Tuesday, September 24, 2013

Mr. Madison Writes a Letter to Mr. Jefferson

“Wherever there is an interest and power to do wrong, wrong will generally be done.” James Madison

Prior to championing a Bill of Rights in the First Congress, James Madison wrote a revealing letter to Thomas Jefferson in October of 1788. Interestingly, much of the letter was written in a secret code only the two of them shared. The following extract from the letter gives insight into Madison’s mindset and the thinking of many of the Founders.

"It is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable and patriotic motives; and that among the advocates for the Constitution, there are some who wish for further guards to public liberty and individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.
Wherever the real power in a government lies, there is the danger of oppression. In our governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the constituents. Wherever there is an interest and power to do wrong, wrong will generally be done.
The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy."

Monday, September 23, 2013

First Principles

Leading Journal of the Enlightenment 

The Enlightenment concepts of first principles and natural rights were important to the Founders. They served as the basis for the Declaration of Independence, the Constitution, the Bill of Rights, and many founding state constitutions and declarations. 

Interestingly, the 9th and 10th Amendments are imbued with the Founding Principles, oftentimes called First Principles. The amendments read:

9th The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

10th 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.

Forty-nine words. That’s all it took for the First Congress to articulate these founding principles:
  1. Rights naturally reside with people—rights are not bestowed by government
  2. Political power comes from the American people—the government has no claim to any power without prior and formal delegation by Americans.
  3. Powers are to be dispersed, and balanced between different branches and levels of government.
  4. The Constitution is a written agreement intended to restrict government.

Sunday, September 22, 2013

Commentary: The Heavy Hand of Government Trumps Capitalism

“The Great Depression, like most other periods of severe unemployment, was produced by government mismanagement rather than by any inherent instability of the private economy.Milton Friedman 

If you read the financial press, you can almost hear the gurus scratching their heads. They study past business cycles and can’t understand why robust growth isn’t the order of the day. Since WWII, strong recoveries have always followed recessions. And the deeper the recession, the faster the climb back to prosperity. Considering the depth of our latest crash, we should be rip-roaring into the stratosphere. What’s going on?
All the supposed stimulants have failed. Since December of 2008, interest rates have been near zero. The Fed has pumped so much cash into the economy that all of our wallets ought to be bulging. Bail-outs have increased government control of whole industries. Congress rammed through a huge health care entitlement, and celebrated with the kind of fanfare befitting simultaneous victory over hunger, global warming, and the common cold. Despite horrific deficits, our dear Congress continues to throw money around like it was confetti. Yet underemployment stays embarrassing, productivity is anemic, everyone is husbanding resources, and foreigners lecture us on irresponsible spending.

Friday, September 20, 2013

A Capacity to Annoy or Injure

“There is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” Alexander Hamilton, Federalist 81

 During the Constitutional Convention and state ratification conventions, the judiciary was the least discussed branch of the national government. From a design perspective, almost all of the debate and alarm seemed to have been focused on the executive and the legislature. The simplest explanation is that the judiciary was familiar and non-controversial. Hamilton wrote in Federalist 78, “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” 
Every delegate knew what a judge did and understood their role in the government, and their only concern was insuring their independence. A few anticipated that judges might legislate from the bench, but most of the delegates were more concerned about politicians putting undue pressure on judges. The Framers solution to this threat was to give justices life tenure.

For nearly one hundred and fifty years, the Supreme Court restricted itself to evaluating laws based on what today would be called an originalist perspective. The Commerce, General Welfare, and Necessary and Proper clauses and Bill of Rights were interpreted on a generally narrow basis. The court took the enumerated powers seriously, showed deference to state authority, and restricted interference with contracts.

Thursday, September 19, 2013

Protecting Liberty

“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…”   James Madison

When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that the Founders believed that liberty depended on each part of the government acting as an effective check on all the other parts of the government, and that meant not only between the three national branches, but also between the states and the national government.

Tempest at Dawn
Patrick Henry, "Give me liberty, or give me death"
The Founders believed in limited government in the form of a representative republic. They distrusted a direct democracy, because majorities had historically taken advantage of minorities. A limited representative republic was the best form of government to safeguard minority rights. James Madison constantly preached against any system that allowed special interests (factions) to gain control of major elements of the government. He showed that throughout history, majority factions tyrannized minorities, whether those minorities were based on race, wealth, religion, political affiliation, or even geography.

Checks and balances were not enough, however. They also wanted to specifically define powers to limit the intrusion of government into personal lives. The Constitutional Convention looked at two different ways of defining national powers. They debated long and hard about whether to call out each power individually or, alternately, to list restrictions on general powers. Basically they had to decide whether to write down what the federal government could do or what the federal government could not do.

Tuesday, September 17, 2013

Happy Constitution Day!

Today is the 226th anniversary of the signing of the Constitution. On May 25, 1787, George Washington officially convened what was called the Federal Convention, which we now call the Constitutional Convention. Fifty-five delegates struggled for four months to define our constitutional form of government. It was a blisteringly hot Philadelphia summer, and all the heat did not come from the weather. Several times the convention nearly collapsed, but these patriots refused to allow the American Experiment to fail.

The Framers would be proud that we continue to celebrate our Constitution, but probably say we picked the wrong date. They would prefer June 21, the date in 1788 when New Hampshire became the ninth state to ratify the Constitution, which made it the supreme law of the land. After all, the delegates did not believe they held the power to define a government. Each firmly believed this power resided with the people.

Roger Sherman—The Forgotten Founder

“The question is, not what rights naturally belong to man, but how they may be most equally and effectually guarded in society.” Roger Sherman

Sculptors haven’t chiseled a lot of marble to honor Roger Sherman, yet he was one of the most important of the Founding Fathers. He was the only Founder to sign all the major documents of the era, and he was on the final committees for the Declaration of Independence, Articles of Confederation, and the Constitution. At the Constitutional Convention, Sherman proposed and engineered approval of the Great Compromise which gave each state two senators. He was an ally of James Madison in the First Congress and instrumental in guiding the Bill of Rights through the congressional quagmire.

Sherman was a small businessman who had once owned two general stores, but he became impoverished because he invested his life savings in Connecticut bonds to support the Revolution. Throughout his life, he was a major benefactor of Yale, acting as the university’s treasurer for many years and promoting construction of a college chapel. After ratification of the Constitution, Sherman was first a congressman and then a senator for a short period before his death.

What did his contemporaries think of him?

Monday, September 16, 2013

James Madison—Father of the Constitution?

In his later years, James Madison protested being referred to as the Father of the Constitution. He said the document was not “the off-spring of a single brain.” Our Constitution was actually the off-spring of fifty-five brains, although none were as potent as Madison’s. A few historians have denigrated Madison’s informal title, saying he had merely outlived the other Framers and his convention notes gave him more credit than he would have received from an impartial observer. These critics also point out the final Constitution diverted appreciably from the Virginia Plan that Madison initially supported as the correct governmental system.

Despite revisionists seeking a unique angle, James Madison was still the most important Framerbefore, during, and after the Constitutional Convention of 1787.

political science
James Madison

Sunday, September 15, 2013

Real Jeopardy

“It is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects”  James Madison, Federalist 14

The Founders did not trust unrestrained government. Their own experience and study of history taught them that overly powerful governments invariably turned oppressive. But they also knew government was necessary. In fact, they knew they needed a government stronger than the one they had at the beginning of our nation. By the time the Constitutional Convention convened in May of 1787, a consensus had developed that the Articles of Confederation were severely flawed, but there was uncertainty about what kind of government could sustain a republic through the ages. They knew it couldn't be too weak, but it also couldn't be too strong.

The Founders did not seek a Goldilocks government. Instead they designed an elaborate set of checks and balances so they could give the government enough power to govern, while harnessing it with Lilliputian ropes to hold it in place so it wouldn't trample the little people. From our high school civics class we learned about the checks and balances between the three branches, but teachers seldom mention the intended check of the national government by the states. Nor were we taught that the Founders wanted our national leaders selected and elected by different means as yet another check on a runaway government. Lastly, the Constitution itself was supposed to be the premier check to prevent our government from becoming oppressive.

Gouverneur Morris, the Penman of the Constitution

“This magistrate is not the king. The people are the king.” Gouverneur Morris
Tempest at Dawn
Gouverneur Morris
Most Americans know that Thomas Jefferson wrote the Declaration of Independence, but fewer know that Gouverneur Morris wrote the Constitution. In both cases, men gathered at the Philadelphia State House and voted for each element of the respective documents, but it was up to Jefferson and Morris to edit the language of the resolutions, organize the presentation, and prepare a preamble. Both men wrote with such consummate skill that their words have reverberated through time and distance.
At the end of the Constitutional Convention, Morris was assigned to the Committee of Style.  This committee’s task was to take the work of the Committee of Detail and compose a clear and coherent constitution.
For example, the preamble from the Committee of Detail read:
"We the people of the States of New Hampshire, Massachussetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”
Morris volunteered to take this draft home and prepare a more polished version. He did a masterful job. Beyond organizing the document and language clarification, Morris wrote a short, but eloquent preamble.

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.

Tuesday, September 10, 2013

Why a Written Constitution?

The British have an unwritten constitution. The colonies were part of the British Empire, and for the most part, they were populated by British subjects. Why did they depart from the English tradition of an unwritten constitution?

The most obvious reason is that the English Constitution and common law evolved, while our forefathers were starting fresh with a blank slate. As Thomas Paine said in Common Sense, “We have it in our power to begin the world over again. A situation similar to the present, hath not happened since the days of Noah.”
Tempest at Dawn

Sunday, September 8, 2013

Benjamin Franklin—The Other Indispensable Man

“Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” Benjamin Franklin

During the second half of the eighteenth century, the United States was blessed with numerous renaissance men.  Thomas Jefferson was a planter, architect, revolutionary, author, agricultural scientist, inventor, and politician, among other things.  George Washington started life as a surveyor, but then became a successful planter, military commander, politician, entrepreneur, and agricultural innovator.  Many of the Founders were equally skillful at multiple endeavors.  None, however, compared with Benjamin Franklin.
Franklin’s humorous aphorisms are so embedded in our culture and he’s been caricatured so often, we sometimes think he must have been the class clown of the Revolution.  Nothing could be further from the truth.  Franklin was arguably the second most important person in securing our independence.  Despite Washington’s greatest efforts, our domestic military and treasury could never have defeated the British Empire.  We needed help.  Franklin did more than flirt with the ladies in Paris, he charmed a nation in order to gain access to the French court.  The thing to understand about Franklin is that everything he did had a purpose.  Once granted access to the back rooms of Versailles, he did the impossible and got the United States desperately needed money, warships, and international legitimacy.

Wednesday, September 4, 2013

The man who saved America from financial ruin

“The circulation of confidence is better than the circulation of money.” James Madison

As Americans celebrated New Year’s Day in 1790, the new nation’s economy was tittering on the brink of collapse. The cumulative debt of the states and nation was enormous, soldiers who had served in the Revolution hadn’t been paid, farm foreclosures were so rampant that mobs burned courthouses, there was no national coin or currency, in many states inflation raged out of control, and international trade was near impossible because the nation had no credit. It looked likely that the American experiment would fail.

The newborn country might have failed, except the United States had three enormous assets that it had not possessed just ten months earlier. A new government had been formed under the recently ratified United States Constitution, George Washington had been sworn in as the first president, and Washington had a cabinet member with a plan. The man with a plan was Secretary of the Treasury, Alexander Hamilton. On January 14, 1790, the secretary presented his economic plan to Congress.

Tempest at Dawn
Alexander Hamilton

Hamilton’s goal was to renew confidence in the government, and “to promote the increasing respectability of the American name; to answer the calls of justice; to restore landed property to its due value; to furnish new resources both to agriculture and commerce; to cement more closely the union of the states; to add to their security against foreign attack; to establish public order on the basis of an upright and liberal policy.”

The major elements of his plan included: 1) Assumption of Revolutionary War debts of over $54M, 2) issuance of tiered debt instruments to finance the retirement of existing loans, 3) retirement of all prior debt at face value, 4) a national bank 80% privately owned, 5) a sinking fund to retire new debt, 6) a sound national currency backed by gold and silver specie, and 7) tariffs to raise revenue and protect fledgling commerce.

Tuesday, September 3, 2013

Limited Government is a Founding Principle

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” James Madison

“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.” Thomas Jefferson

The design of the government under the Constitution was not haphazard. Our Founding Fathers understood that governments can oppress people. They knew it from their own experience—and they knew it from their extensive scrutiny of governmental forms throughout history.

Concentrated power was more than dangerous … it was life threatening.

Despite the risk, they had no choice but to frame a workable government. What to do? A number of things, actually. To prevent the government from becoming overly powerful, the Framers agreed on eight measures: