The link between the Constitution and natural law

"Is the Constitution of the United States, then, a natural law document? No, it is not a philosophical treatise at all, but instead a practical instrument of government. We are safe in saying, nevertheless, that the Framers, with few conceivable exceptions, believed in the reality of natural law and had no intention of contravening natural law by the instrument they drew up at Philadelphia; nor did anyone suggest during the debates over ratification that the Constitution might in any way conflict with the old truths of the natural law."

-- Russell Kirk, Natural Law and the Constitution of the United States, 69 Notre Dame L. Rev. 1035 (1994). 

Tillman and Blackman make the rubble bounce on the emoluments clause

Continuing their exposition of the emoluments clause and its inapplicability to President Trump and his business dealings, this blog's very own Prof. Seth Barrett Tillman and his co-author Prof. Josh Blackman have published this piece over at The Wall Street Journal online: The 'Resistance' vs. George Washington. Unfortunately, their article is behind the WSJ's paywall, but an excerpt can he read over at Instapundit, available here. Worth reading!

Tillman and Blackman: bringing light to President Trump and the Constitution's emoluments clause

If you've been following NRC's Facebook page, you know that this blog's own Professor Seth Barrett Tillman has co-authored a series of posts with Professor Josh Blackman over at the Washington Post online detailing flaws in efforts to apply the emoluments clause of the Constitution to President Trump and his private business activities. Their work there is high-level constitutional and historical scholarship packaged to be accessible to a non-specialist audience. And it makes crystal clear that which so many of the leading "scholars" of constitutional law would rather have opaque.

Part 1 is here.

Part 2 is here.

Part 3 is here.

Part 4 is here.

Part 5 is here.

Professor Tillman took a lot of flack prior to publishing this series for his views on the emoluments clause and its applicability to President Trump. We won't go into that here, but here's a New York Times story about the controversy about Tillman's groundbreaking scholarship regarding the emoluments clause and its applicability to the president. His work with Professor Blackman is so definitive that his leading critics have issued formal apologies to him. Some of those apologies are online here and here.

Why is all this important? Because the emoluments clause is the basis of a lawsuit designed, ultimately, to pressure President Trump from office by targeting his businesses. The strategy targeting Trump's businesses is outlined in this post over at Instapundit. Tillman and Blackman have done yeoman's service in showing how weak the overall legal arguments against the president truly are.

What Washington knew about the link between property rights and religious liberty

One of the treasures of American literature are George Washington's letters to various groups of citizens following his election as the first president of the United States under our current Constitution. The letters are short and contain concise and dense reflections on the nature of ordered liberty in the new American Republic, explaining the nature and scope of freedom under the Constitution. 

Of particular interest is Washington's letter to the Jewish community in Newport, Rhode Island. Washington wrote the letter on August 21, 1790, as a response to a statement of welcome delivered by one of the leaders of the Touro Synagogue in Newport on the occasion of Washington's visit to that town following the ratification of the Constitution by Rhode Island. In the letter, Washington expresses his conviction about the importance of property rights to protecting other rights under the Constitution:  

Gentlemen: 

While I received with much satisfaction your address replete with expressions of esteem, I rejoice in the opportunity of assuring you that I shall always retain grateful remembrance of the cordial welcome I experienced on my visit to Newport from all classes of citizens. 

The reflection on the days of difficulty and danger which are past is rendered the more sweet from a consciousness that they are succeeded by days of uncommon prosperity and security. 

If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good government, to become a great and happy people. 

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy—a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. 

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. 

It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my administration and fervent wishes for my felicity. 

May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid. 

May the father of all mercies scatter light, and not darkness, upon our paths, and make us all in our several vocations useful here, and in His own due time and way everlastingly happy.

G. Washington 

This is a telling statement about the nature of religious liberty, recognized by the Constitution, grounded not in the preference of the elite but in natural rights common to all and the duties of citizenship. Of additional interest is the linking of religious liberty and property rights. To draw that linkage in his letter Washington quotes the Prophet Micah from the Hebrew Bible:

And every man shall sit under his vine, and under his fig tree, and there shall be none to make them afraid: for the mouth of the Lord of hosts hath spoken. (Micah 4:4, Douay-Rheims Version.)

Property rights serve as an essential bulwark for other freedoms, in the they provide citizens with the space and the means to exercise their other rights. Without property rights, there can be no liberty of speech, of religion, of the press, or to be secure against unlawful searches and seizures. Washington understood this and propounded a constitutional order where citizens -- not just those favored by the government -- may sit secure in their possessions, "and there shall be done to make them afraid." To be secure in your property is to be free indeed. 

Alexander Hamilton's unorthodox conservative constitutional jurisprudence

Tom's post from yesterday evening got me thinking about the constitutional wisdom of Alexander Hamilton. Hamilton has long been overshadowed by many of the the major American founding fathers, largely because he had the misfortune of falling from political grace and then getting killed by Aaron Burr in a duEl. From such an end, knowledge of Hamilton quickly sank from popular culture, although thanks to the work of folks like Richard Brookheiser, Gordon Wood and Ron Chernow, he has finally received some of the attention from historical circles which he is due. And his story has even given rise to a popular Broadway musical exploring the themes and concepts of his amazing life.

In this post, I'd like to briefly look at Alexander Hamilton's contributions to the world of constitutional law—specifically, his approach to interpreting the Constitution as it developed between the Federalist Papers and his work as in both the Washington and Adams administrations. Hamilton is well-known for his defense of judicial review and the independence of the judiciary in the Federalist Papers. His arguments in favor of the power of the judiciary are part of his legacy as a legal thinker, and I won't take up space here simply repeating what others have already said. What bears closer inspection is Hamilton's approach to constitutional interpretation after the Constitution was ratified and during the time when he was in government.

As Forrest McDonald has noted, Hamilton's legal ideas were remarkably influential at the time, and "at least two of [Chief Justice John] Marshall's opinions were drawn directly from Hamilton's constitutional pronouncements." Hamilton advocated a flexible approach to constitutional interpretation, one that provided for a generous and expansive reading of federal power. It is no surprise that this kind of view closely paralleled his general political principles. But Hamilton also insisted that this expansive view of government power be limited by the Constitution's outline of government authority. Hamilton did not believe that the Constitution was simply a grant of general authority to the federal government; he was an enemy of the idea of a "living Constitution," of constitutional principles unmoored from the text of the Constitution itself. As he commented when discussing the power of the Congress to authorize corporations: "Whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction."

In addition, Hamilton contended that when discerning the intent of the Constitution's provisions, recourse outside of the text of the Constitution was to be avoided: "arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected."

Hamilton's approach to constitutional interpretation did not, therefore, reduce constitutional law to politics, nor was it an attempt to read the Constitution as an infinitely malleable text that would allow for the creation or recognition of new or novel rights. Hamilton believed that the Constitution's text was binding. He was, in effect, proponents of classic original intent jurisprudence, where the intentions of the Framers of the Constitution are sought by examining the actual text of the Constitution, rather than speculating on what the Framers might have meant, or by looking at extrinsic sources to supply the intent of the document.

Well, what about Hamilton's rather famous disagreement with Jefferson over the proper scope of federal authority under the Constitution? Hamilton's constitutional jurisprudence diverged from Jefferson's not over the question of original intent, but over the question of the explicit grant of authority to Congress under the Necessary and Proper Clause of the Constitution. Was the clause to be read expansively (as Hamilton and the Federalists advocated), or narrowly (as Jefferson and the early Democratic Republicans wanted)? Hamilton was convinced that it should be viewed expansively, in light of the Constitution's grant of enumerated powers to Congress. By the terms of the clause, Congress had the power to do what was "necessary and proper" to carry out its expressed powers. But in Hamilton's view, even this expansive reading of the Necessary and Proper Clause was still bracketed by the text of the Constitution itself.

Proof of this is seen in Hamilton's advocacy of the federal government improving the network of internal canals and roads within the United States in order to strengthen the country's domestic military defenses. Hamilton made this suggestion while serving, under President Adams, as the field commander of the federal army during the Quasi-War with France (1798-1800). An excessively expansive reading of the Necessary and Proper Clause, unhinged from the actual expressed powers of Congress, would see such internal defense improvements as being within Congress's overall military power with a possible connection to Congress's power to regulate interstate commerce. But that wasn't Hamilton's argument. Hamilton argued that Congress had the authority to establish the roads he proposed under its power to "establish post offices and post roads." But in order to have the authority to build canals, Hamilton argued, Congress would have to be empowered by a constitutional amendment.

That episode demonstrates the the constrained nature of Hamilton's way of reading of the Constitution. While committed to the idea of a flexible and vigorous federal government, Hamilton was also committed to the Constitution's function as a limitation on that government's power. When the text of the Constitution indicated that Congress had power, Hamilton urged that that power be used to its utmost. But when the text indicated that Congress did not have a given power, Hamilton insisted that the text be followed, even if he thought the text should be changed in order to facilitate better policy. This approach sets Hamilton clearly within the conservative camp when it comes to interpreting the Constitution -- as in his general approach to law & government, he would be an unorthodox conservative today, but a conservative nonetheless. Constitutional structure & constitutional language both mattered to Hamilton. And it is in both that he found the best guarantees against an overly expansive sweep of government power.

(Tom's post immediately below demonstrates this point as well in reference to the Senate's role in judicial appointments.)

Does it matter if any of the American founders were Christians?

Some time ago, I used to post over at the American Creation blog, and one of the major recurring topics over there regards the religious beliefs & practice of the American founders. Were they Christians? What kind of Christians? Devout? Lax? Nicene orthodox? Unitarian? You get the idea.

Apart from the very real difficulty of accurately describing the religious views of some of the founders (who, for example, can coherently describe whatever Thomas Jefferson happened to believe at any given moment?), this kind of questioning is quite popular. It shows up quite a bit in constitutional law scholarship discussing the First Amendment's religion clauses and the role of faith in public life.  And yet...

Over at The American Conservative online, writer Paul Gottfried argues that this whole line of questioning is mistaken: Was George Washington a Christian? According to Gottfried's approach the relevant question isn't what did the founders believe? rather it is what kind of social and political order did the founders intend to create?  Gottfried has some thoughts on both questions, and his ideas are well worth pondering.  I particularly am struck by his framing of the debate about religion and the Founding Era. Worth a read.

Antonin Scalia on living constitutionalism and "the brooding omnipresence in the sky"

"If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed."

So said Justice Scalia at the American Enterprise Institute on 2/21/06.  Full text here, C-SPAN video here. As the now departed justice said:

The American people can make their will well enough known by creating new rights legislatively, or in the last analysis by amending the Constitution per Article V. One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot.

In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world -- and with which all the judges of all of the nations of the world are charged with interpreting -- has replaced the common law.

Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.

Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.

And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . .

It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.
... 

If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed. I dare say that few of us here would like our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and beliefs of our people that they can be judicially imposed through constitutional adjudication? And is it really an appropriate function of judges to say which are and which aren't? I think not.

Thank you. [applause]

Requiescat in pace, brother Nino.  Applause.

The "glorious triumph" of the American Constitution

Thus was achieved another, and still more glorious triumph in the cause of national liberty, than even that, which separated us from the mother country. By it we fondly trust, that our republican institutions will grow up, and be nurtured into more mature strength and vigour; our independence be secured against foreign usurpation and aggression; our domestic blessings be widely diffused, and generally felt; and our union, as a people, be perpetuated, as our own truest glory and support, and as a proud example of a wise and beneficent government, entitled to the respect, if not to the admiration of mankind. 

-- Joseph Story, Commentaries on the Constitution of the United States, book III, chapter 1 (1833).

Helpful clarity about the Declaration of Independence

One of the things that amazes me, as a lawyer and as an educator, is how much confusion there is about what the Declaration of Independence is and what it isn't, and not just among regular citizens but among historians and legal scholars.  In my day job, I've published on the non-binding legal character of the Declaration, and over at the Law & Liberty blog Greg Weiner has published a helpful post reinforcing that point by pointing out the nature of the document: What the Declaration Doesn't Say.  In words that echo the fundamental insights of men like Russell Kirk and M.E. Bradford, Weiner writes:

[T]he Declaration must be properly contextualized. It is a founding document but not a framing document, which is to say it does not have legal standing in the same way the Constitution does. When Justice Brennan, for example, grounded his activist jurisprudence partly in the ideals of the Declaration, he imported a document into constitutional law that simply has no place there. But this is not a liberal trope alone. As Ralph Rossum has shown, the Declaration plays a prominent role in Justice Thomas’ jurisprudence as well: the Constitution, in his understanding, was meant to fulfill the aspirations of the Declaration. 

While there is no question that the Declaration is a key document in American history and expresses in a unique and almost sacred way the key principles of the American Revolution, it is not a constitutional document. It is a pre-constitutional one, establishing the conditions upon which the American Republic could frame its fundamental legal charters -- first the Articles of Confederation and then the Constitution of 1789. While the Constitution builds upon many of its insights (particularly the protection of natural rights through the due process clauses of the 5th and the 14th Amendments), the Declaration is not a legally authoritative document.

The wisdom of St. George Tucker on judicial review

Introduction. The issue of judicial review was an active one in the early American Republic, with the leader of the first Republican Party, Thomas Jefferson. One of the structural constitutional problems in the early Republic revolved around the problem of enforcing the Constitution on the federal government itself. If the president or Congress decided to violate the Constitution's protections and requirements, how would their actions be restrained or reversed? The Constitution itself is silent on that direct question, although insisting via the Supremacy Clause that the federal Constitution was the "supreme law of the land." (US Const., art. VI, cl. 2.)

The Federalist solution: judicial review. Federalist constitutional theory posited that the Supreme Court had the power to judicially review legislation enacted by Congress and signed by the president in order to determine its constitutionality. 

In a nutshell, if the Court found that the legislation in question was not constitutional, the legislation would be regarded as null and void. This approach to judicial review was advocated by Alexander Hamilton in The Federalist Papers, specifically No. 78. It also is the theory that was embraced by Federalist Supreme Court Chief Justice John Marshall in the landmark Supreme Court case of Marbury v. Madison, 5 US 137 (1803). That case has long been considered the key Supreme Court case in the development of the doctrine of judicial review, although it built off earlier case law acknowledging the principle. One of those cases is the 1789 case of Ware v. Hylton. In that case, the Supreme Court struck down a state law under the Supremacy Clause because the state law violated the requirements of a treaty to which the United States was a party.

Jefferson's radicalism and nullification under Calhoun. Jefferson was highly skeptical of the idea of judicial review, and Madison, while originally supporting the idea at the Constitutional Convention, eventually grew skeptical of judicial review as well. During the controversy over the Alien and Sedition Acts, both Jefferson and Madison proposed a different mechanism by which the Constitution's protections could be vindicated in the face of possible abuse by the general government: the doctrine of nullification. Under that theory, a state could nullify constitutionally problematic federal legislation within that state's boundaries, effectively shielding its own state citizens from federal overreach. Sometimes referred to as interposition (from the idea that the state would position itself between its own citizens and the federal government), the Jeffersonian-Madisonian view lived on in American polity well into the 19th century.

As the Jeffersonian Republicans morphed into the Jacksonian Democrats, the new Democratic Party's southern wing's leader, John C. Calhoun, was an ardent proponent of the idea, and much of Southern constitutional theory, both prior to the Civil War and during the Confederate period, was dominated by the idea. Interestingly enough, prior to the emergence of the Jacksonian Democrats there was a strong view within the Jeffersonian Republican Party in support of the idea of judicial review, despite Jefferson and Madison's misgivings about the doctrine.

St. George Tucker's approach. One Republican proponent of judicial review was Virginia jurist St. George Tucker. Tucker, a federal judge, noted Republican and early proponent of the abolition of slavery, was a major legal theorist in the early Republic, and the author of the first major American edition of Blackstone to be published since Independence. Tucker published his edition of Blackstone in 1803, the same year the Supreme Court decided Marbury v. Madison. In Note D of the first volume of his edition of Blackstone, Tucker makes a strong appeal to the idea of judicial review as a bulwark of constitutional liberty:

The obligation which the constitution imposes upon the judiciary department to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man who pays any regard to the obligations of an oath can be supposed either to contend for, or to defend. 

Specifically taking aim at the constitutionality of the Alien and Sedition Acts, the very acts that led his Republican brethren Jefferson and Madison to propose the radical idea of nullification, St. George Tucker writes a robust defense of the principle of judicial review:

If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend it's aid in every instance where oppression can ensue from it's decisions: whilst on the contrary, it's decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed whilst this branch of the government remains independent, and uncorrupted; it being a necessary check upon the encroachments, or usurpations of power, by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. If an individual be persecuted by the executive authority, (as if any alien, the subject of a nation with whom the United States were at that time at peace, had been imprisoned by order of the president under the authority of the alien act, 5 Cong. c. 75) it is then the province of the judiciary to decide whether there be any law that authorises the proceedings against him, and if there be none, to acquit him, not only of the present, but of all future prosecutions for the same cause: or if there be, then to examine it's validity under the constitution, as before-mentioned. 

Liberty & Union. Why is this important historically? Tucker's work demonstrates the strong appeal during the early Republic of the idea of an independent federal judiciary as a block to constitutional abuses by the federal branches. As the premier defender of Southern Jeffersonianism Clyde Wilson has written of Tucker's views:

One of Tucker’s principal concerns as a legal and political thinker is to affirm the standing of the judiciary as an independent and coequal power with the legislature and executive. This is an American accomplishment to be supported in state and federal governments both. For him the judiciary is the realm where individuals may seek relief from the oppressions of the government. Its power and independence are thus essential. 

While some of the top-tier Founders within the Republican fold argued for a constitutional theory that would ultimately tear the Union apart, Tucker defended the idea of liberty under, rather than in opposition to, the Union of the States and the federalist system of government established by the Constitution.  While Tucker did support the right of States to secede from the Union, that power did not justify nullification or efforts to abandon the role of the federal judiciary as defender of constitutional order.

For Tucker, the Union was grounded in the supremacy of the Constitution and protected by the glory of Anglo-American government: a truly independent judiciary. Tucker's constitutional vision was thus broadly consonant with the Federalist vision enunciated by Marshall. Unlike Jefferson and Madison's proposed solution, which set the stage for a Southern jurisprudence that would eventually justify an illegal attempt at succession, St. George Tucker sought to preserve both liberty and the Union. And did so through the principle of constitutional government & the mechanism of judicial review.

Against a strict construction of constitutional powers

When reading Hamilton on the Constitution, it is a good idea to recall the wise observation of Russell Kirk that original intent does not always = strict construction. On this point, most modern conservatives part ways with both Kirk & Hamilton when it comes to reading our nation's fundamental charter.

[T]he powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcation of the boundaries of its powers, but on the nature and object of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities intrusted [sic] to a government on principles of liberal construction. 

- Alexander Hamilton (1755-1804), Opinion as to the Constitutionality of the Bank of the United States, 1791.

Madison's Hamiltonian interpretation of the Constitution

In light of Tom's post last Friday quoting Madison on constitutional interpretation, I thought I would pass along a link to this this book review posted over at The American Conservative: What Madison Meant.  Author Ralph Ketcham notes that Madison in his later years drew increasingly close to the Hamiltonian judicial theories of the great Federalist chief justice of the Supreme Court, John Marshall.  The review is well worth a read, to help counter some of the more recent Jeffersonian fixation on the Right regarding the best approach to take regarding constitutional interpretation.

As Russell Kirk wrote in his book on the American Constitution, Rights and Duties, an originalist approach to the Constitution is not necessarily an approach that requires strict construction.  Hamilton certainly would have agreed with that, as would have Marshall & his ally on the bench, Joseph Story, Madison's greatest appointment to the judiciary.  And, as Ketcham's review demonstrates, Madison would have agreed to that sentiment as well. For those familiar with Madison and the arc of his views on government, it is little surprise that in his later years he moved away from Jefferson's views of the Constitution & back towards his original insights, hammered out with his past friend Alexander Hamilton.

Madison's shift towards a more Hamiltonian approach to the Constitution needs to be balanced with his long-term commitment to the diversity of local communities and the liberties of individual citizens.  One of the key building blocks of American order has been the pluralism that has existed within our country since the colonial  period.  It was precisely the coalescing of the various colonies into a  single American nation that solidified that pluralism, as no single  colony had sufficient weight to dominate the entirety of the country. Thus New England remained separate from the South, Pennsylvania from  Virginia, South Carolina from its neighbors in Georgia and North  Carolina. The fragmented cultures, demographics and economies of the various colonies, later states, prevented the country from taking on one  particular characteristic.

As a consequence, there were a variety of  religious, economic, political & social interests throughout America  at the time of the Founding, and it was this diversity that spurred on the growth of liberty. Since no single state, demographic group, religion or economic interest could control the whole, it was in the  interest of each differing segment of the country to support freedom. Madison embraced this pluralism through his public career, often in opposition to Hamilton and the policies that brilliant if flawed statesman favored.  At the same time, Madison's commitment to political & regional diversity was deployed to defend a vibrant & strong general government in his greatest collaborative work with Hamilton, The Federalist Papers.

This point was emphasized brilliantly by James Madison in one of his most notable contributions to The Federalist, Essay # 51, dated February 6, 1788, where Madison wrote to console fears that the proposed Constitution would stamp down religious & political rights through the creation of a federal leviathan. Madison emphasized that the true foundation of liberty in the United States came not from paper guarantees but from the vibrant & varied interests within the country, interests that emphasize not the centralization of power but rather the pursuit of the common good through federalism. As Madison put it so well:

In a free government the security for civil rights  must be the same as that for religious rights. It consists in the one  case in the multiplicity of interests, and in the other in the  multiplicity of sects. The degree of security in both cases will depend  on the number of interests and sects; and this may be presumed to depend  on the extent of country and number of people comprehended under the  same government. This view of the subject must particularly recommend a  proper federal system to all the sincere and considerate friends of  republican government, since it shows that in exact proportion as the  territory of the Union may be formed into more circumscribed  Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the  rights of every class of citizens, will be diminished: and consequently  the stability and independence of some member of the government, the  only other security, must be proportionately increased. 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. It can be little doubted that if the State of Rhode  Island was separated from the Confederacy and left to itself, the  insecurity of rights under the popular form of government within such  narrow limits would be displayed by such reiterated oppressions of  factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the  United States, and among the great variety of interests, parties, and  sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor  from the will of a major party, there must be less pretext, also, to  provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is  important, notwithstanding the contrary opinions which have been  entertained, that the larger the society, provided it lie within a  practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be  carried to a very great extent, by a judicious modification and mixture of the federal principle.

Federalism, in  Madison's presentation, thus forms perhaps the principal guarantee of liberty in the American Republic. Such federalism means a balanced government, with proper powers vested in a general government as well as proper powers retained by the states to deal with properly local issues. Madison was no radical. His defense of "the federal principle," the idea of both a strong general government & robust local governments, was then & remains today an almost perfect  expression of that unique American ideal of the pluralism of interest guaranteeing liberty within the construct of a constitutional order that was itself divided between general & particular structures, between national & state governments.

It would not be a stretch to say that Madison's turn toward Hamiltonian principles was in many ways a return to his own.

Interpreting the Constitution: keep your eyes on its purpose, structure and words

From one of the most influential justices in the history of the Supreme Court:

In construing the constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture; or where it may include in its general terms more or less, than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions

- Joseph Story (1799-1845), Commentaries on the Constitution, Chapter V,  § 405. II (1833).

Five for Friday 3

Five posts to inspire reflection and conversation over the upcoming weekend. There's a common thread to all the posts, but instead of spoiling the fun by saying what it is, I'll leave it up to each reader to determine what links these five posts together. Have a great weekend!

Frohen on Kirk on the Constitution:  the University Bookman reprints a fine review by Bruce Frohnen of Russell Kirk's book on the American Constitution, Rights and Duties:  The Character of Our Constitution.  As Frohnen notes,

Early in the book, Kirk points out that our “Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed.” Thus Kirk takes issue with ideologues who seek to convince us that America was created ex nihilo through the drafting of an abstractly philosophical Declaration of Independence. The Declaration, and the War for Independence, must be seen as our Founders saw them: as defensive measures intended to protect Americans’ traditional and chartered rights from an overreaching English Parliament.

That's just a taste of Frohnen's review -- read it all, and better yet, get a copy of Kirk's book and read it closely.  There is much wisdom there.  I first read Kirk's book on the Constitution when I was a law student, and it was the first book by Kirk that I ever read.  I was immediately impressed by his wisdom and insight, and quickly devoured everything he had written that I could get my hands on.  I would have loved to have met him and studied with him, but alas that was not to be.  But he lives on in his writings, and thanks to them we can all be Kirk's students.  And he is a fantastic teacher!  Of history and literature and on the roots of our country's polity and order.

Franklin and Jefferson on the Lord's Prayer: among the Founding Fathers, Franklin is often thought to be one of the most secular. This is a misreading of Franklin. While he was not an orthodox Christian, Frankly was a strong theist who consistently thought of his religious views in relationship with the general teachings of genetic colonial Protestantism regarding divine providence, the power of prayer and the Last Judgment.  Franklin even went so far as to update the Lord's Prayer from the New Testament for his own personal use, and that prayer definitely reflects Franklin's own religious beliefs in a providential, personal God who is the ground of the moral law and who cares for each human person:

1. Heavenly Father, 2. May all revere thee, 3. And become thy dutiful Children and faithful Subjects. 4. May thy Laws be obeyed on Earth as perfectly as they are in Heaven. 5. Provide for us this day as thou hast hitherto daily done. 6. Forgive us our trespasses, and enable us likewise to forgive those that offend us. 7. Keep us out of Temptation, and deliver us from Evil. 

Benjamin Franklin, Autobiography, post-1784, quoted in The Founders on Religion: A Book of Quotations, edited by James H. Hutson (Princeton Univ. Press: 2005), pg. 166.

If Franklin's version of the Lord's Prayer evidences a strong belief in a personal God who intervenes in human affairs and who answers prayer, the version provided by Thomas Jefferson in his own version of the Gospels, the so-called Jefferson Bible, is even more traditional -- deviating lightly from the version of the Lord's Prayer given in the Authorized King James Version. Jefferson is often invoked by those hostile to religion as someone who was opposed to religion. And it is true that Jefferson disagreed with orthodox Christianity and was a critic of organized religion for the most part. But he also was a strong believer in a theistic idea of God, a deity who governs the world through Providence. Jefferson's version of the Lord's Prayer evidences that belief:

Our Father which art in heaven, Hallowed by thy name.  Thy kingdom come. Thy will be done, as in heaven, so in earth. Give us day by day our daily bread. And forgive us our sins; for we also forgive every one that is indebted to us. And lead us not into temptation; but deliver us from evil.  

Thomas Jefferson, The Jefferson Bible: The Life and Morals of Jesus of Nazareth (Beacon Press: 1989), pg. 87.

When referring to the religious view of the Founders, it is easy to fall into anachronism on either side, either viewing the Founders as a whole as proto-evangelicals or viewing them as proto-free thinking "New Atheists." Both views are incorrect. Even the most secular of the Founders were strikingly religious by modern standards, and affirmed beliefs in strong-theism, of a personal God who intervenes in human affairs, responds to prayer, who authors a moral law, and who will hold each human being accountable for their violations of that law as well as for how they treat those who have sinned against them. Ben Franklin and Thomas Jefferson both testify to this fact.

Rhetoric as a necessary component of a liberal education: "Oh, that's just rhetoric," is a refrain that sadly is heard far too often in regard to politics or any kind of civic engagement.  But as this article by Sean Lewis over at The Imaginative Conservative rightly points out, the study of rhetoric -- the presentation of ideas and concepts -- is critical for liberal education.  The study of rhetoric is one of the pillars of classical education, and the recovery of the integrity of rhetoric is essential to forming a disciplined mind.

One good place to start a study of the use of language is with George Orwell's magnificent treatise on writing & rhetoric:  Politics and the English Language.

Reagan's agenda in his own words: as the country prepares for another presidential political campaign, the memory of Ronald Reagan will no doubt be powerfully in mind for conservative & Republican voters. It might be a good idea to see the consistency and the changes in Reagan's approach to politics and policy across his life in politics.  Below are three examples, from the beginning, peak and close of Reagan's political career, of speeches where Reagan set out his political vision.

Here is Reagan's first major venture on the national political stage, his Time for Choosing speech in support of the Goldwater campaign in 1964:



After serving two terms as governor of California and then running successfully in 1980 against President Jimmy Carter, Reagan delivered his first First Inaugural Address in 1981:



Finally, at the conclusion of his second term of office in 1989, President Reagan addressed the country in his Farewell Speech, talking about his hopes for the future of our country:

Conservatism is not an ideology: Reagan's political principles, both their flexibility and their deep consistencies, raise the question of how conservatism reconciles principle & prudence in the field of practical politics.  Russell Kirk, one of the great explainers and developers of the conservative tradition in the 20th century, explained conservatism's fundamental approach:

The conservative understands that the circumstances of men are almost infinitely variable, and that any particular political or economic policy must be decided in the light of the particular circumstances of time and place -- an enlightened expediency, or prudence ... Conservatism, I repeat, is not an ideology. It does not breed fanatics. It does not try to excite the enthusiasm of a secular religion. If you want men who will sacrifice their past and present and future to a set of abstract ideas you must go to Communism, or Fascism, or Benthamism. But if you want men who seek, reasonably and prudently, to reconcile the best in the wisdom of our ancestors with the change which is essential to a vigorous civil social existence, then you will do well to turn to conservative principles. The high-minded conservative believes in Principle, or enduring norms ascertained through appreciation for the wisdom of dead generations, the study of history, and the reconciliation of authority with the altered circumstances of our present life. He is a highly reasonable person, although he looks with deep suspicion on the cult of Reason -- the worship of an abstract rationality which asserts that mundane planning is able to solve all our difficulties of spirit and community. But the high-minded conservative detests Abstraction, or the passion for forcing men and societies into a preconceived pattern divorced from the special circumstances of different times and countries. 

From Prospects for Conservatives (Regnery Gateway: 1989), pg. 8-9. Within that passage from Kirk is the antidote to virtually all of the big picture problems that have developed on the Right for the last 35 years.