The Constitutional Convention.
Sunday, June 20, 2010

Founding Documents

The painting to the left is one that I did back on July 4, 1968. At one point I had it on exhibit at a commercial gallery in Georgetown. It doesn’t really have a name, not even something like Composition 105, 1968, but the dealer suggested it be called Insurrection since it was the ‘60s and it had been done on the 4th. The dealer was unable to sell it, and it was too big for him, and I wound up taking it home. I should note that I’ve never managed to sell any of my paintings. I should also note that I’m too attached to them to want to.

At any rate, with the 4th coming up I thought that I would move from Locke to the founding documents of our country, which, as the guy on the bus knew, were influenced by Locke

Declaration of Independence. Lets look at some key words and phrases in this document.

Laws of Nature and of Nature’s God—Except insofar as legitimizes the break with England the Declaration has no current statutory authority, so it can’t be argued that this document enshrines the idea of God in the American legal system. What it does show right here is that Jefferson and the others were operating in the Natural Law/Natural Rights tradition that originates long before Locke. Nature’s God leaves the idea of God open. He’s Nature’s God, and that’s not necessarily Jesus Christ to non-Christians.

They are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness—Again this invokes natural law theory, and it refers to the state of nature. These rights are not conferred upon us by the government, they are ours as part of our natural inheritance. Happiness is for Locke hedonistic, i.e., the absence of pain and the presence of pleasure. Pleasure being understood not in the sense of voluptuary pleasure, but the pleasure of fulfilling one’s purpose.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States—Note the resemblance to Locke’s passages on tyranny and the dissolution of the government.

Articles of Confederation. It should be noted that the articles call for “perpetual union.” The doctrine of secession cannot be regarded as incorporated into the articles. I’ll mention some of the things I find significant.

Article IV. Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates of every other state—So this means that if you’re convicted in one state, every other state is obligated to recognize that conviction as valid. A contract valid in one state is valid in another. Now comes the tricky part. If one state recognizes a contract as valid, it is valid in all the states. So it is possible for Hawaii to legalize gay marriage, and because of the faith and credit language every state will have to recognize that marriage as valid. So if Hawaii marries gays and Virginia doesn’t, then a gay couple married in Hawaii but located in Virginia would have to be recognized as valid.

Article V. This is a long one, but in part it deals with the armed forces. Here’s a part that’s of relevance to 2nd amendment discussions:

“No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”

Note that the passage is perhaps excessively detailed, but it envisions a militia. Now it sees the state as storing the arms, but at the same time it would seem that the people as a whole make up the militia. The individual states are obligated to maintain supply depots. It is the people who in both a logical and an historical sense have precedence over the militia as such.

The Great Governor of the World—This is a deistic phrase. The founders weren’t particularly concerned with being politically correct, but deism was probably the closest they came. By using terms such as Architect, Governor, etc. they used terms to which Christians, Jews, and all the rest could give plausible assent while also believing in a more personal version of the deity. This forged an area of implicit agreement between the strict deist, who believed in a creator/designer who walks away from His creation, and the traditional believer.

Constitution. Wiley Miller¹ does a strip called Non Sequitur for the Washington Post and other papers. He recently did the cartoon to the left. (If you click on the cartoon you should go to a larger version.) The man in the cartoon is apparently a Tea Party activist, and the woman is your usual liberal. The woman makes some remarks about returning to the “original constitution,” and suggests that it would be appropriate to return, but to reverse things so that only blacks and women have the vote. There is so much that is wrong with this that I think it’s worth reminding people of what the constitution does and does not say before moving on to discussing parts of it.

¹ I became so disgusted with the strips anti-Catholic, anti-Christian, anti-religious attitude that I've stopped reading it.

First off, the Tea Party movement does not desire to return to the original constitution. That’s safely housed in the National Archives at 7th and Penn. NW, DC. It wants to return to an “originalist interpretation” of the Constitution, which is one that is based on the intent, insofar as it can be determined, of the founders.

Second, while slavery is mentioned, it is not identified with race, and the states were free to grant the franchise to anyone they chose.

Third, sex is not mentioned in the Constitution until 1920, when the suffrage amendment was ratified. As in my second point the states were free to grant suffrage to anyone they wanted to. In fact, Wyoming granted suffrage to women in 1870.

So lets begin looking at the Constitution.

Article 1. This deals with Congress. The most controversial portion is this: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The three fifths are slaves. However, this is usually understood as something the slave states desired. The slave states, such as Virginia, were larger and more populous than states such as New York. It was in the interest of Virginia to accrue as many representatives as possible. So it would be desirable for Virginia to have a slave counted as a full person for the purposes of representation. Since the agricultural South had a greater population than the mercantile North, it was in the interests of the North to limit the influence of the South. The compromise of 3/5 allowed more influence for the South, while limiting it to a greater degree than the South would have liked. The compromise was not a surrender to Southern prejudice, but an attempt to check that prejudice.

Article 1. Section 5. “Each House may determine the Rules of its Proceedings, punish its Members for Disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” The House and the Senate may operate under separate rules. It’s not clear though whether this means that it the lower house can “deem” legislation to have passed without actually taking a vote on it. It does mean that either body can expel a member for any reason or no reason at all.

Article 1. Section 8. This lists the powers of Congress. Among them are the following:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Now what did they mean by “Commerce?” To claim that interstate commerce is, in essence, anything that Congress wants it to be because every action is going to affect some aspect of interstate commerce is to open the door to a host of absurdities

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Note that this is for “limited Times,” not forever. Congress has tinkered with copyright so that works written after the 1920s may never enter the public domain. Now some books that were widely popular, or at least talked about in the intellectual press, The Golden Bough, or Toynbee’s A Study of History, have fallen from favor and from print, and yet they are still covered by copyright. George Bernard Shaw had a life of 94 years, and wrote up until his death in 1950. His earlier plays are his best, and may be covered by copyright, or they may not. His later plays are covered by copyright, and while Shaw’s ashes have been scattered to the four winds, his estate still collects on his late plays.

Article 2. Section 2. This is in the part that deals with the president and his powers. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The president, as Commander in Chief has virtually unlimited authority regarding the disposition of troops. This authority is independent of the power of the Congress to make war. It is noteworthy that a declaration of war has been made only 5 times in U. S. history, the earliest being the War of 1812. See this Wikipedia article for a list of declared wars, as well as other military actions. Note that what is usually called the Civil War is not listed as a declared war. Since the North viewed it as a rebellion, no declaration was needed. The Civil War is the war that has produced the most casualties of all our wars.

Note also that the War Powers Resolution, which limits presidential power in this department, is of dubious constitutionality.

Article 3. Section 1. This is about the courts. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

This creates the court system, and while it refers to a Supreme Court, it does not proclaim the doctrine of judicial supremacy, i.e., that the court is dominant over the legislative and executive branches. We’ll discuss this more when we come to the Federalist Papers.

Article 4. Section 1. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” This repeats the principle from the Articles of Confederation. Under either of these clauses it would appear to be sufficient for one state to legalize gay marriage, and then while the other states would not be compelled to perform gay ceremonies, they would be compelled to recognize those of the states that performed them. This would apparently mean that couple married in Hawaii, could be divorced, but not remarried in Nevada.

Article 5 is the procedure for proposing amendments.

Article 6. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This asserts federal supremacy. It does not say that states may not grant greater rights than those permitted by the U. S. Constitution. Some states have constitutions that are less restrictive in some ways than the U. S. constitution.

Also in Article 6 is this “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” So this means that it is not permitted for the government to inquire of a person as to the nature of his faith, or his lack thereof. It does not say that a citizen, may not base his vote on any criteria he damned well pleases, including religion. Private bigotry is permitted, while public bigotry is condemned.

Article 7 defines the number of states necessary for ratification. It is also the only place where God is referred to, in the phrase “the year of our Lord.”

Note that nowhere in the Constitution is the oath of office to be taken with a Bible. It is not required that it be taken with a book at all. Nor is it required that one say, “So help me God.”


Freedom of press, religion, assembly, petition. This is one of the most contentious parts of the Constitution. Note that it says “freedom of,” not “freedom from.” You are free to be religious or not, but that doesn’t mean that religion may be excluded from the public square. The fact that you don’t believe in God does not require that everyone abstain from mentioning God in your presence. Speech may be boisterous and robust and even hateful. Whether it includes nude dancing is debatable. (A case can be made either way.) It should also be noted that this amendment forbids “an establishment of religion.” At the time of the revolution this meant that a church, such as the Anglican church in Britain, the Lutheran church in other countries, and the Catholic church in still others were part of the political process and it was required that citizens support them through attendance or through taxes. It does not mandate that no mention of God, Jesus, Mohammed, Allah, or Buddha be made in a public forum.

My objection to the atheist complaint about public mentions of God is that the word “God” is what some people might call polysemous (many meanings). When you hear the word “God,” you don’t think of a specific being. You may think of some cosmic force, an old guy with a beard, Jesus on a cross, some incarnation of Vishnu, or anything at all. You are not compelled, and that is the main thing to my mind, to hold any particular image or idea of God.

There is and can be no guarantee that you will never hear anything painful, hurtful, or despicable whether it be the name of God, a racial term, or anything else. The right to bear arms. There’s been some commentary on Heller and related cases. Since the framers were operating under the influence of Locke and Montesquieu, they probably believed, as I’ve said, that the people were the logical predecessors of the militia, and the right inhered in the people.

Quartering of soldiers.

Search and seizure. Probable cause is necessary. This leads to the exclusionary rule. While it is famous, and at least one bad movie has been based on the idea of the rule letting guilty creeps go, it is my understanding that it hasn’t been used that frequently. Double jeopardy. There was a pretty bad movie a few years back with Ashley Judd called Double Jeopardy. The idea was that she was found guilty of killing her husband, but he hadn’t died, and so she could kill him, and get away with it. The major flaw here is that while you may be convicted of killing someone, you are convicted of killing that person in a certain place, and on a certain date. Killing that person if they were not already dead would be a separate offense, not the same one.

It is worth noting that nothing forbids count splitting. An offense can be split into multiple charges. The hope is that if the jury fails to convict one charge it will convict on another. Nor does it forbid a crime being tried in federal and state courts. A murder committed in a National park would probably be tried in a Federal court. If it failed there and more evidence were larter found that was sufficient to secure a conviction it might be tried in a state court. When the state of Mississippi failed in its prosecution of the killers of the civil rights workers, they were later tried under the Civil Rights act for violating the Civil Rights of the three men. The Fifth Amendment also does not prohibit illogical results. For example, in the Teapot Dome Scandal, Albert Fall was convicted of accepting a bribe from Edward Doheny. When Doheny was later tried for offering the bribe, he was acquitted. So Fall was in jail for a bribe that, logically, wasn’t offered.

The fifth also prohibits taking private property for “public use” without just compensation. The idea behind Kelo seems to be that somehow, through some process known only to God and the Supreme Court, a pack of local politicians can divine that because a proposed use is expected to produce more tax dollars than the current use that transferring the property from one private owner to another private owner is a “public use.” Now there is a technical legal term for doing something in the expectation of returns that may or may not be realized. It’s “buying a pig in a poke.” Unfortunately such terminology seems to be out of favor in the Ivies.

This guarantees a speedy trial and the right to be represented by counsel. Here is the basis for the Miranda rights that are read over and over on TV.

Suits at common law. Twenty dollars in 1789 is 1oz of gold, or roughly $1,200. This has never been adjusted.

Excessive bail and cruel and unusual punishment. Cruel and unusual is something I have a problem with. It seems a bit vague. Evidently a punishment must be both cruel and unusual to be prohibited. Bread and water for 30 days may be cruel, but if everyone uses it as punishment, it fails to be unusual. Drawing and quartering, beheading, etc., are both and are prohibited.

Rights retained by the people

Rights reserved to the states, or to the people.

Judicial powers.

Change in procedure for electing the president.

Slavery abolished.

This is a big one. The due process clause has been used to incorporate the Bill of Rights, the first 10, into state law. In what are known as the Slaugherhouse cases of the 1870s the Supreme Court essentially read out the “privileges and immunities” clause. Justice Thomas apparently argued for the use of privileges and immunities in the case of MacDonald v. City of Chicago.

I think it only fair to say that my naive reading of the first 10 sees only one mention, in the first amendment, of the national legislature, and that while the 3rd, quartering, seems solely applicable to Federal actions, nothing in the remaining amendments seems to be applicable solely to the national legislature or administration.

The right to vote is extended to all without regard to race, color, or previous condition of servitude. It is this amendment that provides the basis for the various Civil Rights laws.

The federal income tax. This was perhaps the unwisest amendment, even more than prohibition. It does not lay out a structure for the tax system. Any tax, up to 90%, or even more, is permitted. It permits the confiscation of property, income, by the government, and its application acts in a negative way upon economic growth by depriving the most able members of capital needed for new ventures and economic growth. Now I have a problem with taxation. I regard it as theft, and the tax collector as worse than a Mafia enforcer. With the Mafia I am likely to be offered goods and services that I might actually use and enjoy. With the government my money is taken and spent in ways that give me no satisfaction. Petronius, while speaking of women made a point that is more applicable to governments and money, “Mulieres si non essent, omnia pro luto haberemus; nunc hoc est caldum meiere et frigidum potare.” (See p. 73 of William Arrowsmith’s translation for a risque version of this line.)

Direct election of senators. This was another unwise move. The election of senators became a game for the rich, for the influential, and for the connected. To appeal to voters it became necessary to raise vast sums of money. This essentially delivered the senate into the hands of special interests. We now have the best senate that money can buy.

Prohibition. Another dumb one. Encouraged the growth of crime families, and made criminals of millions.

Women get the vote.

Changes the date of the inauguration.

Repeals the 18th amendment.

Limits the president to 2 terms.

DC gets to vote in Federal elections.

No poll tax.

Procedures for when the president is incapacitated.

Lowers the voting age to 18.

Governs the pay of Congress.

Federalist Papers.

Locke isn’t referred to as much, if at all, in the Federalist. Montesquieu and The Spirit of the Laws are referred to. Montesquieu will be dealt with at a later date so we’ll forego any commentary on him.

I’m not dealing with the entire Federalist, only selections, and I’m going to try and keep my comments brief.

Fed 1. This is an introduction to the papers, and sets forth goals of the papers.

Fed 2. This deals with the danger from foreign powers.

Fed 6. This deals with the possibility of a break-up of the Confederation, and civil war. The author points out that Rome and Carthage were both republics and waged war on each other. This would seem to contradict the claim that is sometimes made that democracies do not go to war with each other. (That claim is probably true in the 20th century. It wasn’t true in the 19th when the U.S. and Britain went to war for a second time.)

Fed 9. The author introduces this one by saying “A firm union will be of the utmost moment to the peace and liberty of the states, as a barrier against domestic faction and insurrection.” He refers to Montesquieu’s arguments in favor of a small republic, and discusses the extent to which they are applicable to the U.S.

Fed 10. This deals with factions, i.e., parties, “Among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed, than its tendency to break and control the violence of faction.” The contention here is that a republic, and the author is at pains to distinguish between a republic and a pure democracy, is better able to deal with factions. It should be noted that the American Civil War and the results of the German elections of 1932 to some extent argue against this.

Fed 11. This one, by Hamilton, deals with the Constitution from the viewpoint of commercial and naval interests. Part of the argument here is that a larger union, one that can act as a single unit, is capable of greater commercial and naval achievements than a group of smaller, independent states.

Fed 12. This deals with commerce. Hamilton, the author of this one, sees national income as the product of individual and corporate effort, rather than the result of governmental beneficence. “A prosperous commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful, as well as the most productive, source of national wealth; and has accordingly become a primary object of their political cares. By multiplying the means of gratification; by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate all the channels of industry, and to make them flow with greater activity and copiousness.” Note that while Hamilton assumes a gold standard, he also anticipates the concept of the velocity of money when he refers to the “circulation of the precious metals,” and making them “flow with greater activity and copiousness.” It’s surprising that he doesn’t start talking about M1 and M2 (money supplies). He sounds even more modern when he says, “The ability of a country to pay taxes, must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates.” So while Hamilton did not have the modern vocabulary of money supply and its velocity, he had a pretty good grasp of the concepts.

Fed 14. James Madison here addresses an objection about the great size of the republic. In his defense of the Constitution he says, “In the first place, 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, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” In Madison’s view then the government is to be limited to its enumerated powers. Further the principle of subsidiarity, that the federal government should be concerned only with those tasks that are too great for the local and state governments, is implied.

Madison does not address the issue in this installment of the Federalist, but the most elastic portions of the Constitution are the interstate commerce clause, and Article 1, Section 8, Paragraph 18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.” Now it seems clear to me that it refers to those powers that have been allocated in the previous paragraphs, but it could be construed as giving virtually unlimited sanction to social experimentation.

Fed 15. This one deals with the defects of the Articles of Confederation. The defects that are listed include:

Fed 16. Later articles deal with the judiciary, but in this article the principle that Marshall would later seize upon in Marbury v. Madison is first enunciated:

“But if the execution of the laws of the national government should not require the intervention of the state legislatures; if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omission, nor evasions, would answer the end. They would be obliged to act, and in such a manner, as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defence, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice, and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional and void.”

At least some of the founders, in this case Hamilton, the author of this article, anticipated that the courts would rule laws unconstitutional.

What is at issue for some conservatives is whether in ruling a law unconstitutional some cases have been decided that in such a way that new rights and new laws have been created. For example, the right to an attorney is guaranteed, but is the right to an attorney at the state’s expense guaranteed? On the other hand, if a defendant’s attorney spends most of the trial asleep or passed out, or is otherwise incompetent, a court would seem justified in ruling that he had no effective representation. Roe, in particular is problematic on at least two grounds. First, it discovered a right that was previously unknown, and it did so amidst talk of penumbrae and emanations. Second, it moved what should have been a political decision, made on a state by state basis, into the judicial realm. This and similar decisions have led to the charge that judges are”legislating from the bench.” (Note: The few readers that I have who are religious, should note that I am speaking solely of political and legal issues. Roe is indefensible, in my opinion, on both moral and philosophical grounds.)

Fed 17. The author, Hamilton, considers the possibility that the Federal government might exercise tyrannical control over the states:

“An objection, of a nature different from that which has been stated and answered in my last address, may, perhaps, be urged against the principle of legislation for the individual citizens of America. It may be said, that it would tend to render the government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes. Allowing the utmost latitude to the love of power, which any reasonable man can require, I confess I am at a loss to discover what temptation the persons entrusted with the administration of the general government, could ever feel to divest the states of the authorities of that description.”

He rejects this idea for a variety of reasons, but I think he was too optimistic in believing that government would do anything except seek to accrue power. In any case, it is worth considering whether some actions taken in the ensuing 200 and more years have not sought Federal power at the expense of the states.

Fed 23. Hamilton here considers, “The objects to be provided for by a federal government: the quantity of power necessary to the accomplishment of those objects: the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.” He gives as the “principal purposes” the following: “the common defence of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations, and between the states; the superintendence of our intercourse, political and commercial, with foreign countries.”

Commerce has proven to be the engine by which the Federal power has been intruded into every aspect of American life. I haven’t seen in the Federalist papers or elsewhere any clear explanation of what they understood by regulating interstate commerce. My naive, and probably wrong opinion, is that it meant something like regulating the ability to tax items moving in interstate commerce, or road fees for roads that traverse two or more states. I’m fairly sure that it wasn’t intended to give Congress the power to establish any kind of agency, such as one to regulate make up, or set up subsidies for producing corn for ethanol.

Hamilton believes that the government should have the power “to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation; because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them.” His argument here is that a unified Federal government is best able “to provide for the common defense.”

Fed 31. This deals with taxation. Hamilton makes four statements that are interesting:

“A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible; free from every other control but a regard to the public good and to the sense of the people. “As the duties of superintending the national defence, and of securing the public peace against foreign or domestic violence, involve a provision for casualties and dangers, to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation, and the resources of the community. “As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent, must necessarily be comprehended in that of providing for those exigencies. “As theory and practice conspire to prove that the power of procuring revenue is unavailing, when exercised over the states in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.” The first statement, referring to the “objects committed to its care,” is fairly elastic. This could be used to justify taxation for any number of social programs. The second statement, however, is more closely tied to defense spending. Did Hamilton, who was Washington’s aide during the Revolution, think primarily of the government as devoting the major portion of its revenue to defense, or did he think that the power might be used to support social programs? I’m inclined to think that he leaned more towards defense.

Fed 37. This one is by Madison, and it focuses on the Constitutional Convention itself. It’s worth reading, but it doesn’t set forth any terribly exciting ideas.

Fed 38. This one deals with various objections and finds them incoherent.

Fed 39. Madison here examines the republican nature of the Constitution.

Fed 47. This one and the next four (48–51) are by Madison and deal with the separation of powers. Madison here discusses the British constitution and Montequieu, as well as offering critiques of the various state constitutions.

Fed 48. Madison here defends the interconnection of the various branches of government: “It was shown in the last paper, that the political apothegm there examined, does not require that the legislative, executive, and judiciary departments, should be wholly unconnected with each other. I shall undertake in the next place to show, that unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”

Fed 49. This one starts with a discussion of a proposal by Jefferson, in part of his Notes on the State of Virginia, about calling a constitutional convention upon the agreement of a supermajority of two branches of government. Madison discusses this and says, “The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy; and their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connexions of blood, of friendship, and of acquaintance, embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of their rights and liberties. With these advantages, it can hardly be supposed, that the adverse party would have an equal chance for a favourable issue.”

Madison envisions a government that has a small bureaucracy, as opposed to the 2 million or so federal employees of today. He also supposes that there will be more contact between the voters and there representatives than there is today. I know that I’ve never met my congressman, and probably wouldn’t even recognize him if he came up to me. (I would recognize Harry Reid because he has a distinct resemblance to the rattus mortuus that we pulled from the pool last year.)

Fed 50. This is a discussion of periodical appeals to the people to revise the constitution.

Fed 51. Madison here gives his thoughts on securing the separation of powers: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” When ambition counteracts ambition Madison is adhering to the idea that the competing interests of each will work towards a resolution of the issue by effectively limiting the way in which the various branches interact. He does not address the issue of judicial supremacy here, nor does he explain how the courts will enforce their decisions. Suppose the court makes a decision, but the president is not inclined to follow it? Andrew Jackson is supposed to have made a remark about Justice Marshall enforcing his decision regarding The Bank of the United States. That’s a bit obscure, even for me, so lets ask how Justice Warren would have enforced Brown v. Board of Education if President Eisenhower had not called out the National Guard?

Madison was of Locke’s opinion regarding legislative supremacy, “But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority necessarily predominates.”

Madison compares competing parties to competing sects, “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.” No group in this view is ever powerful enough to gain permanent control in such a way that it can destroy another party or another sect.

Fed 57. This one, also by Madison, deals with the charge that the constitution will elevate the few over the many. Madison gives several reasons why this will not happen, but it is the fifth one that is most interesting to me right now:

“I will add, as a fifth circumstance in the situation of the house of representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interest, and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the house of representatives from making legal discriminations in favour of themselves, and a particular class of the society? I answer, the genius of the whole system; the nature of just and constitutional laws; and, above all, the vigilant and manly spirit which actuates the people of America; a spirit which nourishes freedom, and in return is nourished by it.”

In 1964, when the Civil Rights bill was passed, Congress exempted itself from its provisions. A congresscritter, such as Bella Abzug, was able to hire an all female staff, which she would not have been able to do as a private employer under the provisions of the act. This exemption has happened several times, including the healthcare bill that was passed this year.

Madison warns in the very next paragraph that “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.”

I leave it to the gentle reader to contemplate whether this is true today or not.

Fed 62. This deals with the senate and the necessity for stability. There is an interesting paragraph at the end:

“But the most deplorable effect of all, is that diminution of attachment and reverence, which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected, without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”

Fed 63. Further discussion of the senate. Madison postulates that if the senate should ever become an “independent and aristocratic body” that the house of representatives will be able to pull it back:

“Besides the conclusive evidence resulting from this assemblage of facts, that the federal senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body; we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the house of representatives, with the people on their side, will at all times be able to bring back the constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves.”

Note that Madison envisions departures from the constitution’s “primitive form and principles.” So Madison would appear to align himself with those who believe that there is an “originalist” interpretation of the constitution.

Fed 68. This deals with the election of the president. Hamilton gives some explanation of the necessity for the electoral college system.

Fed 69. This one mentions impeachment. The president, once removed, can be tried as an ordinary felon and imprisoned, or even executed.

Fed 76. This one deals with the “advice and consent” of the senate to nominations.

Fed 78. This one, by Hamilton, deals with the judiciary. Hamilton considers the judiciary to be the branch with the least potential for doing harm:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the 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. The executive not only dispenses the honours, but holds the sword of the community; the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

So Hamilton does envision that acts of congress can and will be declared unconstitutional. He is at pains to deny that it amounts to judicial supremacy:

“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.”

Hamilton then goes on to provide justification for his belief.

I leave it up to the reader to ponder the extent to which modern judges live up to this Hamiltonian vision.

Fed 81. This also deals with the judiciary. It should be read in conjunction with Marbury as it provides a theoretical framework for justifying that decision.

Next up, a brief break from serious literature with a sci-fi novel, although one with a serious theme, John Ringo’s Live Free or Die, followed by Thomas Hardy’s A Pair of Blue Eyes.