Trump and the Great American Experiment

Posted on November 10, 2016. Filed under: Civil Rights, Politics, The Founders, U.S. Constitution, What History is For | Tags: , , , , |

Today we’re re-running a post written at the very start of this blog, for reasons that will become evident as you read, on the second day of living in anticipation of a new presidency that is dedicated to perverting and destroying America’s founding principles.

From this point on, the HP is going to increase its focus on civics, our founding principles, and the fight for liberty and justice for all under the Constitution, because all Americans will need that information going forward into a Trump presidency that will not only allow that man to exercise his ill-judgment, but open the door to all Americans who have no faith in their nation’s founding principles. To destroy those principles is treason. The HP fights treason in all forms.

So, with a quote from the great Liberator, William Lloyd Garrison’s antislavery newspaper, we begin this new era:

I am aware that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! No! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen;—but urge me not to use moderation in a cause like the present. I am in earnest—I will not equivocate—I will not excuse—I will not retreat a single inch—and I will be heard. The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead.


America is an experiment. From the time of its first white settlement, America has been a place where people came to experiment with doing things differently. It’s been a place to gamble, to see if you could be one of the lucky ones who became landowners or lawyers or independent merchants. You gambled on the weather, politics, your own skills, and your own ability to commit to the experiment of living in America, and being an American.

During the 18th century, the experiment deepened, as Americans began to speculate that they could form the first democratic nation in modern times. Intense experimentation went on from the 1760s to 1787, as Americans adapted and invented forms of government fit for the scope of their needs, the gaping hole of their inexperience, and the high and intense expectations for their future.

On and on went the experiment: could we create a strong and stable centralized government? Could we grow without destabilizing? Could we solve the problem of slavery? Could we truly create a melting pot in which to forge Americans out of peoples of all nations? Could we give women the vote? Could we accept Jewish people as true Americans? Could we desegregate? Could we assure civil rights regardless of sexuality?

America’s story is one of constantly tackling the big—the biggest—problems, ahead of everyone else, with very little to guide us but those founding principles that nag at our conscience. And each time we’ve made progress, extending civil rights to more and more people, it’s been because that old spirit of taking a gamble, of performing the ultimate experiment, took over and led us to the right decision.

As we think today about what divides Americans, I think it boils down to the fact that some Americans no longer want to experiment. They want to close the lab down. We’ve gone far enough into the unknown, making it known, they say; now let’s stop—let’s even go backward. We were wrong to conduct some of our experiments in liberty, and that’s the source of all our problems. Gay people shouldn’t be treated equally. Black people shouldn’t run the country. Women shouldn’t hold high office. Muslims shouldn’t be granted habeas corpus.

Whenever one of those Americans talks about the problem with our country today, they talk about how we should be like we once were, back when white people who defined marriage as one man-one woman and were Protestant veterans built this nation. They feel they are losing their birthright, their legacy.

But those Americans are wrong. What their ancestors really were was scientists. Experimenters. Radicals who always considered the impossible possible. To define those ancestral Americans as merely white or straight or Christian strips them of their most stunning feature, their near-supernatural qualities of optimism and defiance and willingness to go into the unknown and make it their home, to make the amazing the norm. They defied the status quo. That’s how they built America.

Americans who want to end the experiment are few, but boisterous. They clamor at the national microphone. But Americans who know that there is no America without the experiment will keep at it, and they will persevere. Barack Obama is such an American, and his election is proof that the lab is still open, and that America in general will always be at the drawing board, expanding its concept of liberty and justice and equality until we finally fulfill the founding principles that created this nation so long ago.

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A Nation of refugees

Posted on November 17, 2015. Filed under: Civil Rights, Immigration, Politics, U.S. Constitution | Tags: , , , , |

The wars in what we grew up calling “the Middle East”, from the Syrian civil war to the battles against the so-called Islamic State, are doing what all wars do: creating millions of refugees. This is not new in human history. Why is the U.S. a nation of immigrants? In large part because millions of people fled war in Europe during the 19th century. From the revolutions of 1848 to the wars that created Germany to the people who fled Europe after WWII, war has always grown our population in the U.S.

But that last one in the list, WWII, is actually an anomaly. It was after WWII that the U.S. began adopting policies that limited immigration, even for people claiming refugee status. There were multiple reasons for this; anti-immigration policies had begun to multiply in the 1920s and 30s, and affected people’s ability to leave Europe for America before the Second World War. These policies led to the refusal of the St. Louis in May 1939,  because it carried 937 Jewish Europeans seeking refugee status in Cuba; Cuba would not take them, and according to the Immigration Act of 1924 that cut immigration from southeastern Europe sharply, neither would the U.S. (The Jewish refugees were sent back to Europe where they fell victim to Nazism.) After WWII, the Cold War encouraged U.S. officials to restrict European and Asian immigration as we became a fortress closed against Communism.

So we actually became less welcoming to Refugees from Foreign Wars, as they used to be called, during WWII. Famously, it took an emotional visit by First Lady Rosalyn Carter to starving and dying Vietnamese and Cambodian refugees from the Vietnam War to change our policy and allow them to enter the U.S.

In the 1920s, the U.S. banned immigration based on religion and race: “undesirable” Catholics, Jews, and people who were not considered white at that time like Italians and Czechs and Russians all had their quotas lowered. Since the 1950s, immigration has been viewed through the lens of politics and religion: Catholic Latinos in the 1970s-90s, and now Muslim Middle-Easterners are the new bogeymen. In the late 19th century and to the 1930s, southeastern European Jews and Catholics were decried  loudly by panicking white Protestants: their mission from the Pope or whoever controlled them was to destroy the U.S. government and our white nation. Today, the nativists panic as they claim… the exact same thing.

Muslims can’t understand democracy. They can’t participate in it. They won’t learn English. They hate our free society. They’ll bring their religious laws here and try to enforce them. They’ll destroy our government. They’ll commit acts of terrorism.

All of these hate-panic claims were once made about Italian, Jewish, Chinese, and Catholic immigrants. Somehow none of them came true.

Yet some of our political leaders are clearly nostalgic for the bad old days. Rick Santorum thinks all Syrian refugees should go back home and fight ISIS. Somehow they will succeed where Russian air strikes have not. Carly Fiorina wants all refugees screened for terrorism before they can come here. Rand Paul has a blanket “no” when it comes to Muslim refugees. Bobby Jindal thinks all refugees should be constantly monitored in the U.S., ankle-bracelet style. And Mike Huckabee thinks it’s “crazy” to take poor people from the “desert”, “who don’t speak our language, who don’t understand our culture, who don’t share a [sic] same worldview, and bring them to Minnesota during the winter”.

Luckily none of these people are running the country. Our president faced this front of ignorance by reminding us of who we are:

When I hear political leaders suggesting that there would be a religious test for which a person who is fleeing from a war-torn country is admitted, when some of those folks themselves come from families who benefited from protection when they were fleeing political persecution, that’s shameful, that’s not American. That’s not who we are. We don’t have religious tests (for) our compassion.

This is a much-needed counter-attack against those who insist that instituting the religious tests that our Constitution absolutely outlaws and deplores as undemocratic will keep our democracy safe. Suspecting people who have fled for their lives in a war of being warmongers whose only goal is to destroy any nation that takes them in and offers them hope is beyond ignorant. And it’s beyond American.

Whenever anti-immigrant, hate laws were passed in our history, there were Americans who stood up against them. There are always Americans who fight for justice for all. That’s our true identity. That’s American. Let’s remember that. Let’s remember who we are and how we got here, always aspiring to greatest-nation-on-Earth status, because the old saw is true: if we destroy everything we stand for in the name of security, the terrorists win.

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Court decisions are not “democracy”?

Posted on November 13, 2015. Filed under: Civil Rights, U.S. Constitution | Tags: , , |

We were listening to the news and heard someone being interviewed say that an issue in their state had been decided by the state Supreme Court, and therefore the issue “was solved by the courts, not by democracy”.

This idea that the judiciary, one of the three branches of our government as described by our Constitution, is somehow not part of our democratic system is a baffling one. We are forced to repost our original rebuttal of this idea, from 2008, here in the continuing effort to fight this misconception:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

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The Ninth Amendment: (all unallocated) power to the people!

Posted on July 30, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

In part ten of our series on what’s in the Bill of Rights, we land on the Ninth Amendment, which is a harbinger of the Tenth and final amendment in that it is a portmanteau amendment: a short sentence packed with meaning.

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

That is, any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people. A right has to be explicitly withheld by the Constitution for it to be unlawful. You can see why this was necessary to state: all the rights citizens have can’t be listed in any document; it could get to a thousand pages and still be incomplete. The Ninth Amendment is sort of like “innocent until proven guilty”: an action is protected until it is specifically outlawed in the Constitution. It keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution. The main, big, fundamental rights are all in there; the many smaller rights are not, but they are indeed our rights until legislation and/or judicial decision makes them unconstitutional.

This puts a burden on the courts, of course, to decide cases where it’s not certain whether something should be made unconstitutional. But that’s how our system is supposed to work, through trial and error and case-by-case precedent and reinterpretation of precedent. Usually the Ninth Amendment is called into play to expand an existing Amendment right: for example, 1973’s Roe v Wade decision said that the right to choose to have an abortion is protected under the right to privacy: “the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

When it’s not assisting interpretation of other amendments, the Ninth Amendment is sometimes called into fundamental question. Harvard law professor Laurence Tribe has stated that “The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

That seems to be logical, but then again, a) it’s  important to know how to read the Constitution, and b), it’s even more important to remember that a democracy must assume that rights outnumber prohibitions. If citizens have to prove they are not breaking the law at every turn, if they are “guilty until proven innocent”, the power of the law is not with them. This idea will be reinforced by our next, and final, amendment.

Next time: the end of the road

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Why don’t we remember Watergate?

Posted on October 1, 2014. Filed under: Politics, U.S. Constitution, What History is For | Tags: , , , , , , |

Hello and welcome to the final post in our series on the Watergate Crisis, in which we ask the depressing question, Why have Americans forgotten about Watergate? This series has only given an outline of the terrible challenge to our democracy posed by President Nixon’s actions, and those of his top advisors. Their attempt to put the executive branch above the law and create an imperial presidency, if successful, would have allowed the president, any president, to commit any crime s/he felt was necessary to achieve her/his goals. Whether or not the president’s goals were good ones would be immaterial.

The American public’s response to this attempted hostile takeover was spectacular. They rose up almost as one to protest. Network news, newspapers large and small, and the man on the street all knew that the Constitution was being violated and they all refused to sit back and accept that. Nixon was out of office once his criminal activities and determination were clear. Maybe that’s part of the problem. The reaction was so swift and complete, and Nixon out so quickly (and immediately pardoned by Gerald Ford, so there was no long criminal trial after his resignation), and Americans so eager to leave the sordid episode behind them, that Watergate was collectively buried. More Americans today know about George Washington’s alleged infidelity (a complete lie, by the way) or Lincoln’s alleged homosexuality (don’t know, but it doesn’t seem likely) than the actual, open, undeniable crimes committed by Richard Nixon.

But we think the amnesia surrounding Watergate is caused by something far worse than a quick burial. One of the long-term effects of the crisis was a deep mistrust of the federal government. This is so inexplicable. Representatives of the federal government, notably the Watergate special prosecutor Cox, Attorneys General Richardson and Ruckelshaus, the Supreme Court, and all the members of the Senate Watergate Committee heroically resisted efforts to corrupt them. It was men within the president’s inner circle who committed and/or ordered the crimes, not the machinery of the federal government. The federal government rejected the attempt to transgress the Constitution, and the next two presidents after Nixon, Ford and Carter, made strenuous efforts to restore the dignity and honor of the executive branch. Yet somehow, over the 1980s, the message of Watergate became “You can’t trust the government.”

Perhaps the controversial/criminal actions of the Reagan Administration, coming so soon after Nixon’s, became merged with Nixon in the public mind, and led people to believe that the government had not been trustworthy since Kennedy.

Or maybe the steady decrease in civics education from the 1970s on created new generations of Americans who have no idea why Nixon’s actions were criminal.

Or maybe the imperial actions of President George W. Bush, and over a decade of invasion of privacy and other constitutional violations, notably by the Patriot Act, have made Americans forget that the president is not supposed to govern by executive order.

Whatever the reason, it’s bad news to forget about Watergate—what it threatened, who stood up to it, and how the Constitution and good government triumphed. If we begin to believe as a nation that we have “never” had good government, that “all” presidents are corrupt, or that the president is “supposed to” rule the nation like a king, then Nixon wins, corruption wins, and it’s as if Bill Ruckelshaus never stood up to the power of the president who told him he had “no choice but to obey” and said, “I have a choice—I can resign.” We all have the choice to refuse to obey when our Constitution is threatened, whether it’s by the federal government, or by our own ignorance.

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Federalists and Anti-Federalists: what did the debates do?

Posted on March 12, 2014. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , |

In our conclusion to our series on the Federalist debates that gave us our constitution, we try to wrap up their overall impact on the U.S., in their own time, and over the centuries since 1787.

We haven’t hit all the topics of debate in this series; for example, we haven’t looked at the worthy Anti-Federalists criticisms of the Supreme Court (they balked at the idea of having an unelected, lifetime-term body that could overturn the laws of Congress as it pleased; as usual, the Federalists replied that any body in service of the just Constitution would never become tyrannical). We have also left out the demand for a Bill of Rights, which was general on both sides, Federalist and Anti-Federalist (more on that in a later series).But we have gotten a sense of the categories of debate in general: the Anti-Federalists wanted to keep government as small and, crucially, as local as possible to avoid its corruption; and the Federalists wanted to give the federal government elastic powers to meet unforeseen dilemmas in the future, as well as to control the all-too-real and familiar dilemmas the young nation was already facing.

But in a larger sense, the Federalist debates were important not for their content, but for their happening at all. After popularly elected delegates met to create a new body of national laws, the entire nation was invited to participate in the debate over their ratification as our Constitution. Every aspect of the proposed Constitution was dissected and put under the microscope, and dissenters were free to publish their dissent, their criticisms and fears, in the free press. 85 Federalist Papers were published between October 1787 and August 1788. This is a far cry from the usual press treatment of big issues today, which usually feature a flurry of intense coverage for a week or so, then a near-complete dropping off of interest. For nearly a year the nation weighed the pros and cons of the proposed Constitution and the government it would create in a public forum where no holds were barred. Then the states elected delegates to participate in ratification conventions, and in most states people thronged outside the building where the conventions met, waiting to hear what they had chosen—to accept the new Constitution or not. Over 10 months, the required 9 states voted to ratify, which the caveat that a Bill of Rights be written and added to the Constitution as the first order of business of the  new government.

This democratic process must have inspired some Americans to believe in the Federalist promise that republican virtue could be relied on  even in a large population. No one had been censored, no one arrested or imprisoned, no one lost their property or their livelihood as a result of the position they took on the Constitution. Americans must also have been inspired by the near-blinding modernity of the ideas in the Constitution, and the futuristic nation they at once created and imagined.

We have seen over the centuries since 1788 that the Anti-Federalists got a lot right; their questions about state power to counter federal power, the danger of giving any government body unlimited power to act in the name of national security, and the tendency of power to corrupt have been proven pertinent many times over. Yet we see that the Federalists’ main precept was correct: any government, even a small, local, state government, can become corrupt if people lose faith in the principles of democracy. Keeping things local is no guaranty against corruption. And we can’t rely on one segment of the population—the small farmer or, to add today’s like category, the blue-collar worker—to provide all the republican virtue. Everyone has to be raised up in the tradition and discipline of democracy. Every citizen has to be committed to upholding the Constitution. And the most committed citizens should serve in our government—not the richest or celebrity citizens. If we believe in the principles the Constitution offers, we will send people to Washington who also believe in them, and will actively uphold them in the face of temptation to corruption.

And so we leave the U.S. in 1788, with its newly ratified Constitution, and centuries ahead of it to work out the million problems old and new, expected and completely unanticipated, that would challenge the strength of that document and the commitment of those citizens. We should take with us as we go a bit of their republican virtue to solve the problems we face in our own time.

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The Federalist Debate over the three branches of government

Posted on February 26, 2014. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , , |

Hello and welcome to part 7 of what is becoming a monumental series on the Federalist debates that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.

But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?

The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress)  given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?

Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.

The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.

As Madison puts it in Federalist Paper 51:

But the great security against a gradual concentration of [power] in [one branch of government], 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. 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. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.

The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.

Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.

So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.

The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.

With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.

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The Federalist vision of the American Republic

Posted on February 19, 2014. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , , |

In part 6 of our series on the Federalist debates that gave us our Constitution, we rebound off the Federalists’ weak attempts to claim that the federal government they envisioned could indeed have its power checked by the states (which was not really true) to their more powerhouse vision of what a modern, American republic would really mean.

We, like the Federalists, have looked at the traditional republics of antiquity and seen that they were all very small geographically, very dependent for their success on the civic virtue of their citizens, and, perhaps consequently, very short-lived. The Anti-Federalists worried that the United States was already far larger geographically and population-wise than any previous republic, and that any central, federal government would necessarily be far removed, physically and spiritually, from the heart of the people—the farmer. Anti-Federalists said that the honest, virtuous yeoman farmer was and should be the backbone of the nation, because he could be counted on to do the right thing (the merits—or lack thereof—of this dubious argument can be set aside for now). The whole point of government should be to educate the people in civic virtue by giving them local government they could be actively involved in. That could not happen in a federal state, especially one where the states had no right to check the power of the federal government. What you want in a republic, the Anti-Federalists said, is all the people involved in all the government all the time, united in their virtue and commitment. And in this argument, they were backed by historical opinion.

The Federalists rejected this. Instead, they offered the world a radical new definition of a republic. Direct popular rule, they said, is exactly what you don’t want in a republic. Why? Because whenever human beings gather together, they fight. It’s just human nature. People break into factions. They group together, united by some common interest they discover or invent, and then they want to push their own agenda, gaining more rights for themselves at the expense of the common good in general, and the “them” they see as threatening them in specific. This “us against them” mindset is unavoidable in human society. And it leads to one thing: tyranny of the majority.

We’ve discussed this concept in several places on the HP; here, the thing to focus on is that the classical republican ideal of a populace united in virtue is a complete fantasy, according to the Federalists. No population is ever going to be united, for a good or a bad goal. It will break into factions and each faction will attempt to impose its way on the others (tyranny). And even if the majority of the population is in one faction, it’s still wrong, the Federalists insist, for that majority to impose its will on others (tyranny of the majority). As we put it elsewhere, this tyranny of the majority:

…ends up perverting democracy by forcing injustice on the minority of the public. Slavery is a good example. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans and white abolitionists were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools, for various reasons. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation. In each of these examples, the majority is imposing and enforcing injustice, which is incompatible with democracy. They are tyrannizing rather than governing.

Faction, the Federalists say, will always trump the goal of a united populace. So what do you do to get real democracy? You avoid direct rule and embrace faction.

Here’s the argument: work with factions, don’t try to suppress them with an education program to create virtuous citizens, because that will never work. Instead, embrace all the problems the Anti-Federalists see with creating an American republic—the large size of the nation, representatives working far away from their constituents, farmers not having time to travel to a far away central government. All of these things will make a new kind of republic possible. First, the large size of the nation means that many diverse people will populate the country and it will be hard for them to join together to make large factions that threaten tyranny of the majority. The large size of the nation also means that if a faction does gain traction in one region, it will likely remain in that region—it won’t spread, because the factors in its region that promoted its growth won’t be found in other regions. And in a large nation, representatives will be physically far away from the people, and that’s good because it keeps them away from the pressure of the mob, from factions banging down their doors.

And in our large nation, members of Congress will have such diverse constituencies that they will have to compromise in order to try to satisfy as many people as possible (something that gerrymandering was quickly invented to remedy). But even with gerrymandering, this did work for many decades: one great example is slavery. The two main American political parties of the first half of the 19th century, the Whigs and the Democrats, were evenly and equally represented North and South. There were no red or blue states—each region had Whigs and Democrats. Because of this, few politicians could take a bold stance on the divisive issue of slavery, because politicians North and South knew that they had pro- and anti-slavery constituents. And so there was compromise on slavery, from the big compromises we all know, like the Missouri Compromise and the Compromise of 1850, to many smaller ones. Only a few people, like John C. Calhoun of South Carolina or Thaddeus Stevens of Pennsylvania had unified enough constituencies to take hard-line stances on slavery (Calhoun for, Stevens against).

Now, we regret today that slavery was ever an issue of compromise, but those compromises did prevent a civil war from breaking out in, say, 1820, when it would have been even more devastating to the young, unstable nation than it was in the 1860s. And we see that as the sections (North and South) became more polarized throughout the 1850s, the Whig party disintegrated, its Northern members unwilling to compromise over slavery and leaving to join the antislavery Free Soil or Republican parties, and the Democratic party became a South-only party, completely devoted to promoting and protecting slavery and nothing else. The Democratic party was able to exercise tyranny of the majority over the other parties for many years because of its unity, its factional devotion to one “us against them” issue. And so the civil war came.

So the Federalists argued that faction could be controlled by sheer size, on the one hand, but also by virtue, on the other. Yes, Anti-Federalists, there is still need for citizen virtue, said the Federalists, but instead of all the citizens needing to be ideal people who rise far above human nature’s need for tyranny and faction, only a few citizens need to do that. First of all, only a few citizens really can do that, said the Federalists, people who are well-educated and devoted to justice. If we urge our best people to go into government, then not only will our government be good, but the average person will respect their leaders and their government, and will give up some of their factional mob nature and support both instead.

In a way, the federal government in this vision of a republic is like a Play-doh fun factory: the misshapen mass of factional mob demands are fed into Congress, where members of Congress shape them into good laws by focusing on what is best for the people. In go irrational, factional demands, and out come good laws. And those good laws will inspire and educate the people, and make them less factional. So public virtue does not rise from the ground up, but moves from the top down.

This was indeed a vision of the republic that was completely new. It turned classical republicanism on its head. It said that allowing the people direct rule was just a way to make sure that their destructive factional demands destroyed their government. The Federalists said that removing the government from the destructive impulses of the people was the best way to improve the people over time.

It seems clear today that the Federalists were right to dismiss the Anti-Federalists’ devotion to the classical ideal, which was based on a fantasy version of heroic farmer politicians who would never do wrong, all citizens having direct control over government, local governments that would never become corrupted, government devoted to educating its citizens rather than governing them, and sovereign states united by ties so weak that any conflict could dissolve them.

Next time we’ll look at the arguments over representation to Congress. If that one body was going to house the powerful federal government, and somehow represent all citizens fairly, it was going to have to be composed fairly, out of a huge population. This would be no easy task. In fact, before representation could even be discussed, the structure of Congress would have to be argued out.

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Does the Constitution allow the states to check Federal power?

Posted on February 12, 2014. Filed under: 17th century America, Politics, The Founders, U.S. Constitution | Tags: , , , , |

Part 5 of our series on the Federalist debates that gave us our Constitution takes us up to the wrangle over whether that proposed document gave the states  any real power to check the power of the federal government. As we saw in part 3, the federal government was given unlimited power to tax the states by the draft Constitution, in the name of national security. Anti-Federalists, and even some Federalists, were uncomfortable with this power. The Federalist idea was that the federal government would only tax the states heavily during times of war, and even then it would be forced to put any tax measure up for renewal every two years, so that Congress would have a chance to remove an unfair tax.

But Anti-Federalists argued that relying on a branch of the federal government (Congress) to check the power of the federal government was illogical. Congress would have to vote to check its own power to tax, and why would it? Who gives up their power like that? It would be unlikely that Congress would be that self-disciplined and have that kind of integrity.

The Federalist shot back that Congress was made up of representatives of the states. So if “Congress” was committing a crime, it was really the states committing it, because the people voted for their Representatives, who then voted (at that time) for their Senators. Elect good members of Congress and you won’t have to worry about Congress hurting the states. What happened to your faith in “republican virtue”, Anti-Federalists? The common people you see as so virtuous and protective of liberty will elect their own people to Congress, so there won’t be a problem.

The Anti-Federalists repeated their argument that any representatives who had to travel to a faraway federal government would eventually, inevitably, become corrupt, and put their own power and glory ahead of the people’s liberties. And when that happens, the states are left with no way to check federal power with the Constitution we currently have.

The Federalists tried to swagger through this argument, saying that the state legislatures had many ways to check federal power. Now, this was and is not true—the Constitution does not give the states any power to block federal legislation. It was just another version of the “republican virtue” argument, and the Federalists knew it. When the Anti-Federalists pointed this out, the Federalists responded with a shocking argument, in Paper 46.

First, they said, members of Congress will always put the states first:

“It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the [interests] of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government… whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. …For the same reason, [the] members of the federal legislature will be likely to attach themselves too much to local objects. …Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States.”

That is, just as members of state governments care more about getting benefits for their districts than they care about doing things for the good of the whole state, so members of the federal government will always be pushing their individual states’ wants and needs rather than trying to do good for the nation as a whole.

This is an odd argument for a Federalist to make: the Paper is saying that the federal government will never really benefit “national prosperity and happiness, but the prejudices, interests, and pursuits” of the states. So why have a federal government at all?

This question is begged as the Paper goes on:

“…should an [unfair] measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a [fair] measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”

In other words, if the federal government passes a law the states don’t like, they can just refuse to obey it, and embarrass the government. This is hardly an argument that will convince the American people to vote Federalist. Again, why have the federal government if it cannot–even should not–control the states and make them obey federal law?

It only gets worse:

“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity?”

Yes, the Federalist Paper is saying that if the federal government passed enough laws considered to be assaults on states’ rights and individual liberties, the states can just revolt. There can be a civil war, and the United States government can be overthrown as if it were a “foreign yoke”. (This argument, by the way, would be dredged up in 1860-1 by Southern states to justify secession, saying that it was legalized by the Constitution.)

So the power given to the states by the Constitution to check the federal government is resistance to and war on the federal government. This is hardly a system of checks and balances; it is a system of obedience or war. The Paper wraps up thus:

“The argument… may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.” [emphasis added]

So the Anti-Federalists’ fears that the federal government will crush the state government is wrong—state governments will actually crush the federal government. How the federal government can be strong enough to hold the states together in a union, and represent them as a nation to the world, while being at the same time too weak to impose its own laws on the states for fear of civil war and disunion is a riddle.

The Federalists knew this. They tried in several Papers to address the problem that the states cannot check the federal government, but the truth was that in our Constitution they cannot, and secession and civil war are not sanctioned by the Constitution, while state obedience to federal law is sanctioned, and despite the protests to the contrary in Paper 46, if the states did try to secede the federal government would use military force to bring them back, as it did in 1861.

The Federalists wanted a strong central government, and they did not believe that it would inevitably become corrupted. They backed the radical experiment of federalism over the morass of confederation, and really did not have any way to prove to the American people that the federal experiment would work and the confederate experiment would not. They asked the American people to take it on faith that they could trust their federal government, and moved on, as we will, to their own vision of republican virtue.

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Puritan law, oligarchy, and the Body of Liberties

Posted on September 11, 2012. Filed under: 17th century America, Politics, Puritans, Revolutionary War, U.S. Constitution | Tags: , , , |

Part the last of our series on the 1641 Massachusetts Body of Liberties, the first codification of law in Puritan New England, in which we wrap up our look at this groundbreaking American political document with some thoughts on its meaning in its own time, and in ours.

This first codification of Massachusetts law was, as we saw in part 1, not easily drafted, as the people of the colony resisted doing so for two reasons: first, they felt a body of laws should develop naturally over time, as it had done in England, allowing precedent rather than law-makers to rule the day; and second because their colonial charter forbid them to create any laws “repugnant” to the laws of England, and they were not certain whether the laws they drafted would violate that tenet.

The uncertainty sprang, of course, from the fact that there was no written code of law in England at that time—its famously unwritten constitution was composed of centuries of local custom. But the Puritan leaders, and a growing number of freemen, in Massachusetts were worried about following that tradition in the New World. They worried that legal and court decisions would be made based on opinion, prejudice, or personal agenda rather than an objective striving toward justice. Just four years after landing in America, the Puritans began the lengthy process of drafting a code of laws with input from all the towns, and after six years of canvassing, drafting, reviewing, and revising, the Body of Liberties was published, with copies sent to all the towns to be read aloud and voted on.

The Body was only the first of many Massachusetts codes of law. In 1660 the Body was updated and enlarged (and renamed “Laws and Liberties”), with addenda added each year from 1662-6, and again in 1668. The Laws were revised and rewritten again in 1672, and would evolve over the decades into the state law of Massachusetts.

In its own time, the Body of Liberties was daring and innovative. Daring in that it established an independent government for the colony, with laws clearly not part of English law. The Puritans broke their charter to create their laws, and this is just one example of the commitment the Puritans of the Massachusetts Bay Colony made to independence almost from the moment of their arrival. As we’ve seen elsewhere in Puritan New England on the Edge, 1637, the people of the MBC feared a royal takeover of their colony, expecting warships from England to arrive in Boston harbor at any moment. Their response was to build forts overlooking the harbor and arm them with cannon, making the decision to fight to the death to preserve their religion, their laws, and their liberty.

The Body was innovative in that it set out a relatively brief yet comprehensive set of laws that reinforce a) the rights of freemen; b) the principle that no one is above the law; c) the right to a fair day in court; and d) the need for buy-in from the people themselves, who  first helped draft and then voted to approve and accept these laws. This was proto-democracy, and it was not being practiced in any other American colony—or many other places anywhere else in the world.

Today, the Body is mostly unknown to Americans. Most Americans, if asked what they think Puritan laws were like, would come up with the most repressive, draconian, irrational suggestions imaginable. (One example: on a recent tour of sites along the Freedom Trail in Boston, an acquaintance was told by the tour guide that Puritans put people in the stocks for sneezing on a Sunday. The Body, as readers of this series will note, contains no references to sneezing.) Modern-day Americans think of Puritans as witch-crazy religious nuts whose only goal was to oppress people. But we see from our study of the Body that to say this image is unfair is an understatement.

Why the Puritans continue to get such a bad rap is fairly clear: very few people actually read their documents. They read The Scarlet Letter in high school, hear the term “city upon a hill” used to refer to smug arrogance, and learn that Anne Hutchinson was persecuted, along with Quakers, for trying to spread religious tolerance. The overall effect is a rejection of the Puritans as unpleasant and even evil people, a fleeting example of intolerance that was stamped out by later Americans who created a fair Constitution.

Those who actually read what the Puritans wrote, and know what their beliefs and ideals and goals were, may not always come away happy and approving, but they have a much more accurate understanding of these revolutionary people, whose laws, and ideas of justice, in having shaped the political consciousness of Massachusetts, played an important role on the road to American independence and the Constitution we revere today.

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