Category Archives: History

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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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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 being labelled parties — 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 installation 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 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.  A perfect example of Burr’s self-serving character is his unwillingness to stand down after the election when 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 Jane 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, the Roman senator who tried 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 ann 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.

If Republicans want to be glorified as Hamilton has, if they want to protect the American republic, they would do well to deny Trump the 2020 GOP nomination and, if he claims it, unite behind a Democrat for the sake of our nation.



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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Theodore Bilbo, a Mississippi Disgrace

Theodore Bilbo (D-MS, 1935-1947)

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Theodore Bilbo, the Mississippi demagogue and likely KKK member, committed his public service tenure to preserving segregation and used all power at his disposal to prevent African Americans from attaining equal civil and political rights.  Bilbo, along with other Southern senators, embarked on one of the Senate’s longest filibusters to prevent passage of an anti-lynching bill, saying (on the Senate floor!) “If you succeed in the passage of this bill, you will open the floodgates of hell in the South. Raping, mobbing, lynching, race riots, and crime will be increased a thousandfold; and upon your garments and the garments of those who are responsible for the passage of the measure will be the blood of the raped and outraged daughters of Dixie, as well as the blood of the perpetrators of these crimes that the red-blooded AngloSaxon white Southern men will not tolerate.”

In that same speech, Bilbo first dabbled with an idea to return all 12 million blacks to Africa.  He introduced legislation to achieve that goal in 1938 and continued pushing for this “repatriation” during the Second World War.  Upon the war’s completion, he added a new target for his vitriol: Jews.  Defeating Nazism apparently didn’t defeat anti-Semitism at home.



Writing to Leonard Golditch, executive secretary of the National Committee to Combat Anti-Semitism, Bilbo ranted that “there are five million Jews in the United States and the majority of them are fine public citizens, but if Jews of your type don’t quit sponsoring and fraternizing with the Negro race you are going to arouse so much opposition that they will get a very strong invitation to pack up and resettle in Palestine, the homeland of the Jews, just as we propose to provide for the voluntary resettlement of the American Negro in West Africa their fatherland. Now do not pop-off and say I am in favor of sending the Jews to Palestine. What I am trying to say to you is that there are just a few of you New York ‘kikes’ that are fraternizing and socializing with the Negroes for selfish and political and if you keep it up you will arouse the opposition of the better class of your race.”

Perhaps most shocking and stomach-churning, Theodore Bilbo published a book in 1946 entitled “Take Your Choice: Separation or Mongrelization.”  The racist manifesto furthered his efforts to popularize deporting all blacks to Africa, preying on racial anxieties and pointing to the “scientific” inferiority of blacks to argue that commingling of the races – which would lead to interracial marriages – would destroy white civilization.  His own words best exemplify the true depths of his hatred and ignorance: “The experiences and history of thousands of years prove that whenever and wherever the white and black man have tried to live side by side the result has been mongrelization which has destroyed both races and left a brown mongrel people.”



For more on Theodore Bilbo and the role he played in the Senate, read Robert Caro’s incredible “Master of the Senate,” the third volume of his series on Lyndon B. Johnson.

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