The United States Constitution: The Tenth Amendment and Federalism Post 1

    The best study of the Tenth Amendment and Federalism and the substantial collapse of it over the past hundred years is being pursued by the Texas Public Policy Foundation (TPPF).  The TPPF Center for Tenth Amendment Studies published a study titled, Reclaiming the Constitution: Towards An Agenda for State Action in November, 2010. The authors are Ted Cruz and Mario Loyola.  The authors’ qualifications, which are exceptional, are at the end of this essay.  The best way to learn about the Tenth Amendment and Federalism is to read the study I’ve just listed, but I will try to summarize the most salient features here, leaning upon the source heavily.  You can find the TPPF at www.texaspolicy.com.

   The first case involving federalism is the famous Gibbons v. Ogden, 1824.  Chief Justice John Marshall wrote that the power spelled out for Congress in Article I, Section 8, Clause 3 applies to navigation and commerce that crosses state lines.  The Constitution says that Congress has the power to regulate commerce “among the several States, with foreign nations, and with the Indian tribes”.  This power is specific; all powers granted to Congress are specific and limited in Marshall’s understanding of the Constitution, just as Madison and Jefferson thought. Because the federal power is specific and limited, Marshall takes care to assert that in that narrowly defined area of activity, which was navigation and commerce across state lines, federal law prevails.  He underlines his own understanding that the states are self-governed and they are in charge of almost all of the writing of regulations of citizens’ activities.  The Court points out that if Congress had control of all commerce in the nation, including all internal as well as external commerce for all states, the phrase commerce “among the several states” would not have been used by the writers of the Constitution.  He continues:

“The genius and character of the whole government seems to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect the States generally; but not to those which are completely within a particular state, which do not affect other States, and with which is not necessary to interfere for the purpose of executing some of the general powers of the government.  The completely internal commerce of a state, then may be considered as reserved for the state itself.”

Furthermore, Marshall points out that there is an “immense mass of legislation” not surrendered to the federal government by the states.  The Constitution granted to the federal government a narrow, stringently constrained domain in which it had supremacy.  The majority of any citizen’s experiences throughout his or her life were subject to his or her state’s laws; very seldom would their daily lives be touched by the federal government.

   Things have changed.  The domain controlled by the federal government has been massively expanded through the years. The Civil War shook the very foundations of the Constitution, and amendments 13, 14 and 15 were made during Reconstruction.  The industrial revolution came of age in the U.S. and America became a Great Power.  Out of the Farmers’ Alliance in the 1870s, the Populist Party in the 1890’s and the Bull Moose Party of 1912, all attracted by socialism, came the Progressive Movement.  Amendment 16 permits the federal income tax and Amendment 17 calls for the direct election of U.S. Senators; both were passed in 1913.

   In 1916 the Supreme Court widened the interpretation of the Commerce Clause in the Shreveport Cases.  The Court ruled that the federal government could regulate the fees charged by a railway between Dallas and Marshall, Texas.  Federal mandates had run afoul of regulations of the Texas Railroad Commission.  If one of the purely intrastate carriers complied with the federal mandates, they would have to pay penalties to the Texas Railroad Commission.  The Supreme Court said that the feds take sovereignty over the state regulations when interstate and intrastate regulations are mingled.  When mingled, the activity falls within the commerce power, and that is because of their “close and substantial relation.”

   The New Deal delivered a crushing blow against the Supreme Court’s opposition to Franklin Delano Roosevelt’s overreaching in 1937.  FDR threatened the destruction of any chance of non-partisan protection of the Constitution on the Supreme Court by promising to increase the number of justices and to pack the Court with pro-New Deal men when done.  The Court quailed and acquiesced to FDR’s New Deal legislation, allowing the destruction of restriction on the power of the federal government to regulate commerce. 

   NLRB v. Jones & Laughlin Steel Corp. came before the Supreme Court in 1937, shortly after FDR’s threat that it would become a meaningless independent branch of the federal government if it continued to block his agenda.  It held that Congress can regulate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” in state law.  The same Court had ruled two years earlier that a federal regulation of labor in a purely intrastate business was unconstitutional. The federal government argued that it had the right to regulate intrastate businesses that have “indirect” relation to interstate commerce.  The Court said that if the feds were to regulate intrastate business activities that bear an “indirect” relation to interstate commerce “ there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”  The 180-degree turn by the Court in two years’ time did not bode well for the vitality of federalism.

   In 1942, Wickard v. Filburn virtually completed the elimination of constraints on the federal government under the Commerce Clause.  In it, the Supreme Court held that a farmer who grows wheat strictly for personal use is engaged in interstate commerce.  If other farmers across the Nation did the same thing, the Court said, there could be an aggregated, therefore, substantive effect on commerce, and that places that activity under the power of the federal government to regulate commerce “among the several states.”

   So, over the first half of the 20^th century, the “evolution” of the Commerce Clause acted as a malignant cancer on federalism.  As written in Reclaiming the Constitution:…:

The doctrine that anything with a ‘direct effect’ on interstate commerce could be regulated under the federal commerce power was replaced by a rule allowing regulation of anything with a “substantial effect” on commerce (even if indirect).  Then came the doctrine that anything which, if ‘aggregated’ across the Nation, had a “substantial effect’ on interstate commerce, was properly within the federal commerce power.

Anything done by anyone engaging in “commerce” anywhere, anytime in the Nation could be identified as something “aggregated” across the Nation and could have a “substantial effect” on interstate commerce.  What is there not to be regulated?  According to the Reclaiming the Constitution:…, “the federal government has grown from a 19^th century average of 4 percent of GDP to a peacetime peak of 27 percent in 2010.”

   The Republic is suffering, but not yet deceased.  In 1995 the Rehnquist Court held that there are limits to the commerce power.  Chief Justice William Rehnquist wrote the decision in U.S. v. Lopez.  His dogged determination to remain within the precedents set before him a daunting challenge.  In the decision he is confident that limits exist, but he is vague about them.  Justice Clarence Thomas wrote a concurring opinion in which he returns to Gibbons and the Court of 1824.  He makes the point that the precedents have made the enumerated powers (surrendered to the federal government by the states) superfluous.  The overreaching interpretations mean that the writers of the Constitution wrote meaningless sentences.  Referring to Wickard, he writes, “Congress can regulate whole categories of activities that are not themselves either ‘interstate’ or ‘commerce’…The aggregation principle is clever, but it has no stopping point.”

    Chief Justice Rehnquist wrote the decision in U.S. v. Morrison in 2000, a case in which the Court struck down a federal law named the Violence Against Women Act.  He concluded that “the Constitution requires a distinction between what is truly national and what is truly local.  In recognizing this fact we preserve one of the few principles that have been consistent since the (Commerce) Clause was adopted.”

   According to Reclaiming the Constitution:…

   Five years later, however, in Gonzales v. Raich (2005) the Supreme Court seemed to retreat from its reinvigoration of the Commerce Clause, and it has not revisited the issue since then.

As the crisis of 1937 shows it is difficult for the Supreme Court to uphold constitutional constraints against federal power when the President, Congress, and popular opinion are all against it.  The Supreme Court is not supposed to be a political branch but its perceived legitimacy is vital to the rule of law, and that legitimacy depends on political consensus.  In other words, in our democratic republic, even the Supreme Court ultimately derives its power from the people.  The other side of the coin is that the better Americans understand the vital importance of a federalist framework in the Constitution, the more strongly they yearn for a return to the Constitution’s founding principles, and the easier it will be for the Supreme Court to reassert its role as guardian of enumerated powers constraints.

Disentangling nearly 100 years of Commerce Clause precedent is a tall order, but Gibbons v. Ogden might offer a way forward.  Chief Justice Marshall’s opinion in Gibbons has been often quoted for the proposition that the federal government’s power is supreme and complete within its enumerated powers.  This observation was entirely predicated on Marshall’s basic understanding of federalism, in particular the stringent constraints on federal power, which restricted its scope to just a few areas of regulation, and left the “great mass” of legislation to the States.  A more complete reading of Gibbons could help guide the Supreme Court back to the original understanding of the commerce power.  Defining the Commerce Clause should not be just a matter of defining the scope of “interstate commerce” from the point of view of federal power; equally important is the other side, the great mass of regulation that is not interstate commerce and was meant to be left to the States.  The Supreme Court has had trouble devising a precise definition for what interstate commerce is partly because it stopped focusing on what it isn’t-namely those things that were meant to be left to the States.  As Michael Greve (part of the American Enterprise Institute) argues, the Court must reclaim its role as guardian of constitutional constrains on federal power.  It can take its cue from the people, and their desire to return to a more decentralized and responsive system.  This desire underpins the promise of a constitutional renaissance now sweeping the Nation.

   The next post on the matter of Federalism and the Tenth Amendment will consider spending---how federal funds can be used to bend the will of states to the federal government’s wishes, overcoming the Tenth Amendment for the federal government and how the federal government might “commandeer” state instrumentalities, which is to force States and locals do the work of the feds in executing laws.

Pamela Fowler

  

Source:

  One of the two authors of Reclaiming the Constitution: Towards An Agenda for State Action is Ted Cruz.  He was the Texas Solicitor General from 2003 to 2008, wrote 80+ briefs and made 8 arguments to the U.S. Supreme Court out of 38 oral arguments he has made.  He has been lauded in several of the most influential law magazines and journals in the country, especially celebrated for so many achievements early in his life.  A talented minority, he graduated from Princeton and Harvard Law School; served as law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court; was Domestic Policy Advisor to President George W. Bush on the 2000 Bush-Cheney Campaign; and he served as Associate Deputy Attorney General at the U.S Department of Justice.  An adjunct professor of law at the University of Texas Law School from 2004-2009, he taught U.S. Supreme Court Litigation. He is now a Senior Fellow at the TPPF, serving as the leader of the Center for Tenth Amendment Studies.

   Mario Loyola is the other author of the “Reclaiming the Constitution: Towards An Agenda for State Action”.  He specialized in corporate finance law when he began practicing law, then he moved into public policy in 2003, researching and writing at policy institutes at times, employed by the government at other times.  At the Pentagon he served as a special assistant to the Under Secretary of Defense for Policy and then served as counsel for foreign and defense affairs to the U.S. Senate Republican Policy Committee.  Also, he was a state advisor to Senator Kay Bailey Hutchison.

    He has been published in the National Review, the Weekly Standard and op-eds in The Wall Street Journal and has been on the Glenn Beck Show, CNN International, BBC Television, Radio America, and more.

The United States Constitution Post 2: The Bill of Rights

   When the Constitutional Convention closed, the signers of the new Constitution returned to their states and began campaigning for the acceptance of a new, stronger, more centralized government.  The active supporters for the new constitution came to be called Federalists.  Three of them, John Jay, Alexander Hamilton and James Madison, published articles in local newspapers across the thirteen states; the essays carefully arguing for a new federal government were later called the Federalist papers.

   Opposition was very strong.  The Americans had fought through the long revolution, lived through the painful recovering from a destructive war and were building a new economy; they did not want a strong, centralized government because they embraced self-government and hated dictatorial kings and tyrannical parliaments.

   The Federalists had to persuade the Americans that the new government would not diminish the sovereignty of the states and civil liberty would be fully protected.  In each of the state conventions called to ratify or not to ratify the new Constitution, supporters promised a bill of rights added to the new constitution.

   New York was the required 11^th state to ratify the Constitution in July of 1788 and national elections were held in January of 1789.  The new congress wrote the ten promised amendments to the Constitution in the same year.

   The original delegates had thought deeply about protecting civil liberties and had written fundamentals into the original body of the Constitution.  They believed in natural rights, those called “unalienable Rights” granted to mankind by the Creator as stated in the Declaration of Independence (as elaborated by John Locke at an earlier time).  The “the rights of Englishmen” are to be found in English law since the Magna Carta had been promulgated in 1215.  This blocking of absolute rule was part of the very fabric of the delegates’ beings.

   The unwritten English constitution, the common law and the forbidding of absolutism in central government had come to these shores with the colonists from the beginning.  The formal establishment of “the rights of Englishmen” in the colonies had occurred with the creation of the Virginia House of Burgesses in 1619, continuing their protection against tyranny.  More than anything else, their self-governance had set them apart from their Spanish and French neighboring colonists.  By the time of the Revolution, the English colonists had outstripped all of their neighbors in population and wealth. Even so, some of the revolutionist generation were not confident that there were sufficient protections against tyranny in the Constitution, and the Bill of Rights was the consequence.

   Echoes of the Magna Carta and the “rights of Englishmen” over time are in the First Amendment, guaranteeing the freedom of religion, speech, the press and peaceable assembly and the right to petition.  Reflections of relatively recent events to the founding generation can be seen in the Second Amendment.  It guarantees the right to self-defense, the population keenly aware of the English government’s establishment of a permanent army and the occupying army’s mission to take arms, the freed Americans would never allow any government to disarm them.  The Fifth Amendment protects the individual’s right to property.  The next three amendments are concerned with due process of law, as is the Fifth---the right to know what you are charged with, jury trials where you can answer charges, reasonable bail and protection from cruel and unusual punishments.

   The Ninth Amendment repeats and underlines the consensus that our rights are NOT limited to those protected by the Constitution; rights that are not written about or unnamed in the Constitution remain as real and as important as any of them mentioned or named in the Constitution.

   The Tenth Amendment, then, repeats, underlines and clearly restates the fact that powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people.   “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Tenth Amendment is Federalism; it is our final hope to save the American Republic.

   Federalism means that an individual lives under two systems of laws and two governmental structures.  Each of us is a citizen of a state and of the United States.  In federal, that is, in matters that are beyond intrastate matters, like interstate commerce and national defense and foreign trade and foreign treaties, federal law will prevail.  Otherwise, intrastate laws govern our daily lives, as in the original Constitution.  The founders of the Republic, including the majority of colonists who accepted this Constitution, took it granted that the Constitution limits government power and the local, that is, the states, would retain more governmental power than the created federal government had or would have.  The Bill of Rights was intended to reassure the people that they and their states will not lose their freedom to the stronger, nationalized government created by this Constitution.

   In Federalist #45, James Madison, the “father of the Constitution”, writes this:

“The powers delegated by the proposed Constitution 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 reserved to 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.”

His purpose in #45 is to explain that “(t)he State government will have the advantage (over) the Federal government.”  Unfortunately, the states’ advantage over the Feds has been eroded through ceaseless overreaching by the central government for the last hundred years, and we are at the crisis point.

   I want to look at the encroaching on our self-governance and civil liberties over the past hundred years in Constitution Post 3 that I will try to post tomorrow.  I will draw on a resource available at the website for The Texas Public Policy Foundation, www.texaspolicy.com, a think tank that I strongly urge you to support.

Pam Fowler

The United States Constitution: Post 1

The Constitutional Convention came together on May 25, 1787.  After electing George Washington as chairman, adopting the rules of procedures and agreeing that a simple majority would carry all questions put before the convention, Edmund Randolph, a Virginian planter, presented James Madison’s “Virginia Plan”.  It was the architecture of a new government, not a set of amendments to the Articles of Confederation.  A large majority of the delegates favored the idea that the convention should create a new government.

   They had arrived at Philadelphia with shared Enlightenment ideals:  the constitution and laws must be written and available to all citizens; the American government should continue to be a republic, laws passed by elected representatives; the states would continue and maintain a republican form of government.  There would be a separation of  powers between the central government and the states, and there would be separation of powers among the branches of governments, whether central or state governments.

   The Virginia Plan called for a strong central government with power to tax, to regulate foreign and domestic commerce and a national system of courts to apply the law.  It began with the way to separate and provide checks on those powers.  The new government would consist of three branches: an executive, a judiciary and a bicameral legislature.  The lower house of the bicameral legislature would be popularly elected.  The upper house, the Senate, would be elected by state legislatures.  The number of seats that a state held in either house would be determined by the state’s population.

   While this plan upheld Madison’s republican principle of popular election, delegates from states with small populations objected.  The compromise was that the Senate would represent the states while the lower house, called the House of Representatives, would represent the people, meaning individual voters.

   The question of representation was not settled, though.  Northerners worried about the most populous states, the South, winning and maintaining a large majority in Congress forever.  The South states were most populous because a large portion of their economy rested upon slave labor, the number of slaves continually increasing.  The Northerners suggested that slaves be identified as property instead of as people.  Southerners said “no” to that idea, aware that southern states’ census counts depended on slaves; if only the planters and other freemen were counted, the northern states would hold onto much larger populations and have huge majorities in Congress.  The compromise was that five slaves would be counted as three persons when congressional seats were assigned and when the federal government levied taxes.

   When it came to electing the head of the executive branch, the delegates settled upon the leader’s title, the President, and agreed to a novel way to elect the President, the electoral college.  While Lockean principles involving individualism and popular election of representatives had been incorporated into the plan for the new government, Locke’s distrust of pure democracy was alive and healthy, too.  The convention provided for indirect election of the President: each state would choose Presidential electors as it chose to do so and send its electors to the electoral college; the college would elect the President in a simple majority election.  If the college had a tie it cannot break, the matter would go to the lower house of Congress; each state would have one vote and the President would be elected by a simple majority.  The convention settled on four-year terms, providing no limit on the number of terms.

   Another compromise involved the opposing economic interests of the North and the South.  The Northerners brought up a protective tariff for American manufactures.  They wanted a high tax on imported manufactured items to drive them out of the market and enrich American manufacturing, centered in the north.  Southerners were consumers of manufactured products, not manufacturers, and the prices they had to pay would be much higher.  Northerners offered to include a provision in the Constitution that would guarantee the slave trade for twenty years; only South Carolina and Georgia were self-interested in importing slaves.  Several other southern states were phasing out slavery, maintaining a supply of slavery through natural procreation.  Slavery proved itself to be uneconomic.  Many agriculturalists realized that they would be better off economically to hire day laborers for wages than to maintain slaves.  However, threats of walking out of the convention by South Carolina and Georgia delegations plus the offer that the new Constitution would forbid taxing on farm exports by any government persuaded a majority of the delegates to pass this compromise.  Southerners would live to regret that decision.

   The finished product was accepted by the convention on September 16, 1787.  The following is this blog’s examination of the U.S. Constitution, which is the purpose of this blog.

   FEDERALISM: The Genius of this Republic

   Federalism is a compromise between a national and a local system of government.  It is a kind of separation of powers. The American revolutionaries were not at all interested in giving up the principles of Locke and the philosophies of Montesquieu and Smith and gamble on tyranny for a new and improved central government.

   There are five categories of governmental powers in federalism: 1) powers delegated to the federal government; 2) powers denied to the federal government; 3) powers retained by the states; 4) powers denied to the states; 5) concurrent powers held in common by the states and the federal governments.

1) The powers delegated to the national government are

·      coin money

·      regulate interstate and foreign trade

·      conduct relations with foreign countries

·      establish post offices

·      govern territories and admit new states

·      grant patents and copyrights

·      maintain the armed forces

·      declare war and make peace

·      establish immigration and naturalization laws

·      fix standards of weights and measures

·      make all laws necessary and proper for carrying out the delegated powers

2) The powers denied to the national government:

·      tax articles exported by the states

·      give preference to the trade of one state over another

3) The powers retained by the state governments:

·      provide for local governments

·      conduct elections

·      make laws about contracts, wills, and domestic relations

·      provide for and supervise schools

·      regulate commerce within the states

·      ratify constitutional  amendments

·      assume power not granted to the United States nor prohibited to the states

4) The powers denied to the state governments:

·      negotiate or sign separate treaties with other nations

·      coin money

·      impair the obligation of contracts

·      tax imports or exports without the consent of Congress

·      maintain troops or warships without the consent of Congress

5) Concurrent powers:

·      tax

·      borrow money

·      charter banks

·      pass bankruptcy laws

·      establish courts

·      build roads

·      promote agriculture, industry, and science

·      take property for public purposes

·      pay debts

SEPARATION OF POWERS: THREE BRANCHES

The separation of powers is at the heart of this constitution.  Corollary to it are the checks on powers held by each branch, providing a balance of power.

EXECUTIVE BRANCH: ENFORCES LAW

1)   These executive powers check the power of the legislative branch:

·      can veto law

·      influences public opinion (the bully pulpit)

·      calls special sessions of Congress

·      controls how vigorously laws are enforced

2)   These executive powers check the power of the judiciary:

·      appoints judges

·      controls how vigorously court orders are enforced

·      can pardon people convicted of federal crimes

LEGISLATIVE BRANCH: Passes laws

1)   These legislative powers check the power of the executive branch:

·      the House of Representatives can impeach (indict) the President and other high officials

·      the Senate conducts trials of impeached Presidents

·      the Senate approves presidential appointments

·      Congress can overturn President’s vetoes

·      Congress controls President’s programs through the “power of the purse”

2)   These legislative powers check the power of the judicial branch:

·      the House can impeach judges

·      the Senate conducts trials of impeached judges

·      the Senate approves appointments of judges

·      the Congress establishes number of Justices on the Supreme Court

·      the Congress can propose amendments  to the Constitution to overturn Supreme Court decisions

JUDICIAL BRANCH: Interprets laws

1)   These judicial powers check the power of the legislative branch:

·      decides on the meaning of laws

·      can rule that laws are unconstitutional

2)   These judicial powers check the power of the executive branch:

·      once appointed, judges are free from President’s control

·      can declare President’s actions unconstitutional

PROTECTION OF CIVIL LIBERTIES

(Locke, Montesqeuie and Smith in it from the beginning)

1)   A citizen arrested but not formally charged with a crime has the right to a writ of habeas corpus; the writ demands that the prisoner be immediately released unless the government can produce concrete evidence against him or her of a specific crime.

2)   Congress is forbidden from passing a bill of attainder.  A bill of attainder is a law wherein a legislature finds a person guilty of a crime.

3)   Congress is forbidden from passing ex post facto laws.  That kind of law penalizes people for doing something that is legal when it was done, but the new law makes the action done illegal.

4)   Treason against the United States shall “consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  It takes two witnesses to testify that they saw the deed committed, or it takes the accused one’s confession in open court, to convict a person of treason.

However, these provisions in the Constitution were not sufficient to the passionate opposition to tyranny held by Americans of the 1780s and 1790s.   It was the precious Bill of Rights that finally persuaded a majority of Americans to approve of the new government in 1789.  That is the next subject for this blog.

The Founders: Post 3 Adam Smith and Capitalism

    This final essay under the heading “The Founders”, which is the introduction to the actually creation of the constitution, is an attempt to describe the influence of Adam Smith on the Founders’ philosophies.

   Adam Smith (1723-1790) was the most influential economist of the Enlightenment and one of the most brilliant of all time. His philosophy is that of economic individualism, a term that disparaging socialists changed to “capitalism” a century later. Born at Kirkcaldy, a small village in Scotland, his widowed mother reared him.  He went to the University of Glasgow on scholarship at the age of 14, then to Balliol College at Oxford.

   He got on as a lecturer at the University of Edinburgh.  Soon he advanced to a professorship of logic at the Glasgow College in 1751, then he became the chair of moral philosophy the following year.  He earned his fame with his first book, The Theory of Moral Sentiments, published in 1759, and continued to give lectures on natural theology, ethics, jurisprudence and economics at the University of Glasgow until 1764.  He left the university that year to become the tutor of a young duke in France.  They traveled through Europe for two years and Smith conversed with some of the leading lights of the 18^th century, including Voltaire, Rousseau and several Physiocrats.

   The Physiocrats were a circle of philosophers/thinkers who were absolutely opposed to mercantilism, the economic doctrine followed by the nation-states of the time.  Mercantilism was the economic system that replaced feudalism as it slowly decayed.  Under mercantilism, the nation controlled and regulated virtually all economic activities. The oppressing regulations included granting monopolies to favored companies while more regulations were designed to keep colonial businesses of all type disadvantaged to the “home boys.”  Nations exploited their colonists’ extraction of raw materials, then counted on them as a ready market for products manufactured in the mother country.

   The Physiocrats’ economic philosophy was seated on the premise that natural laws govern economics.  Nature is the real producer of national wealth. Their philosophy evolved over a few decades, but the term laissez-faire best sums up their final ideals.  (Elaborated, the complete phrase translates into Let do and let alone, the world goes on of itself.) They embodied the idea that private property is sanctified and the rights of freedom of contract and freedom of competition are natural rights beyond refutation.  Many of those values were embraced by American and by French revolutionists at the beginnings of their respective revolutions.

   When the young duke reached his majority, his family granted Smith a lifetime pension.  Smith retired to the small village into which he had been born and in 1776 he published his Inquiry into Nature and Causes of The Wealth of Nations.  Smith, as the Physiocrats, was completely opposed to mercantilism.  His work became the Holy Writ of economic individualists, at least during the eighteenth and nineteenth centuries.

   The Theory of Moral Sentiments says that our natural psychology is a reflective sympathy, a theory he developed with his good friend, David Hume.  We feel others’ pain and we feel others’ happiness; therefore, we avoid causing pain and we promote the happiness of our fellow men.  In The Wealth of Nations he asserts that labor is the real source of wealth, opposing the Physiocrats’ insistence that “natural” enterprises, like agriculture, mining and fishing, are the only sources of national wealth.  He argues for free markets and competition. It is through competition that self-interest will serve the interests of the national economy.  “Man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only…. It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.”  His most famous passage is this one:

“By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.”

   Besides disagreeing with the Physiocrats about the real source of wealth, Smith finds a role for government instead of no role whatsoever for government as the Physiocrats had held.  Government should protect individuals against injustice and oppression, promote education and public health and help build and maintain some enterprises too large for one private entity to tackle, like bridges and roadways and highways---an infrastructure.  But the state’s role is very limited, as in Locke’s philosophy.  As with Locke, Smith supports government involvement only in that which is necessary, promoting economic individualism along with all of Locke’s and others’ individualism.

  To wrap this up, I will quote Robert Hessen, a senior research fellow at Stanford University’s Hoover Institute.

“‘Capitalism,’ a term of disparagement coined by socialists in the mid-nineteenth century, is a misnomer for ‘economic individualism,‘ which Adam Smith earlier called the ‘obvious and simple system of natural liberty’ (Wealth of Nations). Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge. There is no natural limit to the range of their efforts in terms of assets, sales, and profits; or the number of customers, employees, and investors; or whether they operate in local, regional, national, or international markets.”

  Over the past 3 weeks or so I have tried to describe the three underpinnings of the civic values and beliefs in the people who created and accepted the US Constitution with the Bill of Right.  The next step is to read and understand the thing itself.  I think it is relatively easy to see Montesquieu’s separation of powers from the beginning of the document; Locke’s individualism and liberty are in some specific phrases and clauses as well as in the Bill of Rights, and economic individualism, misleadingly named “capitalism,” is in it, too.

Pam Fowler

Founders: Post 2

The Founders: Post 2

   In The Founders: Intro Essay, I mentioned that two of the four leaders I wrote about were absent from the Constitutional Convention.  Thomas Jefferson was in France, representing the 13 states.  John Adams was the minister to England.

   The Confederation was what the Second Continental Congress had morphed into during the Revolution.  The “shot heard ‘round the world” had been fired in 1775, the peace treaty signed in 1783, a long, arduous war for the colonists.   The Continental Congress rather slowly adopted the Articles of Confederation in 1781.  It was a loose confederation of the states during and after the Revolution.  The Confederation could not effectively guide, much less govern political and economic relations among the 13 new states.  By 1789, interstate commerce and comity among all were severely strained, and leaders persuaded the Confederation to call for a convention to deal with national relations in Philadelphia, Pennsylvania.  It soon became a convention at which the delegates would produce a new constitution for a new government.

   Thomas Jefferson was in Paris.  France had been an indispensable ally during the Revolution.  Franklin had gone to France in 1778 to negotiate a Treaty of Alliance and remained as minister to France to 1785.  Jefferson went to France as a commissioner to help negotiate commercial treaties, then succeeded Franklin as minister in 1785.

   He followed events in the United States as much as he could.  He offered advice that the government should not punish Daniel Shays and his followers too harshly over the Shays’ Rebellion in Massachusetts (1786-87). He worried about the absence of a bill of rights appended to the new constitution and he wished for term limits on the presidency written into it.  He was in France until late in 1789, observing the beginning of the French Revolution.  A man who fully embraced the philosophy of John Locke as shown in the Declaration of Independence, he had doubts that the French would succeed in establishing a republic. He suggested that they emulate England’s constitutional monarchy.

   Among the French revolutionaries were followers of the philosopher Jean Jacques Rousseau (1712-1778).  He was the founder of another political ideal during the Enlightenment, the one called democracy.  His democracy is the sovereignty of the masses, diametrically opposed to liberalism.  According to him, the majority will is the supreme law; after all, the people are the voice of God.  The only right a minority holds is the right to become the majority.  The rights of the individual is under the control of the state; no minority can claim any rights of individual action beyond the control of the state.

   The first stage of the French Revolution consisted of the rise of the middle class.  The bourgeoisie had become the most powerful economic group in the nation.  They took over the government, proclaimed itself the National Assembly and wrote a constitution for France.  They did what Jefferson had suggested, model their government on the constitutional monarchy.  They adopted the liberal philosophy of Voltaire and Montesquieu, limited the power of government and supported individual rights; however, the new republic was taken over by democrats in the summer of 1792, ardent followers of the radical equalitarian doctrines of Rousseau.

   The 1792 Legislative Assembly voted to suspend the king and ordered the election of a National Convention to draft a new constitution, then they executed the king, and they promoted countrywide massacres of nobles in September of 1792 and the Reign of Terror occurred from summer of 1793 to the summer of 1794.  Accepted guesstimates place the executions at 20,000 persons from September 1793 to July 1794.  That is the story of applying Rousseau’s direct democracy.  The blood bath was ended when dictators rose up and sent Rousseau’s most dedicated democrats to the guillotine.

   People of today who call themselves liberals adore Rousseau as the original democrat, and they love his “noble savage” fantasy.  When confronted with the oppression of the individual that Rousseau trumpeted, they stoutly maintain that they stand for the rights of the individual; they have tried to combine the democracy of the romantic Rousseau and John Locke’s liberalism, which is the bedrock of the American Founders.  The sovereignty of the majority is antithetical to liberty for individuals.  The “liberals” ignore the logic and so do the media.  True believers express themselves loudly and are loyally repeated by the media. They conflate Rousseau’s romanticism (and then communists and socialists who love the sound of the “sovereignty of the masses” and the “dictatorship of the proletariat”) with the individual liberties in the US Constitution and the Bill of Rights and they want to be called liberal.  So they have been called for many decades, but over time the meanings of terms in public discourse change again.

   The latest change has been this:  Liberals who want to be more open about their preference for the despotism of the masses to individual rights have reclaimed the name “Progressives”, a term used in the late 19^th and early 20^th centuries.  In their philosophy, when the masses obtain their rightful sovereignty, the masses must be led and controlled by those who believe that they are superior to all others in knowledge and compassion.  The Progressives believe that they are the ones who have gone to the right schools, learned the right sciences, born with natural righteous and fully understand how best to direct democracy.  In their minds, their natural authority is superior to limited government as constructed in the US Constitution.  It is only right and righteous for them to have the power to govern absolutely, according to them.

   Turning back to the men absent from the Constitutional Convention: John Adams was in London during the summer of 1789, acting as minister to England.  He was very interested in and supportive of creating a stronger central government at home.  He had been one of the three men who negotiated the Treaty of Paris of 1783, a brilliant peace treaty for the Americans.  From the British Empire they won recognition as a sovereign nation, all the lands between the Great Lakes, the Appalachian Mountains and the Mississippi River, which had been closed to them in 1763, and the right to continue to fish off the coast of Canada.  In return they agreed to recommend to the states to urge their people to pay off their debts to English merchants and to urge the states to compensate Loyalists who had had their property confiscated during the Revolution.  Also, Adams had successfully persuaded Holland to recognize American independence and gave money to the Revolution.  He was born in Massachusetts in 1735 and died there on July 4, 1826, the same day on which Thomas Jefferson died.

  He was an energetic, rather nervous, short lawyer who defended the soldiers who were tried for the Boston Massacre; he owned a farm, wrote ceaselessly as an anti-British propagandist in newspapers during the revolutionary times, served in the Massachusetts Assembly, member of the Massachusetts Revolutionary Provincial Congress, delegate to the 1^st and 2^nd Continental Congresses, helped to draft the Olive Branch Petition, advised Jefferson on writing the Declaration and signed it, chaired the Board of War and Ordnance during the early years of the war, then helped negotiate the peace treaty, became Washington’s first vice-president and the second president of the United States.  He corresponded warmly with his wife, Abigail, a great deal, much of which was saved and has been very informative for historians.  Their son, John Quincy Adams, became the 6^th US president, then a U.S. Representative from Massachusetts for 17 years after his one-term presidency.

   In the 1790’s, he and Thomas Jefferson came at loggerheads over the fundamental issue of authority.  He was to become a Federalist, while Jefferson created the Democratic-Republican party.  The question lying between them was this one: Where does the consent of the governed lie, and who is entitled to rule? 

   That was and is the fundamental issue at hand in the colonies in 1775, during the Reign of Terror in France, and the issue at hand today.

   Delegates in Philadephia in 1789 debated that and had to settle on some answers, and we can try to see if their wisdom of 1789 can be employed today.

   Let me know what you think.

Another post next Sunday (if not earlier).

Pam

The Founders: Intro Essay

The Founders: Intro essay

John Adams, second US president, wrote that “the revolution was effected before the war commenced.  The revolution was in the minds and hearts of the people.” (Letter to Mr. Niles, January 14, 1818.)

            To getting to know someone requires at least some idea of what philosophies influence him or her as well as what events fills one’s minds.  Our country’s founders’ beliefs and attitudes about how to organize and govern a nation are found in their writings and their actions.

            Thomas Jefferson chiefly wrote the Declaration of Independence in 1776.  He became our third US president in 1800.  In later years, he said that he wrote the Declaration “to be an expression of the American mind.”  He was assisted by Benjamin Franklin and John Adams, forming a committee established by the Second Continental Congress to compose the declaration of independence from the abuses visited upon the colonies by the monarch.  Some historians well might say that it is a most faithful reflection of John Locke’s writings from the 17^th century.

An English political philosopher, John Locke wrote the Second Treatise of Civil Government, which was published in 1690.  The influence of his liberal political philosophy has not been exceeded by many, if any, ever.  (In today’s jargon, we would call Locke’s political philosophy “Conservative” instead of “liberal”, as the meanings have changed over time.)  Locke promoted the establishment of a republic, comprising limited government, representative democracy, natural rights and the right of resistance to tyranny.  He condemned absolutism in every form, whether despotic monarchies or the absolute sovereignty of parliaments (or congresses).

Locke maintains that originally all men had lived free in a state of nature, all were equal and there was no government.  Each and every man had natural rights to life, liberty and property.  That is nature’s law, the only law.   However, each man had to protect his natural rights, which became more inconvenient and confusing over time, facing more insecurity.  So men came together and established a civil society and created a government with one purpose only, which was to enforce nature’s law.  They did not make the government absolute.  The only power they surrendered and gave to government was the power to enforce the law of nature.  The only authority held by the state “can be no more than those persons had in a state of nature before they entered into society, and gave it up to the community.”  All powers not expressly surrendered are reserved to the people themselves.  If the government exceeds or abuses the authority explicitly granted in the political contract, it becomes tyrannical; and the people then have the right to dissolve it or to rebel against it and overthrow it. 

Locke goes to pains to point out that no branch of government or any political agency has the authority to invade the natural rights of a single individual, the law of nature.  Regardless of how large a majority of the people’s representatives should demand restrictions of freedom of speech or the confiscation and redistribution of property, no such action could be taken legally.  Such action would justify effective resistance to the government. (I wonder if Al Sharpton has read the Declaration of Independence recently; he seems most interested in stopping the freedom of speech held by Rush Limbaugh and Fox News.)

 Ben Franklin and John Adams made a few minor changes to Jefferson’s draft and Congress accepted the Declaration on July 4, 1776.

Another huge influence on American thinking came from Baron de Montesquieu, a French nobleman whose life spanned 1694 to 1778.  He was an ardent student of John Locke’s writings and he admired British institutions.  His great book is Spirit of Laws in which he studies actual history of the political systems through the ages and draws conclusions about useful government based on historical facts instead of depending upon the pure logic of philosophy or revealed knowledge from God or prophets of God.  He is best known for his theory of the separation of powers and checks and balances.

One of our Founders is James Madison.  He is called the Father of the Constitution because he was the most knowledgeable and best prepared delegate to the Constitutional Convention, held from May to September of 1787.  He became our 4^th president.  He had read Montesquieu closely, as well as Locke and other philosophers.  The US Constitution embodies Montesquieu’s theory of political power and how to control it.

Montesquieu believed that any man will abuse any power entrusted to him, and that ensures that any government will aggrandize power to itself and will degenerate into despotism sooner or later…unless.  Rein in the power by breaking up the government.  There are three natural divisions in government:  legislative, executive, and judicial.  He says that if you let anyone (or group) get control of two of the three divisions, liberty is lost.  The only way to avoid tyranny is to enable each branch to act as a check on the power of the other two branches.  For example, the executive should have the power to veto an overreaching law passed by the legislature, while the legislature should have the power to impeach an executive who overreaches his authority and, finally, there should be an independent judiciary that has the power to protect our individual rights against wrong actions taken by either or both of the other branches.

Montesquieu’s theory with few changes is in the draft of the constitution that Madison had prepared before the convention in Philadelpia opened.  That fundamental structure for the federal government, ardently guarding against the natural tendency to tyranny by people in power, remained in the final constitution without modification.

So, we have briefly met John Adams, Thomas Jefferson, Benjamin Franklin and James Madison, four of our Founders.  All signed the Declaration of Independence, two worked on the constitution convention at Philadelphia. Who were the two on diplomatic missions that summer?

 The average age of the men who attended the US constitution convention was 42 years.  While few Americans went to college, a majority of the delegates had graduated from college.  Many were lawyers, businessmen and planters.  Only 8 of them had been among those who had signed the Declaration of Independence.

Welcome to a blog dedicated to a conversation about the Republic.  Someone mentioned that she would like to know more about the Founding Fathers, the men who created this Republic.  Over the next few weeks I will write and post a thumb sketch of founders weekly.  I will love to see your comments and questions, if any, about them or other matters relating to the establishment of the U.S. and any questions that come to you.  For now, I will leave with a quotable quote I like very much that I found in Sarah Palin's new book, America by Heart.

"If there must be trouble, let it be in my day, that my child might have peace." by Thomas Paine, a Founding Father.