Franklin, one of the few signers of the Declaration and the Constitution, said after signing the Declaration, “We must indeed, all hang together, or most assuredly we shall hang separately.”

Stockton returned to the practice of law, but developed cancer of the lip that moved to his throat, and Stockton died on February 28, 1781.

In 1969, a school in Atlantic City, the Richard Stockton State College, was named after him, and later changed its name to Stockton University.  In 2017, the school began the Stockton Exhibition Project to explore why the school was named after him. There are questions about Stockton’s having slaves at his Morven estate and not releasing them at his death. In his will, Stockton included this provision:

“And whereas I have heretofore mentioned to some of my negroe slaves, that upon condition of their good behavior & fidelity, I would in some convenient period grant them their freedom—this I must leave to the discretion of my wife, in whose judgment & prudence I can fully confide.”

Some have suggested that Stockton’s statue be replaced in the Capitol Rotunda, but no major effort has been made to do so. His statue is one of only six signers of the Declaration to have a statue in the United States Capitol. One of five New Jersey signers of the Declaration, Stockton was the only signer to be imprisoned and abused for doing so.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

Podcast by Maureen Quinn.

 

 

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Essay 49 – Guest Essayist: Tom Hand

Lewis Morris III was a wealthy man living a fairly quiet life when America’s quest for independence heated up in the 1770s. Morris, who was from an old, well-respected family in New York, risked family and fortune by joining the Patriotic cause, but he joined it, nonetheless.

Morris was born on April 8, 1726 at the family manor of Morrisania, a two-thousand-acre estate located in what is today the Bronx of New York City. He was the oldest son of Lewis Morris II and Katrintje (Catherine) Staats. Interestingly, his Dutch ancestry on his mother’s side, makes Lewis Morris III one of only two Dutch Americans to sign the Declaration of Independence.

In any event, Morris was educated largely by private tutors and was a good student. He entered Yale at the age of 16 and graduated four years later in 1746. He returned home and helped his father manage their properties. Three years later, on September 24, 1749, he married Mary Walton, the daughter of Jacob Walton, a wealthy merchant. Lewis and Mary had ten children together, and three of their sons served as officers in the American Revolution.

In 1762, his father died and Morris, as the oldest son, inherited the vast bulk of the family estate. (At that time, primogenitor law in which the eldest son inherits the entire estate of the father prevailed in English America.) He was only 36 years old and already one of the wealthiest men in the colony. However, his comfortable situation was soon to change as the 1760s brought increased tensions between England and her American colonies.

When the British passed the Stamp Act which taxed most printed materials, on March 22, 1765, relations between England and her colonies became strained. Although this legislation was rescinded about a year later, Parliament continued to assert they had the right to tax the colonies. Later in 1765, the Quartering Act which required the colonies to pay to house and feed the army Britain decided to station in North America was given Royal approval.

In 1767 and 1768, Parliament passed the Townshend Acts, a series of laws which included new taxes to pay the salaries of colonial government officials as well as new restrictions and punitive regulations on the colonies.

The first of these laws was the New York Restraining Act of 1767 which threatened to punish the colony of New York unless they agreed to adhere to the Quartering Act. New York complied, but Lewis Morris began to sour on English rule and became an outspoken critic of it.

In 1774, colonial leaders organized the First Continental Congress to address the growing crisis. Because other leaders in New York considered Morris too outspoken, he was not chosen as a delegate to this conference.

Sentiments changed over the next year, especially after the conflict at Lexington and Concord on April 19, 1775, and the Second Continental Congress was convened. This time, New York selected Morris to represent their interests partly because of his enthusiasm for the patriotic cause. Morris served on several committees including one chaired by George Washington that was tasked with improving the supply system for the Continental Army.

When the fateful day came to affix his signature to the Declaration of Independence, Morris was warned by family members that doing so would result in the loss of his estate and fortune since British troops were stationed near his home. Morris famously replied, “Damn the consequences, give me the pen.”

As it turned out, his relations were correct. The British quickly devastated his 1,000-acre forest, confiscated all his livestock, and destroyed his beautiful home at Morrisania. Additionally, Morris and his family were forced to go into exile for the duration of the war.

Interestingly, New York, because of its large population of Loyalists (people loyal to England), was the last of the thirteen colonies to approve the Declaration of Independence. It did so on July 9, 1776 making the decision to separate from England unanimous.

Morris resigned from Congress in 1777 and returned to New York where he became a state Senator (he served from 1777-1781 and from 1784-1788) and a Major General in the militia. He was also a member of the first Board of Regents of the University of New York from 1784 until his death in 1798.

But Morris also spent a great deal of time in his final years restoring his beloved estate of Morrisania. He was there when he passed away on January 22, 1798 surrounded by children and grandchildren.

WHY IT MATTERS: So why should Lewis Morris and what he did for America matter to us today?

Lewis Morris was a wealthy man with much to lose by joining the American cause for independence. Moreover, by disposition, his preferred station in life was to quietly live out his life on his family estate of Morrisania.

However, when his country needed him, Lewis Morris was there to answer the call. By all accounts, he did so with no regrets. A man that unselfish and with that much regard for his country deserves to be remembered by us today.

SUGGESTED READING: Thomas Paine’s Common Sense written in 1776 is one of the most impactful books in American history. The importance of its message and the timing of its publication combined to convince a large portion of the American people that complete independence from England was the best course of action for the colonies. This is a must-read for all Americans.

PLACES TO VISIT: If you get the chance, you must visit Independence Hall in Philadelphia. This is where Lewis Morris and the other Signers crafted our Declaration of Independence. Entering the Hall where it all began in the summer of 1776, cannot fail to choke you up.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page Americana Corner. Click Here to follow Tom’s Instagram Account.

Podcast by Maureen Quinn.

 

 

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Essay 48 - Guest Essayist: Joerg Knipprath

It is unlikely that many Americans today, even many New Yorkers, have heard of Francis Lewis. Even though he is one of only sixteen to have signed both the Declaration of Independence and the Articles of Confederation, he seems not to have had much impact on the political direction or the constitutional development of the country. Still, he was reputed by a 19th-century biographer to have been admired by his contemporaries. Today, Francis Lewis High School in Queens, New York, preserves his name. According to its website, the school is one of the most applied-to public high schools in New York City.

Lewis was born on March 21, 1713, in Llandaff, Wales. He was orphaned by age 5 and raised by an aunt. After attending school in Scotland and England, he became an apprentice at a mercantile house in London. At age 21, he inherited property from his father’s estate, sold it, converted the proceeds to merchandise, and sailed for New York in 1734. He left a portion of the merchandise for his business partner, Edward Annesley, and took the rest to Philadelphia to sell. He returned to New York in 1736.

Having become a successful businessman with contacts in several countries, he was entrusted by the British military with a contract to supply uniforms during the French and Indian War. In 1756, the first official year of that war, Lewis was at Fort Oswego in upstate New York. During his stay, the French and their Indian allies attacked in August. Lewis was standing next to the English commander when the latter was killed in the battle. The British surrendered the fort to the French, and Lewis was captured and eventually taken to France. It has been written that he was kept in a box or crate during that voyage. His harrowing captivity ended through a prisoner exchange when peace was achieved in 1763. Lewis returned to New York. The British government awarded him 5,000 acres in New York as compensation for the lost years of his life.

Lewis once more turned his attention to business, and he quickly prospered. With his large fortune firmly established, he retired from running his businesses and became active in politics. When Parliament passed the Stamp Act in 1765, he changed his pro-Royalist sentiments and joined the Stamp Act Congress organized to protest the tax.

Thereafter, his political activism deepened. That same year, he was a founding member of the local chapter of the Sons of Liberty, one of a loosely-connected collection around the colonies of silk-stockinged rabble-rousers with their lower-class auxiliaries as enforcers. When the crisis between Britain and her colonies began to worsen, Lewis joined the Committee of Fifty-one, organized in New York in 1774 to protest the closing of the port of Boston to commerce. When the Committee was succeeded by the Committee of Sixty in 1775 to enforce the colonies’ trade embargo against British goods, which had been adopted by the First Continental Congress, Lewis joined that, as well. That committee was replaced, in short order, by the Committee of One Hundred, which directed the colonists’ program against Parliament until the first New York Provincial Assembly met and took over that task on May 23, 1775. The Assembly soon elected Lewis to be a delegate to the Second Continental Congress, where he served between 1775 and 1779.

In the Congress, he signed the Olive Branch Petition on July 5, 1775. That missive, written by John Dickinson of Pennsylvania, was a last attempt by the moderates in the Congress to avert war. The petition assured King George of the Americans’ loyalty to him. Dickinson pleaded with the king to create a more equitable and permanent political and trade arrangement between Britain and her colonies than existed as a result of Parliament’s various unpopular and, to the Americans, unconstitutional, acts. The petition failed to achieve its purpose. The King refused even to read it. Instead, on August 23, 1775, he declared the American colonies to be in rebellion. The message of peace and compromise of the Olive Branch Petition likely was undermined by the Congress’ adoption the following day of the Declaration of the Causes and Necessity of Taking Up Arms. Drafted in parts by Thomas Jefferson and John Dickinson, that document castigated Parliament’s tax and trade policies and its punitive acts. It did so in rather incendiary language, in sharp contrast to the tone of the Olive Branch Petition. As well, John Adams’ letter to a friend, intercepted by the British and forwarded to London, which belittled the petition and complained that the Americans should have built up a navy and taken British officials prisoner, could not have helped the effort to persuade the British government of the Americans’ sincerity.

As the final break with Britain loomed, the Second Continental Congress adopted the Declaration of Independence. The vote on Richard Henry Lee’s resolution to declare independence, on July 2, 1776, was approved by 12 delegations. Lewis and the rest of the New York delegates had to abstain because they had not yet received instructions from the provincial assembly to proceed. After his delegation received the proper authorization from New York, Lewis and the other members signed the Declaration on August 2.

Lewis used his wealth and business acumen to assist the new country. He is estimated to have been the fifth-wealthiest signer of the Declaration. Before and during the war, he was instrumental in procuring uniforms, arms, and supplies for the Continental Army, both on his own account and through his administrative talents. He strongly sided with General George Washington against the latter’s critics in the “Conway Cabal” who sought to replace Washington with the politically popular, but militarily incompetent, General Horatio Gates. Lewis’ service in the Congress also included approving the Articles of Confederation in 1777 and being Chairman of the Continental Board of Admiralty.

Despite his wealth and his involvement in public affairs at an exceptional time, Lewis was no stranger to personal tragedy. Already mentioned was his loss of both parents as a young child, left also without siblings. Only three of his seven children reached adulthood. Perhaps most traumatic was the fate that befell his wife. Lewis had married Elizabeth Annesley, his business partner’s sister, in 1745. While Lewis was away, in 1776, his house in Whitestone, in today’s Queens, New York, was destroyed by the British after the Battle of Brooklyn. Soldiers from a light cavalry troop pillaged the house, and a warship then opened fire. Worse, the British took his wife prisoner and held her for two years. Historical sources aver that the conditions of her captivity were inhumane in that the British denied her a bed, a change of clothing, or adequate food over several weeks.

Eventually, General Washington was apprised of her situation. He thereupon ordered the seizure of the wife of the British Pay-Master General and the wife of the British Attorney General for Pennsylvania. Both were to be held under the same conditions as Elizabeth Lewis. A prisoner exchange was then arranged, and Elizabeth was released in 1778. She returned to be with her husband in Philadelphia. Unfortunately, her captivity had so ravaged her health that she died not long afterwards, in June, 1779. This episode illustrates the suffering that befell families on both sides of what was, in essence, a civil war. It often was a war between neighbors, former friends, and even family members, not one between organized armies of strangers with different lands, cultures, and languages.

Francis Lewis retired from public service in 1781. Thereafter, he lived a life of leisure, with books and plenty of family time with his two sons and their children. A daughter had married an English naval officer and left North America, never to return, a none-too-rare sad consequence of the war, and one that befell Benjamin Franklin’s family, as well. Lewis died on December 31, 1802.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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Essay 47 - Guest Essayist: Richard K. Sala

“And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”[1]

In 1903, in Huntington, New York, President Theodore Roosevelt delivered a Fourth of July oration celebrating American independence. During his impassioned remarks, he noted that “[i]t is a good thing, on the Fourth of July […], for us to come together, and we have the right to express our pride in what our forefathers did […].”[2]

For Americans from “sea to shining sea,” the saga of American independence begins in July 1776.[3] For Philip Livingston, one of four New York delegates to sign the Declaration of Independence, the origins of this great epoch commenced some eleven years earlier under comparable duress and at similar risk.[4]

The second lord of Livingston Manor (an estate encompassing approximately 160,000 acres on the Hudson River, a home in Manhattan, and a forty-acre estate in Brooklyn Heights), a graduate of Yale University and a prosperous merchant of considerable wealth, Philip Livingston initially opposed American independence.[5] Livingston opined that “[…] the thought of establishing a republic in America, breaking off our connection with Great Britain, and becoming independent: [was] the most vain, empty, shallow, and ridiculous project that could possibly enter into the heart of man.”[6] Over time, and upon repeated transgressions against the colonies, Great Britain would erode Livingston’s fealty to the British Crown—beginning in 1765.

In March 1765, the British Parliament passed The Stamp Act, “the first direct tax on the American colonies […] to raise money for Britain. [The Act] taxed newspapers, almanacs, pamphlets, broadsides, legal documents, dice, and playing cards. Stamps, issued by Britain, were affixed to documents or packages to show that the Colonists had paid the tax.”[7] The enactment of the Stamp Act enraged the colonist. Parliament passed The Stamp Act absent colonial representation. This passage defied the colonists’ understanding of representative government. Not only were the colonists aware that “the British constitution guaranteed the right to be taxed only by consent, [but] they regarded this right as a product of natural as well as of British Law […].”[8] Colonists “regarded taxation […] not as an act of sovereign power by the whole legislature, but as a free gift of the people by their representatives.”[9]

In October 1765, in response to The Stamp Act, and without the requisite authorization from Great Britain to form a Congress, twenty-seven delegates of the colonies gathered in New York to synchronize a colonial response to The Stamp Act.[10] The gathering became known as The Stamp Act Congress. Philip Livingston was among the twenty-seven delegates. Interestingly, Philip was joined as a delegate to the Stamp Act Congress by his cousin, Robert R. Livingston.[11]

Over the course of twelve days, The Stamp Act Congress drew up a statement of the rights and privileges of the British American Colonists.[12] This document is known as The Declaration of Rights and Grievances.[13] The tripartite effect of The Stamp Act Congress was momentous. First, the Parliament relented and repealed The Stamp Act as a result of the unified colonial response. Second, the colonies united in a way that seemed impossible before The Stamp Act Congress. Finally, “[t]he resolutions of the […] intercolonial assembl[y] in 1765 laid down the line on which Americans stood until they cut their connections with England” in 1776.[14]

Nearly eleven years later, Philip Livingston would pledge his life, considerable fortune, and sacred honor to American independence and sign the Declaration of Independence as the delegate from New York. As the fates would have it, Philip and Robert Livingston’s destinies were once again intertwined. Although Robert R. Livingston would not sign the Declaration of Independence, he was one of the Committee of Five responsible for drafting this Charter of Freedom.[15]

In August 1776, true to his oath, Livingston would flee New York after the Continental Army’s defeat at the Battle of Long Island—leaving his New York homes in the hands of the British. Two years later, under the pressure of an advancing British Army occupying Philadelphia, Livingston traveled to York, Pennsylvania, to attend a secret session of Congress. Without knowing whether the fledgling nation would survive, Philip Livingston died of congestive heart failure shortly after arriving in York. He was sixty-two years old.[16]

Richard Sala is a retired Marine Corps Judge Advocate and currently serves as the Academic Success Program Director and Assistant Professor of Law at Vermont Law School. Professor Sala teaches National Security Law, Constitutional Law, various bar preparation courses, and is the faculty advisor to the Vermont Law School chapter of The Federalist Society.

Podcast by Maureen Quinn.

 

[1] The Declara