Archive for the ‘federalism’ Category

The Defects of the Articles of Confederation, Part 7

Defects_of_the_Articles_of_Confederation_7   <== PDF version

A republican political system is one in which a large fraction of the general population exerts power indirectly through representatives of their choice.  The great attraction of a republic is that those representatives will, over the long run, reflect the views of a majority of the people, but at the same time, will tend to attenuate excessive demands by the public in times of difficulty or uncertainty. A republic is therefore somewhere in the center of the styles of political organization.  At one end are the forms in which power is concentrated in a few people.   Among these are: a) a dictatorship or absolute monarchy, in which one person has nearly all the power; b) a monarchy and hereditary nobility composed of a small but stable number of people; and c) ruling oligarchies, in which power is assumed by a small number of people who are not members of a permanent class.  At the other extreme is pure democracy, in which every eligible person has a direct voice in public affairs.

There are two main classes of systems that can be correctly called republics. In the first type, a purely federative style, the members of the federation are actually subordinate political divisions.  Each political subdivision chooses delegates to represent it at an upper political level.  In the second type, the general public chooses delegates to the top political level in their capacity as individuals.  A mixture of these prevailed under the Articles of Confederation: the eligible voting public, in their capacity as individuals, chose delegates to their state legislatures; those state legislators in turn chose delegates to Congress.  In Congress, each state had an equal vote.  At the state level then, it was of the second type of republic, but at the national level, was purely federative.   The provision is found in the first portion of Article V:

Article V.  For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

            No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

            Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

            In determining questions in the United States, in Congress assembled, each State shall have one vote.

It is clear that such a system is republican in the sense that the public chose representatives at the state level who in turn represented the state in Congress.  The people thus had an indirect choice in who represented them in Congress.  This is a satisfactory system, because ultimately the people are able to determine the makeup of Congress, although the process is one step removed from direct election.  But, if we recall the basic premise of a republic, that the views of a majority of the people will usually prevail, it is equally clear that a purely federative system such s the Articles can maintain this premise only if each state has approximately the same population. Such was not the case with the original thirteen states.  As Hamilton pointed out in The Federalist #22, seven states (Delaware, Georgia, Maryland, New Hampshire, New Jersey, Rhode Island, and South Carolina) could constitute a majority of votes in Congress, yet their combined population was not more than a third of the entire population.  On the face of it, there was no remedy for this problem other than the hope that these states would have such diverse interests that they would not combine together, thus requiring that some other combination of states vote one way or the other, and that by this means, opinions shared by of a majority of the population could be expressed.  It is true that these seven states rarely agreed, so little harm was done, but it was accidental, not by virtue of the system.

The Articles did contain one other provision that tended to mitigate this problem somewhat, at least at first glance.  It is found in the second-to-last paragraph of Article IX:

            The United States, in Congress assembled, shall never engage in war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled.

As seen here, concurrence of nine of the thirteen states was required to enact legislation on the important issues, such as treaties, coining money and issuing currency, and military expenditures.  In this way, the defect mentioned earlier was avoided: any nine states, including the seven whose population totaled only one-third, would likely constitute a majority of the people.  Secondly, history shows that requiring a supermajority on important issues having a great impact on the whole is an excellent idea.  But the wide diversity of state populations, the provincial outlook of many states, and the nine-of-thirteen rule sometimes led to a pernicious defect in the operation of the Articles when taken together.  For, if nine states were required to pass significant legislation, a combination of five states, whose combined population may total only 20% of the entire American population, could prevent necessary legislation from being passed – rule by the minority, contrary to the basic goal of a republic.  It was similar to, but not quite as bad as the Polish system, which required unanimity on every issue.

Two examples illustrate the problem.  In 1784, Congress was deprived of a quorum to do business from 11 Aug to 30 Nov because three New England states decided not to attend.  An even worse example was a vote taken on 23 Apr 1784 regarding the administration of western lands. The issue was whether slavery would be allowed in those territories.  Because not all the states were present this vote required 7 of 10 states to retain a previous resolution that prohibited slavery. New Jersey’s lone delegate refused to vote, and the delegation from North Carolina was divided.  So, the previous resolution was repealed by the votes of three states: Virginia, South Carolina, and Maryland; thus three states, with a combined population very much in the minority compared to the whole, was able to re-institute slavery in all the western territories.  Fortunately, this act of 1784 was superseded by the Northwest Ordinance of 13 Jul 1787.

The U. S. Constitution as proposed in 1787 preserved the excellent feature of a two-thirds requirement to confirm treaties in the Senate, which represented the states in their sovereign capacity.  But to avoid the main representative defect discussed here, most other legislation was to be decided by a simple majority in both branches of Congress: the House, which represents the people through their directly-elected representatives, and the Senate representing the states.  In this way, the sentiments of a majority of the people, through representation in the House, are always guaranteed a voice in every vote.  These provisions lay out a workable framework by cannot address the case wherein the interests of the members of Congress diverge from the interests of the people; there is no cure for that except elections.

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A False Claim for a “Living Constitution”

A_False_Claim_for_a_Living_Constitution <== PDF version

There are a significant number of people to buy into the argument that the U. S. Constitution should be a “living document”.  It is not just some crackpots who believe it; it is embraced by a fair number of educated people, some of them educated in constitutional law.  Before I examine a supposed justification for the “living constitution”, it is useful to spell out what is meant by that phrase.  The underlying philosophy of the “living constitution” sect (for it is a civil religion) is that the U. S. Constitution was a great advancement in the 18th century, but is now obsolete. With the advent of technology and industry that supplanted the agricultural economy of the colonial period, it is necessary, they claim, for the government to expand its powers as it sees fit in order to do good, help the people, to pick economic winners and losers, and to regulate the activities of business and the people for the common good. These expansions of power are justified, they claim, because it is all done for the benefit of the people.

It is pretty obvious that the intent of the founding fathers was to create a limited government with limited specified powers, as stated in Article 1, Section 8 of the Constitution.  The main idea was to protect individual liberty as much as possible, consistent with peace and stability.  But the advocates for the “living constitution” sometimes attempt to find a justification for the arbitrary-power model of government in the writings of the founding fathers themselves.  Mr. Garrett Epps does so in his essay of 1 Jun 2011 [1], titled “Constitutional Myth #2: The Purpose of the Constitution is to Limit Congress”.  It is true that the Constitution was intended to create a federal government that had viable powers, unlike the Congress under the Articles of Confederation.  Congress under the Articles was simply too weak to function as a viable government, and it was obvious that some new form of government was required.  That is quite different than saying the Constitution was designed to allow the federal government to anything it wanted.  Mr. Epps claims in his article that Alexander Hamilton viewed federal powers as unlimited. To do so, he quotes a sectio from Hamilton’s Federalist #34:

“There ought to be a capacity to provide for future contingencies as they may happen, and as these are illimitable, in their nature, it is impossible safely to limit that capacity.”

Mr. Epps uses this passage in isolation in an attempt to show that Hamilton regarded the federal government as having arbitrary powers, including one to create more powers, and the power to use them all as it saw fit in the future.  There are two fallacies here.  The first is that Mr. Epps fails to point out that the Federalist #34 is part of a long sequence on taxation (numbers 30 through 36) in which Hamilton expends great effort t show that federal and state taxation are compatible, can be efficiently collected, and are devoted to different expenses.  The federal expenses that Hamilton had in mind here are mentioned two paragraphs later in the same essay:

“What are the chief sources of expense in every government?  What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed?  The answer plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society.  The expenses arising from those institutions which are relative to the mere domestic police of a State, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.”

Secondly, Mr. Epps declines to point out that Hamilton had, a few days earlier in the Federalist #33, discussed the fact that only specific powers were conferred to the federal government.  In his discourse on taxation, Hamilton addresses objections to the “Supremacy Clause” (Article VI).  The critics had claimed that this and the power of taxation would be the “pernicious engines by which their local governments would be destroyed and their liberties extinguished”.  But Hamilton explains:

“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government which is only another word for political power and supremacy.  But it will not follo from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but are invasions of the residual authorities of the smaller societies, will become the supreme law of the land.  These will be merely acts of usurpation, and will deserve to be treated as such.”

It is clear that Hamilton regarded the powers of the federal government to be limited; otherwise, how could he claim that laws contrary to the constitution are acts of usurpation?  I is true that we the people have grown lazy and have failed to call acts of usurpation by their real name. The only fix for that is education.  I would urge everyone to read the Federalist Papers, so as not to be misled by those like Mr. Epp who wish to impose arbitrary government upon you.  It is clear that neither Hamilton nor the other founders implicitly advocated the notion of a “living constitution”.


Posted in Alexander Hamilton, Articles of Confederation, Early American history, federalism, Federalist Papers, government powers, living constitution, U. S. Constitution | No Comments »

On Federal vs. State Powers

On Federal vs. State Powers    <== PDF version

What is the proper division of state and federal powers with regard to the funding of education in America?  The Arizona Republic published an article on 1 May 2011 by Pat Kossan and Ronald J. Hansen called “Money Gap for Charter Schools”.  In the article the authors mention that funding for charter schools is declining owing to reductions in state and federal revenues.  It turns out, according to the authors, that the charter schools actually receive less per-pupil funding from federal sources because the charter schools have fewer disabled and lower-income pupils than typical public schools.  Apparently the great planners in the federal government are willing to meddle in the funding of local schools, but not on an equal basis.  No doubt this formula was achieved with the usual amount of political negotiation and compromise.  But it is evident that federal funding of education was not intended by those who debated and ratified the U. S. Constitution.

First, no powers regarding the establishment or promotion of education were granted to the federal government in the U. S. Constitution.  Secondly, we need only look to the debates in the Constitutional Convention to observe that the topic of federal funding for education never came up.  The founding fathers were wary of giving too much power to the federal government on the grounds that those powers would be abused; they believed it was necessary, as a check upon the federal government, to leave many powers at the state level.  A few examples will suffice.

In the debate of 7 Jun 1787 in the Convention, George Mason, a delegate from Virginia stated, “Whatever power may be necessary for the national government, a certain portion must necessarily be left with the states.  It is impossible for one power to pervade the extreme parts of the United States, so as to carry equal justice to them.”

Charles Pinckney of South Carolina stated on 25 Jun 1787: “No position appears to me more true than this; that the general government cannot effectually exist without reserving to the states the possession of their local rights.  They are the instruments upon which the Union must frequently depend for the support and execution of their powers, however immediately operating upon the people and not upon the states.”

We have seen the unfortunate consequences of federal activism in many aspects of our daily lives.  Funding of education is only one of them.  It would be better by far for the states to resume their traditional role of providing for the education of its citizens, as the state governments may be more closely regulated by the people thereof.

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ABC News Gives a Test on the Constitution

ABCNewsTestOnTheConstitution  <== PDF version

ABC News ( contained an article today in which readers could test their knowledge of the U. S. Constitution.  The test consisted of 10 multiple-choice questions of moderate difficulty (or infinite difficulty, if you were forced to suffer through “social studies” instead of history in school).  I am pleased to report that the answers provided by ABC News were all correct.

Now this may seem a little corny, but I think this was an excellent idea.  I only wish the reporters and editors at ABC News and other news organizations would keep these proper notions of the Constitution in mind as they go about their daily jobs.  It would be refreshing and beneficial to all of us if the news organizations reported the daily events going on in the government and in political parties with a critical eye toward what is allowed and not allowed under the Constitution.  We would have less confusion, and the politicians and bureaucrats would have less opportunity to keep the public in the dark. 

One of the questions in the test was to recognize the opening lines of the Constitution: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain an establish this Constitution for the United States of America.”  But how can it be said that the people established it, if in fact it required ratification by the states?

The answer lies in the fact that each state that ratified it did so at a ratifying convention called for that purpose in each state, and each delegate sent to it was tasked with representing the people of the state.  The U. S. Constitution is the founding document of a compound democratic republic established by republican means, that is, when the people are represented by those they trust, and accept the results of a  vote of the specified majority.  In this way, although the representatives cast their votes directly, those votes matter only because the full weight of the people’s confidence is behind them.

James Madison mentions this principle in The Federalist No. 43, first quoting the provision of Article 7 that specifies the requirements for putting the Constitution into effect:

            “9.  The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States ratifying the same.”

            “This article speaks for itself.  The express authority of the people alone could give due validity to the Constitution.  To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member.  It would have marked a want of foresight in the convention which our own experience would have rendered inexcusable.”

Madison was echoing a sentiment expressed earlier by John Jay in The Federalist No. 2:

            “Admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation nor to blind reprobation, but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive.”

The people of that generation had a choice in the matter of how they would be governed.  We have choices too, but we will make the correct ones, that is, the method choosing our representatives and regulating their conduct, only if we reject the usual “blind approbation” and “blind reprobation” that so often passes for news these days. 

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