Home Building & Loan v. Blaisdell (1934) – Guest Essayist: James D. Best

Home Building & Loan v. Blaisdell (1934) started the modern trend of interpreting the Constitution to support popular passions. You can read the essay here or listen to it below.

The Historical Novel Done Right

Go Book Yourself published a list of 9 books inspired by art. I would add a tenth: Lust for Life by Irving Stone. I am not a visual person, but my wife was an Art History major and docent, so I spend a lot of time in museums. When I look at a painting on my own, I usually stifle a yawn, but with her by my side, the art and artist become intriguing. It reminds me of NASCAR racing. If you know nothing about the sport, it's boring. Just a bunch of left turns at high speed in heavy traffic. But once you learn about the teams, drivers, cars, and rules, the sport becomes fascinating, as well as thrilling. Like my wife, Irving Stone had a knack for making something interesting that might otherwise be dull. Ever since reading Lust for Life, Vincent van Gogh has been my favorite artist.

Irving Stone

Irving Stone is also one of my favorite authors. He popularized the biographical novel by turning the lives of great people into great stories. You can read his New York Times obituary here. The obituary quotes Stone as saying, ''My books are based 98 percent on documentary evidence. I spend several years trying to get inside the brain and heart of my subjects, listening to the interior monologues in their letters, and when I have to bridge the chasms between the factual evidence, I try to make an intuitive leap through the eyes and motivation of the person I'm writing about.''

The reason I feel an emotional connection to Irving Stone and Lust for Life is that this novel was the inspiration for Tempest at Dawn. I believed the Constitutional Convention was a spellbinding story. Dozens of history books had already been written, and I had read many of them, but there was a nail-biting story filled with enigmatic characters that somehow eluded these academic examinations. Like Stone, I felt the novel form would bring the story and people to life. I may not have reached the literary heights of Stone, but I enjoyed the writing immensely and most readers have been highly positive in their reviews and ratings. (565 Goodreads ratings for 3.9 stars and 208 Amazon reviews for 4.4 stars..) 

Try either book. If you enjoy history, you may find the novel a great form for gaining additional insight.

Primer on Electoral College

The Electoral College is an integral element of our governing system. The purpose is to give people who live in all the states some influence on the executive leadership of the country. After the recent election, many are questioning the wisdom of Article II, Section 1. The Electoral College is immensely important not only to who wins, but how presidential campaigns are run. Eliminate the Electoral College and the interior will never see another candidate in their state and heartland primaries will be meaningless.

Inhabitants of the hinterlands often feel dismissed by urbanites living along one of the two coasts. Unfortunately for our country, the hue and cry to do away with the Electoral College confirms their worst suspicions.  Abolishing the Electoral College will disenfranchise every American who lives in fly-over country.

Here is a good primer on the Elector College.

Should Government Pay for Higher Education?

Since government provided higher education has become a hot topic, perhaps Milton Friedman can provide some advice. 

The Intrigue of Presidential Elections

Tomorrow, Constituting America will initiate its sixth annual 90 Day Study. You can read previous essays here. Those prior essays address:

1. The Federalist Papers,
2. The Constitution,
3. The amendments,
4. Classics that influenced the Constitution
5. Erosion of checks and balances.

Constituting America is co-chaired by Janine Turner and Cathy Gillespie.

This year’s study is titled: The Intrigue of Presidential Elections and Their Constitutional Impact, A Study of America's Past 56 Presidential Elections: 1789-2012.

I feel privileged to again be invited to participate with some of the best constitutional scholars in the nation. 

Power To The Regulators!

The Founders believed that consolidating executive, legislative, and judicial powers would threaten liberty, so to avoid this tragedy, they built our constitutional framework with checks and balances. James Madison, the Father of the Constitution, wrote in Federalist 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Whew! Thank goodness we avoided that kind of government.

On second thought, we didn’t. Despite the Founders best efforts, Congress has concentrated executive, legislative, and judicial powers into regulatory agencies. Lazy legislators pass vague laws and then permit regulators to fill in the devilish details. Many of these regulatory agencies employ their own adjudication panels with internal appeal boards that judge the rightness or wrongness of their own actions. (A final appeal may be made to outside courts, but usually not until all of the agency’s protocols have run their course.) Lastly, regulatory agencies execute their own interpretation of laws, with—if White House responses to regulatory scandals are to be believed—no oversight by the top executive.

Surely, this can’t be right. It would violate every precept of the Founders.

Unfortunately, it’s true. In fact, amassing vast powers in regulatory agencies has become so commonplace, few take notice anymore. At least, few took notice until the Consumer Financial Protection Bureau raised this liberty-sapping drift to a brand new level.

Can Words On Parchment Constrain Executive Overreach?

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared 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.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights.

Words can be powerful.

That is, unless they’re ignored. The Constitution is the “supreme law of the land,” but many don’t accept that enumerated powers limit government action. Elected officials “solemnly swear … to preserve, protect and defend the Constitution of the United States,” but many view the words as cant uttered during a swearing-in ritual. Lesser laws are based on a reasonable man’s interpretation of the language, but many regard the “supreme law of the land” as a living document that can mean whatever we need it to mean on any particular day.

Celebrate Constitution Day by Buying Tempest at Dawn

Okay, that's a bit self-serving, but if you want to understand the Constitutional Convention, Tempest at Dawn is a good place to start. The novel accurately portrays the convention proceeding and the lifestyle of the delegates who attended. If you prefer a nonfiction account, then I recommend Decision In Philadelphia by Christopher Collier.

Death and Taxes

 “In this world nothing can be said to be certain, except death and taxes.” Ben Franklin

Franklin made the above quip many times, always to approving nods. Complaining about taxes is as American as apple pie, Thanksgiving, and NASCAR. After all, the Revolution started over a three pence tax on tea. Here is an excerpt from Tempest at Dawn that shows the Revolution didn't revoke Franklin's immutable law.

The owner of the Indian Queen appeared instantly. Bowing respectfully, he asked, “Gentlemen, is there anything else you desire … another ale, tea and cakes, a plate of cheese? We have excellent cognacs.”

“No, no,” Morris said. “We’re ready to retire. Thank you for your hospitality.”

The innkeeper never looked at Morris; instead he aimed a witless grin at Washington.

“My pleasure. The general’s always welcome at the Indian Queen.”

All evening, Madison had found the Innkeeper’s solicitous behavior irritating. Now he was amused by his inadvertent slight toward the rest of the party. Washington often elicited bumbling adulation.

“Thank you,” Washington said, with a regal nod of the head. “We’ll be in Philadelphia for a spell, so we’ll visit your fine establishment again.”

“Yes, the Federal Convention. A noble endeavor. My best wishes.”

“And what might those wishes be?” Washington asked.

Is the US Constitution Viable in the 21st Century?

Today, many people question the viability of our Constitution. People ask if 18th century men could anticipate the complex issues of the 21st Century. In other words, can something written over two hundred years ago direct a government in our modern world? The short answer is yes, but let me explain.

When James Madison brought the Virginia Plan to Philadelphia, it was not a list of laws, but a system of government. A system that forthrightly recognized the weaknesses of man, and delineated a set of checks and balances to distribute power; not just between the three branches of government, but also between the federal government and the states.

Although the delegates debated endlessly over the elements of the design, and made major revisions to Madison's plan, they always kept the debates focused on limiting centers of powers. They were serious men designing a system of government for the ages to protect liberty for themselves and their posterity. Although not a common phrase at the time, every one of the fifty-five men at the Federal Convention would agree with the maxim that power corrupts, and absolute power corrupts absolutely.

Lincoln at Cooper Union

Lincoln photo from day of speech

In early 1860, Abraham Lincoln was a little known regional politician from Springfield, Illinois. The Republican Party was new, and had failed running national hero John C. Frémont for president in 1856. Lincoln's chances of ascending to the presidency under the Republican banner were slight. All that changed in New York City on February 27, 1860. That afternoon, Lincoln had his photograph taken by Mathew Brady, and in the evening, he gave a historic speech at the Cooper Union. Lincoln often claimed that Brady’s photograph and his Cooper Union address propelled him to the presidency.

Below is a highly abridged version of Lincoln’s speech.

John Boehner in a Pickle Quotes Yours Truly

John Boehner

John Boehner posted an article today at Constituting America. Near the beginning, he quotes an earlier article that I wrote for the site: “Concentrated political power frightened the Founders. They especially feared unrestrained executive power.”

It was an honor to be quoted by the Speaker of the House, but I felt his article weak. I suspect that the political turmoil in the 2016 race prompted him to write a reassuring piece claiming that the House was fighting executive encroachment on legislative powers.

Unfortunately, the actions related in the article are old and long ago lost their allure. People are frustrated. They want consequential action, not base appeasement. Few take comfort that the House puts its trust in the glacial judicial branch to protect its prerogatives. The United States Congress has its own powers ... if they can work up the courage to use them.

Here is a link to my essays at Constituting America.

Celebrating Independence Day in 1787 While Drafting the Constitution

The following excerpt from Tempest at Dawn describes the Independence Day celebration held during the Constitutional Convention. The events and Reverend Campbell’s words are accurate to the historic record.

BOOM! BOOM! BOOM!

The cannon fire hurt James Madison’s ears and teared his eyes as concussions pounded his body. Sulfuric mephitis scratched his throat, and the rotten egg odor made him queasy. The thirteen reports ended, but before Madison could draw a grateful and tranquil breath, the artillery brigade started another round.

After three consecutive resounding salutes of thirteen cannon shots, Madison felt exhausted. He had been jostling for a position from which to see the Independence Day celebration when the cannon fire assaulted his senses. The State House Commons throbbed with people keyed up with rum and excitement. The crowd churned on the periphery of the Commons, while the Society of the Cincinnati, the City Calvary, the Light Infantry, and a battalion of militia vied for attention in the center of the swirling people. Each military formation, spruced up in their finest regalia, stood eager to demonstrate their parade skills. The units waited, as did Madison, for the artillery to finish their noisy salute.

Philadelphia, as the site of the signing of the Declaration of Independence, took pride in holding the rowdiest Fourth of July gala in the nation. Festivities would go from dawn until deep into the night. The city echoed with public celebrations, ringing bells, and martial music. Every church would conduct special devotionals, and all 117 taverns would compete for revelers with loud entertainment. The formal celebrations had started early in the morning, with city officials, aspiring orators, and preachers making the customary thirteen toasts.

Would Divided Government Have Surprised the Founders?

Recent events in Washington make you wonder if anyone can get along inside the Beltway. It’s not just Democrats versus Republicans—now Democrats war with Democrats and Republicans war with Republicans. And all of them seem at odds with those of us in the hinterlands. Washington is getting like the Middle East without the beheadings.

Are the Founders’ at fault for government dysfunction? Garrett Epps thinks so. In an illogical piece in The Atlantic, Epps claims the Founders never anticipated a divided government. He wrote:

I’m trying to illustrate a dangerous weakness of our system, one that the Framers clearly did not foresee. Many of them believed there would not be political parties in the new system. Others no doubt thought that the government they had designed would consist of a Congress that met for a month or so every December and a president who would supervise a slumbering bureaucracy the rest of the year. Some of them assumed the president would be a passive figure, administering directions from Congress; others imagined a chief executive with some of the majesty of the king of England. I don’t think any of them anticipated that the two branches would ever clash over which represented "the will of the voters."

Epps teaches constitutional law at the University of Baltimore, but it seems he never got beyond grade school American history. (Actually, he probably knows better but hopes the rest of us have a cherry tree understanding of American history.)

First of all, none of the Founders owned a pair of rose colored glasses. These were hard core realists. Their entire design is based on placing guardrails around partisan combatants and tempering human frailty. Claiming the Founders never anticipated divided government is ignorant or disingenuous.

Historians estimate that about one third of the colonists supported a break with England, one third opposed it, and the remaining third kept their head down to avoid musket balls.  That’s pretty partisan. Jolly old Ben Franklin even became estranged from his son because they found themselves on opposite sides of the cause. Estranged is probably too light of a word since Franklin stopped G. Washington from setting his son free in a prisoner swap. Franklin and his son never forgave or forgot. Delegates to the Constitutional Convention knew ratification would be a ferocious battle, and before the convention was even over, took several actions to tilt the debate in their favor. And these men never anticipated partisanship and a divided government?

Rendezvous with Destiny: Ronald Reagan and the Campaign that Changed America By Craig Shirley

Theodore White in his book In Search of History wrote, "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." This was Ronald Reagan's gift ... and it is a rare gift indeed.

I grew up enthralled with Theodore White’s Making of the President series. Shirley’s book does not measure up to White, but that has more to do with White’s mastery than with Shirley’s shortcomings. With White no longer with us, I’m glad Shirley has picked up the mantle—at least for Ronald Reagan’s campaigns.

Liberty and Private Property

“The pillars of our prosperity are the most thriving when left most free to individual enterprise.” Thomas Jefferson

The Founders were firm believers in private property rights.  In their minds, private property rights and liberty were intertwined.  Does this make sense?

Let’s go back to 1776.  At the time, we revolted against more than the British; we also revolted against Divine Right.  A short time earlier only nobility owned property and the great mass of humanity were serfs.  As this system withered, the common man developed property rights, and with property, gained political voice.  The Enlightenment preached that all men possessed God given rights, including the right to own property. By the second half of the eighteenth century, most British subjects equated property rights with liberty because they had seen that one followed the other.

In their view, prosperity and broad distribution of wealth depended on the protection of private property.  Even before the Declaration of Independence, the Virginia Declaration of Rights led off with “all men are by nature equally free and independent and have certain inherent rights, of which … namely, the enjoyment of life and liberty, with the means of acquiring and possessing property.”

James Madison said, “The government is instituted to protect property.”

Happy Constitution Day

And thank you Mr. James Madison—Father of the Constitution.

"The rights of man as the foundation of just Government had been long understood; but the superstructures projected had been sadly defective."

"[The Constitution of the United States] was not, like the fable Goddess of Wisdom, the offspring of a single brain.  It ought to be regarded as the work of many heads and many hands."

"The happy Union of these States is a wonder; their Constitution a miracle; their example the hope of Liberty throughout the world.  Woe to the ambition that would meditate the destruction of either!"

Slavery in the Constitution

If Founders believed in the Founding Principles, then they knew in their heart that slavery was the epitome of oppression. Slavery denied other humans the exercise of their liberty, which the Founders understood to be precious. Yet it was a slaveholder who wrote, “All men are created equal, that they are endowed by their Creator with certain unalienable rights.”

Slavery is a difficult issue in our nation’s history. The Founders, especially the Constitutional Framers, have received censure for not taking greater action against slavery. Some of the more prominent Founders are denigrated because they owned slaves. How can the Founders comments be reconciled with their actions? The answer is not simple.

Slavery at the Founding

At the time of the Constitutional Convention, slavery was illegal only in Massachusetts; more than two hundred slave ships regularly sailed out of New England; and over half of the wealth in the South comprised slaves. Both England and the North held a large amount of loans collateralized by slaves. In 1787, slavery was widespread, and a major element of the economy in both the South and the North.

Despite the position of slavery in 1787, many of the Founders believed slavery was already on its way to extinction. The slave trade had been made illegal in ten of the thirteen states. All thirteen states were seeing an increase in free blacks, especially in the North and the frontier areas of the South. Between 1775 and 1800, the number of free blacks in the nation increased from fourteen thousand to one hundred thousand. Virginia had passed legislation that freed slaves who served in the army or navy. In 1780, Quakers in Pennsylvania pressured the state legislature to pass a law declaring all children of slaves free. With the importation of additional slaves prohibited in most of the country, declining slave labor economics, and growing pressure to declare the newborn of slaves free, most of the Founders didn’t want to jeopardize the union over an institution that was already dying. For this reason, even staunch abolitionists like Benjamin Franklin only made peripheral swipes at slavery during the Constitutional Convention.

Author Interview: From Inception to Current Events

I ran across this Jumping in Pools interview from 2010, and it still reflects some good points about the creation of Tempest at Dawn and its relationship to current events. Here's a snippet:

"All of my writing had been highly technical, but storytelling has always fascinated me. Although I now write fiction, I had a bumpy start. I had to read piles of books on the art of fiction, hire a writing coach, and attend numerous workshops. Then I blundered around until I started to get the hang of it. It took years for me to shed the baggage that I had brought from the technical, non-fiction world. The main thing I had to learn was how to relay history and facts without interrupting the flow of the story. Much tougher than I expected."

 You can read the rest of the interview here...

The real story of our nations founding.

Fear of an Overly Powerful Government—As American as Apple Pie

Advocates for limited government are accused of wanting no government. It’s a straw man argument that in essence says we must keep every little piece of government or nothing at all. Limited government advocates do not want to eliminate all government, they only want to return government to its rightful place.

The Founders didn’t fear powerful government because they hated government; they feared powerful governments because they threaten liberty. This has been true throughout history. The more power government wields, the more it dictates the daily activities of its citizens. Big government doesn’t sometimes oppress. Sooner or later, big government always oppresses.

Today, many people believe the government should take care of them. The government should right every wrong and insure a fair distribution of necessities. The sad truth is that making sure everyone has shelter, food, health care, training or education, protection against disability or unemployment, and a risk-free retirement is expensive. Government services in excess of national income can work for a long time—decades even. Basically, it’s a sly way of buying votes with the next generation’s money. Unfortunately, it can’t last. Once the interest on the borrowed money starts claiming a big piece of the current budget, the responsibly can no longer be foisted onto the next generation, and the fiscal charade begins to crumble.