How to protect our rights

“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.” Declaration of Independence.

As reflected in the Declaration of Independence, and other writings of the period, the Founders believed that rights came from God, not the government. The Founders didn’t believe that governments bestowed rights, nor did they believe governments were an agent to protect rights.

When the Constitutional Convention convened in 1787, the delegates had to figure out how to protect rights and personal liberty from an oppressive government. They knew that rights were fragile. They can be suppressed by force, gradually eroded, or simply lost through neglect.

The original Constitution didn’t include a Bill of Rights. The delegates didn’t believe one was necessary. In their mind, rights were not protected by words, but by limiting governmental power. Montesquieu and Hume advocated separation of power into three equal branches, with each branch having potent checks on all of the other branches. Although this was a well-established theory at the time, no national government was designed along these principles, and existing state constitutions gave overwhelming advantage to the legislature.  Delegates to the convention believed that if they could architect a system consistent with the separation of powers doctrine, give the national government only enumerated powers, and effectively set up the states as checks on the national government, then the national government wouldn’t be able to trample rights or intrude into peoples’ lives.

The Founders on Power

The Founders distrusted overly strong governments. That’s why they engineered a limited republic. Today, Americans seem to turn to their government to validate and protect real and presumed rights, and increasingly rely on government to guarantee the substance of life. Many modern Americans embrace national authority and fight to enlarge governmental powers.

The Founders would be appalled.

“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.”—James Madison

“A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”—James Madison

“No wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”—George Washington

“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.”—James Madison

Constitutional Protection of Property

“Government is instituted to protect property of every sort … This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.” James Madison

Does the Constitution protect private property? All rights, not just property rights, appear to have received scant attention during the Constitutional Convention. Most of the delegates believed it would be far more effective to limit government with enumerated powers than to compose a list of rights because they feared an overly powerful government would trample those rights, despite written restrictions to the contrary. If the national government’s powers were held in check, then it was believed that common law and state declarations of rights provided sufficient safeguards to protect all rights. That is, until ratification. Several states unofficially conditioned their ratification on a Bill of Rights being added to the Constitution. The First Congress thus proposed the first ten amendments to the Constitution.

There were only a couple provisos in the base document that protected property rights. States were prohibited from impairing the obligation of contracts, and intellectual property was protected, giving “authors and inventors the exclusive right to their respective writings and discoveries.”

Surely the Bill of Rights rectified this absence of protection for private property. Not entirely. The takings clause in the Fifth Amendment is one of the few outright protections of property. It reads, “nor shall private property be taken for public use without just compensation.’’ It would appear that this clause protects property owners from government confiscation, but cities and states became increasingly brazen in taking property for public domain purposes.  In 2005, Kelo v. City of New London defined public domain so broadly that it effectively included any action forecasted to increase the tax base. The takings issue is an illuminating object lesson that proves the Framers were right on the issue of protecting rights—unchecked power trumps protections written on a piece of parchment.  The clause is clear, yet it has proven a weak shield against the abusive exercise of determined power.

Commentary—Were The Framers Fears Justified?

"Wherever the real power in a Government lies, there is the danger of oppression." James Madison

An idea is powerful. It can change the world. A great leader may be able to alter the course of history, but without instilling new ideas, the world resumes its old course. When an idea or value is shared by the majority of a community, it becomes a cultural linchpin. That culture will not change until that idea is jerked out of the general consciousness and replace with a different idea.

Constitutionalists share an idea. At one time, most Americans subscribed to this idea, but no longer. What is this idea? Fear of overly powerful government. 

It sounds simple. But this fear was the overriding emotion that drove the Framers to design a republic with limited national powers. Inside the State House, which we now call Independence Hall, the delegates’ fear of government was strong and universal. Their entire focus was on constraining, checking, and decentralizing government power. This had never happened in world history.

American Exceptionalism

Throughout history, new nations have come into being because of conquering armies, internal rebellion, or the edict of a great power. Although the United States of America was conceived in revolt, our governing institutions were born in calm reason. Our Constitution comes from a convention and ratification process where reasoned debate eventually led to a decision by a large segment of the population to put a new government in place.

Our founding was unique, and the type of republic we formed was profoundly foreign to most of the world. With a few brief exceptions, world history until 1776 was written about kings and emperors. The American experiment in self-government rudely shook up a world used to rule by nobility. Not only did we break away from the biggest and most powerful empire in history, we took the musings of the brightest thinkers of the Enlightenment and implemented them in the New World. Our founding was simultaneously an armed rebellion against tyranny and a revolution of ideas—ideas that changed the course of world history.

It doesn’t take much study to conclude that early Americans held dear a few key principles, and risked their lives, families, fortunes, and honor to build a republic based on those very same principles. Washington, Franklin, Jefferson, Madison, and most of their contemporaries believed they had witnessed and participated in events that were more than merely unusual. Our forefathers repeatedly said that the founding of the United States of America was truly historic—a unique event in human history.

"Mike Reads" reviews Tempest at Dawn

The "Mike Reads" blog has reviewed Tempest at Dawn. This is not exactly a New York Times book review, but I liked it because Mike took away from the book what I intended. I love writing Westerns and like the freedom to plot my own stories, but Tempest at Dawn was a five year labor of love. It was a huge responsibility to write about the founding fathers and such an important event in American history. I read or seriously scanned over 100 history books on the Constitutional Convention, and used at least 3 biographies for each of the major characters in the story. And yes, it was a story—a great story with great characters, intense conflict, and hopeful resolution.

Tempest at Dawn continues to be well received by readers and historians. At the time of this writing, and five years after publication, the Kindle version is still ranked #28 for books about the U.S. Constitution. 140 Amazon customers have reviewed the book for 4.4 stars, and 387 readers on Goodreads have given the book an average rating of 3.9.

I'll probably never again tackle a book as challenging as Tempest at Dawn, so it's gratifying that it still sells well and continues to receive attention from readers and reviewers. Thanks.

The Difference Between Freedom and Liberty

Today, liberty and freedom are used almost interchangeably. In fact, a modern American hears the term freedom more frequently because liberty has become somewhat outmoded. The Founders viewed these two concepts as very different. In their minds, man granted freedom to his fellow man, but liberty came from a higher authority. Every human was endowed with natural rights and the free exercise of those rights was called liberty. On the other hand, a person released from slavery or indentured servitude became a free person.

The history of the world is not solely about rulers, it’s also about people striving and fighting for liberty. Our sense of natural rights is deep inside each of us. Even when rulers rule with an iron fist, liberty is kept alive through stories about heroes who fight against oppression and win. Stories often remind society of first principles and give hope until a leader comes along that can help them to recover their unalienable rights.

What did the Founders think about liberty? Here is what they said in their own words.

The Founders on a Living Constitution

The Founders believed that the Constitution was a legally binding agreement between Americans and their government. What would the Founders think about a living Constitution? Here is what they said in their own words.

“On every question of construction 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.”—Thomas Jefferson 

“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”—James Wilson, in Of the Study of Law in the United States 

The Patriot Who Refused to Sign the Constitution

The eyes of the United States are turned upon this assembly and their expectations raised to a very anxious degree. May God grant that we may be able to gratify them, by establishing a wise and just government. —George Mason, in a letter to his son.

George Mason

In the end, George Mason did not believe the Constitution established a wise and just government. He was one of only three delegates present in the final days of the convention who didn’t sign the document. The other two refused due to their personalities. Elbridge Gerry was mercurial and cantankerous by nature, and Edmond Randolph was afraid to be associated with something that might fail. George Mason, on the other hand, refused to sign based on his principles.

In early 1776, before the Declaration of Independence, Mason drafted the Virginia Declaration of Rights and framed Virginia’s constitution. George Mason was rightfully proud of the Virginia Declaration of Rights, and pleased that it became a model for other states.

SECTION I. 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.

SEC. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

James Madison’s Worst Nightmare

“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.”

Madison believed the greatest threat to democracy was factions, what we call special interests. This wasn’t a theory; it was an observation he made by studying the demise of democracies down through the ages.  If a faction, or a coalition of factions, gained control of the levers of government, then democracy would collapse on itself—usually sooner, rather than later.

To protect America from this threat, Madison and the other Framers devised a limited republic instead of a democracy. Elected officials would make laws, not the people at large. This put a buffer between unbridled passions and lawmaking. A republican form of government would help, but the true shield would be enumerated, balanced, and decentralized powers with potent checks on abuses. The Framers believed that if they could harness government powers, they would reduce the risk of tyranny. This design of the Framers worked effectively for over two hundred years.

A Danger Greater than Factions

As much as Madison wanted to protect the nation from factions, there was something he feared far more than factions—attempts to eliminate factions.

Factions cannot exist if people do not possess the freedom to form and express opinions. In the above quote, Madison was being facetious with his second method of removing factions. He wanted to emphasize his point that liberty is essential to the existence of factions, and factions are a natural byproduct of a free people.

Democracies can be destroyed by factions; but eliminating the threat requires the withdrawal of the freedom to hold an opinion contrary to the public mood. It may sound like a Catch-22, but the Framers had an answer: let factions thrive, but craft a government that would be enormously difficult to capture as a prize.

We have veered from the Framers design, and now there are few restrictions on federal powers. Constitutional checks and balances are tattered. It may now be possible for a group of determined activists to gain control of an unfettered national government.

Thomas Jefferson and the Declaration

"It can be lost, and it will be, if the time ever comes when these documents are regarded not as the supreme expression of our profound belief, but merely as curiosities in glass cases." Harry Truman

On June 11, 1776, the second Continental Congress appointed a committee to write a declaration of independence. John Adams, Benjamin Franklin, Thomas Jefferson, Robert R. Livingston, and Roger Sherman were elected to the committee. One of these five was a renowned writer. For nearly thirty years, only the Bible outsold Benjamin Franklin’s Poor Richard’s Almanac, and his articles made the Pennsylvania Gazette the most successful newspaper in the colonies. But Franklin declined to draft the declaration, supposedly due to poor health, so the committee asked the thirty-three year Thomas Jefferson to draft the document.

In less than three weeks, Jefferson presented the rest of the committee with this historic document. For the most part, the committee accepted the document as written; except that Franklin made some subtle, but important revisions.  For example, Jefferson had written “We hold these truths to be sacred and undeniable,” which Franklin revised to “self-evident.” Some have suggested that Franklin was pushing the text toward the analytic empiricism of David Hume, but it’s more likely that the master editor was wordsmithing for a more graceful rhythm to the words. 

Constitutional Speed Bumps

“The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Thomas Jefferson

To a degree, each branch of the national government operates in slight fear that another branch will chastise or even overrule its actions. This was an intended consequence of the design. Madison wrote in Federalist 51, “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.”

In Madison’s opinion, liberty can only be protected by power restraining power. The Constitution doesn’t contain any language preserving the boundaries of the three branches. It is up to the three branches to defend their independence with their assigned powers.

Let’s take a look at the checks between the three branches, starting with Congress.

Are the Founders Worthy of Our Admiration?

“Threading an idea into the slipstream of politics, then into government, then into history ... is a craft which I have since come to consider the most important in the world.”  Theodore White, In Search of History

The Founders of the United States lived over two hundred years ago in a completely different world. Some dismiss the Founders by saying that most were wealthy and many owned slaves. Let’s leave aside for a moment whether those are valid reasons to dismiss the Founders. These criticisms may be true for some of the more prominent Founders, but they are woefully misleading when applied to the great body of people who committed everything to the idea of self-government.

The Founding of this great nation was unique. Up until 1776, with a few brief exceptions, world history was about rulers and empires. The American experiment shook the world. Not only did we break away from the biggest and most powerful empire in history, we took the musings of the brightest thinkers of the Enlightenment and actually implemented them. Our Founding was simultaneously an armed rebellion against tyranny, and a revolution of ideas—ideas that changed the world.

For our purposes, let’s define the founding as extending from the Stamp Act through the first administration of George Washington. This would include the development of a revolutionary spirit, the revolution itself, a few non-war years under the Articles of Confederation, the adoption of the Constitution, and Washington’s first term, which set so many precedents. Who were the people involved in these events?

First off, it was a lot of people.

·         57   men committed treason by signing the Declaration of Independence

·         48   signed the Articles of Confederation

·         437 were members of Congress prior to the ratification of the Constitution

·         55   attended the Constitutional Convention

·         30   were members of the first Senate

·         67   were members of the first Congress

·         7     were Cabinet level or above in the First Executive

·         6     were members of the Supreme Court

John Adams, The Philosopher Rebel

“Let us dare to read, think, speak and write.”  John Adams

John Adams is best known today for a presidency cut short by the Alien and Sedition Acts. In truth, he was the greatest expert on government in the colonies ... at least until James Madison stepped to the forefront. Harvard educated, Adams was a champion of the founding principles, a firm proponent of Enlightenment teachings, and a scholar of constitutional government. He was a pious man of honor and character. Granted, he could be argumentative and self-righteous, but he was generally correct in his positions.

Adams was an early and fervent advocate for independence. He opposed the Stamp Act in speeches, articles, and a widely circulated dissertation (Essay on the Canon and Feudal Law). He served in the first and second Continental Congresses, where he was engaged in over ninety committees, many of which he chaired.  Adams nominated George Washington to be commander-in-chief, and headed the Board of War and Ordnance, which was responsible for supplying Washington’s army. He succeeded in getting an early resolution passed for independence that eventually led to the Declaration, and then served on the committee that wrote the Declaration of Independence. Twice during the war he served as an envoy in Europe. In later Years, Thomas Jefferson said that Adams was “the pillar of [the Declaration's] support on the floor of Congress, its ablest advocate and defender against the multifarious assaults it encountered.”

A Most Audacious Letter

Governments are instituted among men, deriving their just powers from the consent of the governed. —Declaration of Independence

In February of 1787, Congress sanctioned a convention in Philadelphia “for the sole and express purpose of revising the articles of confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein as shall when agreed to in Congress, and confirmed by the States, render the federal constitution, adequate to the exigencies of government and the preservation of the union.”

The instructions were clear. The convention was to recommend changes to the Articles of Confederation, and submit them to Congress and the state legislatures for approval. Instead, the Federal Convention wrote an entirely new constitution—one that would dissolve the existing Congress and take away some state power. How in the world would they get this thing approved? It threatened every political figure in the country. The answer was simple. As stated in the Declaration of Independence, the Founders believed that all political power emanated from the people. They would bypass Congress and the state legislatures, and go directly to the people for ratification of their work.

There was a problem, of course. Congress and the state legislatures to might not agree to being marginalized. The convention’s solution was to send Congress a letter. The first draft was a convoluted rationalization for their actions and a long winded declaration that their motives were pure. No one thought it was convincing, so in the end, they just told Congress what to do and how to do it.

Letter to Congress from Federal Convention

The United States Government vs. We the People

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”—Declaration of Independence

In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now endowed by their Creator with certain unalienable Rights. This was a world-shattering concept.

Like most revolutionary visions, this one didn't just suddenly spring onto the world stage. Ironically, the philosophical basis for self-governance came from subjects of the British Crown. John Locke, David Hume, Adam Smith, and Thomas Paine were among many who maintained that this new way of life was ordained by the laws of nature and of nature's God.

The Founders were steeped in this incendiary idea. They believed that all political power emanates from the people. This concept provides the rational for the Declaration of Independence which declared it is the right of the people to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Top Ten Reasons Government Can’t Cut Spending

“I have accepted a seat in the House of Representatives, and thereby have consented to my own ruin, to your ruin, and the ruin of our children. I give you this warning, that you may prepare your mind for your fate.” John Adams

Why is it so hard to cut government spending?

There are just so many reasons. Here're the top ten excuses carried on a 3x5 card by nearly every politician.

The Founders on Taxation and Debt

This has not been a particularly joyful season inside the beltway.  All we've seen is a lot of clamoring, to little effect. In the hinterlands, we hear the echoes of raucous debate about government spending, government borrowing, and government intrusion into our homes and business. One side yells that the only solution is to tax the rich until they squeal, while the other side of the aisle insists we must reform entitlements or go the way of Greece.

What would the Founders think about all this? Here is what they said in their own words.

“The people of the U.S. owe their independence and their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching against every evil lurking under plausible disguises, and growing up from small beginnings.” —James Madison

“By any plain method of argument, as we are running the next generation into debt, we ought to do the work of it, otherwise we use them meanly and pitifully.”—Thomas Paine