Article One - The Lawmakers

Continuing the series on the Constitution, we left off last time with the Preamble.  An attentive reader (okay, my sister) asked what exactly it means "to secure the blessings of liberty".  A very good question, and one I think we have to take back to the Declaration of Independence.

You will recall that Jefferson wrote in the Declaration: "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, deriving their just powers from the consent of the governed."  Remember that the Declaration was in large part a list of complaints against King George and the colonists were declaring that the actions and attitudes of the king were antithetical to liberty and self--governance.  This, to me, seems to be the "securing the blessings of liberty" idea - that true liberty cannot spring forth from royal decrees or indeed from any system in which the people - the citizens - themselves have no say in their governance. 

It is with that idea in mind, I believe, that the concept of government of, by, and for the people became a reality with the Constitution, specifically in Article I, which we will now explore.

Article I - The Legislative Branch.

The founders brilliantly conceived this system, the bicameral setup, in order to strike a balance between large and small states - one chamber representing the population in proportion, the other representing the states equally.  This ensured that there would be no "tyranny of the majority" in the House, nor would there be disproportionate power given to the smaller states by their equal representation in the Senate.

Section 1 simply states that all legislative powers belong to the legislative branch.  It seems obvious, but I believe they were making a statement against executive fiat (such as a royal proclamation).  In more modern times, we see presidents issuing Executive Orders more and more often, and I have to believe that such orders are contrary to what the Founders had in mind - that is, laws, or at least regulations, that have not been approved by a legislative action.  Likewise, we see judicial decisions carry the force of law, rather than merely interpreting the law.  I doubt the Founders would be pleased by either of these developments.

Section 2 sets the framework for the House.  Elections every two years, to ensure the best possible representation of the will of the people; minimum age of 25; the "Three-Fifths Compromise" (later modified by the 14th Amendment), counting slaves and Indians as three-fifths of a person for census and representational purposes (on the surface, this seems terribly racist, but it in fact likely helped speed the end of slavery - perhaps a topic for another blog some time); and the original numbers of representatives for each state.

Section 3 addresses the Senate. Senators were to be elected by the state legislatures (later changed to direct election by the 17th Amendment); minimum age of 30; the Vice President of the United States is President of the Senate, but only votes in case of a tie; and the Senate's power of impeachment.

Section 4 sets the prescribed time and manner of meetings of the two bodies (later changed by the 20th Amendment)

Section 5 allows each chamber to make its own rules and directs them to keep a journal of all proceedings, to be made available to the public (The Congressional Record).  It also allows for each house to set rules for quorums, discipline, recesses and adjournments.

Section 6 addresses compensation for Congressional members (modified by the 27th Amendment - the amendment that took over 200 years to ratify.  Draw your own conclusions about that!). This section also directs that any member may not hold any other federal office at the same time, preventing conflicts of interest.

Section 7 directs that all revenue bills originate in the House.  Presumably, this was to keep the spending of the peoples' money as close to the people as possible, and as accountable to the people as possible.  This section also addresses the presidential veto and override provisions.  Perhaps most importantly, this section directs that all votes be recorded, so that the people may know how their representatives and senators voted on any and all issues.

Section 8 lays out specific powers of Congress, including: taxation, minting and borrowing of money, regulating interstate and international commerce, naturalization rules, post offices, patents and copyrights, raising a military, declarations of war, and exercising legislative authority over the seat of the U.S. government (the then-yet-to-be-decided-upon District of Columbia).

Section 9 then goes on to impose certain limits on Congress, such as prohibitions on ex-post-facto laws or bills of attainder; no right to writs of habeas corpus shall be suspended; no direct (income) tax to be laid (changed by the 16th Amendment); no titles of nobility are to be awarded by the country and no agent of the government shall accept any such title, except as allowed by Congress.

Section 10 prohibits the states from certain powers, including: no entering treaties; no coining of state-specific money; no import or export duties; no independent declarations of war.

Well, this was a rather lengthy blog, but let's be honest - the Legislative Branch is large and complicated (and we might argue that it is far larger and more complicated than ever intended, or than it needs to be).  The fact remains, though, that the concept was brilliant.  The people and the states getting equal representation, and neither chamber holding power over the other.  Despite the problems we may see in our system, especially these days, the format still works.  It has served us more or less well for 225 years, and I've yet to see a better system, either in theory or in practice.

Next up: The Executive Branch.

In The Beginning...

I'm sure that all of you regular readers have done your homework by now and have read through your own personal copies of the Constitution.  For those of you more casual readers, in case you haven't done so, don't worry - I'm not going to reprint it all here!  I have, however, come to the realization that for a blog about the Constitution, I've actually written comparatively little about the document itself - its structure and content and meaning.  So, beginning with this post, and continuing until we've covered it all, I want to go through the Constitution, section by section, just to give us all a reminder of what is in it, and just as importantly, what is not.

Today, we'll just focus on the Preamble.  I'm sure many of you, like me, had to memorize this in junior high history class and recite it to the teacher in order to earn a good grade for this part of the curriculum (thank you, Mr. Marson!).  Even if we had little understanding of words like "posterity", it was a nice way to introduce at least the basic idea behind the Constitution.  For refresher purposes:

"We the People of the United States, in Order to form a more perfect Union, establish

Justice, insure domestic Tranquility, provide for the common defence, promote the

general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do

ordain and establish this Constitution for the United States of America."

So, what does this little paragraph mean?  Let's look at it, a little bit at a time:

"We the People of the United States" - this is who is making it happen.  Not a king or emperor, not an already-established government or parliament.  Not some upper-class, out-of touch group of aristocrats.  We, the people, as represented by those chosen to participate in the Constitutional Convention.

"In order to form a more perfect Union" - notice, it's not "to form a perfect union", merely "a more perfect union", on other words, better than what we have now.  The original mission of the convention was to update and modify the Articles of Confederation.  They knew that the Articles (like the Articles of Association before it) were inadequate for the maintenance of the fledgling nation.  Ultimately, of course, they scrapped that idea and wrote an entirely new plan.

"Establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty" - they are laying out what they believe are the fundamental responsibilities of a national, or federal, government.  They see its role as limited and general, with very few specific things it can or should do.  Certainly, each of these items can be interpreted to mean much larger things.  For example, FDR's New Deal or LBJ's Great Society can be seen, perhaps, as falling under the "promote the general welfare" clause, though I suspect the Founders did not envision that phrase to necessarily mean an enormous "welfare state".  Likewise, "ensure domestic tranquility" can be seen by some as authorizing an overbearing police state, if condition warrant, though thankfully, such people are rare.  And "justice" means many things to many people - is it "economic justice" (a popular notion these days, as it was during the Depression), and how does one define economic justice?  Or is it a more general notion of fair play and equal protection under the law?  Finally, what does "secure the blessings of liberty" actually mean?  Is it a combination of all the previous phrases, or is it something more esoteric?

"For ourselves and our posterity" - the Founders were looking forward.  Their hope, though they could not be sure of it at the time, was that the new nation would survive and prosper long after they were gone.  Thankfully, they were right!

"Do ordain and establish this Constitution for The United States of America" - again, emphasizing the name of this new nation and declaring it in fact established as the Constitution is ratified.

Coming up - the Articles of the Constitution.  Stay tuned.

It's a Miracle!

Ronald Reagan takes the Oath of Office,
while outgoing President Cater looks on.

 "To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our Nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle."  
- Ronald Reagan, January 20, 1981.



In the history of humankind, this orderly, peaceful transfer of power we've come to take for granted in the United States really is borderline miraculous.  The first example was following the election of 1800, a bitterly contested race that ended up in the House of Representatives for a tie-breaking vote (see previous blog entry).  An incumbent (John Adams) lost the vote to a political rival (Thomas Jefferson) and the rival took office without bloodshed, a coup de etat, or violence of any sort (Aaron Burr's killing of Alexander Hamilton in a duel years later aside).  Power was not handed down by heredity or any sort of divine edict.  The people of the nation voted and the Executive Branch of the government changed hands.  It was considered a miracle at the time, as such a shift of power in so peaceful a manner was all but unheard of.  

Indeed today, I venture to guess that the majority of the world's nations have yet to experience this miracle for themselves.  Many nations identify as at least nominal democracies, but truly do not have free and fair elections (Cuba, North Korea, Iran, Russia, much of Africa, and Saddam-era Iraq come to mind right away).  Why is this?  What makes us (and at least most of the developed world) so successful in this free transfer of power?  Is it our Constitution?  Our history of encouraging and expecting fair play?  I'm sure someone far more qualified than I can help explain all the social, economic and political issues that leave so many other countries behind in that regard, but for now, let us appreciate the success we've had here.

I write this on Election Eve, November 5, 2012.  In just over 24 hours, we will know if we have a new president or if the incumbent will serve four more years.  Regardless of the outcome, we will have a peaceful aftermath (threats of riots and civil unrest by fringe groups aside).  If the president loses, the transition will start almost immediately, preparing the president-elect to smoothly take office.  If the president wins, the challenger will almost certainly bow out gracefully and accept the will of the electorate, as has been our tradition (the 2000 election aside).  

I also write this, conveniently, from the State of Virginia, beloved home of this blog's namesake, James Madison (and also of a couple other interesting guys named Washington and Jefferson, to name a couple).  Tomorrow, I will be watching the Electoral College map and election returns from Connecticut (home of Roger Sherman - see earlier blog about him), right on the Massachusetts border (home of Adams).  I feel perhaps a little keener sense of history being in this part of the country on such a momentous occasion, and except for being home on election day, I think there are few better places to be.  

Let us, then, celebrate our representative system of government, fair elections (allegations of voter fraud aside for now), and the continued tradition of peaceful transfer of political power - unique in history when it began in 1801, and still unfortunately rare today.  God bless America!

You think THIS is nasty?

With a week to go until the presidential election of 2012, I'm sure we're all tired of the ads, the phone calls, the flyers, the mailers, the Facebook posts and everything election-elated.  Tired, especially, of the negative campaigning.  I mean, can't we all just get along?  And has it ever been this bad?

Well, yes, as a matter of fact.  The election of 1800, pitting incumbent John Adams against his long-time friend and political rival Thomas Jefferson (with running mates Thomas Pinckney and Aaron Burr, respectively) is often cited as the nastiest ever.

Alexander Hamilton, especially, scorched Adams with a 54-page criticism that unfortunately also wounded Hamilton's choice for president, Pinckney.  All the scheming and mechanizing got messed up, though, and since the candidates were all on separate tickets, running mates Jefferson and Burr ended up tied in the Electoral College.

As you all know, an electoral tie goes to the House of Representatives for resolution.  After 35 (yes, 35!) votes, and a heavy lobbying effort by Hamilton, the 36th vote finally gave the presidency to Jefferson.  Burr, of course, never forgave Hamilton and ultimately killed Hamilton in a duel (see previous blog entry "Meet Alexander Hamilton").  So, as nasty as these campaigns today are, chances are nobody will die in a duel in the aftermath.  I hope.

Now, just for fun, what might that campaign have looked like if there had been television in 1800?  Well, in their words:
http://www.youtube.com/watch?v=G3DAET89ypM

Now, go vote!

We Should Have a [fill in the blank] Amendment

 Everyone has his or her concerns, very real and strong concerns.  Some so strong, in fact, that one of the most popular political topics of discussion is amending the Constitution to address those concerns.  How many times have you heard people say we should amend the Constitution to ban flag burning, gay marriage, or the Electoral College, or mandate a balanced budget or any number of other topics of debate?

 Hearken back to my previous post about the longevity and durability of our Constitution.  I make the argument that the very fact that the Constitution is not only long-lived but little-changed is proof of the genius of its creators.  I still maintain that, though I've recently stumbled across a counter-argument that makes a good case for needing to make amending easier, not harder.  Timothy Lynch of the Cato Institute wrote in the Tennessee Law Review that the difficulty of amending the Constitution makes people shy away from addressing problems in our society and government through that means, but rather forces them into using judicial or legislative means, which may in fact run counter to the principles of the Constitution.  He makes a good point that perhaps there are times when the Constitution should be the place for a certain remedy, rather than the courts or legislatures, but the process of doing so is too cumbersome.  See his full argument here:  

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906696

I still maintain that the difficulty of amendment is a good thing.  Changing the Constitution is a very big deal.  It's the basis of our government, the very foundation.  A too-easily amended document makes it too easy to change the basic tenets of our government, while setting the bar too high (Lynch's argument) makes people use other - perhaps unintended by the Founders - means to take care of business.  James Madison says in Federalist 43, that Article V of the Constitution strikes the right balance: “It guards equally against that extreme facility, which would render the  Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”  As usual, I tend to side with Madison, but Lynch makes a good case.

I recently had an interesting discussion with a co-worker about the Constitution.  She insisted that our beloved document had basically no relevance to today's society and provided no protection or assurance of rights to her or anyone else.  What really shocked me about this was she is a naturalized citizen.  Typically, naturalized U.S. citizens are the most vocal and strong supporters of the Constitution, considering what kinds of governments most left behind to come to the USA.  Such citizens also tend to know the Constitution better than most, since they had to study it to earn citizenship.  I asked her, then, in her opinion, how should we amend the Constitution to make it better?  She had no answer, other than to go on a rant about medical marijuana, organic farming, the evils of Monsanto, and freeing Palestine - none of which had anything to do with the Constitution, of course.  A small example, of course, but I think one that illustrates my point that we should not amend the Constitution for every little grievance or problem, either real or imagined, we encounter.

The food for thought here, then is this: Is whatever problem we are debating truly a Constitutional issue?  In other words, do we need to change the very foundation of our government to address it, or is it better addressed by legislation, and if so, should it be at the federal or the state level?  Given the concerns of my co-worker above, for example - is organic farming (or reining in big, bad Monsanto) really an issue for the Constitution, or is it more a regulatory concern?  Likewise, medical marijuana.  And are those more state concerns than federal?  While the issue of Palestine is a concern of the federal government, is it something that needs to be addressed in the Constitution?  More broadly, how about the federal budget?  We all are concerned about that, no doubt, but how would an amendment mandating a balanced budget work?  What would be the penalty for failing to do so?  While I like the idea in theory, how do we put it into practice?

There are plenty of areas of concern I have, just like everyone else.  For example, after 21 years in the military, I obviously have a great love and respect for the flag.  It irritates, even enrages, me to see someone defacing, defiling or burning the flag.  Yet, I don't believe an amendment prohibiting that is warranted.  It would, in my opinion, be in direct conflict with the First Amendment.  As much as I hate seeing it, the irony is that 21 years of my life were willingly spent defending someone's right to do it.  As Voltaire is reputed to have said (there is some debate whether or not he is the originator of this quote), "I may disagree with what you have to say, but I shall defend, to the death, your right to say it."  That said, if there were some statute offering amnesty for anyone who beats up a flag-burner, well, I'm on board with that...

Happy Birthday, America!

I think we should celebrate the 225th birthday of the
Constitution with this ridiculously delicious flag
dessert that my lovely and talented wife makes!

We have all been used to celebrating July 4th as "America's Birthday", and with good reason.  That date marks the occasion of the signing of the Declaration of Independence, formally severing our political and colonial ties with Great Britain.  Of course, a great war followed before it was truly a done deal, but were the "united States of America" (as it was written in the Declaration, with a small "u", indicating that the states were merely a united group) actually "the United States of America" (as it was written in the Constitution, with a capital "U", making "United" a part of the name of the new nation) at that time?

Today marks what I might consider the "real" birthday of the United States of America.  On September 17, 1787 - 225 years ago - the Constitutional Congress adopted the Constitution, signed it and sent it to the states for ratification.  After ratification, the Constitution was formally put into effect on March 4, 1789 (so I guess we could make the argument that March 4 is the "real birthday", as well!).

The Constitution was, in fact, more or less the third attempt at making the fledgling country-to-be a unified nation.  In 1774, the Continental Congress adopted the Articles of Association, but it was quickly apparent that it was inadequate, so in 1776, the Congress began work on the Articles of Confederation, which was completed the next year and ratified in 1781.  After the Revolutionary War, the new nation, not really even a nation yet, but a confederacy of independent states, was seen by many as too weak to hold together, and a  stronger national government was necessary.  Opinions, of course, varied, and vigorously.  But without going over the entire history of the writing and ratification of the Constitution, let me make two observations that I think demonstrate the real genius of this document (and those who wrote it): longevity and durability.

In terms of longevity, the U.S. Constitution has few peers.  It is, in fact, the oldest national constitution still in effect.  According to a University of Chicago Law School study, the average constitution worldwide lasts only about seventeen years before being replaced.  In other words, most constitutions don't even reach voting age!  Even in our own country, we have had nearly 150 state constitutions, an average of about three per state since the founding.

By durability, I mean the Constitution has changed very little in its history.  Only twenty-seven times has it been amended, ten of which came all at once in 1791, so in the ensuing 221 years, only seventeen amendments have been ratified (and two of which offset each other), an average of once every thirteen years.  By comparison, the constitutions of the states have been amended a total of nearly 12,000 times, or an average of 240 per state!  What that seems to signify is that the U.S. Constitution was written specifically enough to get the country started, but generally enough to avoid amendments for every little issue.  True genius.

Interestingly, though, our Constitution deviates significantly from the statistical norms the Chicago study found.  They identified two traits that contribute to the longevity of most constitutions: adaptability and specificity.  In their words:

Adaptability, it appears, is crucial for constitutional survival. In the case of amendment ease, for example, an easily amended constitution (one whose probability of amendment is one standard deviation above the mean) has a 70 percent chance of lasting until age 50 versus 13 percent for those whose amendment probability is estimated at one standard deviation below the mean. Consistent with our expectations we find that constitutions that cover more topics are more durable than shorter ones, suggesting that specificity matters, although length of constitution alone does not seem to increase endurance.  ("The Lifespan of Written Constitutions", Authors:  Thomas Ginsburg, Zachary Elkins, and James Melton, 2009)

As you all know, our Constitution is by no means easy to amend (and that will be a topic for a future blog), yet it endures.  And ours is not very specific on very many topics, as it only runs about 4,500 words over merely seven articles, while the shortest U.S. state constitution goes nearly twice that number of words- most are much longer.

So, how to explain the longevity and durability of our Constitution, which seems to buck the worldwide trend, as the oldest, yet shortest constitution of any sovereign nation still in effect?  I wish there was an easy answer.  Can it be that our Founders were just that much smarter than everyone else?  They were true geniuses and visionaries, to be sure, but people these days have the benefit of hundreds of years of experience and scholarship to draw on, yet are unable to deliver such an enduring document.  Or perhaps does it matter not so much what is in the document specifically, but rather the intent behind the words?  I would argue that, despite the Chicago study's findings, a very detailed, specific and easily changeable document is subject to too much tampering and tinkering to endure for long, and perhaps it is the very simplicity of ours that makes it so strong.  Or is it a case of "national character" and the acceptance of the rule of law, rather than the rule of whim, that helps our republic endure?  In any case, the variables are too may to discuss in a little blog post, but discuss we shall.  Discuss, my friends - and Happy Birthday, America!

Hamilton, Roosevelt and the 22nd Amendment

In Federalist Number 72, Alexander Hamilton makes a strong case against term limits for the president.  These days, of course, we are used to the idea of a president serving only two terms, as limited by the 22nd Amendment to the Constitution.  Why, then, did Hamilton argue in favor of essentially unlimited terms for the chief executive, and why did no president actually serve more than two, other then FDR?

Hamilton made essentially five arguments against term limits:

1. Less inducement to good behavior.  If one knows one's time is limited in the job, where's the incentive to behave properly, not having to worry about getting re-elected?

2. A greater inducement to corruption.  Again, knowing that one is going to lose one's job anyway, why not take advantage of any "special favors" during the limited time in office?

3. Term limits would deprive the public of the very men who have the experience to lead best.  Why replace the seasoned veteran with a relative newcomer, simply as a matter of procedure?

4. Continuity in crisis.  Hamilton argued that replacing the president in times of crisis - especially in war - would be potentially disastrous.  Crisis is no time for on-the-job training.

5. Term limits would serve as a destabilizing factor, artificially compelling a change in administration that the people may not necessarily want.

Near the end of the paper, Hamilton adds, in response to counter-arguments:  " ...if he [the president] had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege."

In other words, could the strong attachment of the people (or even a small number of the people) lead to civil unrest if their favorite was not re-elected simply because of term limits? 

So, how has this worked in practice?  Washington set an unofficial precedent by refusing a third term, which he would no doubt have won, though it was likely due to his age that he refused, rather than a more altruistic motive.  In any case, Jefferson, Madison and Monroe all adhered to the two-term precedent, as well.  A few presidents attempted to serve a third term - Grant, Cleveland, Theodore Roosevelt and Wilson - but all failed to do so.  The only president to successfully be elected to more than two terms (ultimately winning four times) was Franklin Roosevelt.  

Roughly two years after FDR's death, the Congress proposed the 22nd Amendment, limiting the president to two full terms, or ten years in office, if he should serve less than two years of his predecessor's term.  The only presidents who could have served more than two full terms since the amendment was ratified in 1951 were Truman (who was president at the time and was specifically exempted from its provisions, yet chose to adhere to the two-term precedent, anyway) and  Lyndon Johnson, who served the last 14 months of JFK's term, but refused re-nomination in 1968.  Ford, who took over from Nixon, served more than two years of Nixon's term, and was therefore ineligible to be elected more than once (a moot point, as he lost in 1976).

So, was Hamilton's warning about artificial term limits warranted?  After all, no president for 150 years successfully ran more than twice.  Those who tried all failed.  On the other hand, was Hamilton right about not "changing horses in mid-stream", as FDR was repeatedly elected during the Great Depression and World War II?  If Hamilton was right and it was that important to keep a sitting, experienced president through a great crisis (or two, in FDR's case), why was the country so eager to limit the presidential service so soon after FDR's death?

There have been several attempts in Congress to repeal the 22nd Amendment, but none gained any traction. Why do you suppose this is?  Are we, as Americans, perhaps still a little leery about long-serving chief executives, perhaps reminiscent of English kings?  Are we "wired for change" and don't like to see ourselves as a country (as represented by the president) as stuck in the mud, so to speak?  But if that's true, why do we allow members of Congress to serve in perpetuity?  Why not terms limits for them, if it's good enough for the president?  Is there that much of a difference in the way we see the president and the way we see members of Congress?  After all, no president but one ever successfully ran for more than two terms, yet members of Congress regularly serve for decades.  

Discuss, as you make ready to vote this November...