Let’s Repeal Two Constitutional Amendments

“A hand from Washington will be stretched out and placed upon every man’s business; the eye of the Federal inspector will be in every man’s counting house.” — Richard E. Byrd, Speaker of the Virginia House of Delegates during the Ratification Debate for the 16th Amendment.

On June 5, 2013 I posted an essay on the tyranny the passage and ratification of the 16^th Amendment has caused entitled “How Did We Get Into This IRS Mess?”

When our Constitution was written and adopted it contained two specific enumerations as to how Congress could raise money from the citizens.

The first was Article I, Section 8.1 that states:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

The second can be found in Article I, Section 9.4 that states:

“No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

This clause basically refers to a tax on property, such as a tax based on the value of land, as well as a capitation — a poll tax; an imposition which is yearly laid on each person according to his estate and ability. One must also realize that “property” in the eyes of our Founders included everything from land and the realization of your labor, i.e. money to one’s opinions. In other words our Founders did not want the federal government to be able to take any of your property in taxes. They wanted to pay for the cost of maintaining all of the items enumerated in Article I, Section 8 through the collection of duties, imposts, and excise taxes.

When our Founders wrote the Constitution they divided the federal government into three branches; legislative, executive, and judiciary. The purpose of this was to impose checks and balances on the powers that could be exercised by any one branch of government. Our founders also wanted the legislative branch to be the more powerful of the three branches so they set forth additional checks on this branch by dividing it into two chambers. It was their intent to make the lower chamber — the House of Representatives — the chamber most responsive to the people and the passions of the day. This is why members of this chamber are subject to a two-year term and can be easily replaced by the citizens of their respective districts. The also wanted all spending bills to originate in this house. In essence they wanted the House of Representative to control the purse strings of the federal government. All of this is laid out in Article I, Sections 1 and 2 of the Constitution.

The upper chamber — the Senate — is defined in Section 3 of Article I. It grants separate powers to the Senate not granted to the House and gives senators a term of six years with a one-third turnover of the Senate every two years:

“The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”

It was the intent of the Founders to make the Senate a more deliberative body less influenced by the passions and factions of the day and more responsible to the will of their respective state legislatures. This is why they wanted senators appointed by the various state legislatures and not elected by popular vote.

As noted above Article I, Section 3 states:

“The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

This was a carryover from the Articles of Confederation and the fear that the individual states would relinquish too much power to the central government under the concept of “Federalism.”

This was changed by the passage and ratification of the 17th Amendment in 1912-1913:

“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”

Article I, Section 7 spells out how revenue shall be raised:

“All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.”

In order to convince the states (former colonies) to ratify the new constitution Alexander Hamilton, James Madison, and John Jay authored a series of 85 essays that were published in the newspapers of the day. These essays became known as the Federalist Papers and set forth the arguments for ratification of the new constitution along with explanations that were designed to allay the fears of the states.

In one of the most famous of the essays, Federalist 10, James Madison make the argument for the adoption of a republican form of government rather than a direct democracy based on his fear of “factions” that could impose a a tyranny of either the majority of minority where he states:

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison continues his argument:

“Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.”

In Federalist 51 where Madison argues that the structure of the government must furnish the proper checks and balances between the different departments:

“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.”

…

“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.”

Today we have the situation where massive and complicated laws, like ObamaCare (over 3,000 pages) are passed without having been read or debated by the legislators themselves, let alone discussed in the press and by the people. When this sad state has been reached, the law itself, as Madison eloquently says, “poisons the blessings of liberty.” James Madison stated in Federalist No. 62 where he writes about the power, duties, and responsibilities of the Senate:

“The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

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.”

Americans may be able to regain control over their federal government by moving their respective individual state legislatures to invalidate the 16th and 17th Amendments to the United States Constitution. Essentially, this is a vote to reverse ratification of an Amendment without a Constitutional Convention.

Repeal of the 16th Amendment starves the federal beast by depriving it of its consumption of money from the states and the taxpayers through income taxes. States could exercise better control over how or even if their money is spent.

Repeal of the 17th Amendment makes United States senators directly appointed by the state legislatures, as they were at our nation's founding, and representative of the will of each state and its citizens. This action would check the federal government's proclivity to pass laws binding the states to unfunded mandates. It would increase the sovereignty of the several states and restore true federalism back into our system of government.

The states can do this by individual vote; this way, a Constitutional Convention and the subsequent dangers presents to liberty can be avoided. According to Article V of the Constitution three-fourths of the state legislatures would have to vote to repeal each or any Amendment.

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” [Emphasis added]

Once each state votes to invalidate an Amendment, the vote is sent to the Archivist of the National Archives. The result would be a return to the Constitution as it existed before the now repealed Amendments were included.

The United States of America was founded as a representative republic, where several sovereign states voluntarily joined under a common federal sovereign to better guarantee the unalienable rights of "We the People." This federal government was to be strictly limited to the enumerated powers given to it under the Constitution of the United States by the sovereignty of the several states and the people, who themselves are sovereign individuals. This is why we have the Ninth and Tenth Amendments.

The federal government is supposed to be strictly limited in power to only those things authorized in the Constitution. The several states were to always enjoy plenary power — that is, power over everything not specifically given over to the federal government. Any powers not delegated to the several states were to be with the people as individuals.

Today, the federal government has been allowed to grow in size and scope of authority where it now imposes its will in every way over our individual daily lives. It has usurped the plenary powers of the several states. Every issue making news today seems to have a federal solution proposed or enacted instead of allowing the states, which are closer to the people within them, to address those issues.

The root of the current problem is that the federal government bends and contorts and stretches the plain meaning of the U.S. Constitution. It is allowed to do this, in part, by its taxing authority. The federal government taxes almost everything, taking the wealth of each state and of every individual for its own use.

The federal government redistributes this wealth as it sees fit to enact controls over the several states and the people through various administrative agencies, policies, and programs. The purported original need for an administrative agency, policy, or program is rarely, if ever, met.

In fact, the original need becomes modified with other causes and objectives requiring these agencies to grow; new policies and programs must be promulgated to better meet real or imagined demands.

Thus, the system is self-perpetuating. Without proper checks by the Congress, the administrative state becomes all-encompassing, oppressive, and in some respects, tyrannical.

But Congress has repeatedly failed to act. It benefits as an institution because the money the government gets is first distributed by its own members. This is properly so if each respective branch of our government works according to separation of powers as intended by the Framers.

Too often, the "separate powers" of the federal government seem to work in unison against the will of the American people. It is in those times that the Framers asserted the American people must respectfully move to regain control and place each house in proper order.

An effective method of dealing with this is for the several states to "starve" the federal Leviathan by reducing or denying its lifeblood of money. Prior to the enactment of the 16th Amendment to the United States Constitution, taxes were paid to the federal government by apportionment based on population, and through certain direct fees (taxes) on customs, alcohol, and other select commodities.

The 16th Amendment allows the federal government the authority to directly tax the incomes of all individuals by whatever type and means necessary. Repeal of this amendment is necessary for the several states to regain financial control over federal spending. Cutting the money tap will in effect reduce or eliminate federal borrowing and annual debt. It will also bring the power that comes with distributing that money back to the influence of the states, closer to the people.

With monies reduced, administrative bureaucracy, unnecessary policies, and unneeded programs will also reduce. Some, like the Department of Education and EPA, may be eliminated. A strictly limited federal government exercising only its constitutionally permitted powers restores trust and is beneficial to the American people.

Likewise, the 17th Amendment to the United States Constitution now allows for the direct election of United States senators. The Senate was originally the part of Congress that represented the several states and their respective state's interests.

The House of Representatives originally, as today, were the part of Congress elected directly by the people. With the Senate directly elected by the people instead of appointed by each state's legislature, the Senate has become a de facto extended-term of the House of Representatives.

Senators rarely represent the interests of their home state today, as demonstrated by their voting for huge indebtedness as a national issue and voting for unfunded mandates adversely affecting the state they purport to represent, among many other self-interest issues.

The United States Constitution can have amendments added to it via two methods: the first is by a proposed amendment approved by two-thirds of the House of Representatives and approved by two-thirds of the Senate. The proposed amendment then goes before each state's legislature for majority approval. When three fourths of all states (38) ratify the proposed amendment, the amendment then becomes part of the United States Constitution, the Supreme Law of the Land. The votes of each of the legislatures of the several states submit their letter of decision to the Archivist of the United States, in the National Archives. This method has been used exclusively since the first Constitutional Convention, and it includes all amendments (27) in existence today.

The second method is for two thirds of the states (33) to call a Constitutional Convention, propose an amendment, and then have it successfully ratified by a minimum of three fourths of the several states (38). The amendment then becomes part of the United States Constitution. The votes of each of the legislatures of the several states submit their letter of decision to the Archivist of the United States, in the National Archives.

The problem with the second method is the lack of control that might be exhibited by the delegates to the Constitutional Convention. A group intent on radically changing our Constitution could do away with many protections we enjoy today or grant certain offices or persons in government additional powers and authority never intended. Even though any proposed amendment proceeding forth would still have to be ratified by three-fourths of all the states to become part of the constitution, the danger to this republic is unknown.

A unique consideration would cause the legislatures of the several states to vote to de-ratify or nullify the 16th and then 17th Amendments. This should be accomplished with little danger to the republic in that once three fourths of the several states (38) vote to de-ratify an amendment, the Constitution would return to its former status as to law.

Since the action would not involve a Constitutional Convention, there would be no new amendment(s). Any changes would be perceived by the legislatures of the several states and would be close to the people for comment and redress of grievances.

The Critical Period in Our History

“Such is our situation, and such are our prospects: but notwithstanding the cup of blessing is thus reached out to us, notwithstanding happiness is ours, if we have a disposition to seize the occasion and make it our own; yet, it appears to me there is an option still left to the United States of America, that it is in their choice, and depends upon their conduct, whether they will be respectable and prosperous, or contemptible and miserable as a Nation; This is the time of their political probation; this is the moment when the eyes of the whole World are turned upon them; this is the moment to establish or ruin their national Character forever; this is the favorable moment to give such a tone to our Federal Government, as will enable it to answer the ends of its institution; or this may be the ill-fated moment for relaxing the powers of the Union, annihilating the cement of the Confederation, and exposing us to become the sport of European politics, which may play one State against another to prevent their growing importance, and to serve their own interested purposes. For, according to the system of Policy the States shall adopt at this moment, they will stand or fall; and by their confirmation or lapse, it is yet to be decided, whether the Revolution must ultimately be considered as a blessing or a curse: a blessing or a curse, not to the present age alone, for with our fate will the destiny of unborn Millions be involved.” — Circular Letter to the States, George Washington, June 14, 1783

A great many Americans are deeply concerned today about the size of government, the national debt, and the direction government is going. It’s easy to become demoralized. But if you compare our situation today with the critical period after the battle of Yorktown and after the Peace of Paris we are a thousand times better off. We can solve our problems with a single election. In 1781 they did not have the institutions in place to even cope with the problems.

There was a huge war debt owned by the states and another huge debt owed by the Government itself. But the Continental Congress did not have any way to raise revenue except to beg money from the states and the states were desperate with their own problems. We had states with claims that overlapped one another all the way to the Pacific Ocean. So there was a prospect there was going to be a civil war between the sovereignties

George Washington, in 1783 sent a circular letter to the governors of the states where he raised the question as to whether the American Revolution was going to be a blessing or a curse. Whether self-government was going to work or was it going to be a total failure. We are much better off now if we pull our socks up we can turn things around. For today we have the institutions under the law of the Constitution to make this happen.

Washington was urging the Continental Congress and the governors of the states to come together and form a system of self-government that would create the institution that would insure our revolution was not in vain. In the closing paragraph of his letter Washington stated:

“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large, and particularly for their brethren who have served in the Field, and finally, that he would most graciously be pleased to dispose us all, to do Justice, to love mercy, and to demean ourselves with that Charity, humility and pacific temper.”

The young American nation faced substantial challenges to effective self-government in the years immediately following victory the Battle of Yorktown where there were more French troops fighting than Colonials. Under the Articles of Confederation, the states were separate sovereignties only loosely bound together. The Continental Congress lacked the authority and the means to enable national institutions to respond sufficiently to problems such as war debt, the continuing presence of British soldiers in forts within the Trans-Appalachian region, and foreign trade negotiations.

The Constitutional Convention was convened in May, 1787, to address these issues by composing a constitution that would create political institutions in accordance with the principles of the Declaration of Independence, and that would also enable the functions of good government to be fulfilled. The Framers ultimately argued that improvements in the science of politics enabled them to establish a republican form of government that would be viable over an extended territory.

The ratification of the Constitution in 1789 established a federal government for the United States that was meant to be "a more perfect union," than that which had existed under the Articles of Confederation, and to "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty" for American citizens present and future. But in order for the Constitution to be agreed to, a compromise had been struck in regards to the slave trade. The unresolved issue of slavery posed a formidable challenge to the American experiment of self-government, a challenge that resulted ultimately in the Civil War.

While Washington’s letter was influential and carried great weight with the governors it was Shea’s Rebellion that finally drove the delegates of the Continental Congress to take action.

The Rebellion was an armed uprising that took place in central and western Massachusetts in 1786 and 1787. The rebellion was named after Daniel Shays, a veteran of the American Revolutionary War and one of the rebel leaders.

The rebellion started on August 29, 1786. It was precipitated by several factors: financial difficulties brought about by a post-war economic depression, a credit squeeze caused by a lack of hard currency, and fiscally harsh government policies instituted in 1785 to solve the state's debt problems. Protesters, including many war veterans, shut down county courts in the later months of 1786 to stop the judicial hearings for tax and debt collection. The protesters became radicalized against the state government following the arrests of some of their leaders, and began to organize an armed force. A militia raised as a private army defeated a Shaysite (rebel) attempt to seize the federal Springfield Armory in late January 1787, killing four and wounding 20. The main Shaysite force was scattered on February 4, 1787, after a surprise attack on their camp in Petersham, Massachusetts. Scattered resistance continued until June 1787, with the single most significant action being an incident in Sheffield in late February, where 30 rebels were wounded (one mortally) in a skirmish with government troops.

The rebellion took place in a political climate where reform of the country's governing document, the Articles of Confederation, was widely seen as necessary. The events of the rebellion, most of which occurred after the Philadelphia Convention had been called but before it began in May 1787, are widely seen to have affected the debates on the shape of the new government. The exact nature and consequence of the rebellion's influence on the content of the Constitution and the ratification debates continues to be a subject of historical discussion and debate.

The Constitutional Convention took place from May 25 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from Great Britain. Although the Convention was intended to revise the Articles of Confederation, the intention from the outset of many of its proponents, chief among them James Madison and Alexander Hamilton, was to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. The result of the Convention was the creation of the United States Constitution, placing the Convention among the most significant events in the history of the United States and perhaps the World.

The most contentious disputes revolved around the composition and election of the Senate, how "proportional representation" was to be defined (whether to include slaves or other property), whether to divide the executive power between three persons or invest the power into a single president, how to elect the president, how long his term was to be and whether he could stand for reelection, what offenses should be impeachable, the nature of a fugitive slave clause, whether to allow the abolition of the slave trade, and whether judges should be chosen by the legislature or executive. Most of the time during the Convention was spent on deciding these issues, while the powers of legislature, executive, and judiciary were not heavily disputed. Once the Convention began, the delegates first agreed on the principles of the Convention, then they agreed on Madison's Virginia Plan and began to modify it. A Committee of Detail assembled during the July 4 recess and produced a rough draft. Most of this rough draft remained in place, and can be found in the final version of the constitution. After the final issues were resolved, the Committee on Style produced the final version, and it was voted on and sent to the states.

With the exception of Rhode Island, which refused to participate, the states had originally appointed 70 representatives to the Convention, but a number of the appointees did not accept or could not attend, leaving 55 delegates who would ultimately craft the Constitution.

Almost all of the 55 delegates had taken part in the Revolution, with at least 29 having served in the Continental forces, most in positions of command. All but two or three had served in colonial or state government during their careers. The vast majority (about 75%) of the delegates were or had been members of the Confederation Congress, and many had been members of the Continental Congress during the Revolution. Several had been state governors. Just two delegates, Roger Sherman and Robert Morris, would be signatories to all three of the nation’s founding documents, the Declaration of Independence, the Articles of Confederation, and the Constitution.

More than half of the delegates had trained as lawyers (several had even been judges), although only about a quarter had practiced law as their principal means of business. There were also merchants, manufacturers, shippers, land speculators, bankers or financiers, two or three physicians, a minister, and several small farmers. Of the 25 who owned slaves, 16 depended on slave labor to run the plantations or other businesses that formed the mainstay of their income. Most of the delegates were landowners with substantial holdings, and most, with the possible exception of Roger Sherman and William Few, were very comfortably wealthy. George Washington and Gouverneur Morris were among the wealthiest men in the entire country. For some reason John Jay, one of the authors of the Federal Papers did not attend as did Thomas Jefferson, who was the ambassador the France, and John Adams who was the ambassador to Great Britain.

Soon after September 17, 1787, when the constitution framed at the Philadelphia Convention was signed and dispatched to the Continental Congress, the ratification debate began. The most memorable and authoritative contribution to that debate was made up of a series of seventy-seven articles that first appeared in New York in The Independent Journal and The New York Packet under the pseudonym Publius in the period stretching from October 27, 1787 to April 2, 1788, which were soon thereafter reprinted, along with eight additional articles, in a two-volume work titled The Federalist. Alexander Hamilton initiated the series and saw to the publication of the two volumes. He had hoped to work in tandem with John Jay (1745–1829), but soon after the project’s inception Jay fell ill. He then recruited James Madison, whose contributions turned out to be no less important than those of Hamilton himself. In the first number of the Federalist, Hamilton explained why such an endeavor is necessary and outlined the argument that Publius will make on behalf of ratification. In the tenth number, Madison set out to disprove Montesquieu’s claim that it is impossible to establish a viable republic on an extended territory. In the thirty-ninth number, he defended the republican character of the Constitution and specified that it is to be “neither wholly national nor wholly federal.” In the fifty-first number, he explored the nature and purpose of the separation of powers provided for by the Constitution.

In Federalist No. 1 Hamilton wrote:

“AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

…

I propose, in a series of papers, to discuss the following interesting particulars:

THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.

In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance that may seem to have any claim to your attention.”

One of the issues facing the delegates was that of a republic vs. a democracy. Most of the delegates were fearful of a democracy and the tyranny of the majority it could create — something we face today and what the Progressives believe in. On the other hand the delegates were familiar with the writings of Charles-Louis de Secondat, baron de La Brede et de Montesquieu in his 1748 book “The Spirit of Laws.”

Montesquieu believed a republic would only work for small states and not in extended territories like the newly formed United States. He described the various forms of government thusly:

“1.8.16: Distinctive Properties of a Republic. It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation: there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.

In an extensive republic, the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and of course are less protected. The long duration of the republic of Sparta was owing to her having continued in the same extent of territory after all her wars. The sole aim of Sparta was liberty; and the sole advantage of her liberty glory.

It was the spirit of the Greek republics to be as contented with their territories as with their laws. Athens was first fired with ambition, and gave it to Lacedaemon; but it was an ambition rather of commanding a free people than of governing slaves; rather of directing than of breaking the union. All was lost upon the starting up of monarchy, a government whose spirit is more turned to increase of dominion. Excepting particular circumstances, it is difficult for any other than a republican government to subsist longer in a single town. A prince of so petty a state would naturally endeavor to oppress his subjects, because his power would be great, while the means of enjoying it, or of causing it to be respected, would be inconsiderable. The consequence is, he would trample upon his people. On the other hand, such a prince might be easily crushed by a foreign, or even a domestic, force; the people might every instant unite and rise up against him. Now, as soon as the sovereign of a single town is expelled, the quarrel is over; but, if he has many towns, it only begins.

1.8.17: Distinctive Properties of a Monarchy. A monarchical state ought to be of a moderate extent. Were it small, it would form itself into a republic; were it very large, the nobility, possessed of great estates, far from the eye of the prince, with a private court of their own, and secure moreover from sudden executions, by the laws and manners of the country, such a nobility, I say, might throw off their allegiance, having nothing to fear from too slow and too distant a punishment.

Thus, Charlemagne had scarce founded his empire when he was obliged to divide it: whether the governors of the provinces refused to obey; or whether, in order to keep them more under subjection, there was a necessity of parceling the empire into several kingdoms.

After the decease of Alexander, his empire was divided. How was it possible for those Greek and Macedonian chiefs, who were each of them free and independent, or commanders at least of the victorious bands dispersed throughout that vast extent of conquered land, how was it possible, I say, for them to obey?

Attila's empire was dissolved soon after his death; such a number of kings, who were no longer under restraint, could not resume their fetters. The sudden establishment of unlimited power is a remedy, which, in those cases, may prevent dissolution. But how dreadful the remedy, which, after the enlargement of dominion, opens a new scene of misery! The rivers hasten to mingle their waters with the sea; and monarchies lose themselves in despotic power.

1.8.19: Distinctive Properties of a Despotic Government. A large empire supposes a despotic authority in the person who governs. It is necessary that the quickness of the prince's resolutions should supply the distance of the places they are sent to; that fear should prevent the remissness of the distant governor or magistrate; that the law should be derived from a single person, and should shift continually, according to the accidents which incessantly multiply in a state in proportion to its extent.

2.9.1: In What Manner Republics Provide for Their Safety. If a republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection. To this twofold inconveniency democracies and aristocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it. It is therefore very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean, a confederate republic.

This form of government is a convention, by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of farther associations, till they arrive to such a degree of power, as to be able to provide for the security of the whole body.

It was these associations that so long contributed to the prosperity of Greece. By these the Romans attacked the whole globe; and by these alone the whole globe withstood them. For, when Rome was arrived to her highest pitch of grandeur, it was the associations beyond the Danube and the Rhine, associations formed by the terror of her arms, that enabled the barbarians to resist her. From hence it proceeds that Holland , Germany, and the Swiss Cantons, are considered in Europe as perpetual republics.

The associations of cities were formerly more necessary than in our times. A weak defenseless town was exposed to greater danger. By conquest, it was deprived not only of the executive and legislative power, as at present, but moreover of all human property. A republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

As this government is composed of petty republics, it enjoys the internal happiness of each; and, with regard to its external situation, by means of the association, it possesses all the advantages of large monarchies.”

Madison, on the other hand, believed that you could have a republican form of government if it was structured correctly. In one of the most famous and influential of the Federalist Papers, Federalist No. 10, Madison wrote in defense of a republic:

“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit and the most diffusive and established characters.”

Madison’s arguments for a republic won the day with his proposal for a bicameral legislature (lower and upper houses) along with a district separation and balance of powers between the Legislature, Executive and Judiciary based upon his Virginia Plan. It is this republican form of government that lasted for 226 years — one that faces dangers today from the progressive left.

One of the first articles of the new Constitution (Article I, Section 8) delineated the specific enumerated powers given to Congress. The first 3 of these 18 powers dealt with the power to lay and collect taxes, the borrow money, and to regulate commerce with foreign nations and among the states. As mentioned above these were the most critical issues facing the Continental Congress under the Articles of Confederation — issues that could lead to a civil war with the newly liberated colonies.

In October, 1798 Jefferson advanced the theory of “nullification” when it came to states where they wished to resist or “nullify” legislation they determined to be unconstitutional. In his remarks on the Draft of the Kentucky Resolutions Jefferson stated:

“Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes, and punish it themselves whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors, and counselors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism -- free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, not merely as the cases made federal, (casus foederis,) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.” (Emphasis added)

This issue came to head when leaders of South Carolina advanced the idea that a state did not have to follow a federal law and could, in effect, "nullify" the law.

The idea that "states' rights" superseded federal law was promoted by John C. Calhoun, one of the most experienced and powerful politicians in the country, and was, to some extent, a precursor to the secession crisis that would trigger the Civil War 30 years later.

Calhoun and others from South Carolina were outraged by a tariff passed in 1828 that had raised taxes on imports. The 1828 tariff was so controversial, in various regions of the country, that it became known as the Tariff of Abominations.

Calhoun and others felt the tariff unfairly targeted the southern states, and that the states were not obligated by the U.S. Constitution to follow the law. At that time, Calhoun wrote an essay advancing a theory of nullification, in which he made a legal case for states to disregard some federal laws.

In the early 1830s, Calhoun was serving as vice president to Andrew Jackson. With the issue of a tariff again rising to prominence, Calhoun resigned his position, returned to South Carolina, and was elected to the Senate, where he promoted his idea of nullification. For a time it appeared that armed conflict might result if South Carolina seceded from the Union — something they did in 1861.

The crisis was finally put to rest in 1833 when a compromise was reached on a new tariff. But the Nullification Crisis demonstrated that disputes between various regions of the nation could cause enormous problems.

Calhoun became one of America’s greatest public men. He served in the House, Senate, Cabinet, and Vice-Presidency over the course of thirty nine years, during which time he saw the balance of power in the United States tip northward and toward the national government. He undertook to defend state sovereignty by defending the South, and to defend the South by defending slavery. To do this he knew he had to confront the dominant political faith of his age: Equality. Calhoun’s “disquisitions and discourses” were published the year after his death. In them he tried to solve the great problem of American political life: how to protect and preserve local (or regional) communities against centralized democratic power.

In 1840 Calhoun wrote:

“But government, although intended to protect and preserve society, has itself a strong tendency to disorder and abuse of its powers, as all experience and almost every page of history testify. The cause is to be found in the same constitution of our nature which makes government indispensable. The powers which it is necessary for government to possess, in order to repress violence and preserve order, cannot execute themselves. They must be administered by men in whom, like others, the individual are stronger than the social feelings. And hence, the powers vested in them to prevent injustice and oppression on the part of others, will, if left unguarded, be by them converted into instruments to oppress the rest of the community. That, by which this is prevented, by whatever name called, is what is meant by constitution, in its most comprehensive sense, when applied to government.”

It was the same John C. Calhoun, however, who in his 1837 writings on the positive good of slavery stated:

“But I take higher ground. I hold that in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding States between the two, is, instead of an evil, a good--a positive good. I feel myself called upon to speak freely upon the subject where the honor and interests of those I represent are involved. I hold then, that there never has yet existed a wealthy and civilized society in which one portion of the community did not, in point of fact, live on the labor of the other. Broad and general as is this assertion, it is fully borne out by history. This is not the proper occasion, but, if it were, it would not be difficult to trace the various devices by which the wealth of all civilized.”

The fly in the ointment, however, was the issue of slavery. The new Constitution contained language allowing the slave trade to operate until 1808. Article I, Section 9 stated:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

This was the only reference to slavery in the Constitution. This was a necessary compromise to obtain support from the Southern states where farmers and plantation owners depended on slavery for cheap and unpaid labor to produce their crops. However, the Northwest Ordinance prohibited slavery in the territories north of the Ohio River where today’s states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota exist. On the other hand the Southwest Ordinance — an act passed by the new Congress in 1790. The Southwest Ordinance served the same purpose for the "Old Southwest" as the Northwest Ordinance of 1787 had for the "territory north-west of the Ohio." While the Southwest Territory comprised the former western districts of North Carolina, South Carolina, and possibly Georgia as far west as the Mississippi River, in practice its provisions for territorial government applied only to the future state of Tennessee. There was no mention of abolishing slavery in this Ordinance.

It was not until the Missouri Compromise when the issue of slavery was addressed based on geographic limits. The Missouri Compromise was passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in the former Louisiana Territory north of the parallel 36°30′ north except within the boundaries of the proposed state of Missouri. To balance the number of "slave states" and "free states," the northern region of what was then Massachusetts was admitted into the United States as a free state to become Maine. Prior to the agreement, the House of Representatives had refused to accept this compromise, and a conference committee was appointed.

A bill to enable the people of the Missouri Territory to draft a constitution and form a government preliminary to admission into the Union came before the House of Representatives in Committee of the Whole, on February 13, 1819. James Tallmadge of New York offered an amendment, named the Tallmadge Amendment that forbade further introduction of slaves into Missouri, and mandated that all children of slave parents born in the state after its admission should be free at the age of 25. The committee adopted the measure and incorporated it into the bill as finally passed on February 17, 1819, by the house. The United States Senate refused to concur with the amendment, and the whole measure was lost. This was a perfect example of the upper house overriding the wishes of the lower house as Madison had proposed.

During the following session (1819–1820), the House passed a similar bill with an amendment, introduced on January 26, 1820, by John W. Taylor of New York, allowing Missouri into the union as a slave state. The question had been complicated by the admission in December of Alabama, a slave state, making the number of slave and free states equal. In addition, there was a bill in passage through the House (January 3, 1820) to admit Maine as a free state.

The Senate decided to connect the two measures. It passed a bill for the admission of Maine with an amendment enabling the people of Missouri to form a state constitution. Before the bill was returned to the House, a second amendment was adopted on the motion of Jesse B. Thomas of Illinois, excluding slavery from the Missouri Territory north of the parallel 36°30′ north (the southern boundary of Missouri), except within the limits of the proposed state of Missouri.

Like many compromises the Missouri Compromise left a bad taste in the mouths of the abolitionist and those who supported slavery. One of the fiercest critics of the Compromise was Thomas Jefferson who called it the “knell of the Union.” In a letter to John Holmes on dated April 22, 1820 Jefferson stated:

“I thank you, dear Sir, for the copy you have been so kind as to send me of the letter to your constituents on the Missouri question. It is a perfect justification to them. I had for a long time ceased to read newspapers, or pay any attention to public affairs, confident they were in good hands, and content to be a passenger in our bark to the shore from which I am not distant. But this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. It is hushed, indeed, for the moment. But this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper. I can say, with conscious truth, that there is not a man on earth who would sacrifice more than I would to relieve us from this heavy reproach, in any practicable way. The cession of that kind of property, for so it is misnamed, is a bagatelle which would not cost me a second thought, if, in that way, a general emancipation and expatriation could be effected; and, gradually, and with due sacrifices, I think it might be. But as it is, we have the wolf by the ears, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other. Of one thing I am certain, that as the passage of slaves from one State to another, would not make a slave of a single human being who would not be so without it, so their diffusion over a greater surface would make them individually happier, and proportionally facilitate the accomplishment of their emancipation, by dividing the burthen on a greater number of coadjutors. An abstinence too, from this act of power, would remove the jealousy excited by the undertaking of Congress to regulate the condition of the different descriptions of men composing a State. This certainly is the exclusive right of every State, which nothing in the constitution has taken from them and given to the General Government. Could Congress, for example, say, that the non-freemen of Connecticut shall be freemen, or that they shall not emigrate into any other State?

I regret that I am now to die in the belief, that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be, that I live not to weep over it. If they would but dispassionately weigh the blessings they will throw away, against an abstract principle more likely to be affected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as the faithful advocate of the Union, I tender the offering of my high esteem and respect.” (Emphasis added)

In essence Jefferson was predicting a civil war over the issue of slavery — a war that would commence some 41 years later.

In closing I refer to something Alexis de Tocqueville said in his 1840 book “Democracy in America” about tyranny:

“I would like to imagine with what new traits despotism could be produced in the world. I see an innumerable multitude of men, alike and equal, who turn about without repose in order to procure for themselves petty and vulgar pleasures with which they fill their souls. Each of them, withdrawn apart, is a virtual stranger, unaware of the fate of the others: his children and his particular friends form for him the entirety of the human race; as for his fellow citizens, he is beside them but he sees them not; he touches them and senses them not; he exists only in himself and for himself alone, and, if he still has a family, one could say at least that he no longer has a fatherland.

Over these is elevated an immense, tutelary power, which takes sole charge of assuring their enjoyment and of watching over their fate. It is absolute, attentive to detail, regular, provident, and gentle. It would resemble the paternal power if, like that power, it had as its object to prepare men for manhood, but it seeks, to the contrary, to keep them irrevocably fixed in childhood; it loves the fact that the citizens enjoy themselves provided that they dream solely of their own enjoyment. It works willingly for their happiness, but it wishes to be the only agent and the sole arbiter of that happiness. It provides for their security, foresees and supplies their needs, guides them in their principal affairs, directs their industry, regulates their testaments, divides their inheritances. Can it not relieve them entirely of the trouble of thinking and of the effort associated with living?

In this fashion, every day, it renders the employment of free will less useful and more rare; it confines the action of the will within a smaller space, and bit by bit it steals from each citizen the use of that which is his own. Equality has prepared men for all of these things: it has disposed them to put up with them and often even to regard them as a benefit.

After having taken each individual in this fashion by turns into its powerful hands, and after having kneaded him in accord with its desires, the sovereign extends its arms about the society as a whole; it covers its surface with a network of petty regulations-complicated, minute, and uniform-through which even the most original minds and the most vigorous souls know not how to make their way past the crowd and emerge into the light of day. It does not break wills; it softens them, bends them, and directs them; rarely does it force one to act, but it constantly opposes itself to one's acting on one's own; it does not destroy; it prevents things from being born; it does not tyrannize, it gets in the way, it curtails, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to nothing more than a herd of timid and industrious animals, of which the government is the shepherd.”

Today we are throwing away the efforts of our Founders and Framers of the Declaration of Independence and Constitution for a welfare state described by de Tocqueville. We have gradually for the past 100 years been drifting into a collective dominated by the government shepherd.

The Day the Bastille Fell

"Reason obeys itself; and ignorance submits to whatever is dictated to it." — Thomas Paine

On this day in 1789, almost two years after Congress adopted our Constitution, Parisian revolutionaries and mutinous troops storm and dismantle the Bastille, a royal fortress that had come to symbolize the tyranny of the Bourbon monarchs. This dramatic action signaled the beginning of the French Revolution, a decade of political turmoil and terror in which King Louis XVI was overthrown and tens of thousands of people, including the king and his wife Marie Antoinette, were executed.

The Bastille was originally constructed in 1370 as a “bastide”, or "fortification," to protect the walled city of Paris from English attack. It was later made into an independent stronghold, and its name — bastide--was corrupted to Bastille. The Bastille was first used as a state prison in the 17th century, and its cells were reserved for upper-class felons, political troublemakers, and spies. Most prisoners there were imprisoned without a trial under direct orders of the king. Standing 100 feet tall and surrounded by a moat more than 80 feet wide, the Bastille was an imposing structure in the Parisian landscape.

By the summer of 1789, France was moving quickly toward revolution. There were severe food shortages in France that year, and popular resentment against the rule of King Louis XVI was turning to fury. In June, the Third Estate, which represented commoners and the lower clergy, declared itself the National Assembly and called for the drafting of a constitution. Initially seeming to yield, Louis legalized the National Assembly but then surrounded Paris with troops and dismissed Jacques Necker, a popular minister of state who had supported reforms. In response, mobs began rioting in Paris at the instigation of revolutionary leaders.

Bernard-Jordan de Launay, the military governor of the Bastille, feared that his fortress would be a target for the revolutionaries and so requested reinforcements. A company of Swiss mercenary soldiers arrived on July 7 to bolster his garrison of 82 soldiers. The Marquis de Sade, one of the few prisoners in the Bastille at the time, was transferred to an insane asylum after he attempted to incite a crowd outside his window by yelling: "They are massacring the prisoners; you must come and free them." On July 12, royal authorities transferred 250 barrels of gunpowder to the Bastille from the Paris Arsenal, which was more vulnerable to attack. Launay brought his men into the Bastille and raised its two drawbridges.

On July 13, revolutionaries with muskets began firing at soldiers standing guard on the Bastille's towers and then took cover in the Bastille's courtyard when Launay's men fired back. That evening, mobs stormed the Paris Arsenal and another armory and acquired thousands of muskets. At dawn on July 14, a great crowd armed with muskets, swords, and various makeshift weapons began to gather around the Bastille.

Launay received a delegation of revolutionary leaders but refused to surrender the fortress and its munitions as they requested. He later received a second delegation and promised he would not open fire on the crowd. To convince the revolutionaries, he showed them that his cannons were not loaded. Instead of calming the agitated crowd, news of the unloaded cannons emboldened a group of men to climb over the outer wall of the courtyard and lower a drawbridge. Three hundred revolutionaries rushed in, and Launay's men took up a defensive position. When the mob outside began trying to lower the second drawbridge, Launay ordered his men to open fire. One hundred rioters were killed or wounded.

Launay's men were able to hold the mob back, but more and more Parisians were converging on the Bastille. Around 3 p.m., a company of deserters from the French army arrived. The soldiers, hidden by smoke from fires set by the mob, dragged five cannons into the courtyard and aimed them at the Bastille. Launay raised a white flag of surrender over the fortress. Launay and his men were taken into custody, the gunpowder and cannons were seized, and the seven prisoners of the Bastille were freed. Upon arriving at the Hotel de Ville, where Launay was to be arrested by a revolutionary council, the governor was pulled away from his escort by a mob and murdered.

The capture of the Bastille symbolized the end of the ancien regime and provided the French revolutionary cause with an irresistible momentum. Joined by four-fifths of the French army, the revolutionaries seized control of Paris and then the French countryside, forcing King Louis XVI to accept a constitutional government. In 1792, the monarchy was abolished and Louis and his wife Marie-Antoinette were sent to the guillotine for treason in 1793.

By order of the new revolutionary government, the Bastille was torn down. On February 6, 1790, the last stone of the hated prison-fortress was presented to the National Assembly. Today, July 14--Bastille Day--is celebrated as a national holiday in France.

This was not the end of revolution in France. Two more Republics and a dictator were yet to come. Like all revolutions that begin in the street the French Revolution was doomed to failure as the men who led the revolution had no idea of how a constitution government that protected the rights of the citizens should be formed. This so called republic was nothing more than a government of factions with the faction having the most power prevailing until another faction secured power. All this did was to promote tyranny. The same can be said for the Russian Revolution of 1917 and every subsequent revolution since 1776.

Thomas Jefferson was a supporter of the French Revolution at its beginnings. But as he saw the violence and factionalism he changed his mind and condemned the revolution. He, as Washington, Adams, Hamilton, Madison, and Mason saw the wide difference between the French Revolution and our own war for independence from Great Britain. Our founders were believers in the philosophies of Locke and Montesquieu while the leaders of the French Revolution were following the writings of Hobbes and Moore. They were looking for a utopia overseen by a leviathan government. Our revolution and subsequent Constitution was based on limited government with powers not vested in Congress belonging to the people. Government was there to protect the rights of the citizens, not to grant them.

Over the ensuing year France drifted from the tyranny and violence initiated in 1789 to the Tyranny of Napoleon Bonaparte and back to the Second Republic of of Napoleon the Third. When the constitution of the Second Republic was finally promulgated and direct elections for the presidency were held on December 10, 1848, Louis-Napoléon won a surprising landslide victory, with 5.6 million votes (75%) to 1.5 million for his closest rival, Cavaignac. His platform was based on the restoration of order, strong government, social consolidation, and national greatness. The Monarchist right (supporters of either the Bourbon or Orléanist royal households) and much of the aristocracy supported him as the "least bad" candidate, as a man who would restore order, end the instability in France which had continued since the overthrow of the monarchy in February and prevent a proto-communist revolution. A good portion of the industrial class, on the other hand, were won over by Louis-Napoléon's vague indications of progressive economic views. Despite this support among sectors of the upper classes, his overwhelming victory was above all due to the support of the biggest class in France: the peasants. To these non-politicized rural masses, the name of Bonaparte meant something, as opposed to the other little-known contenders. He appealed with all the credit of his name, that of France's national hero: Napoleon I, who in popular memory was credited with raising the nation to its pinnacle of military greatness and establishing social stability after the turmoil of the French Revolution. During his term as President, Louis-Napoléon Bonaparte styled himself the Prince-President (Le Prince-Président).

It was at this time (1850) Frédéric Bastiat, a brilliant economist and lawyer published his book — The Law, a treatise on government, socialism and rights.

I was introduced to Bastiat’s book several years ago and I was blown away at his insight’s to what government should be and do. After reading the book I was convinced that a liberal-arts education without an encounter with Bastiat is incomplete. Reading Bastiat made me keenly aware of all the time wasted, along with the frustrations of going down one blind alley after another, organizing my philosophy of life. The Law did not produce a philosophical conversion for me as much as it created order in my thinking about liberty and just human conduct.

Many philosophers have made important contributions to the discourse on liberty, Bastiat among them. But Bastiat’s greatest contribution is that he took the discourse out of the ivory tower and made ideas on liberty so clear that even the unlettered can understand them and statists cannot obfuscate them. Clarity is crucial to persuading our fellowman of the moral superiority of personal liberty. Philosophers and economists such as F.A. Hayek, Henry Hazlitt, Ludwig von Misses, Walter, Williams, Thomas Sowell, and Milton Friedman are all devotes of Bastiat. Even Ron Paul often refers to Bastiat.

Like others, Bastiat recognized that the greatest single threat to liberty is government. He clearly employs simple language to help us identify and understand evil government acts such as legalized plunder. Bastiat says, “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.” With such an accurate description of legalized plunder, we cannot deny the conclusion that most government activities, including ours, are legalized plunder, or for the sake of modernity, legalized theft.

Frederic Bastiat could have easily been a fellow traveler of the signers of our Declaration of Independence. The signers’ vision of liberty and the proper role of government was captured in the immortal words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain Unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, governments are instituted among Men….” Bastiat echoes the identical vision, saying; “Life, faculties, production — in other words individuality, liberty, property — that is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it.” Bastiat gave the same rationale for government as did our Founders, saying, “Life, liberty and property do not exist because men have made laws. On the contrary, it is the fact that life, liberty and property existed beforehand that caused men to make laws in the first place.” No finer statements of natural or God-given rights have been made than those found in our Declaration of Independence and The Law.

Bastiat pinned his hopes for liberty on the United States saying, “… look at the United States. There is no country in the world where the law is kept more within its proper domain: the protection of every person’s liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation.” Writing in 1850, Bastiat noted two areas where the United States fell short: “Slavery is a violation, by law, of liberty. The protective tariff is a violation, by law, of property.” Both of these issues were corrected over the ensuing years through a Civil War and legislation.

If Bastiat were alive today, he would be disappointed with our failure to keep the law within its proper domain. Over the course of a century and a half, we have created more than 50,000 laws. Most of them permit the state to initiate violence against those who have not initiated violence against others. These laws range from anti-smoking laws for private establishments and Social Security “contributions” to licensure laws and minimum wage laws. In each case, the person who resolutely demands and defends his God-given right to be left alone can ultimately suffer death at the hands of our government. The latest case of government plunder is the onerous Patient and Protective Health Care Act.

Bastiat explains the call for laws that restrict peaceable, voluntary exchange and punish the desire to be left alone by saying that socialists want to play God. Socialists look upon people as raw material to be formed into social combinations. To them — the elite and the mastermind—“the relationship between persons and the legislator appears to be the same as the relationship between the clay and the potter.” And for people who have this vision, Bastiat displays the only anger I find in The Law when he lashes out at do-gooders and would-be rulers of mankind, “Ah, you miserable creatures! You who think that you are so great! You who judge humanity to be so small! You who wish to reform everything! Why don’t you reform yourselves? That task would be sufficient enough.”

Bastiat was an optimist who thought that eloquent arguments in defense of liberty might save the day; but history is not on his side. Mankind’s history is one of systematic, arbitrary abuse and control by the elite acting privately, through the church, but mostly through government. It is a tragic history where hundreds of millions of unfortunate souls have been slaughtered, mostly by their own government. A historian writing 200 or 300 years from now might view the liberties that existed for a tiny portion of mankind’s population, mostly in the Western world, for only a tiny portion of its history, the last century or two, as a historical curiosity that defies explanation. That historian might also observe that the curiosity was only a temporary phenomenon and mankind reverted back to the traditional state of affairs — arbitrary control and abuse.

Hopefully, history will prove that pessimistic assessment false. The worldwide collapse of the respectability of the ideas of socialism and communism suggests that there is a glimmer of hope. Another hopeful sign is the technological innovations that make it more difficult for government to gain information on its citizens and control them. Innovations such as information access, communication, and electronic monetary transactions will make government attempts at control more costly and less probable. These technological innovations will increasingly make it possible for world citizens to communicate and exchange with one another without government knowledge, sanction, or permission. Just ponder the thought that what might have happened had Madison, Hamilton, and Jay had access to the Internet when publishing the Federalist Papers.

Collapse of communism and technological innovations, accompanied by robust free-market organizations promoting Bastiat’s ideas, are the most optimistic things I can say about the future of liberty in the United States. Americans share an awesome burden and moral responsibility. If liberty dies in the United States, it is destined to die everywhere. A greater familiarity with Bastiat’s clear ideas about liberty would be an important step in rekindling respect and love, and allowing the resuscitation of the spirit of liberty among our fellow Americans.

So, without the storming of the Bastille on July 14, 1789 would the world have had a Frédéric Bastiat? One of my all-time favorite movies lines comes from Graham Green’s The Third Man. In the scene at the giant ferriswheel in Vienna Harry Lime(Played by Orson Wells) confronts Holly Martin (played by Joseph Cotton) saying:

Don't be so gloomy. After all it's not that awful. Like the fella says, in Italy for 30 years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love - they had 500 years of democracy and peace, and what did that produce? The cuckoo clock. So long Holly.

While Harry Lime takes a cynical view of the world he does make the point that sometimes is takes Sturm und Drang to produce men of great thought while the comfort of a utopian state produces men who cannot achieve their greatest potential. It took a war of independence to produce our Founders and the Constitution. On the other hand revolutions that begin in the street always end badly.