Category Archives: Constitution

governing through executive order

Governing through Executive Orders

Throughout President Barack Obama’s tenure, and especially in its waning years, conservatives lambasted his governing through executive orders.  They have a point: The Constitution specifically gives Congress the power to legislate, limiting the president to faithful execution of those duly enacted laws.  Over time, however, the growing power of the president — the imperial presidency — has seen these chief magistrates increasingly assume quasi legislative powers.  But this rightful critique of Obama falls way to praise for President Donald Trump when he acts unilaterally to enact sweeping policy decisions; Trump carries further Obama’s tendency to executive orders and has used this extra-constitutional power [more in 9 months than Obama did in 8 years].  Conservatives, to retain credibility, must also hold Trump accountable for his governing through executive orders.

Trump signed 42 executive orders in his first 200 days whereas Obama only signed 22.  Trump’s on pace to sign 67 executive orders this year, almost double Obama’s yearly average of 35.  That would be the highest yearly average since Jimmy Carter.

To be sure, not all executive orders show an overbearing president encroaching on Congress’s power to make and pass laws.  One Trump executive order established an infrastructural advisory council, clearly not a move that will change public policy.  But others have been far more sweeping: Both travel bans, ending DACA protection for minors here illegally, exempting states from certain Affordable Care Act guidelines and requirements, and ending cost-sharing subsidies (a move which will destabilize the healthcare markets and increase the price of healthcare for many) all either stress the limits of presidential power or alter existing legislation.

The travel bans represent a significant increase in proclaimed presidential power.  Whereas the 1965 Immigration and Naturalization Act precludes discrimination based on national origin and the commerce clause of the Constitution gives Congress the power to regulate foreign commerce (a category in which people naturally fall), Trump’s bans assume the president’s authority to transgress those bounds in the name of national security.  Multiple courts found the executive failed to provide an adequate basis for national security concerns, saying that the president cannot simply use that phrase without a legitimate basis.  Unfortunately, the Supreme Court, which always treads too carefully in these areas, allowed Trump’s sweeping orders.

Executive orders undermining duly enacted legislation shows both an assumption of legislative power and a willingness to bypass the legislature to accomplish policy goals.  Undermining and putting into doubt the future of existing legislation is obviously a legislative feat, especially considering the president is tasked with faithfully executing the laws, not picking some of which to let the legislative will slide.  It blurs the line between two separately empowered branches of government and leads to overlap of duty which the president, as head of state and government (and the only elected official representing all people), uses to declare supremacy and thus assume more power.  This becomes especially important in times of mixed legislative control or when a weak president fails to get his legislative program passed through Congress.  Trump, of course, failed in his healthcare repeal and replace attempts, so he’s deliberately undermining existing law to grease the skids for a future repeal attempt.  On top of hurting Americans, it’s a power grab paradoxically made possible by Trump’s very weakness as party leader.

Trump’s actions have a direct, and at times coercive, effect on the American people, a power wielded generally just by the legislature (and, even then, only with the pulling of many teeth).  He stretches the bounds of presidential authority by assuming legislative powers and failing to faithfully executive the laws (his oath of office).  Conservatives and Republicans rightly criticized Obama for reliance on executive orders; they must now do the same to Trump, whose reliance on such actions surpasses Obama’s.  Though actions may be favored, for sake of logical constituency and to avoid hypocrisy, conservatives must speak against Trump’s executive orders and actions.

roy moore theocrat

Roy Moore’s Hypocrisy

Perennial Alabama statewide candidate and Senate frontrunner Roy Moore seems unaware of his ceaseless hypocrisy.  He routinely calls for Congress and especially the judiciary (Moore is the twice-former Chief Justice of the Alabama Supreme Court) to respect the Constitution and abide by its words and understood meaning.  All politicians say this, of course, and most mean it.  But Moore doesn’t and his hypocrisy lies in the fact that he twice had to leave his elected position for failing to follow federal law.  Moore cannot simultaneously call for others to follow the Constitution’s word when he has long ignored it when doing so fit his purposes.

Just today, he released a statement on a federal judge blocking President Donald Trump’s transgender military ban, writing “Unless we return to faithful obedience to the Constitution and the separation of powers set therein, our form of government and our liberties will be in dire jeopardy.”  He also called for the judge’s impeachment, a worrying precedent he would establish in the Senate: Impeaching a judge for decisions with which any individual senator disagrees.

The separation of powers is perhaps the fundamental philosophical underpinning of our Constitution.  Powers do not overlap, but do constrain other branches of government (or other chambers within a single branch).  This important innovation, made popular by Enlightenment writer Montesquieu, prevents any one branch from becoming too powerful and using that consolidated authority to encroach on the liberties of those from whom the Constitution’s power arise — the people.

Restraints also bound judicial power, something which irked Roy Moore during both of his briefs stints on the Alabama Supreme Court.  The strength of Moore’s religious conviction and his anger towards a secular government that, through the First Amendment, enshrines the separation of church and state makes him a theocrat, one who wants to laws and government to align with and enforce the theological teachings of a particular religion (Moore’s religion).

At various points, he’s argued that the First Amendment doesn’t protect Muslims (it does), a Muslim congressman shouldn’t be seated because of his religion (again, wrong), hinted that homosexuality should be a capital crime, contended that the SCOTUS case which legalized same-sex marriage was worse than the case which condemned blacks to slavery, and referred to the Christian God as “the only source of our law, liberty and government.”

I’ll reiterate: Roy Moore thinks that God’s laws — or what some people in some religions consider to be God’s laws — trump the Constitution, a legal document borne from the consent of the governed.  And he happily enforced that belief while on the bench.

Moore denied a lesbian custody of her children simply because of her sexual orientation, which he called “an inherent evil” that shouldn’t be tolerated.  He used taxpayer dollars to erect a monument to the Ten Commandments in the Alabama state court house, which a federal judge found to violate the Constitution by endorsing a certain religion over others (and causing negative effects in the workplace).  Moore refused to move the statute despite an order from a superior court.  His refusal to follow principles of judicial hierarchy in place since the country’s inception simply because they conflicted with his firm religious belief that all should idolize the Ten Commandments resulted in his first removal from office.

After Alabama again elected Moore to the same post, he maintained his theological ways by ordering the Alabama judiciary to ignore the Supreme Court’s ruling in Obergefell, which legalized same-sex marriage across the land.  His decision, which clearly violated established constitutional law and the obvious letter of the Constitution, represented tyranny from the bench: Ignoring the rule of law, he tried to supplant the Supreme Court with his own opinion, despite its hateful belief that the state should not recognize all love equally simply because of the writings in an ancient text that has no governing power. Moore again had to leave the bench for his illegal behavior.

It’s hypocritical for the same man who spurned constitutional law and federal orders that triggered him for their secularization and non-conformity with his orthodox religious views to lecture others on respecting and following the Constitution.  His actions denied the liberty of others — a workplace and government property free of religious endorsements and the ability to marry a loved partner and be treated as legitimate and equal in the eyes of the lie.

Roy Moore is a hypocrite whose theologic beliefs control his actions and will dictate how he governs all Americans.  He is a threat to the Constitution and the republic.

judicial review

Making the Constitution a Legal Document

During the early years of the American republic, the Constitution existed simultaneously as a political and legal document to which all three branches of government — and, according to some, states — had the right to interpret, a far cry from today’s understanding of the Constitution as a solely legal document over which the legislative and executive branches may present arguments, but the judiciary held unilateral final interpretative power.

“Excesses of Democracy”

The American judiciary began as a weak institution during the Articles of Confederation.  Almost religious-like belief in the people to elect an enlightened and liberty-respecting legislature meant that no executive and no strong judiciary would be needed to protect the rights of citizens.  People, acting selflessly and dispassionately, would uphold a social contract between themselves and with the government.

That utopian vision failed as the Founders realized that the “excesses of democracy” brought factious interests to power and legislatures, empowered by the people, transgressed on rights (usually the property or rent rights of the landed American aristocracy, inasmuch as the early gentry could be considered “aristocratic”).  Coming to fear the people, the Founders drafted and ratified a powerful and expansive constitution that brought the national government and its coercive powers directly to the people of the arguably sovereign, yet united, states.

A New Regime

Even with faith in the people diminished, many Founders did not see a need to imbue the judiciary interpret the Constitution and strike downs laws contrary to its text.  Richard Dobbs Spaight, a North Carolina delegate to the Constitutional Convention, argued that allowing unelected judges to strike down laws made by a popularly elected legislature “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.”

Even James Madison, an ardent nationalist, believed that such a judiciary would be “paramount in fact to the Legislature, which was never intended and can never be proper.

Despite misgivings of a powerful judiciary, the Founders and early executors of the government recognized that the judiciary could interpret laws under a quasi power of judicial review, but they balked at the judiciary having sole authority over constitutional interpretation.  All branches had a “concurrent right to expound the constitution,” Madison and Jefferson believed, and only “an appeal to the people themselves…can alone declare its true meaning, and enforce its observance.”

The American people, the ultimate sovereigns, determined the extent of the Constitution.  All legislatures had to abide by it, but the people would guarantee enforcement.  Judicial review and action would not necessarily delimit the powers of the various legislatures since judges arguably did not represent the people.

Some delegates wanted representatives of the people to revise laws along with the judiciary.  James Wilson, future Supreme Court justice, and George Mason urged creating a council of revision that included the president — representative of all people — and the judiciary.  Interpretation had to include popular elements.  Introducing overtly political figures in constitutional interpretation clearly that early theorists believed the Constitution to be a political document to which those whose power came directly from the people had a right to interpret.

Judicial Review and Supremacy

Chief Justice John Marshall disagreed with this idea.  He found the Constitution a strictly legal document, which naturally gave the judiciary power to review laws and the supremacy to unilaterally declare them unconstitutional.  Such actions would be legal in nature, not political, and not a rare occurrence to take place in only the gravest of circumstances (as many Founders believed early on; the first federal court to find a federal unconstitutional did so in an apologetic and conciliatory manner).

Marshall and other contemporaneous judges remade the Constitution as a legal document by interpreting it as they would a statute passed by a legislature.  This included applying a derivative of English common law to the document and reading the Constitution for intent, context, and reasonableness — just as they would a law.  Reading the Constitution as a type of super statute necessarily stripped it of any political interpretation and thus made obvious his argument in Marbury v. Madison  that it was “emphatically the province and duty of the judicial department to say what the law is” — to say what the Constitution is.

Judges as Representatives of the People

This shift came with a reframing of the judiciary’s connection with the people.  Alexander Hamilton first suggested that judges were in fact agents of the people to the same extent as were members of the legislature in Federalist 78writing that it is logical “to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned their authority.”

The people, who willfully entered into the constitutional arrangement and ceded various pwoers to the federal government, needed judicial agents to keep the legislatures in check.  “It only supposes that the power of the people is superior to both [the legislature and the judiciary]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Concurrently, and in response to shifting thoughts about the nature of the judiciary as representatives of the people, judges began to isolate themselves from political affairs and society began to embrace the idea of law as a science.  An independent and powerful judiciary mandated qualified individuals to serve the people admirably and dispassionately.  Though not an immediate transformation, changing legal theory in the 1790s and 1800s onward established the powerful judiciary we know today and enshrined the Constitution as the ultimate legal document; the supreme statute to which all individuals cede power and whose legitimacy arises only from the consent of those very people.

For more information on the early judiciary and history of the young republic, read Gordon S. Wood’s masterful “Empire of Liberty”and “Launching the ‘Extended Republic’: The Federalist Era” by Ronald Hoffman and Peter J. Albert.

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losing faith in the free press

Losing Faith in the Free Press

A long history of political science literature teaches us that Americans tend to take cues from elites — that is, as a natural byproduct of being unable to thoroughly analyze each issue they face, they accept the conclusions of those they respect.  Perhaps no where is this more true than in politics, a complicated subject made ever more difficult by the nuances of legislation.

Unfortunately, Americans also base their belief in political norms on the thoughts of such elites.  Political norms — those that adhere our society to liberal democratic values — must be taught and passed from generation to generation.  They should not be eroded on the basis of one rather rogue leader.  But that idealized notion does not exist.  Instead, when charlatans such as Donald J. Trump routinely attack our norms and institutions, Americans follow suit.

Losing Faith in the Free Press

Faith in the free press has suffered under Trump’s baseless and incorrect bashing of the so-called “fake news,” a concept he clearly does not understand.  A recent POLITICO/Morning Consult poll found that a full 46 percent of all voters think the media makes up stories about Trump and his administration.  This includes some 76 percent of Republicans (only 11 percent of Republicans don’t think the media makes up stories) and 44 percent of proclaimed independents.

The media, of course, does not make up stories about Trump and his administration.  All stories from reputable news sources go through a thorough vetting process and multiple rounds of verification, especially if sources refuse to go on the record.  Of course, Trump himself cannot actually point to a story he finds fake.  Neither can his supporters.

Just 37 percent of voters believe that the media does not fabricate stories.  Fewer than four in ten Americans trust our press enough to believe in the veracity of all they publish.  And yet they have no reason to believe the opposite, except that Donald Trump — and, shamefully, other elites within the Republican Party — have latched onto this false idea that any report that criticizes or disparages the president in any way must be fake news, and called such for millions of gullible voters to believe.


It doesn’t stop there.  Nearly three in ten Americans — 28 percent — think the government should have the power to revoke broadcast licenses of major news organizations the government says make up stories.  Put another way, 28 percent of all voters think the government should define what constitutes “fake news” and then act to ban its creators from broadcasting.

Remember that the First Amendment states that “Congress shall make no law…abridging the freedom…of the press.”

Blinded by Partisanship


Unsurprisingly, it’s primarily Republicans who support these proposals because it’s a Republican (or somehow who calls himself a Republican when he’s really a self-serving demagogue running on the Trump First platform) making the outrageous and blatantly anti-First Amendment claims.

We need to step back and realize that we’re letting an illiberal actor transform our beliefs in needed democratic institutions.  The free press keeps us informed.  It holds power accountable by helping voters understand the issues facing the country, the ongoings of Congress and the executive, and providing a transparent government where we can analyze for ourselves the actions of elected leaders rather than relying on government-controlled messaging.

A free society needs a vibrant press.  It’s the press that uncovers abuses of powers — without a dedicated press, Watergate would have gone unpunished.  Sexual abuse and harassment stories would never come to light.  Administration officials would still be spending hundreds of thousands of taxpayer dollars to fly from DC to New York on chartered planes.  We wouldn’t know what’s happening because power tends to corrupt and that corruption is defended through lies.

Imagine a society in which Donald Trump’s 1,000+ lies went unchecked and unchallenged, that an unknowing populace — ignorant for the lack of government critique — simply believed all he said because they had no basis on which to form doubt.

Democracies need the press because democracies need informed voters.  That’s precisely what Trump’s attacking through his rhetorical attacks on the press, eroding support among the media and causing many — especially his supporters — to doubt everything said by certain outlets.  That’s not how a free, democratic society lasts.  We must cherish the free press regardless of what our political leaders say.

As Thomas Jefferson said, “were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

hamilton jefferson election 1800

Republicans Could Learn from Alexander Hamilton

The election of 1800 pushed the young American republic to the brink of a constitutional crisis.  Just the fourth election, and the first truly competitive one, the Federalist and Republican parties — though they would bristle at such a label — organized candidate tickets, John Adams and Charles Pinckney and Thomas Jefferson and Aaron Burr, respectively.

This innovation, a devolution into faction which so frightened the Founders, threatened the Electoral College because prior to the 12th Amendment, Electors had no way of differentiating between the president and vice-president.  Designed without parties in mind, each elector cast two votes and the top two electoral vote getters receiving at least a majority (in 1800, 70 votes) would become president and vice-president.

However, with a party ticket and partisan electors choosing from preferential candidates rather than dispassionately selecting a president from the population, electors had to coordinate votes to ensure that they didn’t each cast their ballots for the president and vice-presidential hopeful; one elector had to cast one vote for a third candidate lest the presidential and vice-presidential designee end up with the same number of electoral votes.

Failing to do so would throw the election to the House of Representatives.

A Republican Coordination Failure

Federalists managed this feat, no easy task given difficultly of coordination in a nation that moved at the speed of horses, with one elector giving a vote to John Jay, leaving John Adams with 65 electoral votes and Charles Pinckney with 64.  Republicans failed to execute their similar plan.  Their electors cast 73 electoral votes for both Jefferson and Burr and the tied election went to the Federalist-controlled House of Representatives, which threatened to overturn the election, nullify results, or even pass legislation to install an interim chief magistrate.

In the House, state delegations each cast one vote for president with a majority (9) needed for victory.  While Federalists dominated the chamber — they lost their majority in 1800, but the new Congress would not be seated until March — they only controlled eight delegations, short of a majority.  Republicans controlled seven states and one, Vermont, had a split delegation.

All knew that Republicans picked (or intended) Thomas Jefferson as their presidential nominee, but that did not bind Federalists, most of whom despised the former vice-president.  They wanted to deny him the presidency and so a number of them voted for Burr: Six Federalist delegations initially voted for Burr (all seven Republican delegations as well as Federalist Georgia voted for Jefferson).  Vermont, split, cast a blank ballot.  Maryland had five Federalists and three Republicans in its delegation — four Federalists voted for Burr while one voted for Jefferson along with the Republicans, leading to a blank ballot.  No president had been decided.

These divisions — six states for Burr, eight for Jefferson, two blank — held for 35 ballots.

Hamilton’s History with Jefferson

Throughout the affair, Alexander Hamilton urged his Federalist colleagues to vote for Thomas Jefferson, his longtime nemesis, because he trusted Jefferson’s character and virtue whereas he found Burr unscrupulous and too self-serving, perfectly exemplified by his unwillingness to stand down after the election went to the House despite knowing his designation as vice-president.

It’s hard to overstate the depths of the animosity that flowed between Hamilton and Jefferson.  Hamilton considered Jefferson’s political views as “tinctured with fanaticism,” and, as a person, “a contemptible hypocrite.”  During the 1796 election, Hamilton wrote a series of some 25 essays under the pseudonym Phocion attacking Jefferson.  The most notable of the works, all published in the Gazette, accused Jefferson of having an affair with one of his female slaves.

For his part, Thomas Jefferson lambasted Hamilton and funded James Callender, a sensationalist Republican journalist who frequented the muck to attack Federalists, primarily Hamilton.  Callender helped destroy Hamilton’s career and public reputation through false accusations of corruption and the popularization of Hamilton’s affair with Maria Reynolds.

The Callender Affair

In 1792, information came to light that made then-senator (and future president) James Monroe believe Hamilton used his position as Secretary of the Treasury to enrich himself through speculation.  Such accusations naturally angered Hamilton, who prided himself on virtuous leadership that sacrificed his own interests for those of the country.  That disinterested leadership defined his views of government and explains his eventual support of Jefferson over Burr in the 1800 election.

When Monroe and other Republicans confronted Hamilton, they learned Hamilton dallied with Reynolds, but did not act corruptly or abuse his powers.  Monroe and his counterparts understood the distinction between public and private life, realizing that indiscretions in marriage did not equate to corrupt or insidious public action.  The investigation ended without leaks.

Some four years later, Callender uncovered the papers related to the Hamilton investigation, perhaps leaked to him by Jefferson, though more likely released by former House clerk John Beckley, a Jefferson ally.  He published the documents and further editorialized the affair, lambasting Hamilton’s moral standing and falsely accusing him of corruption.

Hamilton responded in a lengthy pamphlet that he assumed would end the confrontation and restore his stature — after all, the same defense and revelation of facts had ended Monroe’s intrigue.  Unfortunately, the pamphlet, in which Hamilton admitted the sordid details of his affair but denied all allegations of corruption, reached a mass audience and that audience assumed Hamilton’s moral indiscretions exposed a rotten character.  Callender’s efforts, funded by Jefferson, thoroughly disgraced Hamilton.

Differences Aside

And yet, when it came to the tied 1800 election, Hamilton put his long-standing rivalry and antipathy towards Jefferson behind him and fervently wrote Federalist congressman urging them to make Jefferson, not Burr, president.

Hamilton worried that the country would suffer, that the government would be subverted or otherwise harmed, by “an unprincipled man [who] would exploit public passion.”  He warned of a latter-day Catiline (a constant fear of Hamilton’s), the Roman senator who led a populist uprising against the Republic.  Burr’s populism — he was the first (vice) presidential candidate to canvass for office and helped establish the first political machine in New York — and ambition made him such a man.

Federalists believed that Burr, who held few core principles and profited from the Hamiltonian economic system, would maintain the Federalist program.  But Hamilton, who did so much to consolidate government and design the Federalist programs, willingly sacrificed their rollback for character in the presidency.  “Great Ambition unchecked by principle…is an unruly Tyrant,” he wrote.

“As to Burr there is nothing in his favour. His private character is not defended by his most partial friends. He is bankrupt beyond redemption except by the plunder of his country. His public principles have no other spring or aim than his own aggrandisement per fas et nefas. If he can, he will certainly disturb our institutions to secure to himself permanent power and with it wealth.”

The Lesser of Two Evils

Jefferson, on the other hand, had greater ability than Burr and was not “zealot enough to do anything in pursuance of his principles which will contravene his popularity, or his interest. He is as likely as any man I know to temporize — to calculate what will be likely to promote his own reputation and advantage; and the probable result of such a temper is the preservation of systems, though originally opposed, which being once established, could not be overturned without danger to the person who did it. . . . Add to this that there is no fair reason to suppose him capable of being corrupted, which is a security that he will not go beyond certain limits.”

“He is of a temper to undertake the most hazardous enterprises because he is sanguine enough to think nothing impracticable, and of an ambition which will be content with nothing less than permanent power in his own hands.  The maintenance of the existing institutions will not suit him, because under them his power will be too narrow & too precarious; yet the innovations he may attempt will not offer the substitute of a system durable & safe, calculated to give lasting prosperity, & to unite liberty with strength. It will be the system of the day, sufficient to serve his own turn, & not looking beyond himself.”

“The truth,” Hamilton wrote, “is that under forms of Government like ours, too much is practicable to men who will without scruple avail themselves of the bad passions of human nature.”

Hamilton put his hatred towards Jefferson and concerns over the longevity of his system to support a candidate with character fit to be president, eschewing his party in the process.  He recognized the dangers posed by a self-serving individual without ideology of which to speak and no clear attachment to the constitutional system.

How Republicans Can Learn from Hamilton

Republicans should learn from that.  Donald Trump has no interest in protecting the Constitution — in fact, his actions as president have undermined it through violating the foreign emoluments clause, the domestic emoluments clause, undermining the separation of powers, and trying to erode the First Amendment’s protections of free speech and press.

Obviously, Trump is not fit for office.  He promotes falsehoods, lies to the American people, and blunders about without a clear understanding of policy, domestic and foreign.  About 1/3 of his presidency is spent on properties he owns, mingling with donors and lobbyists who pay companies in which he maintains a financial stake hundreds of thousands a year simply to have access to the president.  The Founders never wanted such a businessman to be president because that individual would have innumerable conflicts of interest and act on in a self-serving manner; the fears Hamilton had of Burr come true in Trump.

Trump’s authoritarian minded.  He has offered a tacit endorsement of political violence and degraded political discourse through slander, libel, and countless lies told about the opposition.

Our institutions do constrain him, and that’s a testament to the efforts of Hamilton and other Founding Fathers to create precedents of separated power and checks and balances, not risking the early republic for personal or factional interests, but instead recognizing the gravity of their decisions.  Precedents can be overturned and the normalization of an authoritarian president coupled with weak congressional opposition does not bode well for the country going forward.

Hamilton acted for the country, not for himself.  He worked ceaselessly to protect the country from the dangers of an ambitious and self-serving character.  Republicans need to learn from Hamilton’s actions and recognize that our country would be best served by abandoning Donald Trump.

For more on election of 1800 and the histories of Hamilton and Jefferson, checkout Gordon S. Wood’s “Empire of Liberty.”  Click the image to buy.

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Apportionment Based on False Premises

Defense of the Electoral College centers on its bias towards small states — to its supporters (of whom I do consider myself one), the Electoral College protects the liberty of small states from the tyranny of an assumed collusion of their larger counterparts.

This argument comes straight from the constitutional convention debate over the president’s election, but in neither time did the argument actually hold merit.  Coalitions and divisions between states arose from interests related to economics, not size.  Small states resisting population-based representation simply wanted to maintain their power by creating a union with legitimacy drawn from the states, treated as equals, rather than the people.

The Constitutional Convention

At various points in the constitutional convention, small states threatened to leave the proceedings if the foresaw their power in the new government decline.  These threats almost came to a head during the debate over Senate representation.  Nationalists such as James Madison and Alexander Hamilton pushed — and the convention initially accepted — a Senate apportionment scheme that allotted members on the basis of a state’s population.

Angered, small states ranted about their looming decline in power and forcefully argued for representing the states equally in the Senate.  The Connecticut Compromise did just that, with the House of Representatives being apportioned based on state population.  Divisions on that vote largely followed state sizes.

Similar debates erupted over the method by which the president should be selected.  Those from large states tended to favor either direct popular election of the president or the indirect election of president with electors apportioned based on state population.

Again, small states took issue with the proposals, presenting a plethora of arguments that ranged from alleging that large states would collude to control the presidency or the likelihood of individuals within states voting for a “favorite-son” candidate, thus preventing any one candidate from earning a majority of the votes and throwing the election to a large-state dominated legislature (the tie-breaking method in many early plans for presidential election and the final one adopted).

False Premises

But these fears had no basis in reality, as should have been immediately clear to all present at the convention.  Small-state delegates had a cynical desire to maintain their state’s power and so naturally resisted any effort that would bring their residents back to status of united equality.  Large-state collusion would never materialize because they had different material interests.

Of the five-largest states at the convention — Virginia, Pennsylvania, Massachusetts, New York, and North Carolina, in that order — no natural allegiance could emerge.  MA and NY naturally had mercantile interests.  Boston and the fast-growing New York City bound the two states in favor a strong state with an eye towards economic development (and later embraced the Hamiltonian financial system).[1]

VA and NC had few commercial interests and no large cities to become international ports.  They had an interest in preserving slavery and, later, resisting an expansive federal government that helped “stockjobbers” and other “speculators.”

PA, with the nation’s largest city and its capital, had split interests: Naturally, Philadelphians would align with those in MA and NY, but the western frontiersfolk of PA cared little for commercial emphasis and policy geared towards presumed speculators.  They wanted a government that protected from Native American raids and which did not align closely with the British.

As party splits emerged, western PA became Republicans while Philadelphia remained in the Federalist camp.  It should have been obvious that the different interests between (and within) these states based on the vastly different nature of their economies would have prevented any collusion.

Coalitions of Region, Not Size

Unsurprisingly, no large-small state divisions emerged; geographic differences largely defined the nascent parties.  In 1796, the first competitive election, location, not state size, explained support for Federalist John Adams or Republican Thomas Jefferson.  Northeastern states of all sizes supported Adams whereas southern states of all sizes chose Jefferson.  Of the five largest states, only NY and MA voted for Adams.  PA, VA, and NC went for Jefferson.  Of the five smallest states (Delaware, Georgia, Kentucky, Rhode Island, and Vermont), 3 went for Adams and 2 for Jefferson.  The hotly contested election of 1800 saw 4 of the largest states and 3 of the smallest states go for Jefferson.  Clearly, no alliances on the basis of state size formed.

A Nation of States and Unequal People

In the end, the cynical actions of small-state delegates forever changed the republic by creating a natural inequality on the basis of geography.  Those living in large states find their Senate votes worth fractions of those in small states — this also holds true for the Electoral College, though the disparity is less pronounced.  Small-state delegates pushed a union wherein legitimacy came from the states, thus demanding their equal status in government.  Nationalists envisioned a government with legitimacy, or power, coming from the people, and so urged representation to follow the population, not be bound by the amorphous and rather arbitrary state lines.

The huge consequences related to this decision gave small-states the power they craved, but it created a union with representation determined by arguments based on false premises.

[1] New York City, at that time, had not yet developed into a central commercial port and New York did not immediately embrace the Constitution.  NY and MA did not initially ahve the same interests as NY had a frontier that bordered with Native Americans and British Canada.  MA had no frontier of which to speak.

For more on the early republic, read Gordon S. Wood’s “The Empire of Liberty,” which you can purchase by clicking on the image below.

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The Founders Did Not Want a Businessman as President

The Founding Fathers never wanted businessmen elected to public office and they certainly did not want one to become president.

Public officials, the Founding Fathers believed, should act disinterestedly — that is, with virtue, willing to sacrifice their own interests, and those of their peers, for the benefit of the country.  Patricians should lead the government as only they, free from avaristic influences of occupation, could rationally and dispassionately consider policy.

Businessmen could not for their commercial interests and bias would skew public policy towards a special interest.  Considerations would ignore the state as a whole and instead focus on, at best, enriching peers and patrons, and, at worst, themselves.

The Founders’ Warning

Alexander Hamilton warned that electing those representing special interests, such as businessmen (as well as men from other occupations), would take government’s focus away from the polity and shift it towards helping specific factions.  Writing in Federalist No. 35, Hamilton asked “Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied?”

To free government from such influence, he advocated electing statesmen free from conflicts of interests.  These statesmen would have studied government and its science and “feel a neutrality to the rivalships between the different branches of industry,” making them “likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society[.]”

Adam Smith, father of modern economics, also voiced similar concerns.  His Inquiry into the Nature and Causes of the Wealth of Nations argued that “The interest of [businessmen] is always in some respects different from, and even opposite to, that of the public….The proposal of any new law or regulation of commerce which comes from this order…ought never to be adopted, till after having been long and carefully examined…with the most suspicious attention. It comes from an order of men…who have generally an interest to deceive and even oppress the public.”

The Constitution’s framers and other influential thinkers understood that electing a businessman to public office would risk conflicts of interest that pitted the financial stakes of the individual with the concerns of the country.  And, understanding the greed so natural in mankind, they knew which interest such an official would pursue.

Donald Trump and his Conflict of Interests

These warnings are particularly prescient today.  Donald Trump’s sprawling business empire from which he refused to divest leaves him susceptible to innumerable conflicts of interest as well as chancing his violation of both the Foreign and Domestic Emoluments Clauses.

We’ve already seen Trump’s personal interests butt heads with the interests of the country.  He spends a disproportionate amount of time at his private golf clubs, mingling with donors and lobbyists who spend hundreds of thousands of dollars a year be with the president at such resorts.  As Puerto Ricans — American citizens — suffered a humanitarian crisis in the aftermath of Hurricane Maria, Trump golfed at his own club.

Trump has shown no ability to place America’s interests ahead of his business interests.  That is precisely the unenlightened leadership our Founders and other enlightenment thinkers so greatly feared.

To learn more about the Founding Fathers and the birth of the new American nation, checkout Gordon Wood’s The Empire of Liberty, linked below.  PoliticalEdu may receive a commission for purchases made through that link; such money helps maintain the site.

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americans first amendment

What is that First Amendment Thing?

Americans are politically ignorant.  Far too many can’t name the three branches of government (is asking to know three things really too much?) and even more don’t have a clue as to what rights our Constitution protects.

In particular, the First Amendment really puzzles Americans.  A whopping 37% cannot name a single right it guarantees (this is slightly higher than the 33% who don’t know a single branch of government).

A Real Stumper

Even the right most closely associated with the First Amendment, free speech, only rings a bell to 48% of survey respondents.  For a nation built on arguments — pamphlets and other circulars rallied support for the nascent independence movement; essays and speeches ultimately led to the Constitution’s ratification — and which prides itself for largely unfettered free speech, that only 48% can name it as a right disappoints.

And that disappointment only grows as Americans struggle to name other First Amendment guarantees:

  • 15% identified the freedom of religion (the First Amendment’s leading topic and another source of historical pride given the religious persecution that pushed many of the colonies’ first settlers into the New World)
  • 14% said the freedom of the press (Donald Trump is not one of the 14%; neither are those who fawn over his attacks on the press)
  • 10% named the right to (peacefully) assemble (no surprise given antipathy to protesters and a weird fascination with running them over)
  • 3% remember the right to petition the government for a redress of grievances (and who can blame the 97% — after all, it is the last right mentioned and reading all 45 words of the amendment is a big ask)

For my valued readers who discovered new rights just now, here’s the amendment in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In fact, I’ll link the Constitution, too.  Take 20 minutes and read it.  Maybe you’ll learn something.  After all, Americans have a long way to go before understanding the document that governs our nation.

trump press fake news

More Shameful Attacks on the Free Press

A whopping 86 percent of Americans do not know that the First Amendment guarantees the freedom of the press.  Apparently Donald Trump, in whose presidential oath of office he swore to uphold the Constitution, falls in that group.

His repeated attacks on the free press, routinely and incorrectly calling it “fake,” have always reeked of authoritarianism.  Now, though, he’s extended his authoritarian leanings by specifically floating the idea of cracking down on the press simply because he dislikes or is angered by its reports.

For those wondering, the First Amendment specifically forbids the government from silencing the press.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Congress shall make no law abridging the freedom of the press.

The Burden of Proof Falls on Trump

Donald Trump’s talking about an unconstitutional policy borne from his hatred and anger that accompanies each leak about his train-wreck of a presidency.  He has yet to identify a single instance of fake news and doesn’t seem to realize that basic logical concept that when making such outrageous claims, the burden of proof falls on him.

The burden of proof to show his views are the truth, the failure to provide which shows he’s but a goof.

Elite Cues and Political Beliefs

Unfortunately, voters don’t particularly care about logic.  Political scientists have long argued that the power of elite signals — popular politicians explicitly supporting or even winking at certain ideas — leads to partisan acceptance.  Voters take signals and incorporate those views into their political beliefs.

As partisanship increases, so do the value of these signals as they increasingly define and coalesce the party tribe against its adversary, the opposition.

Such virtue signaling helps the competition of ideas and is only bad for democracy when leaders attack its fundamental underpinnings.  Donald Trump has routinely done this, especially with the press.

The Press’s Virtue

The press plays an invaluable role in a democracy.  It enables the electorate to make educated decisions while also holding power accountable.

Our mainstream press outlets do just that.  Unfortunately, Trump bristles with negative accounts and so lashes out at the institution without realization his words have profound consequences — people take seriously attempts to undermine faith in the press and come to doubt honest outlets.

It’s yet another indication of Trump’s efforts to backslide our liberal democracy by eroding faith in institutions and encouraging the ultimate political sovereigns to run from reports and facts that in any way harm their leader.

americans name three branches of government

How Many Branches of Government?

Through apathy, our republic withers.

There’s good reason for those dramatic words: Just 26 percent of all Americans can name the three branches of government.  One-third of the country – 33 percent – cannot name a single branch of government.

The rest fall in between with 13 percent knowing two branches and 27 percent knowing one branch.  For those versed in math – and I’m guessing that’s not many Americans given that math is more difficult than simply memorizing “executive, legislative, and judicial” – 60 percent of the country cannot name more than one branch of government.

how many americans can name the three branches of government

I imagine the most-well known branch is the executive as Americans have increasingly been infatuated with the singular head of state and government, lusting for ceaseless news coverage about him (someday her!) and spending hours commenting on even the most trivial of presidential activities (eg, President Obama propping his feet on the Resolute Desk or when Obama happened to order Dijon mustard).

Ever since Franklin Roosevelt asserted executive primacy and Congress more or less acquiesced – the Senate put up a strong fight, but only because Roosevelt and his successor, Harry Truman, sought to (gasp) promote racial equality – the (imperial) presidency has become the image of American government.

So people equate the executive with government and forget the other branches exist, especially when a divided Congress or a split between partisan control of the legislative and executive branches leads to governing through executive order.  That trend’s been evident since 2011.

can americans name the three branches of government

As many people cannot name a single branch as in 2011, but 12 percent fewer can name all three branches (and 11 percent more can only name one).  I’d guess people slide down knowledge levels, devolving from knowing three to knowing two to knowing one – and then remembering that one…maybe.

Such apathy and ignorance, of course, does not bode well.  We can’t expect voters to make informed decisions about complex issues if they don’t understand how the government works.  Associating the government with one office, and so one individual, makes Americans susceptible to authoritarian appeals because any and all autocrats would pledge to do get things done (you know, the “I alone can fix it” attitude).  They rebel against inaction and complication and turn towards simplicity and impossible promises.  And then those inevitable fail because for all the promises of immediate, unilateral action, voter ignorance doesn’t erase the other two branches.  But it does threaten their continued legitimacy and, at worst, independence.

So, Americans, do the country a favor.  Learn the branches of our government.  It’s really not that hard.