The Vague and Ambiguous US Constitution

We know from documents and writings of the time that the founders didn’t agree on the Constitution before, during, and after it was written. They couldn’t even agree on whether it should be written, with many fighting against it on principle. The debates were harsh and sometimes violent, nearly tearing the country apart before it had been fully established.

Others only agreed to the Constitution if a Bill of Rights were to be added, while others resisted a Bill of Rights for the very reason they were seen as too specific. It should be noted that the Bill of Rights, the most detailed part of the Constitution, was only added later (ratified years after the Constitution) and was the most strongly contested part. Yet, it too has problems, as Leonard W. Levy explained (Original Intent and the Framers’ Constitution, p. 340): “Even the seemingly specific injunctions and provisions of the Bill of Rights are vague, requiring much interpretation.”

The Articles of Confederation was much more specific in the described limits to power and rights to citizens. Many who sought the new Constitution did so in order to weaken this aspect.  Even so, the Articles had conflicting layers of meaning, just like the later Constitution. It was written by the Federalist John Dickinson whose thought was shaped by Quaker constitutionalism (as a living document, a specific people at a specific place and time making a specific covenant with God), but then the document was filtered through a revision of non-Quaker Anti-Federalist thought.

This kind of mixing and sometimes inconsistency was simply par for the course. Even in the Declaration of Independence was intentionally vague. It was an inspirational document of solidarity, not a clear explication of specific principles. Some interpret it as espousing natural law and natural rights, even though there is strong evidence that Thomas Jefferson didn’t support this view. Also, Dickinson’s Quaker influence was in opposition to natural law. But it is true that other founders did believe in it, and hence the need for unclear language that could be interpreted variously.

None of this should be surprising. The colonists didn’t just come from different colonies, some from the coastal cities and others from the frontier. Among those who weren’t colonial born, many came from a diversity of countries and from culturally distinct regions of the same countries. The colonial population, including the founders, included a diversity of ethnicity, religion, and political traditions (consider the mixed ideas of freedom and liberty). Without ambiguity and equivocation in the founding texts, it’s unlikely independence would have been won, a constitution agreed upon, and a functioning government instituted.

The Constitution was seen as a compromise, a temporary truce in the debate. The Founders decided to intentionally keep the wording at a surface level, for anything deeper would have led to irresolvable conflict. Many of them figured that either it would be revised later on or that maybe an entirely new constitution would take its place. Benajmin Franklin, for example, thought it would only last for a decade. Jefferson was a bit more extreme in that he thought not just new constitutions but new revolutions would be necessary.

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The Irony And Deceit Of Constitutional ‘Original Intent’ Arguments
By David K. Sutton (from The Left Call)

If there is one “original intent” we know of the Founding Fathers it is that they wrote the constitution intentionally vague. This is an important distinction to understand. What is or isn’t constitutional is decided by the judicial branch. This is because most legislative provisions simply are not mentioned in the constitution, therefore it is up to the judicial branch to interpret the words of the constitution, if these provisions face legal challenge.

E.J. Dionne reminds us of the preamble to the United States Constitution. It reads:

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.

Dionne reminds us of the importance of those first few words, “We the People.” It is up to us to decide the path of this great country. It is no longer in the hands of the Founding Fathers. They crafted a framework that we can build on to move the country forward. This is why those who subscribe to an ideology of strict original intent have it wrong. The only intent we can ascertain is from the written text of a purposely vague document, the constitution. Beyond that it is up to “We the People” to make the country adapt and work better for all citizens as times change “in Order to form a more perfect Union.” There was no original intent when it comes to universal health care or climate change or any number of important issues that we now face. If we get bogged down in arguments over original intent we ironically lose sight of the real original intent.

Original Intent and the Framers’ Constitution
By Leonard W. Levy
p. XI, Preface

“Tis funny about th’ constitution,” said Mr. Dooley, the philosophic Irish bartender created by Finley Peter Dunne. “It reads plain, but no wan can undherstant it without an interpreter.” The Supreme Court is the official and final interpreter of the Constitution, but from the beginning of its history, disputes have raged about how it should interpret the Constitution. In its very first constitutional decision the Court provoked a controversy on the question whether its judgment faithfully adhered to the intentions of the Framers of the Constitution. For several decades after the ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the Framers disagreed vehemently about what the Convention had meant or intended, as the controversy in 1791 over the chartering of the Bank of the United States showed. Not until the publication of Madison’s Notes in 1840 did a source become available for original intent analysis. […]

Original intent as constitutional theory is rarely if ever at issue in real cases decided by the Supreme Court. When the Court employs original intent, it refers to the understanding of the Framers respecting a particular provision of the Constitution that is imprecise. In real cases the meaning of the provisions involved in litigation is not clear. Indeed the Constitution tends to be least clear when most involved in litigation; that is especially true of rights as compared with matters of structure. Some of the most important clauses of the Constitution are vague, ambiguous, or, paradoxically, too specific in meaning. The most important evidence of original intent is the text of the Constitution itself, which must prevail whenever it surely embodies a broader principle than can be found in the minds or purposes of its Framers. For example, they had political and religious expression in mind when they framed the First Amendment, but its language contains no restriction. They probably did not mean to extend the rights protected by the Sixth Amendment to “all” criminal prosecutions, but the text says “all” and deserves obedience. They had black Americans uppermost in mind when they designed the Fourteenth Amendment, but its expansive expression applies to all, not only to all races but to people of all religions, creeds, and national or ethnic backgrounds, regardless of legitimacy, sex, or alienage.

Conversely, if two centuries of constitutional government have resulted in wider understanding than the text itself suggests, that is, if the meaning of the text has become expanded beyond its literal phrasing, the text takes second place. Thus, although the Framers did not include “words” as well as “persons, houses, papers, and effects” in the Fourth Amendment and although eavesdropping was commonplace in the eighteenth century, words seized by wiretapping and electronic eavesdropping come within the amendment’s protection against unreasonable search and seizure. Similarly, the right against compulsory self-incrimination protected by the Fifth Amendment seems, literally, to apply only in “criminal cases,” but the text applies with equal force to nonjudicial proceedings such as grand jury and legislative investigations, to administrative proceedings, and even to civil cases in which questions are posed that might, if truthfully answered, raise a threat of criminal jeopardy. Notwithstanding some advocates of a jurisprudence of original intent, the Constitution cannot be interpreted literally, if only because it is murky at important points. Were it not, the real cases would not keep arising.

p. XIV, Preface

The process of seeking original intent is elusive, if not illusive, because the fundamental text may be ambiguous and vague, or overarches a particular situation. […]

“Original intent” is not a well-chosen term but it is commonly used and widely understood to mean what the Constitutional Convention understood or believed about the Constitution. Intention, intention, and intendment may be distinguished but I do not find the distinctions fruitful in a discourse meant for nonlawyers. Intent may refer to motive, to purpose, even to reasons, but I think that the commonplace usage of intent, in the context of the debate about the “original intent” of the Framers, refers to what they meant. Nevertheless, “intent” is unsatisfactory because it implies a single or uniform frame of mind, or purpose, or understanding on the part of the Framers of the Constitution and even of the ratifiers of the Constitution. “Original intentions” would have been a far better term.

p. 20-21

But the sense of the nation was not easily discovered or discoverable, not even as to major allocations of power, let alone as to the meanings of particular clauses. So Madison argued in The Federalist #37. He believed that to allocate authority between the federal and state governments and between the three branches of the federal government created problems that perplexed even statesmen, jurists, and philosophers. The Constitution necessarily contained ambiguities. It reminded him of laws that had been framed with the greatest technical skill and passed in fullest deliberation, yet remained “more or less equivocal, until their meaning be . . . ascertained by a series of particular discussions and adjudications.” Words stated ideas imperfectly, giving them an “unavoidable inaccuracy” that increased with the complexity and novelty of a task such as strengthening the Union. Madison offered various reasons for “vague and incorrect definition,” any one of which resulted in obscurity of meaning. The Convention, he concluded, “must have experienced the full effect of them all.” 81

How then was the meaning of the Constitution to be fathomed? Madison believed that experience fixed meaning in doubtful cases but that meaning was not fixed forever. He would have preferred a static Constitution, and he resisted, even deplored, certain changes in meaning. He probably had in mind the Hamiltonian financial system, the Sedition Act, and overbroad judicial opinions such as those in McCulloch v. Maryland and Cohens v. Virginia when he said that deviations from the “fair construction of the instrument have always given me a pain,” and he wished that innovations based on overbroad constructions would cease; but he knew that change was inevitable. 82 He would have preferred to believe that the Constitution speaks for itself according to the usual and established rules of interpretation, for which intention cannot be substituted. And he advocated that whenever possible the language of the Constitution should be construed according to the people’s understanding as evidenced by “contemporaneous expositions.” 83

But he understood that just as words changed in meaning, so did the Constitution. “It could not but happen, and was foreseen at the birth of the Constitution,” he declared, “that difficulties and differences of opinion might occasionally rise in expounding terms and phrases necessarily used in such a charter,” especially as to the powers in the federal system. Practice would settle some doubtful matters, and the meaning of the Constitution, to the extent that it depended upon judicial interpretations, would emerge from decisions over a period of time. 84 Madison conceded that experience had caused him to change strong opinions on some matters. For example, he once thought that the Constitution prohibited Congress from chartering a bank, but he had been compelled to change his mind, because the sovereign will had expressed itself by acquiescence in a course of exposition that altered the original meaning of the Constitution. Popular understanding simply had overruled his previous views of the matter. When an authoritative, uniform, and sustained course of decision or practice received “public sanction,” Madison believed that the Constitution evolved in meaning, and the old must give way to the new. 85 When the words that composed a text altered in their meaning, “it is evident that the shape and attributes of the Government must partake of the change to which the words and phrases of all living languages are constantly subject. . . . [O] ur Constitution is already undergoing interpretations unknown to its founders. . . .” 86 Similarly, he observed: “Some of the terms of the Federal Constitution have already undergone perceptible deviations from their original import.” 87 Those were not facts that he applauded; rather, he personally disapproved but understood and acquiesced.

p. 208-210

What import did the free press clause possess at the time of its adoption? Its meaning was surely not self-evident. The controversy in the states over the ratification of the Constitution without a bill of rights had revealed little about the substance and scope of a free press, and the debates by the First Congress, which framed the free press clause, illumined even less. Congress debated the clauses on religion, but on the remainder of the First Amendment it considered only whether the right of peaceable assembly vested the people with the power to instruct their representatives on how to vote. In the course of that discussion, Madison made the only recorded statement on the subject of speech or press. If by peaceable assembly, he said, “We mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government. . . .” 62 Any interpretation of the meaning and compass of the free press drawn from this vague statement would strain credulity.

The state legislatures that ratified the First Amendment offer no enlightenment either. Without the records of their legislative debates, we do not know what the state legislatures understood the free press clause to mean. Other contemporary materials do not help either. Most people undoubtedly cared about protecting freedom of the press, but no one seems to have cared enough to clarify what he meant by the subject upon which he lavished praise. If definition were unnecessary because of the existence of a tacit and widespread understanding of “liberty of the press,” only the received or traditional understanding could have been possible. To assume the existence of a generally accepted latitudinarian understanding that veered substantially from the common law definition is warrantless, given the absence of evidence. Any novel definition expanding the scope of free expression or repudiating, even altering, the concept of seditious libel would have been the subject of public debate or comment. Not even the Anti-Federalists offered the argument that the clause on speech and press was unsatisfactory because it was insufficiently protective against prosecutions for criminal defamation of the government. Not even they urged that truth could be no libel.

Even if we assume that the Framers really intended to impose upon the national government “an absolute, unqualified prohibition” 63— there shall be no law abridging freedom of the press— we should recognize that the Framers cared less about giving unqualified immunity to all discourse than they cared for states’ rights and the federal principle. […]

 

The big question persists, however: Even had Congress passed, and the states ratified, an amendment imposing upon the states the same prohibition laid by the First Amendment upon the national government, what did the Framers understand by freedom of speech and freedom of press? No one can say for certain what the Framers had in mind because there is not enough evidence to justify cocksure conclusions, even though all the evidence points in one direction. Whether the Framers themselves knew what they had in mind is uncertain. At the time of the drafting and ratification of the First Amendment, few among them clearly understood what they meant by the free press clause, and we cannot know that those few represented a consensus.

pp. 318-319

The Court missed the fact that the vague clause on “capitation and other direct taxes” was a concession to the South, not, as the Court generalized, a bulwark of “inequality” imposed “to prevent an attack upon accumulated property by mere force of numbers.” 135 Moreover, the Court drew the wrong conclusion after quoting Madison’s Notes: “Mr. King asked what was the precise meaning of direct taxation. No one answered.” The right conclusion is that the Framers were unsure or did not know. 136 In his argument as counsel for the government in the Carriage Tax Case of 1795,137 Hamilton had asked what the distinction was between direct and indirect taxes, and he began his response by stating, “It is a matter of regret that terms so uncertain and vague, on so important a point, are to be found in the Constitution. We shall seek in vain for any antecedent settled legal maxim to the respective terms. There is none.” 138 In the Income Tax Cases, the Court imposed its own views of history in order to deliver an opinion that seemed to have the paternity of original intent; in effect the Court sought to rely on the wisdom of the Framers to get around encumbering precedents.

pp. 331-335

The text is what counts, but the notion that it must be construed according to original intent is itself a prejudice. It is, moreover, a notion that lacks original intent. That is, no evidence, not a shred, exists to show that the Framers meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had. Nor is there any evidence to show that they expected the future to be bound by the past. Rather, they expected the future to interpret the Constitution as best it could, just as the development of the common law was left open. The text of the Constitution declares it to be the supreme law of the land together with treaties and laws made in pursuance of the Constitution. By binding state courts to follow the supreme law and by extending the judicial power of the United States to that law, the Constitution obligates courts to expound its meaning. In that regard the intention of the Convention clearly appears in the Constitution itself. As Hamilton wrote in The Federalist #22, the “true import” of treaties and laws that constitute the supreme law of the land must “be ascertained by judicial determination.” 21 Madison, who blew hot and cold on judicial review and defended the right of the President and Congress to decide constitutional questions for themselves, acknowledged that “in the ordinary course of government, . . . the exposition of the laws and Constitution devolves upon the judicial.” 22

Unlike John Locke, an inept constitution-maker who believed that written statements of the fundamental law must, like the laws of the universe, be immutable to be eternal, the Framers of the Constitution recognized the need for plasticity and the inevitability of change. Locke once wrote a constitution for the Carolinas expressly providing that “every part thereof, shall be and remains the sacred and unalterable form and rule of government, for Carolina forever.” As insurance he prohibited “all manner of comments and expositions.” 23

For the most part the Convention designed the Constitution with the utmost diligence and attention to detail. Almost always the Constitution is explicit. The Convention chose words with craft and craftsmanship, on the whole. That is the reason that constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and understandable. Consequently, one who carefully reads the Constitution finds startling the occasional vagueness and ambiguities, such as the provision requiring no “capitation, and other direct tax” unless apportioned among the states on the basis of population. Although we believe that the Framers regarded as direct taxes only taxes imposed on people per capita and on land, 24 they did not say so. Because the Constitution is overwhelmingly a model of precision and pithiness, an open-ended phrase like “other direct tax” must have been deliberate.

That phrase appears in the midst of a list of prohibitions. The Constitution clearly describes the three branches of the national government but seems to waffle when describing some prohibitions, some powers, and some rights. As to them we find ambiguities and vagueness. During the ratification controversy, Anti-Federalists lambasted the Constitution because of its lack of clarity in crucial respects. They feared that uncertainty in meaning would sap states’ rights and civil rights. The “necessary and proper” clause was their particular bête noire. Even Edmund Randolph, who had introduced the Virginia Plan at the Convention (Congress “ought to be impowered to . . . legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted” by state acts25), stated during the ratification controversy that he objected to the necessary and proper clause because “the clause is ambiguous.” 26 In The Federalist #37, Madison sought to answer the ambiguity charge leveled at many clauses when he wrote:

All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering pretentions of the larger and smaller States. . . . The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. 27

Another signer of the Constitution, Abraham Baldwin of Georgia, confronted the issue of ambiguity as a member of the Congress that debated Jay’s Treaty. Baldwin declared:

He would begin it by the assertion, that those few words in the Constitution on this subject, were not those apt, precise, definite expressions, which irresistibly brought upon them the meaning which he had been above considering. He said it was not to disparage the instrument, to say that it had not definitely, and with precision, absolutely settled everything on which it had spoken. He had sufficient evidence to satisfy his own mind that it was not supposed by the makers of it at the time, but that some subjects were left a little ambiguous and uncertain. It was a great thing to get so many difficult subjects definitely settled at once. If they could all be agreed in, it would compact the Government. The few that were left a little unsettled might, without any great risk, be settled by practice or by amendments in the progress of the Government. He believed this subject of the rival powers of legislation and Treaty was one of them; the subject of the Militia was another, and some question respecting the Judiciary another. When he reflected on the immense difficulties and dangers of that trying occasion— the old Government prostrated, and a chance whether a new one could be agreed on— the recollection recalled to him nothing but the most joyful sensations that so many things had been so well settled, and that experience had shown there was very little difficulty or danger in settling the rest. 28

Although the Framers were masters of the art of the possible, sometimes their compromises led to cloudy language; sometimes they could not compromise and deliberately left the phrasing of a proposition open-ended to avoid still greater offense by spelling out something better left only partially said.

Ambiguity and vagueness crop up in the nonstructural sections of the Constitution. Ambiguous words permit different understandings, while vague words do not allow for much understanding.

Representative Words: Po litics, Literature, and the American Language, 1776-1865
By Thomas Gustafson
pp. 294-7

Indeed, in the early republic much of the passion and most of the power struggles over such questions as the national bank, the tariff, and slavery were channeled into the forum of constitutional debate, and the words of the text were constructed and reconstructed by the various parties to support diverse and contradictory points of view. And in American there is no consensus about the sovereign center that was to end the infinity of interpretation, because the Constitution, in effect, had divided the center between several branches of government and the states while theoretically locating it in that inherently diversity entity the vox populi. But while there was no consensus about the meaning of the words of the Constitution, there was a fundamental agreement until the crisis over slavery in the mid nineteenth century that the Constitution was the grammar that provided the rules for framing the articulation and resolution of differences between sources of authority and modes of representation in the American republic. Like language itself, the Constitution has the capacity to reconcile stability and liberty, order and change. It is a langue—a fundamental system of grammar, syntax, and vocabulary—that structures the process by which the vox populi articulates new paroles: new amendments, new political representatives. The Constitution’s ability to sustain a tension between stability and liberty, mediating conflicts between the party of memory and the party of hope, was tested to the breaking point in antebellum America as the country began to fight a war of words over attempts to settle and reconstruct its language.

Retraction and Coda

I have argued so far that the language of the Constitution is ambiguous, that the framers designed it in part to be ambiguous, that the Antifederalists distrusted that amibuity, and that Madison defended its ambiguity. But if we heed Walter Benn Michael’s argument in “Against Formalism: Chicken and Rocks,” then I must retract part of my argument and maintain that the language of the Constitution is no different from the language of any text: it is not inherently ambiguous, not is it inherently clear. Though we ascribe properties such as ambiguity and clarity to texts, these properties, Michaels asserts, do not belong to the text but are “functions . . . of the contexts in which texts are read.” An explicit text is, simply, a text whose meaning is not under dispute; and an ambiguous text is, conversely, a text whose meaning is contested. Read from a single perspective at a certain moment, the phrases “We the People” and “freedom of speech” may appear as perfectly unambiguous as, say, the phrase “a pound of flesh” in Act I of the Merchant of Venice.  But with a change of fortune or in a new context or viewed from more than one angle of vision, meanings proliferate, and ambiguity must be confronted: an ambiguity that reflects our attention back to our eyes (or the ideology) of the beholders. E. L. Doctorow switches our focus in this very way when he explains in a meditation on the Constitution as a text:

All told, it is as if the enigmatic constitutional text cannot be seen through, but, shimmering in ambiguity, dazzles back at each generation in its own times and struggles it is as if the ambiguity is not in the text but in us as we struggle in our natures—our consciences with our appetites, our sense of justice with our animal fears and self-interests—just as the Founding Fathers struggled so with their Constitution, providing us with a mirror of ourselves to go on shining, shining back at us through the ages, as the circumstances of our lives change, our costumes change, our general store is transformed into a mile-long twenty-four-hour shopping mall, our trundle carts transmogrify into rockets in space, our country paves over, and our young republic becomes a plated armory of ideological warfare: a mirror for us to see who we are and who we would like to be, the sponsors of private armies of thugs and rapists and murderers, or the last best hope of mankind.

The Constitution, in this reading, is a vessel for our passions and prejudices—and for our principles. The text, and its interpretations, however, have been more than a mirror representing our values. They have been sources of enlightenment, a lamp projecting values, shaping people to the order (and abuses) of the word and, more important perhaps, determining how we resolve—or seek to resolve—our clashes of values.

If rhetoric as Yeats claims, arises from our quarrel with others, and poetry from our quarrel with ourselves, then the Declaration tends to be rhetoric, and the Constitution to poetry More than the Declaration, the Constitution is the ground of American Renaissance literature. The conflicts between union and liberty, freedom and slavery, the tyranny of the majority and the rights of the individual, the protection of regional identity (states’ rights) and the quest for national identity (consolidation) and between property rights and human rights; these moral and political conflicts, inscribed in the texts of the Constitution, take form first as the stuff of textual battles in the constitutional crises of the nineteenth century and then, inscribed in the plots, as the stuff of American Renaissance literature. even the confrontation with slavery—the confrontation that demanded that American writers listen less to the courtly muses of Europe and more to the principles of the Declaration—was first and foremost (and finally) a constitutional crisis: a question of resolving the ambiguity of “We the People of the United States” and of deciding whether or how to privilege one constitution value, one legal precedent, over and against another. The silences of the Constitution, the gaps in its articulation, its contradictions had to be overcome, and they came to be bridged not just by the voice of the law or the voice of political representative. […] Even Whitman, for all his rebellion against poetic form, for all his personal disgust with slavery, for all his outspokenness, demanded obedience to the Constitution of 1789 and its sanction of slavery. But the Word of God, the book of nature, and the Declaration became, at first and then more and more in the North, alternative grammars of thought: a higher langue for generating transcendental paroles and emancipation proclamations.

The Constitution, if we consider it to be a grammar, possesses the capacity—or we have made it possess the capacity in its history—to incorporate in its workings more than one language. It can, that is construct or generate sentences from more words than its own dictionary of terms contained in the four corners of the text. “Is the Constitution,” Laurence Tribe asks, “. . . at war with its own premises?” “Perhaps,” he responds, “it speaks in the words of Walt Whitman: ‘Do I contradict myself? Very well then, I contradict myself. I am large. I contain multitudes.'” The Constitution can speak in as many tongues as Whitman sought to represent; it can listen to as many voices as Whitman heard (and more); it can be for new readers, as Whitman’s children, a “chant democratic” that helps form, in the spirit of our bard, our most Orphic visionary, “a great aggregate Nation.”

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Achille’s Heel of Opponents to Move To Amend

“. . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”
~Supreme Court Justice Stevens, January 2010

Opponents to Move To Amend tend to avoid or not understand particular issues that are fundamental to debating the pros and cons. The following are three of the most central issues that come to mind. These combined are the Achille’s heel of the opposition. I have yet to see a strong argument that deals directly and fully with all three of these, especially not the first issue.

1) Move To Amend is promoting traditional constitutionalism and original intent. The proposed amendment is limited to one single issue. It clarifies the meaning of personhood to be limited to what the Founding Fathers meant by ‘persons’ when they wrote the Constitution.

Constitutional persons are different than legal persons. As such, constitutional rights are different than legal rights. In traditional constitutionalism, the rights of humans precede and trump all laws and all government. Whether or not one believes in natural rights, constitutional rights are declared as being inalienable rights. They aren’t given to us by government. They are our rights because we believe they are our rights, not because government tells us they are our rights.

Corporations, unlike constitutional rights, are inventions of government by definition and design. A corporation can’t have constitutional rights for the Constitution came before all government laws and creations. None of this says anything about the legal construction of corporations as fictional persons. It just means that legal personhood says nothing about Constitutional personhood.

They are simply two separate issues. But the opponents of Move To Amend often conflate the two, either because of confused thinking or for intentional obfuscation.

2) Studies have shown that money influences politics.

Obviously, more money means more influence and unlimited money potentially means unlimited influence. The opponents of Move To Amend will point to some particular election in order to say that this particular candidate spent a bunch of money and yet still lost, but this is cherrypicking data. When all elections are looked at, the pattern becomes clear. In most cases, the candidate that gets the most money wins.

Money isn’t speech. The Founders never intended money to be speech and would have found the concept absurd. It’s just a way of trying to extend a constitutional right to corporations, but the Founders never intended corporations to have constitutional rights. It makes no more sense to say that corporations have a right to free speech than to say that corporations have a right to vote or a right to pursue happiness.

Only natural persons can do those things.

3) The unlimited spending allowed by Citizens United is extremely unpopular among the American public. Move To Amend, however, is extremely popular.

It isn’t just popular among one single group, as the opponents would like to portray. This isn’t an agenda of liberals or of the Democratic Party. Move To Amend bills have been passed all across the country, including in conservative places (e.g., Utah). This is an issue that cuts across the political spectrum. It is true populism.

In a democracy, it is hard to get around the public seeing something as fundamentally undemocratic. It’s a strange notion that a moneyed and political elite should tell the democratic public what democracy means. The American people genuinely want self-governance. That is what the Founders wanted as well.

This goes back to original intent. It is something that has always concerned Americans, as our country was intentionally founded with specific ideals. We know the reasons the American Revolution was fought and we know the debates involved in forming a new country. The first action was to declare independence and the second action was to create a constitution, a declaration of purpose for our society.

We don’t have to speculate about this. We can go back so as to read the words of the Founders and understand the context of events. There are many aspects of original intent that can be fairly debated and upon which honest disagreement can be had, but constitutional personhood for corporations is not one of them.

* * * *

The following are links to some videos of debates, some defenses, and some criticisms.

The debates are particularly significant, especially the second link down. My purpose for writing this post was specifically to assess the opposition and their arguments against Move To Amend. If you listen to the debates, keep my three points in mind. Listen for what isn’t being said and is being talked around.

http://intelligencesquaredus.org/debates/past-debates/item/1141-individuals-and-organizations-have-a-constitutional-right-to-unlimited-spending-on-their-own-political-speech

http://www.amendmentgazette.com/2012/06/13/proposal-analysis-move-to-amend/

http://waliberals.org/taking-on-critics-of-move-to-amend/2012/02/18/

http://www.truth-out.org/news/item/6296:activist-primer-the-nittygritty-on-the-amendment-movement-to-defeat-citizens-united#

http://www.religiousleftlaw.com/2012/09/free-speech-for-people-v-move-to-amend.html

http://www.npr.org/2012/01/20/145505442/new-republic-the-wrong-way-to-fix-citizens-united

http://www.commonblog.com/2012/01/20/the-best-way-to-fix-citizens-united-is-a-constitutional-amendment/

http://www.wsj.com/articles/SB10001424052970204468004577165281345369336

http://www.skepticaleye.com/2010/01/move-to-amend.html

http://bearingdrift.com/2012/01/27/move-to-amend-wants-to-limit-your-freedom-of-speech/

The Radicalism of The Articles of Confederation

I was amused by a LA Times article by Joseph Ellis, a well known and respected historian. The article is Tea party wants to take America back — to the 18th century, from about a year ago (October 15, 2013). I’m not familiar with his politics, but going by this article he sounds like some variety of liberal or progressive, although in some other writings he can come off as the most dour of conservatives.

In the last part of the article, Ellis writes:

“But their ultimate destination, I believe, is the 1780s and our dysfunctional government under the Articles of Confederation. The states were sovereign in that post-revolutionary arrangement, and the federal government was virtually powerless. That is political paradise for the tea partiers, who might take comfort in the fact that their 18th century counterparts also refused to fund the national debt. Their core convictions are pre-Great Society, pre-New Deal, pre-Keynes, pre-Freud, pre-Darwin and pre-Constitution.”

I don’t think this is fair as a generalization. Most Tea Partiers aren’t really far right libertarians or any other variety of radical minarchists. Sure, some might like to push the country back, but the Tea Party is too diverse of a movement to base broad generalizations about.

Ellis thinks, “This is nostalgia on steroids, and an utter absurdity, defying more than 200 years of American history.” That probably is accurate for many attracted to far right rhetoric. They call them reactionaries for a good reason. Still, this seems too dismissive. I know some Tea Partiers and they aren’t merely nostalgic.

That said, I would agree that many on the political right “truly believe that government is “them,” not “us.”” — or are at least prone to being persuaded by the rhetoric that expresses this view. But as far that goes, I might agree with them on this issue, in a general sense, if not the specifics.

I would argue that we don’t have a genuinely and fully functioning democracy, not to say those on the right want democracy, assuming they even knew what it means. To broaden the issue, it is safe to say the US isn’t at present either a liberal democracy or a conservative republic, not making morally principled people on either side happy with the status quo. If we aren’t already a banana republic, a corporatist police state, and a military-industrial empire, we are coming damn close to it. I have little faith that the government represents “us” (the People, both left and right) to any great degree. With big money campaigning, lobbying, regulatory capture, and revolving doors, I must admit the government feels more like “them” than “us”.

Does that make me a Tea Partier? Or else a libertarian? If so, I’m fine with that. Just as long as I can be left-liberaltarian Tea Partier.

“The heartening news is that their like-minded predecessors over the last two centuries have lost every major battle, starting with the Constitutional Convention in Philadelphia in 1787 and ending with the congressional vote and the Supreme Court decision on Obamacare.”

Yes, the opponents of big, centralized, and oppressive government have been losing battles for a long time. I find this to be a sad conclusion to come to. I suspect it saddens Ellis as well.

I’m not inspired by the Cosnstitutional Convention that betrayed the very ideals and values the revolution was fought for. Does that make me a nostalgic reactionary? I don’t think so. It just makes me a concerned citizen who actually believes in what originally inspired the founding of this country. This country was founded on the Declaration of Independence and the Articles of Confederation, not the Constitution. The only purpose the Constitutional Convention was intended to serve was to improve, not replace, the Articles of Confederation.

“The historical pattern is perfectly clear. They are going to lose again because they are running against the main currents of history. But along the way they are making all the rest of us pay a heavy price for their delusional agenda. And they really don’t care.”

We are in a quagmire. Those defending the status quo are part of the problem. And too often even those who are critical of the problems aren’t able to see and think clearly, for all the fog of propaganda and spin, for all the historical ignorance and hagiography. Most Americans, left and right, are almost completely clueless about our country’s origins.

“Dysfunction this deep strikes me as a new low in American history. This is not what the founders had in mind.”

We are at a low point, but I’m not sure how new it is. As for the founders, I’m surprised to see a historian make that statement. The founders were constantly disagreeing and arguing about almost everything. Ellis is falling into the same ideological trap that many Tea Partiers fall into. He talks as if the founders were of one mind.

Ellis is practicing rhetoric here for the sake of making an ideological argument. But as a historian, he knows better (American Creation, Kindle Locations 1488-1498):

“If Washington was right, the burgeoning American empire required a fully empowered central government to manage its inevitable expansion across the continent. But such a national government contradicted the most cherished political values the American Revolution claimed to stand for. From Washington’s perspective the Confederation Congress appeared “little more than an empty sound” or “a Nugatory body” destined to “sink into contempt in the eyes of Europe.” From the perspective of the vast majority of American citizens, however, the inherent weakness of the Articles of Confederation was a shining example of republican principles, since a strong central government replicated the distant and despotic political power against which they had recently rebelled.3

“The gap between these two political camps was an unbridgeable chasm separated by a fundamental difference of opinion over the true meaning of the American Revolution. The outright nationalists, of whom Washington and most officers in the Continental Army were the most outspoken advocates, were a decided minority at war’s end. The staunch confederationists, on the other hand, were a clear majority who also enjoyed the incalculable ideological advantage of knowing that a powerful American nation-state violated the hallowed political principles embodied in “the spirit of ’76.””

Why be dismissive of any attempt by Americans to focus on the revolutionary era? Any interest in history should be encouraged, not criticized. Even if imperfect, the impulse behind the Tea Party is correct. That impulse is to go back to first principles, to remind ourselves why a revolution was fought in the first place.

* * * *

Political rhetoric aside, I wanted to engage more fully this issue of the Articles of Confederation. It has been on my mind this past week. This seems like a sore point for some Americans, those informed enough to even know what the Articles are and what led to their demise.

The Articles represent one of the first great failures of the revolutionary era. It wasn’t just a failure of a particular governing system, but a failure of the of the very principles of the “Spirit of ’76”. The United States was founded on two documents — firstly, The Declaration of Independence and, secondly, the Articles of Declaration. The Constitution (or rather the second constitution, following the Articles) came much later and was a very different kind of document, a product of fear and uncertainty, not of hope and idealism.

The Constitution was the Great Compromise, leaving no one entirely satisfied. Worse still, the second constitution was unconstitutional according to the first constitution. The Articles, unlike the Constitution, was agreed to unanimously, freely, and openly. Also, keep in mind the full title: The Articles of Confederation and Perpetual Union. It was deemed to be perpetual and to be a union, that is to say an everlasting confederation. It was created unanimously which means by the consent of the governed and so its revocation would also have to be unanimous, as described in the Articles themselves.

In another article, Ellis admits to the sorry state of affairs from which our constitutional order began:

“[O]nce you understand how the Constitution was created, all rosy myths evaporate. Fifty-five white males gathered in Philadelphia, imposed complete censorship over the deliberations, regarded slavery as the ghost at the banquet (it could not be openly debated), and then had the audacity to send the document to the states under the rhetorical mantle “We, the people.” If our modern values of inclusiveness, transparency and diversity were imposed on the founders, the Constitution would never have happened.”

For some reason, Ellis seems unwilling or unable to take these historical figures on their own terms, at least in this case.

The Anti-Federalists were fighting for these precise “modern values”. This the basis of the criticisms the Anti-Federalists had of the Constitutional Convention and of the Federalist-Nationalist ideology it represented, and hence their demanding a Bill of Rights.

It isn’t we Americans today who are anachronistically projecting our values onto the past. Our present values in basic form came from the revolutionary era. The American Revolution was an event of modernity and of the making of modernity. The values of “inclusiveness, transparency and diversity” formed much of the background and inspiration to the Articles of Confederation, both in terms of Dickinson’s Quaker-inspired original draft and in terms of the final draft edited down to better fit the Anti-Federalist vision.

A number of things make the Articles of Confederation distinct from the Constitution. In final form, the Articles described the condition of the states with terms such as free, independent, and sovereign. The federal government couldn’t tax the people directly. It was the state governments that represented the people and so taxed the people. The federal government taxed the states as representatives of the people.

This constitutional vision was turned on its head with the Constitutional Convention. The consent of the governed was changed from reality to mere symbol. In practice, all consent was gone. Consent of the governed wasn’t required nor was it allowed to be refused or retracted. Constitutional authority was declared by fiat, no unanimity involved. The aspiring ruling elite found consent of the governed to be too messy, as they learned from Shay’s Rebellion. The People had to be put in their place and a large central government had to be placed over them, by military force when necessary. The exact same arguments the British Empire used to keep the colonists in line were now being used by the US federal government.

This relates to why Ellis found it odd that so many Tea Partiers claim the Constitution as a protection of states rights. There is the Tenther movement that invokes the 10th amendment to attack what they consider government overreach, but obviously these people haven’t read it very closely:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

That “or to the people” is a loophole large enough to drive a truck through. In the very making of the Constitution, a symbolic and empty “We the people” was assumed to justify the secretive process the ruling elites used to push through their agenda. The Constitution didn’t make it all that clear who precisely represented the people, but obviously the Constitution was based on the claim of representing the people.

The 10th amendment offers absolutely no protection whatsoever. To clarify this point, consider its equivalent in the Articles of Confederation:

“Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

The Articles makes this point as clear as possible. No loopholes stated or implied.

There were definitely challenges to the Articles of Confederation. Those pushing for a new constitution saw the Confederation as a government failure. However, most Americans didn’t see any problem with it at all. It was an alliance formed during war time. It’s purpose was constrained by design, and so wasn’t a failure. In fact, it was a grand success by its own defined intent.

Once war was over, the alliance became less important. They didn’t need a central government to tell them how to govern themselves or to tell them they had rights. Because of colonialism, the states had long-established governments of their own and as a cultural inheritance they simply assumed they had rights.

The reason they sought independence from the British Empire was the same motivation behind Anti-Federalism, both cases being a response to those supporting large centralized government. For quite some time, the colonies were governed very loosely by the distant and initially weak British Empire. Colonists got used to solving their own problems with their relatively independent colonial governments. Each colony had its separate political traditions that had become integral to the local communities.

Colonists didn’t want to give up their traditions of self-government when the British Empire decided to get heavy-handed. Likewise, the colonists turned revolutionaries continued to demand self-governance.

* * * *

Two points should be made.

First, the American Revolution began before the so-called founders got involved and it continued long after the new ruling elite declared it over. The Long American Revolution began at least as early as the War of Regulation and continued at least as late as Shay’s Rebellion. It was always as much of a civil war as it was a revolution. The founders were forced to join the revolution or else become enemies of it.

This brings me to the second point. The Revolution always had a component of class war as well. In saying that, I don’t mean “class” in a simple sense. Economics is only one part of class. It isn’t simply about how much money one makes or much consumer goods one can buy. Rather, it is about an entire social order. Not all societies are class-based or equally class-based. Class only has effective significance to the degree it can be enforced by a specific kind of system of power and authority.

Class war is yet another issue that Ellis doesn’t understand. In a different article, he reviews Harvey J. Kaye’s Thomas Paine and the Promise of America. He makes the argument that,

“Ironically, the very feature of Paine’s mentality that Kaye most admires — its radicalism — is precisely the feature his most ardent critics at the time found most troubling. Kaye, the author and editor of several books, including ”Are We Good Citizens?,” tends to label Paine’s enemies elitists, wealthy aristocrats deaf to the authentically egalitarian ethos of his working-class politics. But this quasi-Marxist gloss obscures the fundamental ideological difference between Paine and most of the other founders. John Adams, for example, who was the son of a shoemaker, loathed Paine. Adams regarded the effort to implement the full revolutionary agenda immediately as a path leading over the cliffs of Dover.

“What separated Paine and Adams was not class so much as a classic disagreement over how to manage and secure a revolution. Adams believed in gradual change, in an evolutionary revolution. Paine believed that the revolutionary agenda, ”the spirit of ’76,” did not need to be managed, only declared. Adams regarded the Revolution as the Big Bang in the American political universe, which should radiate its radical energies and implications only slowly into the future. The Paine approach was, in fact, the more radical course followed by the French Revolution. It ended up, as Adams predicted, in barrels of blood and Napoleonic despotism. Paine himself nearly perished in the process he had helped to start, saved from the guillotine only when a prison guard neglected to remove him from his cell on the day of executions. Perhaps this is the reason one scholar named Paine the ”Peter Pan of the Age of Reason.””

That comes off as not only an ideologically slanted take on history but also not even historically accurate, entirely ignoring the larger context while also dismissing out of hand the other side of the story. That is quite the criticism to make against a man who makes his livelihood as a historian, both in writing and teaching. Let me break it down to explain my complaint.

There was good reason for Paine’s radicalism. He didn’t begin that way. The conditions of his early life prepared him for what he would become, but he wasn’t aspiring to be a rabblerouser. He worked as a civil servant for the British government at one point and sought reform within the system. Only after that failed, did his path slowly move him more fully beyond the social order he was born into. Along the way, he experienced death of loved ones, unemployment, homelessness, poverty, and all forms of oppression. In London, he saw the dregs of society and he saw the beginnings of working class organizing.

Someone like John Adams may have learned a trade just like Paine, but the life he knew was one of comfort and safety. To know a trade in the colonies meant something quite different. There was a smaller class divide. Compared to Britain, the colonial poor had more opportunity for upward mobility and the colonial aristocracy had less concentrated wealth. The social order was also less oppressive in the colonies because local government was weaker and one was always free to live off the land, something entirely impossible in England during that time of the land enclosure movement that led to food riots.

Class war was an ever-present reality in London where Paine spent many influential years. This gave Paine an insight and a moral righteousness lacking in most American colonists. It took Paine to explain to the colonists precisely what was wrong about the British Empire, precisely what they needed to fight against.

The problem with the oppressed in England was that oppression was all they knew. The problem with those who thought they were being oppressed in America is that they didn’t know what real oppression was like. Paine sought to bridge the two societies and that is why he was so radical.

Ellis portrays Paine as an anarchist, a naive anarchist at that. This is where Ellis’ conservative side shows itself. He presents a Federalist view of Paine, and so he shows his ideological bias.

The Federalist ruling elite started off as the colonial ruling elite. Their power and authority originally was backed by the British Empire. Having severed ties from the very justification for their social position and wealth, they had to create a new social order to re-establish the social order they were accustomed to. As such, they feared what they perceived as ‘anarchy’.

Even Ellis is able to offer a more nuanced view in response to this Federalist fearmongering. He discusses this in his book, American Creation (Kindle Locations 1558-1572):

“James Madison was one of the critics who did grasp this frustrating fact: “The question whether it is possible and worthwhile to preserve the Union of the States,” he warned in 1786, “must be speedily decided one way or other. Those who are indifferent to the preservation would do well to look forward to the consequences of its extinction.” The word that Madison, along with most critics of the current confederation, used to describe the consequences of inaction was “anarchy,” a term suggesting utter chaos, widespread violence, possible civil war between or among the states, and the likely intervention of several European powers eager to exploit the political disarray for their own imperial purposes.11

“While we can never know for sure, since history veered sharply in another direction at the end of the decade, the most likely outcome if the Articles of Confederation collapsed was not anarchy but dismemberment into two or three separate confederacies. Madison himself acknowledged that the gossip mills in both Europe and America were predicting that the imminent dissolution of the Articles would probably lead to “a partition of the states into two or more Confederacies.” An article in the Boston Independent Chronicle envisioned a regional union of five New England states, leaving “the rest of the continent to pursue their own imbecilic and disjointed plans.” The most probable scenario was a tripartite division of regional alliances that created an American version of Europe. New England would be like Scandinavia, the middle Atlantic states like western Europe, the states south of the Potomac like the Mediterranean countries. How this new American trinity would have fared over the ensuing decades is anybody’s guess. Whether it would have become a mere way station on the road to civil war and foreign invasion or a stable set of independent republics that coexisted peacefully and prosperously is impossible to know. But separate confederacies, not outright anarchy, appeared the most likely alternative if and when the Articles dissolved.12”

Paine’s ideals and activism (along with Anti-Federalism in general) seems rather reasonable when put in this context. What was all the fearmongering about? Considering the problems that have plagued the US government ever since, maybe it would have been good for the states to have maintained their sovereignty as have European countries. I personally wouldn’t mind living in a Midwestern version of Scandinavia.

Why is Paine’s influence in France supposedly to be blamed for the ensuing social chaos but his even greater influence in America is no big deal? There was no actual threat of anarchy, as Ellis admits. There is no honest argument to be made in claiming Paine somehow caused or even contributed to the Jacobin Reign of Terror, especially considering that Paine sat on the right in the French Assembly which was opposite of the Jacobins who famously sat on the left. Paine risked his life in opposing the Jacobins at every turn.

Paine believed in democracy, and in fact was one of the few people in the colonies who would openly use the word “democracy” in a positive sense, as most colonists had little knowledge and no experience of what democracy even meant beyond ancient histories such as about Socrates’ death. The failure of the French Revolution can’t be blamed on Paine any more than the failure of the American Revolution. He was but one voice in a cacophany of voices. Anyway, he made it clear that the onus of responsibility was not on the radicals who promoted democracy but on the reactionaries who resisted it. If the French revolutionaries had put forth a democratic constitution as the Americans did with the Articles of Confederation, Paine argued, then the catastrophe of Reign of Terror could have been avoided.

Ellis’ historical knowledge of the French Revolution, going by what he states in that quote, is about as unimpressive as is found among the typical American. I expect more insight and understanding from a practicing historian. Heck, I’m just a working class schmuck who dropped out of college and I apparently have a better grasp of the French Revolution, a set of events immensely more complex than Ellis appreciates (see: Failed Revolutions All Around, Revolutions: American and French along with Part 2, and The Haunted Moral Imagination).

Ellis shares the conservative attitude toward the French Revolution. He sounds downright Burkean.

* * * *

I came across a decent analysis of the views of Burke and Paine. The author (George H. Smith) discusses a number of issues, from Lockean contract theory to constitutionalism, but most relevantly he brings up the notion of an anarchistic state of nature, the bogeyman of every argument for large centralized government, be it monarchistic imperialism or federalist nationalism. It must be remembered that Burke didn’t just attack the French Revolution but did so in order to defend the French monarchy as a morally good and stable social order, although ultimately what Burke was defending by proxy was the English monarchy.

Here is what Smith has to say:

“If, as Paine argued, the people create a government through the mechanism of a constitution, then (in accordance with the Lockean version of a social compact) they must first agree unanimously to incorporate themselves into a political body that is thereafter governed by majority rule. Without this foundation of unanimous consent, “there can be no such thing as majority or minority; or power in any one person to bind another.” As Locke himself conceded, no one may be compelled to abandon the state of nature and obey the will of the majority in political decision making. Thus, according to Burke, no constitution ratified by a majority of the people may be deemed legitimate unless every individual under the jurisdiction of that constitution has previously agreed to become a member of that civil society called “the people.” Only this prior consent can morally obligate individuals to obey the will of the majority. Therefore, according to Burke, Paine’s notion of a constitution based on the consent of the governed “must be grounded on two assumptions; first, that of an incorporation produced by unanimity; and secondly, an unanimous agreement, that the act of a mere majority (say of one) shall pass with them and with others as the act of the whole.”

“Having taken Lockean social contract theorists at their word, Burke had no problem demonstrating that the Paineite defenders of the French Revolution failed to fulfill their own criteria for a legitimate constitution. A revolution, by dissolving the current government, places individuals in a state of nature—a condition in which they may refuse to incorporate themselves once again into a civil society and so have no moral obligation to obey the will of the majority. After a revolution, the process of incorporation that creates “the people” (in a legal sense) must begin anew, and a new civil society, in the Lockean scheme, requires the consent of every member who is to be governed by the majority. Thus a constitution, even if it is directly ratified by a majority of the people, cannot bind individuals who never agreed to become members of that civil society in the first place.

“Of course, Burke intended his critical analysis of majority rule to apply to more than the French Revolution and its defenders. Burke’s attack was meant to undermine the very foundation of Lockean social contract theory by showing that it is unable to rescue us from the anarchical state of nature. Like previous critics of political individualism, Burke maintained that those philosophers who begin with natural rights in a state of nature are forever doomed, theoretically speaking, to remain in that anarchistic condition, because the requirement of unanimous consent has never been met—whether in France, America, or any other country. By Lockean standards, therefore, no government in history was or is legitimate.”

What Smith failed to add was that Paine was influenced by Quaker constitutionalism. In a footnote to Observations on the Declaration of Rights, Paine writes that,

“There is a single idea, which, if it strikes rightly upon the mind, either in a legal or a religious sense, will prevent any man or any body of men, or any government, from going wrong on the subject of religion; which is, that before any human institutions of government were known in the world, there existed, if I may so express it, a compact between God and man, from the beginning of time: and that as the relation and condition which man in his individual person stands in towards his Maker cannot be changed by any human laws or human authority, that religious devotion, which is a part of this compact, cannot so much as be made a subject of human laws; and that all laws must conform themselves to this prior existing compact, and not assume to make the compact conform to the laws, which, besides being human, are subsequent thereto. The first act of man, when he looked around and saw himself a creature which he did not make, and a world furnished for his reception, must have been devotion; and devotion must ever continue sacred to every individual man, as it appears, right to him; and governments do mischief by interfering. “

Although a professed deist, Paine often made recourse to his early Christian education. This included the influences from his Quaker father. He was attracted to religious dissenters going all the way back to his time in England when he lived in a town that was a major center of religious dissent during the English Civil War. Once in America, he found alliances with radical Free Quakers.

With Quaker constitutionalism, the state of nature for humanity is not anarchy. The people isn’t a product of government for it precedes and is a prerequisite for government. Humans are social creatures. For Quakers, this was expressed as a covenant with God, the essence and inspiration of constitutionalism. They believed in a living constitution for they believed in a God alive in the hearts of men (and women). This is also why they didn’t believe in natural law, an unchanging set of divine legal rights set down for all of eternity. Instead, a people’s covenant with God changed as their relationship to God grew and developed.

As explained by Jane E. Calvert in Quaker Constitutionalism and the Political Thought of John Dickinson (Kindle Locations 10068-10077):

“The mechanism by which change could happen – whether in the case of Pennsylvania or America – was premised on the idea that the people were already constituted regardless of what paper documents did or did not exist, and that the power to discern the law lay with the people as a body. Samuel Beer explains, however, that Western political thought had historically rejected popular rule in favor of hierarchy. “Classical philosophy had taught the rule of the wise,” he says, “Christianity taught the rule of the holy.”104 The latter was also true of Quaker political thought. The crucial difference was that, in the Quaker view, all could be holy. Divine competence was in the people. They had what Beer calls a “constituent sovereignty”; that is, when a government dissolves and must be renewed, the people do not return to a state of nature, a state of anarchy.105 Rather, the power that they invested in the law-making body reverts to them and they can recreate – reconstitute – their political arrangements.”

This wasn’t a radical idea for Quakers. It was their tradition and so part of their established order. Quaker constitutionalism was at the heart of the political experiment in Pennsylvania. John Dickinson, a Quaker-raised Pennsylvanian, shared Paine’s Quaker-inspired constitutionalism even as he didn’t share Paine’s radicalism. Quite the opposite, Dickinson sought to defend the social order that had protected religious minorities like the Quakers. This was his motivation for using Quaker values in writing the original draft of the Articles of Confederation.

Quakers were not supporters of Lockean social contract theory. Just as they were not supporters of Lockean natural rights. Burke’s criticisms do not apply to Quakers or those who base their views on Quaker political values and traditions. Burke acted as if Quaker constitutionalism didn’t exist, as if there were no other options besides civil law and anarchy. Ellis shows a similar disregard toward or ignorance about the Quaker position.

* * * *

I’m not just arguing about history. This is relevant for the public debate about government that has been ongoing for centuries now.

Quakers weren’t and still aren’t individualists. They take seriously the idea of “the people” as a community, not just an aggregate of individuals. This Quaker view has come to have major impact on progressivism. Quaker constitutionalism is probably also behind the liberal view of a living constitution, a covenant of a people that is greater than mere words and legalese.

To seek out first principles is to seek out the living “Breath of God” behind the words. Worshipping the words of long dead men isn’t something the Anti-Federalists had hoped for. Jefferson thought there should be a new constitution every generation, which is to say about every 20 years. The Anti-Federalists believed that government was for the living since only the living could consent to being governed. Making the US Constitution into a dogma written in stone like a modern Ten Commandments is to entirely miss the point.

The Spirit of ’76 is a living spirit. Where it lives is in the heart of those who still believe in the inspiration of the American Revolution. Constitutions come and go. Compromises are made and governing systems eventually fail. But the quest for a more perfect union is a neverending quest.

We should respect the Articles of Confederation for the reason that it was the first expression of a new vision of society. It was a radical vision then and it remains a radical vision to this day. The American Revolution never ended for the original American experiment has yet to fully begin.

* * * *

After sleeping on it, one more thought came to mind.

The Lockean influence on the American Revolution isn’t absolute. The one thing that has become clear to me is that the colonies represented diverse influences right from the start (see David Hackett Fischer and Colin Woodard for detailed analysis). This doesn’t just apply to radicals like Paine or forgotten figures like Dickinson, but also founders like Jefferson.

A number of scholars have questioned Thomas Jefferson’s relation to Lockean natural rights. It is far from certain that Jefferson, in writing the Declaration of Independence, was referring to Locke when he wrote about “Life, Liberty and the pursuit of Happiness”. Locke’s own formula included “life, liberty and estate”. There is a vast difference depending upon what the final emphasis is placed, estate or pursuit of Happiness. That is “Happiness” with a capital “H”, in case a mere lowercase wasn’t emphasis enough.

In previously discussing this, I concluded that,

As for Jefferson’s personal view, a fundamental right related to happiness had to do with consent. A government earned consent by ensuring the happiness of citizens. When that happiness abated, so did the requirement of consent. This puts “pursuit of Happiness” in a whole other context.

The Constitution certainly didn’t require the people’s consent, much less happiness. As far as that goes, the Constitution makes only one mention of property and that in referring to public property. Commerce gets discussed twice, but only in stating its being regulated. This is hardly a document of laissez-faire capitalism. This is made clear by the early use of tariffs made by the federal government, “the main source of all Federal revenue from 1790 to 1914″. Tariffs made markets heavily regulated, some might say manipulated even.

The Articles of Confederation did speak of property while even going so far as putting it into context of trade and commerce. However, the preceding Declaration of Independence didn’t mention property (or estate) at all and yet mentioned happiness twice. The second mention of Happiness placed it in relation to Safety. This is something Quakers of the time would have approved of as they knew through direct experience the relation between freedom for minorities and protection of minorities. As minorities, many Quakers resisted severing their ties with the protection offered by the Crown and Quakers like Dickinson hoped to quickly reestablish protections with a government powerful enough to enforce them.

There were many contested understandings for all these terms. Liberty, in particular, always was a vague term with its origins in Roman slave society. As I’ve mentioned before, Jefferson’s Virginia was shaped by the Cavalier heritage of Roman values. The Declaration and the Constitution refer to liberty and freedom, often seemingly interchangeably, sometimes using freedom as the opposite of enslaved which is the Roman conception of liberty. Quite uniquely, the Articles use freedom as a touchstone while never mentioning liberty even once. That demonstrates a major difference, the Declaration having been written by a slave-owning, liberty-loving aristocrat from Cavalier Virginia and the Articles having been written by a Quaker-raised Pennsylvanian who freed the slaves he inherited.

Governing charters are written with words. Words like freedom and liberty aren’t mere abstractions. They are grounded in entire worldviews, cultures, and social orders. Without understanding this deeper context, we lack the key to unlock the meaning of old debates that underpin our entire society. We are a conflicted people for we debate without understanding the terms of the debate. Rhetoric, too often empty, takes the place of meaning.

The ideal of federalism was borne out of the original Confederation. The so-called Federalists who turned against the Confederation weren’t actually promoting federalism, but instead some form of nation-state or even proto-imperialism. The relationship the US government has to the states is not much different from the relationship the British Empire had to its colonies. Every government claims to represent its citizens, but representation in a practical sense is a very different thing. Just ask those early Americans when, following the Revolution, still only a few percentage were given the right to vote.

Many of the Anti-Federalists argued that they were the true Federalists. The evidence is strongly in their favor. If we wish to continue to believe our government’s propaganda about Federalism, maybe we should take it seriously enough to live up to those claims and demand our government to apply. Maybe we should once again act as if it mattered whether or not we consent to be governed.

The debate is far from over. Let’s make sure it is an informed debate.

 

Anti-Partisan Original Intent

I was reading the introduction to The Invention of Party Politics by Gerald Leonard. The beginning comments caught my attention (Kindle Locations 62-65):

“This is a book about political parties and the American Constitution between the founding of the United States and the Second Party System of the 1840s and 1850s. In those years, and especially between 1820 and 1840, the idea and fact of party organization gained a preeminent place in the American constitutional order, even though the Constitution itself had been designed as a “Constitution against parties.”*”

(* From Idea of a Party System by Richard Hofstadter)

I knew many of the Founders saw party politics as a danger. This went along with the perceived threats of political factionalism and regional/state sectionalism. Unity was the watchword of those early Americans. They were seeking to create a United States, a radical vision. Not a nation-state and not just what the Articles of Confederation proposed. Plural states, but united, tied together with common cause and purpose. A Union.

As George Washington famously explained in his farewell address,

“In contemplating the causes, which may disturb our Union, it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties by Geographical discriminations, Northern and Southern, Atlantic and Western; whence designing men may endeavour to excite a belief, that there is a real difference of local interests and views. One of the expedients of party to acquire influence, within particular districts, is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart-burnings, which spring from these misrepresentations; they tend to render alien to each other those, who ought to be bound together by fraternal affection.”

His warning was that parties would lead to ruling elites who served their own interests rather than the country.

“All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests.”

It wasn’t just a complaint about the practical running of government. Rather, it was a conflict of visions. The vision of Union was in direct contradiction to the vision of partisanship. For parties to form meant the revolutionary spirit to have been defeated, the entire reason and justification for the founding of the United States.

“I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.”

Washington goes into more detail, but you get the basic idea. The guy saw political parties as one of the greatest threats to a free country and to all who value liberty. Those are strong words for the first president who wasn’t known for stating anything strongly. He decided to make almost his entire farewell address about this single warning. We should take this as seriously as we take Dwight Eisenhower’s warning of the Military-Industrial Complex.

To return to The Invention of Party Politics, the author continues with some thoughts on the Constitution:

“In all the massive literature on American political history in that period, however, there was little indication of what I have since come to understand: that the early history of party is best understood within the history of the Constitution, just as the history of the Constitution is best understood within the history of party development.”

It is good to keep in mind that the Constitution was written to replace the Articles of Confederation. The early Confederation was too weak and so the vision of Union took form, but the idea of a Union was a guiding vision from before the Constitutional Convention. There was disagreement about the exact relationship between the states and yet there was much agreement that the states needed a shared system of politics, of laws, of economics, and more importantly of values.

However, that vision of a fully united Union didn’t last. Understanding that change is what this book is about. Also, it is about understanding why the founders fought so hard for a new vision of a non-partisan society.

“In the nineteenth century, the mass political party dominated American politics and, in fact, came to be the defining institution of modern “democracy,” a status it still enjoys (perhaps in tandem with the market economy). Yet thousands of years of prior human history had yielded practically no efforts to justify party organization or institutionalized opposition. Virtually every political thinker before the nineteenth century condemned “formed opposition” as destructive of the public good and fatal to public peace. The freedom of individuals to express dissent might sometimes be celebrated, but the organization of a political club in continuing opposition to the policies of the government— perhaps even conceiving of itself as a potential replacement for those currently in power—smacked more of conspiracy and treason than of healthy political competition . In the early nineteenth century, however, all that changed. Americans embraced mass party organization, and politics and governance were altered forever. Eventually, this embrace of party became a commitment to a “party system”— an enduring competition between democratic parties within a basic constitutional consensus, expecting to exchange power and office in indefinitely long cycles 2 —as the sine qua non of democracy in America and much of the world.” (Kindle Locations 66-78).

The American Civil War is a clear example of what Washington had warned about. We shouldn’t get too comfortable about our party system. And we shouldn’t be so naive as to think another civil war will never happen.

I want to end on a different note, though. Those on the political right often speak of original intent, specifically in terms of the Constitution. I just want to point out that any person in a political party (including the Republican Party and the Libertarian Party) who makes any argument about originalism, any such person is being blatantly hypocritical.

Of course, hypocrisy is part of the US political tradition going back to the Founders. Still, I doubt conservatives and right-wingers are basing their originalist defense on the standard of hypocrisy. Or maybe they are.

I find myself going back to that early period of American and Western history. The groundwork of principles and values were laid for modern democracy. Yet we don’t take those principles and values as seriously as we should. They are hard to live by and live up to, as the Founders quickly discovered.

I feel a desire to make my own defense of original intent about the entire early modern revolutionary era and the entire Enlightenment Age. I wish to defend the radical visions that transformed the Western world. Many of those early radicals didn’t fall into hypocrisy. Those are the people upon which I wish to base my own originalism.

Maybe it is time for us to revisit those radical ideas and visions. Maybe we took the wrong path somewhere along the way. Let us retrace our steps and rediscover the forks in the road that could have taken our society in other directions. Maybe party politics is a dead end, after all.

From Articles of Confederation to the Constitution

I’ve become increasingly fond of or at least seriously curious about federalism. I’ve often been attracted to libertarianism, albeit more leftist versions, which relates to federalism and states rights (also, the paired concepts of republicanism and democracy). What got me thinking more about federalism over the years are my ongoing studies of regionalism from the colonial era to the present. The distinctly separate colonies set the stage for both regionalism and federalism.

One thing that increased my interest in federalism is its relationship to the Articles of Confederation. This past year I learned that the Articles of Confederation had largely been the creation of John Dickinson, a Quaker-raised colonist and reluctant revolutionary from the Middle Colonies. The Middle Colonies created the theoretical justification and the practical working model for uniting the colonies into a single “United States” (or actually isn’t that plural?). The reason for this is that only the Middle Colonies had a regional culture of multiculturalism which meant there was a ready made vision and operating political system of balancing unity and diversity (Diversity within unity? Or unity through diversity? Or Both?).

When the Articles of Confederation needed improvement, the founders set about creating a constitution. However, the original intent was to create a constitution that would improve on the Articles of Confederation, not replace it. The first mistake of American politics was the creation of a constitution that did replace it and, one could argue, that mistake has led to an endless cascade of problems ever since.

The federalist support of the American Constitution came to be seen as opposite to and opposing of the anti-federalist position, but some of the anti-federalists weren’t against a constitution in principle or even against federalism in principle. They were against a federalist constitution that went contrary to the vision that motivated and justified the revolution.

Federalism, unlike it’s often been portrayed, wasn’t inherently in contradiction to the Articles of Confederation. It supposedly wasn’t meant to create a new nation-state or empire in the style of European countries, but that is what it later came to mean or anyway those were the consequences, intended or unintended. Federalism versus Anti-Federalism was a question of the balance between localized and centralized governance, not a question of a federal government ultimately being able to trump state governments in all matters. The role of the federal government was to mediate and moderate between the state governments, not to act completely independent of state governments. We long ago lost that notion of balance and moderation.

The anti-federalists argued that they were the true federalists. “Another complaint of the Anti-Federalists,” as the Wikipedia article explains, “was that the Constitution provided for a centralized rather than Federal Government (and in the Federalist papers James Madison admits that the new Constitution has the characteristics of both a centralized and federal form of the government) and that a truly federal form of government was a leaguing of states as under the Articles of Confederation.” The anti-federalists have been proven correct in their fears and warnings.

John Dickinson,who some consider to be a moderate federalist despite his being the main author of the Articles of Confederation, described his ideal constitutional government in his Fabius Letters. He explained that, “a territory of such extent as that of United America, could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union; that for the securer preservation of these sovereignties, they ought to be represented in a body by themselves, and with equal suffrage.” Whatever the United States has become, it certainly couldn’t be described as a “combination of republics” or rather, one could say, a confederation of republics. We’ve strayed far from that vision.

This confederation-based federalism wasn’t immediately destroyed by the Constitution that empowered the slave aristocracy and the capitalist plutocracy, but the seed of its destruction was planted within it. Soon after the signing of the Constitution, factions were already forming to take control of the federal government. Various factors gave the Southern colonies great power that extended into the early federal era. This allowed the Southern states to initially take control of the federal government. This power led them to try to force their social order and their slave laws onto the rest of the country. This angered the residents of the non-slave states and the settlers in the territories who had little desire to become slave states. Thus federalism died at the hands of the slavocracy and plutocracy. Those who rule with concentrated power and wealth have a tendency to further concentrate power and wealthy… surprise, surprise.

The Northern alliance of states wrested control following the Civil War. Northerners then did the same thing to the South that Southerners, before the Civil War, had done to the North. Politics had fully become a game of power and factionalism. What came to rule was partisan politics, special interests, and big money lobbyists; thus, setting the stage for the following century. Still, this was just the inevitable results of the anti-confederation and anti-libertarian constitutional order itself that was built on oligarchy (i.e., slavery, political oppression, aristocracy, plutocracy, and class-based inequality). It took different forms as the country developed, but this basic social order remains to this day.

Most Americans don’t understand what was lost when federalism ended, especially when confederation-based ‘true’ federalism ended, and why the constitution was such a failure of political vision (or rather the success of the wrong political vision). Federalism was what made the American experiment so unique. Yet we’ve just become another vast empire.

In fact, we became a full-fledged empire the moment that Jefferson made the Louisiana Purchase, although the imperialist vision was present long before that (almost implicit in the early justifications of American independence as, in Paine’s words, “Small islands, not capable of protecting themselves, are the proper objects for kingdoms to take under their care; but there is something absurd, in supposing a continent to be perpetually governed by an island.”). From that point on, America began its steady expansion across the North American continent and its steady expansion by way of attacking independent nations/peoples and claiming their territory when possible (the attacks on Canada and on Cuba being two of the failures of this imperialist project). This has led America, like the colonial empires before it, to now have in its possession vast territories not just on a single continent but also on various islands, from incorporated territories such as Hawaii to unincorporated territories such as Philippines, Puerto Rico and Guam (a total of 6 inhabited unincorporated territories, 7 uninhabited unincorporated territories, and 3-5 depending on how you count former territories).

This colonial imperialism also has led America to be such a diverse country. It is ironic that those who praise America’s greatness because of its power often criticize the diversity that was the inevitable result of this imperialist project. You can’t have one without the other, as has been demonstrated with every great empire that has ever existed from the ancient empires of Rome and Hellenistic Greece to the later colonial empires of Spain, France, Netherlands and Britain.

Federalism allowed for a different kind of unity within diversity. The Southern colonies and later states favored monoculture that was strictly forced by a hierarchical social order. Some of the Northern governments/elites, however, embraced, encouraged and/or tolerated multiculturalism. Early federalism allowed these regional governments to have a fair amount of local control over their respective immigration policies, along with local control of their own ports and borders. It was the failure of federalism that led to proposals of secession. It wasn’t just Southerners that sought secession but also Northerners as well.

Even as federalism failed, the conditions that made it possible continue to exist.

Now that we have an empire, we can’t easily reverse the path we’ve taken. We could give independence back to the Native Americans, the Southwestern Hispanics, and the various island peoples. We could do that, but at this point many of these individuals and communities feel as American as the rest of us and they likely don’t want to have their American citizenship taken away from them.

A better solution would be to re-create confederation-based federalism by returning some of the power to local governments, local communities, and local populations. If Southerners want to be xenophobic, then let them be as xenophobic as they want within their own state boundaries. But I don’t want Southerners forcing their xenophobia onto me nor forcing onto me their fundamentalism and elitist class-based social order. Also, I don’t want to force my Midwestern values onto anyone else. Just let us Midwesterners do our own thing. I say let every state and every region do what it wishes, within some basic limits along the lines of the model of the Articles of the Confederation. Some states would choose to have tightly controlled borders and some open borders, some more democratic governance and others less so, some more capitalist and others more socialist, some with tough-on-crime laws and others full of a bunch of pot-smoking hippies getting gay married, and all of that would be perfectly fine.

Since some people are so obsessed about original intent, let us do what was originally intended. Let us make a constitution that improves upon, rather than replaces, the Articles of Confederation.

One context for my thinking is, oddly, the movie Hunger Games: Catching Fire. I thought this movie would be a fun note on which to end.

In that fictional world, there is a central government that has come to gain control over all the people. The different regions, I’m not sure how large, are divided up into districts. It seems these districts are relatively isolated, either geographically or by carefully controlled borders.

It is standard divide-and-conquer strategy. One of the ways this division is maintained is by the Hunger Games. These annual contests served a similar diversionary purpose as American elections. Everyone obsesses over who is going to win, but no matter who wins nothing is essentially going to change for those in power remain in power (or rather those behind the power remain behind the power).

This division of districts reminds me of all kinds of divisions in America. It was the regional divisions that led to the local political factions to seek to take over the centralized ‘federal’ government and enforce their political will onto the entire country. I was the formation of political parties, of which Washington warned about, that led these regional factions to become so nationally powerful. It was the divisions of religion, race and ethnicity that served as constant distraction and animosity among the lower classes which were then manipulated and exacerbated by the upper classes in consolidating their own power.

A centralized government only ever serves the interests and agendas of those with centralized power and wealth. Also, it is the centralized government that allows the continued centralization of power and wealth. Generation after generation, this has led to an ever-growing Establishment of hereditary plutocracy and political family dynasties.

The states no longer act as independent or even semi-independent republics. They are no longer functioning ‘states’ for they have fully come under the control of the federal government. This isn’t just about states rights for that can simply mean power centralized in the state governments. Self-governance is also about individuals, all individuals (lower classes and minorities included). Self-governance is also about communities which means a society built on individuals, families, churches, neighborhoods, militias, grassroots organizing, and actually functioning democracy.

We Americans aren’t as far away from the Hunger Games as we might like to imagine ourselves to be. Certainly, the post-9/11 centralization of power has brought us closer to such an extreme dystopia or else some other variant (e.g., The Handmaid’s Tale). Worse still, so many Americans have bought into the propaganda that, if we just fight for our faction (our race, ethnicity, religion, or whatever), we will finally have the America we want and the America we like to project onto the past. As with the Hunger Games, it is a vision of the ultimate win-lose scenario where the only way our faction can win is for all other factions to lose. This isn’t a road to unity, whether with diversity or not. Instead, this is the road to oppression and a second revolution.

Federal Reserve: Constitutional? Democratic?

I was talking to someone about the John Birch Society. I was mentioning how, having come of age in the 1990s when the right-wing was on the rise, I inherited some of the Bircher paranoia toward power. Besides fear of flouride in the water, the other notion that was implanted in my young mind was the criticisms of the privately owned Federal Reserve banks.
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Despite my liberalism, in some ways I might make a better paranoid right-winger than some conservatives (although ultimately my liberal faith in humanity and reason usually wins out). I dismiss the craziest paranoid conspiracy theories proposed by right-wingers, but some of the right-wingers’ concerns are worthy of consideration. I (and many other liberals) consider the Federal Reserve to be one of these worthy concerns.
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There are issues about the constitutional and democratic validity of the Federal Reserve. Furthermore, more central to the Bircher’s fears, there is plenty of evidence that the Federal Reserve member banks are privately owned:
1. United States
There are no sharp criteria for determining whether an entity is a federal agency within meaning of the Federal Tort Claims Act, but critical factor is existence of federal government control over “detailed physical performance” and “day to day operation” of an entity. . .
2. United States
Federal reserve banks are not federal instrumentalities for purposes of a Federal Tort Claims Act, but are independent, privately owned and locally controlled corporations in light of fact that direct supervision and control of each bank is exercised by board of directors, federal reserve banks, though heavily regulated, are locally controlled by their member banks, banks are listed neither as “wholly owned” government corporations nor as “mixed ownership” corporations; federal reserve banks receive no appropriated funds from Congress and the banks are empowered to sue and be sued in their own names. . .
3. United States
Under the Federal Tort Claims Act, federal liability is narrowly based on traditional agency principles and does not necessarily lie when a tortfeasor simply works for an entity, like the Reserve Bank, which performs important activities for the government. . .
4. Taxation
The Reserve Banks are deemed to be federal instrumentalities for purposes of immunity from state taxation.
5. States Taxation
Tests for determining whether an entity is federal instrumentality for purposes of protection from state or local action or taxation, is very broad: whether entity performs important governmental function.
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President Wilson admitted that he had made a mistake in helping to create the Federal Reserve and that it had destroyed our democracy (The New Freedom: A Call For the Emancipation of the Generous Energies of a People, chapter 8 Monopoly, or Opportunity?)
I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated governments in the civilized world.No longer a government by free opinion, no longer a government by conviction and the vote of the majority, but a government by the opinion and duress of a small group of dominant men.
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Let me issue and control a nation’s money, and I care not who writes its laws.
~ Mayer Amschel Bauer Rothschild (1773-1855), London financier, one of the founders of the international Rothschild banking dynasty, 1838.
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I would actually argue that controlling the stories, mythologies, and political narratives of a society is a greater power. But who controls the banking system controls the money supply. Who controls the money supply controls the economy. Who controls the economy controls who owns the media. And who owns the media controls the stories, mythologies, and political narratives of a society. So, sadly, it does go all the way back to the bankers.
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Whether or not one believes the Federal Reserve is essentially privately owned or controlled, it can’t be denied that it is one of the most (if not the most) powerful institutions in the US (and maybe the world) and one of the least (if not the least) democratic institution in the US. Many of the problematic economic decisions in recent history didn’t come from democratically elected leaders (even making the large assumption that democracy is still functioning). The Federal Reserve has made many decisions about our economy and there has been very little oversight even by Congress which theoretically has oversight. And, whether or not one favors democracy, the Federal Reserve doesn’t even make sense according to the small ‘r’ republican notion of a government that is free of both the influence of monarchy and private economic interests.
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There is nothing representative about the Federal Reserve. I see all of our major problems going to this rot within the highest echelons of our political and economic system. This rot isn’t limited to the Federal Reserve, but the Federal Reserve (along with the Military-Industrial Complex) is one of the institutions that represents this rot. This is concentrated power at its worse, meaning undemocratic, unrepresentative and largely unregulated. It’s a power unto itself beyond external control.
It (Central Bank ) gives the National Bank almost complete control of national finance. The few who understand the system will either be so interested in its profits, or so dependent on its favours, that there will be no opposition from that class… The great body of the people, mentally incapable of comprehending, will bear its burden without complaint, and perhaps without even suspecting that the system is inimical (contrary) to their interests.
– Rothschild Brothers of London writing to their associates in New York, June 25, 1863.
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There is even question of whether the Federal Reserve is constitutional.
Article 1, Section 8 states that Congress shall have the power to coin (create) money and regulate the value thereof. In 1935, the US Supreme Court ruled the Congress cannot constitutionally delegate its power to another group or body.
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It depends on the meaning of delegating and what can be delegated. Jefferson thought a central bank was unconstitutional by definition as it isn’t enumerated in the constitution. But there is the further question of ownership. The 12 Federal Reserve banks are privately owned, but defenders of the Federal Reserve argue that nonetheless these privately owned banks are under the direct control of the President and Congress along with those in the Federal Reserve who are appointed through the political process.

So, it becomes an issue of how much power and influence the member banks have over the Federal Reserve vs how much power and influence the Federal Reserve has over the member banks. And it becomes an issue of which specific private interests own, control or otherwise has influence over the member banks. The fact that the Federal Reserve is so secretive makes these issues unclear. Also, the fact that the Federal Reserve bailed out foreign banks makes this lack of clarity downright murky, to say the least.

It’s impossible for the average person (or maybe even the average politician) to know what the Federal Reserve is and how it operates. Knowledge is power and ignorance is powerlessness. Secrecy is the province of authoritarian power structures which is antithetical to democracy.

Is a central bank constitutional? Second, even if a central bank is constitutional, is it constitutional for Congress to delegate its power to the Federal Reserve which includes privately owned banks? There is neither a clear and unquestionable constitutional validity to the general principle of a central bank nor specifically to the Federal Reserve. Then again, there isn’t a clear and unquestionable constitutional validity to most of what the government does. The constitution was vague and limited in what it spoke about.

 – – – 
Eisenhower (who the Birchers called a commie) wrote,
You keep harping on the Constitution; I should like to point out that the meaning of the Constitution is what the Supreme Court says it is. Consequently no powers are exercised by the Federal government except where such exercise is approved by the Supreme Court (lawyers) of the land.
I admit that the Supreme Court has in the past made certain decisions in this general field that have been astonishing to me. A recent case in point was the decision in the Phillips case. Others, and older ones, involved “interstate commerce.” But until some future Supreme Court decision denies the right and responsibility of the Federal government to do certain things, you cannot possibly remove them from the political activities of the Federal government.
 – – – 
It’s interesting to hear Eisenhower’s perspective. He was an old school conservative… which means he was more liberal than most Democratic politicians today. Or, to put it another way, Eisenhower was a politician that is rarely seen today that genuinely believed in a government that served the people (“But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should be undertaken by it.”). Unlike cynical right-wingers, Eisenhower believed that federal government was morally justified.
 – – – 
What is interesting about Eisenhower is that one could simultaneously say he was one of the most principled presidents of the 20th century and also a hypocrite. He defended democracy while criticizing the Military-Industrial Complex that undermines democracy. On the other hand, he used the CIA to overthrow the democratically-elected government of Iran and used the FBI to practice COINTELPRO on the American public. It’s sad that such a person represents the height of principled behavior among modern US presidents.
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Ignoring the hypocrisy, though, I find myself drawn toward agreement with his ‘liberal’ views of the role of government and the constitution. I differ from right-wingers in that I’m not necessarily against a central bank. It depends (as a liberal, it always comes down to “It depends”). For a smaller country with a simpler agrarian economy (such as the early US), a central bank was probably dangerous and unnecessary. However, for a larger country with a complex industrial/technological economy, a central bank may be a necessary risk. That said: Secretiveness is morally wrong in a democracy and must be fought against at every turn. And it’s probably unwise for privately owned banks to be involved in the central bank in any direct manner.
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The challenge is liberal voices such as mine are almost entirely unheard in the mainstream. The debate is made into a black/white issue of being entirely for or entirely against the Federal Reserve. Intelligent and informed nuance is lost in a battle of ideologies. As such, criticism of the Federal Reserve just gets dismissed as another right-wing conspiracy theory.

US: Republic & Democracy

I keep noticing a particular belief among a certain kind of rightwinger. What they say is that the US government isn’t a democracy but a republic. I’ve seen this stated thousands of times in blogs and comments around the web.

I wonder what is the source of this claim. The fact that it keeps being repeated by so many people makes me think it’s a talking point often heard in conservative media. There is one thing that is obvious to me about this phenomenon. These people didn’t learn this idea by looking up the term ‘democracy’ in a dictionary or an encyclopedia or even Wikipedia.

Half of the statement is correct and half of the statement is false. The US government is BOTH a democracy AND a republic. To be more specific, the US government is a representative democracy and a constitutional republic. What these rightwingers fail to understand is that there are multiple definitions of democracy and multiple definitions of republic.

Even going back to Greek society, there was vast difference between Spartan and Athenian democracy. Sparta was a representative democracy with a political system that was divided. Athens was more of a direct democracy where even the lowest citizen could participate. The US is a bit of both these. The US is like Sparta in the following ways: representation instead of direct democracy, divided government, and a professional military. The US is only like Athens in one way: any citizen can participate and potentially become elected into government.

The only place where direct democracy operates in the US very partially is on certain major issues of local governance that are decided by citizen vote. I suppose also that jury by peers could be thought of as a watered down or constrained version of direct democracy. Still, the vast majority of the government is representative and the ‘mob’ of the citizenry has little direct influence.

The rightwingers are arguing that democracy is solely defined as direct democracy or, as some call it, mobocracy. But they are simply wrong. Their ignorance amazes me. Let me demonstrate by considering a random definition from a mainstream dictionary. I did a search and this is the top result (after Wikipedia):

Merriam-Webster, definition 1, part b (emphasis mine)
http://www.merriam-webster.com/dictionary/democracy

a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

Here is the confusion. Rightwingers are taking the following part of the definition as if it were the whole definition:

Merriam-Webster, definition 3

capitalized : the principles and policies of the Democratic party in the United States <from emancipation Republicanism to New Deal Democracy — C. M. Roberts>

Basically, it comes down to a simplistic play on words. These rightwingers are trying to make an argument that the Republican party is the party of real America, the party that represents the emancipation Republicanism of the founding fathers. The problem is that this argument is so simplistic as to be inane. There is absolutely no conflict between a constitutional republic and a representative democracy. US democracy is constrained by being indirect and by having the govt divided. Furthermore, US democracy is constrained by the constitution (and the constitution is responsive to the democratic process, i.e., amendments).

There are a few basic confusions.

The original meaning of ‘republic’ was simply a government that wasn’t a monarchy. The difference between a monarch and a president is that the former represents himself or represents the ruling elite and the latter theoretically represents the whole population and the country as a whole. As far as I know, this doesn’t require a constitution. The term ‘republic’ just basically means that the leader can’t simply act on whim and must be held accountable to the law like everyone else, but these laws aren’t necessarily the same as a constitution. A constitution is similar to laws, but the difference is that a constitution is what all other laws are based upon and that they must remain basically unchanged. Most republics probably tend towards declaring constitutions, but a strong legal system independent of the leader can serve the same purpose as a constitution. A constitution is just a safeguard in case the legal system fails. The constitution, of course, has no power in and of itself. Still, it’s powerful in being a symbolic mission statement of a society.

Let me now share part of the definition of ‘republic’:

Merriam-Webster, definition 1, part b(1)
http://www.merriam-webster.com/dictionary/republic

a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law

That serves as an equally good definition of a representative democracy.

Two things come to my mind: 1) Henry Fairlie’s definition of a Tory; and 2) rightwing rhetoric about ‘mobocracy’ and ‘real Americans’.

So, how did Henry Fairlie define a Tory? The Tories support the British government… which includes the period of monarchy. The Tory has faith in government in general for the reason they mistrust capitalism controlled by the wealthy elite. The government represents the people or at least the country, but capitalists have no inherent loyalty to anything besides profit. I think this represents the basic distinction between conservatives and liberals in the US. Conservatives mistrust government and instead trust capitalism. Liberals have a basic faith in government while being wary of capitalism. This is demonstrated by how Democrats show stronger support for even Republican presidents than Republicans show for Democrat presidents. Liberals trust the government even when they don’t have one of their own in power because they see government as being greater than either party.

This brings me to the second point. Liberals also have more basic faith in the American people and human nature in general. Liberals believe humans are inherently good or at least have the inherent predisposition towards good. Conservatives believe that people need to be told what to do by traditional authorities (i.e., religious leaders) and by those who are seen as having earned authority (i.e., successful/wealthy capitalists). Conservatives talk about ‘real Americans’, but they don’t mean the average American. What they’re talking about is the specific group they belong to: fundamentalist Christians, ‘white culture’, etc. So, their notion of ‘real Americans’ is very narrow. The liberal notion of a real American is more broad and I doubt most liberals would even deny conservatives as being real Americans. Just look at the Democratic voters who evenly divide between identifying as liberals and conservatives (according to the 2005 Pew data: Beyond Red vs Blue).

I’d also point out that it’s because of conservatives mistrust of people and government that they emphasize the constitution so much. That is why they tend to think of the constitution as an unchanging document akin to a religious document such as the Ten Commandments. Conservatives trust principles and beliefs, traditional values and institutions; whatever they perceive as a living and unchanging tradition of their particular in-group. Democracy, even though ancient, isn’t a traditional part of Christianity and so not a traditional part of European culture. Greek ideas which inspired the Enlightenment Age were reintroduced to Europe from the Middle East and so Greek ideas are considered suspicious.

My main point in all this is just that it’s odd to see rightwing constitutionalists denying the very democracy that was created by the founding fathers. There are argument rests on the fact that when some of the founding fathers were using the term ‘democracy’ they were often referring to only direct democracy, although not always (Thomas Paine seemed to have meant something more broad when he wrote about ‘democracy’). Apparently, many of the founding fathers used the term ‘republic’ to mean representative democracy. However, in the modern world, the term ‘democracy’ is more commonly used for both direct and representative forms. The rightwingers using narrow definitions from a couple of centuries ago and dismissing modern meaning of words is rather pointless. The meanings of words change. That is just the way the world works.

Like it or not, the US government is a democracy. If (some) rightwingers for some strange reason wanted to get rid of democracy, they’d be forced to get rid of the republic itself which is built on the political process of democracy (voting, representation, etc). I’m assuming rightwingers don’t want to do this. So, why do they continue with the ignorant argument that America isn’t a democracy? Is it intentional ignorance in that there being ideoligically divisive in what they see as a battle that must be won at all costs, the battle of defeating liberals and Democrats? Or is it just passive ignorance of people who never read anything (including dictionaries and encyclopedias) outside of conservative media?

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US: Republic & Democracy (pt 2)

National Day of Prayer Unconstitutional

ProfMTH — April 30, 2010 — A look at the recent decision that declared the federal law establish the National Day of Prayer unconstitutional.

Links:

1. Freedom from Religion Foundation, et al. v. Obama and Gibbs http://www.wiwd.uscourts.gov/assets/p…

2. The National Day of Prayer Task Forces website http://nationaldayofprayer.org/

3. Federalist #78 http://www.constitution.org/fed/feder…

 
ProfMTH — April 30, 2010 — The second part of my look at the recent decision that declared the federal law establishing the National Day of Prayer unconstitutional.

Links:

1. Freedom from Religion Foundation, et al. v. Obama and Gibbs http://www.wiwd.uscourts.gov/assets/p…

2. Lemon v. Kurtzman http://scholar.google.com/scholar_cas…

3. Christian activist Tony Perkins talking about the National Day of Prayer (from JesusSavesAtCitibanks channel here on YouTube) http://www.youtube.com/watch?v=a0Vqd6…

4. Engel v. Vitale http://scholar.google.com/scholar_cas…

5. Marsh v. Chambers http://scholar.google.com/scholar_cas…

6. Walz v. Tax Commission of the City of New York http://scholar.google.com/scholar_cas…