Category Archives: Constitution

The Bill of Rights: Good, Bad, or Indifferent?

I brought up this topic months ago and had the opportunity to lead a discussion about it at the Arizona chapter of the Republican Jewish Coalition. Please join the conversation in the comments sections below.

Anti-Federalists demanded a bill of rights, BUT…

There was disagreement about what a bill of rights should contain. James Madison in Federalist No. 28 wrote about the Anti-Federalists opposition to the Constitution:

A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced…

Some Anti-Federalists opposed the Constitution even after a bill of rights was promised. For them, a bill of rights was just a way to oppose ratification.

The Articles of Confederation had no bill of rights.

Four state constitutions, including that of New York, lacked bills of rights even though the states had been acting as independent republics for years.

Hamilton opposed a bill of rights

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Madison had a mixed opinion regarding bills of rights

There are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution… My own opinion has always been in favor of a bill of rights… At the same time I have never thought the omission a material defect… I have not viewed it in an important light.

In a letter to Jefferson, Madison lists four reasons a bill of rights was not needed:

because I conceive that in a certain degree… the rights in question are reserved by the manner in which the federal powers are granted.

because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are ever likely to be by an assumed power.

because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State… Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

Upon introducing the Bill of Rights, Madison said:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it.

Madison attempted this with the Ninth Amendment:

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

Discussion:

Did Madison succeed with the Ninth Amendment?

Were the arguments against a bill of rights valid then?

Are they valid today?

Have our rights been effected positively, negatively, or not at all by the Bill of Rights?

Should we focus the debate on protecting our individual rights or on limiting the government’s powers?

– Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July.

Usurping the Constitution to avoid default?

A number of political pundits, legal experts, and even government officials argue that President Barack Obama should use the 14th Amendment to circumvent the debt ceiling and avoid default. The New York Times reports:

A few days ago, former President Bill Clinton identified a constitutional escape hatch should President Obama and Congress fail to come to terms on a deficit reduction plan before the government hits its borrowing ceiling.

He pointed to an obscure provision in the 14th Amendment, saying he would unilaterally invoke it “without hesitation” to raise the debt ceiling, “and force the courts to stop me.”

On Friday, Mr. Obama rejected the idea, though not in categorical terms.

“I have talked to my lawyers,” Mr. Obama said. “They are not persuaded that that is a winning argument.”

Despite President Obama’s resistance to this idea, some House Democrats are pushing it. Politico reports:

Rep. James Clyburn and a group of House Democrats are urging President Barack Obama to invoke the 14th Amendment to raise the debt ceiling if Congress can’t come up with a satisfactory plan before the Tuesday deadline.

Clyburn, the third-ranking House Democrat, said Wednesday that if the president is delivered a bill to raise the debt ceiling for only a short period of time, he should instead veto it and turn to the phrase in the Constitution that says the validity of the U.S. government’s debt “shall not be questioned.”

According to the New York Times article, “Jack M. Balkin, a law professor at Yale” argues:

“This is largely a political question,” he said. “It is unlikely courts would decide these questions.”

“At the point at which the economy is melting down, who cares what the Supreme Court is going to say?” Professor Balkin said. “It’s the president’s duty to save the Republic.”

Similarly, Eugene Robinson writes at the Washington Post:

It seems to me that definitive action — unilateral, if necessary — to prevent the nation from suffering obvious, imminent, grievous harm is one of the duties any president must perform. Perhaps the most important duty.

This seems all too familiar because it comes straight out of history. In ancient Rome, Sulla was given dictatorial power to restore the republic. By violating Rome’s constitution, Sulla and the Senators that gave him power established a precedent that enabled Julius Caesar to become dictator for life and destroy the republic. Similarly, men like Benito Mussolini and Adolf Hitler also rose to power and expanded their control under the guise of saving the nation.

The Founding Fathers, being students of history, knew that extra-constitutional actions would only undermine the republic in the name of restoring it. As George Washington explained in his farewell address:

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

— Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July and is now available in stores.

Book Review: Tempest at Dawn makes you feel like the 56th delegate at the Constitutional Convention

Thanks to James Best’s masterpiece, Tempest at Dawn, I felt like the 56th delegate at the Constitutional Convention. Using vivid narrative and expressive dialogue, Tempest at Dawn presents all the major issues the Founding Fathers struggled with. More impressive, you get to know the character of the men who created our great nation.

Tempest at Dawn is based primarily on Madison’s notes to the Convention. Mr. Best adds to the story events that happened outside of the State House. It is a true credit to the author that it is difficult to tell where Madison’s notes end and the author’s speculations begin.

Keeping in mind that Tempest at Dawn is historical fiction, it is a must read for anybody who wants to understand the principles and efforts that went into creating the Constitution and struggles to create our nation.

Bill of Rights. Good, bad, or indifferent?

In Federalist No. 84, Alexander Hamilton writes:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

I can see both sides of this argument:

  • By listing certain rights, other are ignored and those in power will infringe on those unlisted rights, even if they are included in the ninth and tenth amendments.
  • On the other hand, it is possible the government would have more easily infringed on our rights if they were not written down for posterity.
  • Maybe the Bill of Rights has made no difference in either direction as the Constitution is increasingly ignored and reinterpreted. The government has simultaneously grown its power and reduced our rights so that the Federalist argument against bills of rights and the Anti-Federalist argument for them turn out to be the same thing: different methods of limiting the growth of government, both of which failed over time, but only after working well for many decades.

I must admit that I have an ulterior motive in bringing this up. I am writing about this in my next book. I’d love to hear your thoughts. (And if you have a great idea or quote, I may even quote you in my book.) So please, comment below.

Electoral College: What the Founders Thought

Aside

A federal judge threw out all of the health-care bill, declaring the individual mandate unconstitutional. Three cheers for the Constitution. Hip hip hooray! Hip hip hooray! Hip hip hooray!

Direct Election of President Considered by Founding Fathers

Many today want to get rid of the electoral college method of choosing our president.  For example, there is a book called Why the Electoral College Is Bad for America.  It  has quite a lot of good information in it, though the author draws the wrong conclusion.  Or search Google for “electoral college failure” and browse through some of the 333,000 results.   Attacks on the electoral college system accelerated after the 2000 election in which Al Gore won more popular votes but George Bush won the electoral college.  The Founding Fathers considered, debated, and voted on different methods of choosing a president during the Constitutional Convention of 1787 before choosing the one they thought best.

Deciding how to select or elect the president was one of the most difficult decisions the Founding Fathers had to make during the Convention.  They held at least sixteen votes on this one issue…

Read more of my piece written for What Would The Founders Think?

Republican government merely reflects the people it represents

At my speech on Sunday to the Arizona chapter of the Republican Jewish Coalition, I expressed over and over that republican government merely reflects the people it represents. Let me count the ways:

  • We elect our President. The winner has almost always received the most votes or was in a virtual tie. The exceptions: 1) in 2000 Bush lost the popular vote by 0.5 percent (a virtual tie) but won the electoral count; 2) Hayes lost the popular vote by 3.1 percent in 1876 but still won the electoral count; 3) Harrison defeated Cleveland in 1888 even though Cleveland received 0.8 percent more votes. [Some include 1824, but not all states popularly elected Electors back then.]
  • We directly elect our representatives and, since 1913, we directly elect our Senators.
  • We indirectly choose the political ideology of the Supreme Court. I heard numerous complaints about the Supreme Court and their legislating from the bench, but the Supreme Court must be chosen by the President and approved by the Senate. Thus, the Justices should hold the same values and politics of the people as a whole who elect those who choose them.
  • In my home state of Arizona, our sales tax has risen from 6.7 percent to 9.3 percent in the last 25 years. How can the politicians raise taxes on us time after time thinking we won’t care? But they haven’t; we have. We the people of Arizona, Maricopa County, and Phoenix have voted for new sales taxes to build roads, trains, stadiums, and parks, hire more police and firemen, and support general government operations.

If we have anybody to blame for our government, it is us. We elect these people and often re-elect them, even after they have proven to care little for the Constitution or their constiuents. Heck, we often re-elect these guys even after they’ve been proven to be corrupt. We voted for higher taxes to pay for more government program and then complain about high taxes and government intervention. We have nobody to blame but ourselves.

Favorite Polybius Quotes

Polybius on the evolution and de-evolution of political systems:

Monarchy first changes into its vicious allied form, tyranny; and next, the abolishment of both gives birth to aristocracy. Aristocracy by its very nature degenerates into oligarchy; and when the commons inflamed by anger take vengeance on this government for its unjust rule, democracy comes into being; and in due course the licence and lawlessness of this form of government produces mob-rule to complete the series. [The Histories 6.4.7-13]

Polybius describes how democracies kill themselves:

And hence when by their foolish thirst for reputation they have created among the masses an appetite for gifts and the habit of receiving them, democracy in its turn is abolished and changes into a rule of force and violence. For the people, having grown accustomed to feed at the expense of others and to depend for their livelihood on the property of others, as soon as they find a leader who is enterprising but is excluded from the houses of office by his penury, institute the rule of violence; and now uniting their forces massacre, banish, and plunder, until they degenerate again into perfect savages and find once more a master and monarch. [The Histories 6.9.7-9]

Polybius on checks and balances in government:

The constitution should remain for long in a state of equilibrium like a well-trimmed boat, kingship being guarded from arrogance by the fear of the commons, who were given a sufficient share in the government, and the commons on the other hand not venturing to treat the kings with contempt from fear of the elders, who being selected from the best citizens would be sure all of them to be always on the side of justice; so that that part of the state which was weakest owing to its subservience to traditional custom, acquired power and weight by the support and influence of the elders. [The Histories 6.10.6-10]

Polybius on how the Roman Republic created its “best of all existing constitutions” through trial and error:

The Romans while they have arrived at the same final result as regards their form of government, have not reached it by any process of reasoning, but by the discipline of many struggles and troubles, and always choosing the best by the light of the experience gained in disaster have thus reached…the best of all existing constitutions. [The Histories 6.10.13-14]

Polybius on the success of the Roman Republic’s system of checks and balances:

Such being the power that each part has of hampering the others or co-operating with them, their union is adequate to all emergencies, so that it is impossible to find a better political system than this… For when one part having grown out of proportion to the others aims at supremacy and tends to become too predominant, it is evident that…none of the three is absolute, but the purpose of the one can be counterworked and thwarted by the others, none of them will excessively outgrow the others or treat them with contempt. All in fact remains in statu quo, on the one hand, because any aggressive impulse is sure to be checked and from the outset each estate stands in dread of being interfered with by the others… [The Histories 6.18]

The Balance of Power in the Roman Republic, the US Constitution, and Today