Prior to the Civil War two amendments were proposed to the Constitution, one to clarify the power of federal courts where litigation against a state is concerned and the other to clarify how presidents would be elected following the contested election of 1800. The paucity of Amendments is a testimony to the sagacity of the founders who wrote the Constitution and the of those who crafted the Bill of Rights. For the first seventy and more years of the nation’s history, the original document was found to be workable, though tensions grew during that period over slavery—tensions that would lead to the Civil War, which we will cover in a few weeks.

Federal Courts and Suits Against States

The Eleventh Amendment to the Constitution provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state. [1]

Article II, Section 2 of the Constitution as originally enacted allowed federal courts to hear disputes “between” a state and citizens of another state, or citizens or subjects of a foreign state. [2] At the time, it was anticipated that this provision could create problems, and indeed it did. Almost immediately after the Constitution was ratified, plaintiffs began relying on this Clause in Article III to sue several states in the Supreme Court.

One of these suits was Chisholm v. Georgia 2 U.S. 419 (1793). [3] In this case, Chisholm, a citizen of South Carolina, sued the State of Georgia over payments due for goods Robert Farquhar had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear in Federal Court, claiming that as a sovereign state, it could not be sued without its consent to the suit. (It might be remembered that one of the reasons for adopting the constitution was to allow for payment of debts incurred in prosecuting the Revolutionary War. This suit was one of many possible suits that might be brought by creditors of the several states as a result of the Revolutionary War and other matters. ) The Supreme Court ruled that Chisholm’s suit against Georgia could proceed in federal court.

There was a dissent in the case, reasoning that under Common Law, that each state is sovereign except as specifically stated in the Constitution or provided for by Congress under one of its enumerated powers. Therefore, in the areas in which the several states are sovereign, they possess the immunity of a sovereign and may not be sued without consent. I quote the dissent because the argument flows from a close reading both of the Constitution and of the history of English Common law that might impact the case. Justice Iredell in his dissent concluded as follows:

I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorize the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. [4]

The dissent became law with the passage of the Eleventh Amendment to the Constitution, which was introduced in Congress almost immediately after the case was decided.

The 11th Amendment has been often construed by the federal courts since its enactment. The amendment is central to the division of power between State and Federal Governments and preventing Federal courts from becoming involved in lawsuits between states and private individuals and foreign governments, thus abrogating the rights reserved to the states under the Constitution. There are large areas in which the Federal Government does not need to be involved, and if it were involved Federal Courts would be swamped with litigants attempting to find a more favorable forum than the state courts of the states with which they have a dispute. Nevertheless. the amendment does not by its express language bar all lawsuits against states or their officials arising in federal courts, though the Supreme Court has upheld a broad immunity on the basis of the amendment.

From a communitarian point of view, the 11^th Amendment is a sign of the continuing American interest in a system of dual sovereignty in which various layers of government each undertake their own responsibilities with independence. This independence applies to the states within their reserved rights and to the federal government within the scope of their designated powers.

12^th Amendment: Electing a President

The 12^th Amendment to the Constitution provides as follows:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States. [5]

Originally, the Constitution provided that the Electoral College would meet and each elector would cast two votes. The person with the largest number votes in excess of a majority became President and the person with the second largest number became Vice President. If no majority elected the President, the House of Representatives would elect the President, who with each state casting one vote. As mentioned before, the Constitutional Convention had assumed, as occurred that George Washington would be elected President, which he unanimously was. John Adams was elected his Vice President. When Washington was elected there were no political parties. In fact, the framers initially desired the President to be the best person for the job, not the leader of a political party, and for a part of this term in office, Adams tried to present himself as above politics. It was a noble, but short lived experiment.

The election of 1800 exposed flaws in the system. [6]  In this election, the vying candidates for the Presidency were John Adams, the sitting President, and Thomas Jefferson, the sitting Vice President. The final years of the Adams Presidency revealed the consequences of the fact that the then-current system of electing a President and Vice President allowed for the situation to develop in which the President and Vice President were not of the same party, and potentially the ascension of the Vice President to the Presidency could undo a considered judgement of the voters as to their choice.

By 1800, the nation had developed the institution of political parties, with Adams representing the Federalist and Jefferson representing the Democrat Republican parties. Roughly speaking, the Federalists had an expansive view of the federal government’s power and Democrat Republican a more restrictive position, at least in theory. (Jefferson proved willing to expand federal powers when the opportunity to purchase the Louisiana Territories presented itself.) By the time of the election, Adams and Jefferson were barely on speaking terms, much less colleagues in governance. Each of Adams and Jefferson had “running mates” in the 19800 election, Charles Pinkney of South Carolina as to Adams and Aaron Burr as to Jefferson.

In the end, the election was sent to the House of Representatives where Jefferson was chosen as President and Burr as Vice President. However, the way in which the election was decided exposed flaws in the system. For one thing, the “One State/One Vote” system in the House of Representatives allowed for smaller states with a small population to have the same vote as larger states. Inside the state delegations, votes had to be taken as to how their vote was to be cast, and in the event of a tie vote, the vote was not to be counted. In the end, one representative’s decision could determine the entire national election.

It was against this background that the 12^th Amendment was proposed. Under the Amendment as adopted, electors cast two votes (one of them for a non-native of the elector’s home state). However, under the amendment, one of the votes had to be for a candidate for President while the other for a candidate for Vice President. This amendment, therefore, ensures that the situation of the election of 1800 cannot occur again.

1824 and 1877 Elections

Problems surrounding the election of the President again surfaced in the election of 1824. In this election, Andrew Jackson received the most votes but not a majority. The election was then decided by the Congress, who chose John Quincy Adams as President. It was alleged that a deal was made between Henry Clay and Adams to secure the election for Adams. The bad feelings created, and the wide-spread feelings of fraud and denial of the popular will, resulted in Jackson’s election in the 1828 election.

In 1876, there was another contested election between Rutherford B. Hayes and Samuel Tilden. Tilden won the popular vote and the electoral count. However, supporters of Hayes contested the results in three states in which there were certificates submitted for both candidates. While the Constitution, as indicated above, requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In this case, Congress established a Federal Electoral Commission to investigate the disputed ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award the contested ballots to Hayes—securing the presidency for him by a single electoral vote. [7]

2020 Election

In the case of the 2020 election the need for a proper understanding of the process for electing a president were again revealed. In the case of this election, by the time the votes were counted on January 6, 2021, there were allegations of fraud in the election. One aspect of the contention was the provision of the Twelfth Amendment that provides as follows:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. [8]

At the time of the counting of the 2020 electoral votes, there were several states in which litigation was pending concerning the validity of the vote. President Trump felt that the votes of disputed states should be determined by the Vice President. The legal advisors of the Vice President disagreed, feeling that the Vice President, as the President of the Senate, had only ministerial responsibility to declare the vote of each state. In this case, it is likely that the legal advisors of the Vice President were correct, The wording of the Constitution does not appear to give any power to the Vice President to make legal determinations. Moreover, at the time the Constitution was enacted, the States would have resisted any such claim as an imposition on their powers to determine their own electors.

In my view, the 2020 Election revealed the need for a set process to resolve contested election suits. Given the complexity of the cases, there is simply not enough time between an election day and the day Congress counts the votes for a normal judicial process to take place. Some group needs to be authorized to hear relevant evidence and make determinations of fact related to elections in a timely way where there are credible allegations of fraud sufficient to have tipped the election one way or another.

Conclusion

This week, I decided to deal with the two amendments to the Constitution enacted after the Bill of Rights and before the important amendments that resulted from the Civil War. It is a welcome relief from the speculations of Kant and Hegel, as important as they are. There was and is something comforting about a return to the law and Constitution from the speculations of philosophers!

Copyright, 2021, G. Christopher Scruggs, All Rights Reserved

[1] Constitution of the United States of America, Amendment 11.

[2] Constitution of the United States of America, Article III, Section 2.

[3] Several other suits against other states were pending at the time Chisholm was decided in 1793, including Vassall v. Massachusetts, in which a British subject (William Vassall) sued Massachusetts for violating the Treaty of Peace by confiscating his property.

[4] Chisholm v. Georgia 2 U.S. 419 (1793), Justice Iredell dissenting.

[5] Constitution of the United States of America, Amendment 12.

[6] I am indebted to the work of the Interactive Constitution at https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171 (Accessed October 7, 2021) for much of the analysis of this blog.

[7] “The Electoral College and Indecisive Elections” History, Art and Archives, nited States House of Representatives, at  https://history.house.gov/Institution/Origins-Development/Electoral-College/ (downloaded October 11, 2021).

[8] Constitution of the United States of America, Amendment 12. This provision superseded the original provisions of Artice II, Section 1 of the Constitution.

 

Georg Wilhelm Friedrich Hegel was born on August 27 1770 of a middle-class German family and died November 14, 1831. During his lifetime, he became the most important German philosopher, and his work was influential on many thinkers, both continental and American. He is particularly remembered because of his influence on Karl Marx, who dispensed with Hegel’s idealism for a thorough-going materialist vision of history and the state. Hegel’s thought was also important for a generation of theologians who studied and profited from this thinking. He has fallen out of favor in more recent decades but during his own lifetime he was the preeminent German philosopher at a time when Germany ruled the philosophic world.

Hegel did not demonstrate in his youth the genius of his adulthood. He was a methodical as opposed to brilliant student, developing a life time habit of copying out quotes from great works and then filing them where they could be recovered. He had a deep interest in mysticism and in classical Greco-Roman culture, both of which influenced his philosophy. Hegel initially studied theology, a discipline for which he was not well-quipped because he was not a good public speaker and unlikely to be able to hold the attention and affection of a local congregation. His certificate of graduation from Tubingen described him as competent in philology and theology but lacking in the area of philosophy.

He began work as a private teacher and lecturer, gradually preparing his first work, like Kant, on logic (1812-1816). Throughout, he worked on his first great work, Phenomenology of the Spirit, and he prepared an Encyclopedia of the Philosophic Sciences (1817) which earned him a professorship and the University of Berlin, where he spent the remainder of this life. His two works, On Law and On History, both compilations of his lecture notes in Berlin, are primary sources for his political philosophy.

Hegel’s language and thought are notoriously difficult to understand. Schopenhauer described his work and the work of his disciples as “a stringing together of senseless and extravagant mazes words, such as had previously been known only in madhouses” and “barefaced mystification.” [1] Anyone who ever took a course in philosophy where reading Hegel was required can testify that there are times when these words ring true. Nevertheless, Hegel made important contributions in logic, metaphysics, and political philosophy and the philosophy of history.

Dialectical Thinking

Most students and many others have some familiarity with Hegel because of the prominence with which he placed dialectic in his Logic and the place it plays in his other works and in Marx. The basic notion is fairly simple: Human beings are inclined to compare and contrast things. The result is that human reason proceeds in a dialectical logic that unfolds something like this:

1. A thesis (or truth claim) emerges;
2. The thesis evokes anti-thesis; and
3. A synthesis is developed.

Any synthesis then becomes a  new thesis, and the process begins again.

There is a similarity in this progression to the process of reasoning developed by C. S. Peirce and Josiah Royce.  Peirce had the insight that all communication involves a communicator, a sign by which the message is transmitted, and a recipient, who interprets its meaning. Royce adapted Peirce’s insight and developed the notion that all communication involves the person who is communicating, signs by which the communication is made, and an interpreter who interprets the meaning. What is important in this for the purposes of political philosophy is the obvious fact that this kind of reasoning is a process by which human beings analyze the world and discover meaning and truth. The process of the logical progression of ideas is a feature with profound implications for politics and the idea of human progress.

What is not always understood (and indeed may not have been fully understood by Hegel, Marx or their interpreters) is that reasoning and historical process does not and cannot have an end inside of human history. Remember that Hegel holds that every thesis results in an anti-thesis that is resolved into a synthesis, which then results in a new thesis. This process must and will continue until the end of time because it is an inherent feature of human existence. Human beings never rest satisfied with any condition of knowledge or society. There are, and will always be, signs, communicators, and interpreters, and because the signs are able to acquire new uses and meanings, those signs will never be final.

I mention this at the beginning because both Hegel and Marx posit a supreme achievement of politics—for Hegel the German state (with a qualification I will mention later) and for Marx the dictatorship of the Proletariat. In both cases, the attempt to bring history to a conclusion is wrong-headed for the reasons set out above, as are similar attempts in our own day. The process of human becoming, the analysis of defects in the current social system, the need to make adjustments to accommodate new situations are inevitable features of human life. There can be no “End of History” within history, for people, societies, and their history will always change.

This is an important point to get clear right at the beginning: We cannot escape or “end” history. Human beings cannot bring about a final end to politics, the struggle for power, or the accommodation of the present to the emerging future. All such attempts have ended and will always end in a dictatorship as those in power desperately seek to forestall the emergence of challenge to their rule. For freedom to exist and be maintained, there has to be an understanding of the inevitability of criticism of the status quo, whatever that status quo may be.

A good example of the impossibility of an end to history involves the recent fall of the Soviet Empire, which prompted an article entitled “The End of History.” History, however, did not end, for the Western democracies were faced first with radical Islam and then with the deterioration of their own societies and the reemergence of Marxism as a force. [2] In a recent article, the New York Times made the following observation about Hegel and his influence on the original article:

Hegel, Fukuyama said, had written of a moment when a perfectly rational form of society and the state would become victorious. Now, with Communism vanquished and the major powers converging on a single political and economic model, Hegel’s prediction had finally been fulfilled. There would be a “Common Marketization” of international relations and the world would achieve homeostasis. [3]

It has turned out that capitalism has continued to evolve in most Western nations into something lire like “Oligarchical Privatism” with a consequent loss of faith in its viability among the young, who have increasingly turned to socialism as an alternative. In some ways, the West has been imitating the State Controlled Capitalist model that has evolved in Russia and China since the fall of Communism. History did not end as Fukuyama predicted—nor will it end if the current batch of neo-Marxists win power.

Wholistic-Relational Aspect of Hegel’s Philosophy

Near the beginning of his work, On Right, Hegel observes that “…legislation both in its general and its particular provisions is treated not as something isolated and abstract, but rather as a subordinate moment in a whole, interconnected with all other features which make up the character of a nation or epoch. [4] Against the reductionism of scientific empiricism, Hegel is advancing the claim that a law (or any other feature of a political system) is not to be understood alone in its particularity but in its relationship to all the features of the society in which said law or feature emerges.

This is a distinct feature in Hegel’s reasoning that nothing can be understood except in all of its connections, historical, logical, philosophical, governmental, scientific, etc. In the end, Hegel’s logic leads to his view that nothing can be fully understood except in view of the Absolute, or reality as a whole. [5] It might be noted, that this underscores the view stated above that political evolution is without an end within the boundaries of human history because there will not be a point in which any nation, society, political system, etc. will be known in its absolute connection with everything else that influences the system. [6]

This aspect of Hegel’s thought in some ways anticipates the “Quantum Revolution” of the 20^th Century, with its emphasis on wholeness and systems and implicit limitations on the reductionist science of the modern world, which by implication casts doubt upon the reductionist political science and materialistic politics of the 19^th and 20^th Century. This, as we shall eventually see, casts doubt on Marxism, Laisse Faire Capitalism, and the kind of “State Controlled Oligopolism” we see emerging at the current moment of history. The emergence of a relational. Holistic way of thinking involves a new way of thinking in which the old dualisms and distinctions of modern thinking are replaced by a new way of thinking, which in turn will inevitably result in an end to the older, modern materialistic and power-oriented way of conceiving political life.

History as a Rational Process

As might be expected from a proponent of dialectical reasoning and a professor of logic, Hegel believes that beneath the wars, conflicts, revolutions, and innumerable events that make up human history, there is a logic, a reason, a process unfolding as reason, which is the ultimate substance of the universe unfolds within reality. This unfolding of history is the unfolding of the activity of free spirit as it is revealed in the dialectical process of history. [7] This unfolding of reason in history is not a material process; it is however embodied in the material processes, the historical forces of history and cannot be separated from them. Thus, Hegel posits:

The loftier dialectic of the concept consists not in simply producing the deterministic as a contrary and a restriction but in producing and seizing upon the positive content and outcome of the determination, because it is this that makes it solely a development of an immanent progress. Moreover, this dialectic is not an active, subjective thinking applied to some matter externally but is rather the matter’s very soul putting forth its branches and fruit organically. This development of the Idea is the proper activity of its rationality and thinking….” [8]

This way of thinking is modified and adapted by Marx who fully embraces the materialistic side of Hegel’s thought.

Freedom as the Ultimate Ground of Political Thinking

The idea of freedom sits at the basis of Hegel’s political philosophy. Hegel is a natural law thinker, and the basis of this notion of natural law is the idea of personal freedom or the freedom of the human will. In this, Hegel follows both Kant and Rousseau as a philosopher of freedom. [9] Like these other two philosophers, the freedom is the freedom of the isolated individual over and against all social structures and other intellectual constraints. Like Kant and Rousseau the actual political implications have been the reverse of what Hegel intended.

In my opinion the reason for this is that freedom is not fundamental but flows from love which is fundamental to human societies. It is love that gives the other, the one who disagrees with our opinions or questions the status quo the freedom to be what they are. A monadic or individualized basis for freedom always fails, as indeed it is failing in our own day as a multitude of individual ego’s seek power and actualized freedom. Only a communitarian basis for freedom founded on a kind of self-giving love that allows the other freedom (which is a Christian concept) can form the basis for a lasting freedom and end the power-oriented striving of the modern world, allowing a positive post-modern era to emerge. [10]

Conclusion

Hegel is a complex but fruitful thinker. As mentioned earlier, he viewed the German State of his day as the highest development of the state to his time. However, interestingly, his view was that the future belonged to America, thus foreseeing the role that America would play in the late 19^th and 20^th Centuries. If he were alive today, he might see the forces of history bringing China to the forefront of history. This is the ground of my observation that Hegel himself may not have seen history as having the kind of end that his interpreters see in his work. In any case, it is hard not to see in Hegel’s logic the reality that history can never come to an end within the history of human existence, for human society will always change and evolve.

We will return to Hegel both in looking at Marx and at Alfred North Whitehead, whose work extends Hegel’s influence into the evolving post-modern era.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Quoted in Will Durant, The Story of Philosophy (New York, Simon and Schuster, 1951), 221.

[2] Francis Fukuyama originally wrote a book entitled “The End of History,” which he has recently rewritten as

³ Louis Menard, “Francis Fukuyama Postpones the End of History” New York Times, September 3, 2018 https://www.newyorker.com/magazine/2018/09/03/francis-fukuyama-postpones-the-end-of-history (downloaded October 4, 2021). This is a review of Fukuyama’s revision of his thesis in his book, The End of History and the Last Man” (London, England: Routledge, 2010). His original article was roundly criticized for some of the same reasons I have given.

[4] G.F.W, Hegel, “On Right” in “Hegel” Britannia Great Books, Vol. 46: Chicago, IL: Britannia Great Books, 1987), 10. Hereinafter, all citations are to this volume unless otherwise noted.

[5] See, Bertrand Russell, History of Philosophy (New York, NY: Simon and Shuster, 1945), 723.

[6] I do not have the time or space within this blog to examine all the implications of this observation. When we return to C. S. Peirce and Josiah Royce we will examine the importance of this within the context of their evolutionary pragmatisms. Royce talks about an “Absolute Pragmatism,” by which I think he means a pragmaticism driven by the hope of that hypothetical moment in which all members of a community of inquiry reach agreement about a point of truth. Royce was a student of Hegel.

[7] Russell, previously cited at 736.

[8] Hegel, “On Right” at 19.

[9] Hegel, “On Right” at 19. “It is only because right is the embodiment of the absolute concept or of self-consciousness freedom that it is something sacrosanct.

[10] See, John Zizioulas, Being as Communion (New York, NY: St. Vladimir’s Press, 1985), 47. To understand Zizioulas’ argument requires a careful reading of the entire first section of his book.

In the interest of space last week, I did not include biographical information about Immanuel Kant (1724–1804) as I normally do. This week, I want to remedy that defect. Kant was born in Konigsberg, which is a part of Prussia in 1724. He lived his entire life within a small geographical area around the city. His family had immigrated from Scotland about a century earlier and was poor. His mother was a devout Pietist, and while Kant was not devout nor a churchman, the impact of his mother’s faith and her strict morality formed the young Kant and impacted his life and philosophy in profound ways. Though a product of the Enlightenment, his deepest motivation seems to have been to provide a ground in human reason for the fundamental values of his childhood and adopted nation.

In 1755, in his mid-twenties, Kant began his professional life as a lecturer at the University of Konigsberg. His professional progress was not impressive. In 1770, after being denied positions at least twice, he was made a professor of Logic and Metaphysics. During his career, he also engaged in the kind of scientific pursuits common among intelligent laypersons of his day. His philosophy is impacted by his commitment to Newtonian physics and his own scientific inquiries.

Kant was physically small and unimpressive. On the other hand, he seems to have been gregarious and social as much as his situation in life allowed. His life, however, was quiet. He took walks in the country. He was careful about his health. He lived frugally and within his very limited means. He and worked on his Critique of Pure Reason, the work that made him famous, quietly and obscurely for many years, before finishing it and embarking on the philosophical career for which he is justly famous.

In the years before his death, Kant suffered from growing dementia that ultimately left him helpless and from which he died. This later political philosophy was impacted by this decline and he was unable to finish  all the work he contemplated because of the aging process.

The French Revolution

When the French Revolution (1789-1799) began, Kant was a tenured Professor at the University of Konigsberg nearing the end of his career. He had already published his “The Natural Principles of the Political Order considered in the Light of a Universal Cosmopolitan History” with which we ended last week’s blog. [1] He was deeply influenced by Rousseau, whose work he admired greatly, and embraced the revolution with an ardor rare for a man of his age. If Newton and Hume were the inspiration for his metaphysics, Rousseau was the inspiration for his political thought. To understand Kant, however, it must be remembered that Rousseau is misunderstood as a purely revolutionary figure. Instead, it is best to see him as one determined to restore the kind of thinking prevalent in the Classical Age, which he admired and to defend culture against the worst elements of modern thinking. I think it best to see Kant as this kind of figure as well, though in common with Rousseau, he initially supported the French Revolution and saw in it a hope to transform Europe along more democratic lines. Nevertheless, when Louis XVI was executed, he decried the event as worse than just a murder. Kant as supported the French Revolution in the name of freedom, but not supporting either its methods or all of its results. As to his native Germany, he continued to support the Kaiser and the fundamental form of Prussian government.

The French Revolution marked the end of one period of Kant’s life and the beginning of its last period. In this period, politics and law were to dominate his thought. As Hannah Arendt puts it:

From then on his interest no longer turned exclusively about the particular, about history, about human sociability. In its center was rather what we today would call constitutional law-the way a body politic should be organized and constituted, the concept of “republican,” i.e., con­stitutional government, the question of international relations, etc. [2]

Kant never finished a writing a definitive political philosophy, but the desire to write one and to contribute to the emerging new era in human history, what we call, “the Modern World” drove him in his final years before age and incapacity silenced his voice.

Freedom as the Basis of Society

Kant bases this thinking on politics on the idea of freedom, which is basic to his political philosophy. In this work, Introduction to the Science of Right, he says:

Freedom is independence of the compulsory will of another; and in so far as it can coexist with the freedom of all according to a universal law, it is the one sole original inborn right belonging to every man in virtue of his humanity. [3]

At the time Kant wrote, this “inborn right” had only been recently discovered. In the history of the world and the history of Europe this right had not been celebrated nor even acknowledged prior to the Enlightenment, perhaps because there is not so much an “inborn right” as the emergence in history of the potential for such a right. Second, Kant’s “freedom” is a disembodied freedom of a kind that does not and cannot exist within human history. Human beings are born into physical bodies with strengths and limits, into families which impart further strengths and limits, and into myriad social structures which from the beginning limit and guide choices that can be made. One consistent failure of Enlightenment thinking is a frequent kind of disembodied abstractness of its theories, divorced from the realities of human existence. The Enlightenment notion of freedom, like its notion of a primaeval Social Compact is an intellectual fiction. Where one finds limites inKant’s thinking, those defects largely arise out of a kind of logical disconnect between human reality and the theories that Kant and others in the Enlightenment championed.

Kant as a Natural Law Thinker

Kant divides the rights of human beings into two categories: Natural Rights and Civil Rights. The term “Civil Rights” is roughly identical to what we would call “Positive Rights,” that is rights granted by the society in which the person his located. [4] Unlike positive law, natural law is a law of reason. For Kant, the natural law is deeply connected to his moral theory and the Categorical Imperative. In his Groundwork for the Metaphysics of Morals, Kant specifies the imperative as follows:

Act only in accordance with that maxim through which you can at the same time will that it would become a universal law. [5]

Applied to politics, the Categorical Imperative implies that, human beings should act in such a way that as treat humanity, directly or indirectly, never simply as a means, but always at the same time as an end.” [6] In this definition, Kant is following Augustine, whose morality is founded on the ultimate worth of each human individual, who must be treated not as a means but as an end. Positive laws, then, to be properly enacted must conform to the principles of natural law, that is the principle of respect for each human being as an end in his or her self. Discriminatory laws would be a primary example of laws that cannot be properly enacted because it treats people has means not ends. Slavery would be the most dramatic example, because it treats some people (the free) as ends and others (the slave) as ends.

Kant’s Progressivism

As earlier mentioned, Kant, as the prototypical Enlightenment thinker, has a notion of infinite human progress, and of history as moving human society towards a predefined goal, what he identified as “the perfect cosmopolitan community.” The freedom of human beings as moral creatures and the inevitable forces of nature, including human nature, work together to drive the human race forward into a better future. In fact, Kant saw himself and his social philosophy as a part of that progress. This is a theme that Hegel and Marx will develop, and in the case of Marx on a purely material basis.

Kant’s view of progressive history finds its mechanism in his famous thesis of ‘unsocial sociability’:

The means which nature employs to bring about the development of innate capacities is that of antagonism within society, in so far as this antagonism becomes in the long run the cause of a law-governed social order. By antagonism, I mean in this context the unsocial sociability of men, that is, their tendency to come together in society, coupled, however, with a continual resistance which constantly threatens to break this society up. This propensity is obviously rooted in human nature. Man has an inclination to live in society, since he feels in this state more like a man, that is, he feels able to develop his natural capacities. But he also has a great tendency to live as an individual, to isolate himself, since he encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas. [7]

Human beings have both a social nature, which drives them to human society and a natural self-centered, selfish interest. It is the interaction of these two propensities, “the unsocial sociability of human beings” that drives humanity forward in the progress of human society.

The idea that human beings are in a state of perpetual progress has fallen from favor in recent years. Two world wars, the development of nuclear weapons, the destructive impact of industrialism on the environment, and other factors, have caused thinking people to move away from an idea of the historic inevitability of progress. From the point of view of American politics, both liberal and conservative American politicians invoke the idea of “being on the right side of history,” which is the side on which the speaker finds his or herself. This notion of progressivism in history is rightly critiqued for its implicit assumption that prior periods of history are valuable only for producing the present—and the present exists and is valuable only for its contribution to the future, which underlies the justification of the violence of Marxist totalitarianism.

Constitutionalism

One of the focuses of Kant’s later years might be termed an interest in the formation of constitutions consistent with the promise of human freedom and his notion of a “cosmopolitan community” in which the human race might achieve a just and lasting peace. His thought, naturally, was important in the formation of the League of Nations after the First World War and the United Nations after the Second World War.  In more recent years, his influence is apparent in the European Union.

Human beings naturally seek peace and security in a civil constitution founded upon law. [8] Such civil constitutions are to be judged by the degree of freedom that they allow and maintain and the degree to which they conform to natural law. Kant did not necessarily conceive of a modern democratic state as the only form a constitutional government might take, and so supported the German monarchy of his own day as one of the potential forms a constitutional government might take. He was, however, aware of the emerging American constitution and a supporter of its values.

Conclusion

We will now pass from Kant to Hegel and then back to America to look at Tocqueville’s writings about America. We will return to Kant a bit later, for he is not without impact on American pragmatism, especially in the form of Josiah Royce’s notion of the Beloved Community, which is a descendent of Kant’s Cosmopolitan ideal. We will also return to Kant when we return to political theology, for his reduction of religion to morality impacted generations of continental and American religious thinkers in important ways.

In the blogs to follow, I may be a bit more critical than I have tried to be to date, for we are now at the point where the thoughts of those we will be examining, like Kant, Hegel and Marx continue to have impact on society and on thinking and whose errors continue to impact decision making. As mentioned in this blog, much of the political language labeling opponents positions as “against the flow or goal of history,” which is both harmful and without content, stems from the notion that progress is inevitable and that history has an inevitably progressive direction.

History is made of the choices leaders and societies make, and the human race has experience long periods of destruction, stagnation and decline as bad decisions have been made by conquerors, emperors, dictators, visionaries and the like. The goal of studying history and the history of ideas is not to “enter a flow of predetermined progress” but instead to learn lessons that can avoid bad decisions and make good ones, something our politicians right and left need to learn.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See Immanuel Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History” https://en.wikisource.org/wiki/Idea_of_a_Universal_History_on_a_Cosmopolitical_Plan (Downloaded September 21, 2021).

[2] Hannah Arendt, Lectures on Kant’s Political Philosophy Ronald Beiner, ed (Chicago, IL University of Chicago Press, 1992), 16.

[3] Immanuel Kant, “Introduction to the Science of Right” in “Kant” Britannia Great Books, Vol. 42: Chicago, IL: Britannia Great Books, 1987), 397. Hereinafter, all citations are to this volume unless otherwise noted.

[4] Id, at 402.

[5] Kant, Groundwork, at 37.

[6] Kant, Groundwork, at 45-51.

[7] Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History,” Previously cited, Proposition the Fourth. I have italicized the phrase “unsocial sociability of men” for emphasis.

[8] Id, at Proposition the Seventh.

As mentioned in the last blog, David Hume created a critical empirical philosophy that was ultimately skeptical in its conclusions. If you remember, David Hume took the position that all we really “know” are successive sense impressions. Taken literally, this undermined in Hume’s eyes the reality of the human person, the reality universal concepts, causality, and other ideas central to modern science.

Immanuel Kant (1724–1804) credits reading Hume with “awakening him from his dogmatic slumbers”, leading to the creation of the most important work of continental philosophy of the late 18^th century. Kant’s thinking continued to influence philosophy through the 19^th and 20^th centuries and until today. After reading Hume, Kant set out to reestablish a ground for human knowledge, religion, science and morals in light of Hume’s critique.

Kant’s Structure for Philosophy

Kant adopts the Greek division of philosophy (the love of wisdom) into three categories:

• Physics (natural philosophy),
• Ethics (the study of what humans make of their freedom) and
• Logic (the study of formal logical systems, such as mathematics and formal logic).

Logic has no empirical component and so can arrive at analytical a priori certainty, but both natural philosophy and ethics have empirical components and so operate differently. [1]

One writer describes Kant’s position as follows:

Like Locke and Hume, Kant thinks we must realize that the boundaries of human knowledge stop at experience, and thus that we must be extraordinarily circumspect concerning any claim made about what reality is like independent of all human experience. But, like Descartes and Leibniz, Kant thinks that central parts of human knowledge nevertheless exhibit characteristics of necessity and universality, and that, contrary to Hume’s skeptical arguments, we can have good reason to think that they do. [2]

Kant’s Categories of Knowledge

Kant’s first philosophical move was to agree with Hume that all of real, positive knowledge of reality flows from experience. Kant’s second move, however, was to establish his position that reason forms this knowledge according to certain a priori categories, such as time, space and causality. These categories are not aspects of reality but aspects of the way in which human beings organize human knowledge. For example, the language of pure mathematics is analytically prior to all experience. Time, space, and causality, they are synthetic (or empirical) a priori categories of human thinking.

Before going forward, I want to look more deeply into Kant’s notion that time, space and causation are facets of the human mind, a priori ways in which experience is structured. Interestingly, this analysis will help understand his political philosophy and its weaknesses. Quantum physics and relativity theory cast doubt upon Kant’s  ideas as regards time, space, and causality. Time and space are not eternal ideas in the mind of God or human mind, they are relative features of the universe dependent upon one another for their determination. In the case of causality, one of the features of quantum physics is the breakdown of the Newtonian, common sense, everyday notion of causality in the subatomic realm. Our ideas of time, space, and causality, as important as they are, are relative features of the physical universe that we have uncovered to make sense of a variety of human experiences. They do not appear to be inevitable features of the human organization of experience. [3]

Kant also operates within the boundaries set by Descartes division between subject and object, the universe and the human knower. Quantum physics does not favor this approach, since it is a feature of quantum physics that the observer cannot be totally removed from his or her observations, in fact the observer determines to some degree the outcome of their observations. Quantum physics and Relativity theory would seem to favor a view of the human mind (observer) as part of the observed (the universe).

These observations lead to quite different conclusions from the stark division of Kant between what is a priori in the human mind and synthetic aspects of human experience. The human mind is part of the reality it is observing, and structures its thought around aspects of reality that have emerged in human history as important to understand the reality of which the human actor is both an observer and a part of the unfolding reality itself. This participation of the observer in what is observed is a feature of all human experience, including moral and religious reasoning.

Kant’s Ethics

As to ethics, Kant also believed that we have moral knowledge independent of experience, that is a priori. This was not analytic a priori, such as mathematics, but synthetic a priori. His categorical imperative is one such a priori kind of knowledge. For Kant, the fundamental moral principle, the categorical imperative requires human beings to act as if the action that they are contemplating could be universalized. In his Groundwork for the Metaphysics of Morals, Kant specifies the imperative as follows:

Act only in accordance with that maxim through which you can at the same time will that it would become a universal law. [4]

It goes without saying that Kant might be in error concerning just how, a priori this statement might be. It is found in the form of the Golden Rule in Christian faith and in other religions as well. It seems to be a part of that moral wisdom that human beings have intuited based upon the lives of generations of human beings, not an a priori aspect of the human mind. It is more as likely that this principle is not a synthetic a priori, a creature of the human mind, but a principle, like E=MC², that human beings have abstracted from human experience and regularities humans have noted in observing the inverse. In other words, morals are not solely internal to the human subject but features human beings have abstracted from a moral and ethical reality they experience and of which they are inevitably a part. In other words, the foundation of moral reasoning is not a priori rules, but rules of behavior which synthesize historic human experience as found in many traditions.

Foundations of Kant’s Political Philosophy

Freedom and Determinism. For Kant, political philosophy is a part of moral philosophy, which means that it operates with both an a priori and empirical (synthetic) component. This implies that Kant’s political philosophy is conditioned and directed by the early Enlightenment division between mind and matter and the radical schism between subject and object. As we shall see, this division impacts Kant’s political philosophy in fundamental ways.

For Kant, science is the realm of the determined while morals and politics are realms of human freedom. As material creatures, human beings seek their own best interests in a kind of constant economic and political warfare, but as moral beings, human beings seek to fulfill the demands of the moral law—to act according to universal moral principles intuited not from experience but from innate features of human thinking. These two forces (deterministic struggle and moral freedom) operate in tandem in human history, driving human history and the evolution of human societies. Interestingly, Kant does not see these two forces as necessarily opposed to one another. The forces are driving the human race towards peace, harmony and a better world. [5]

At this point, I return to the observation made earlier that Kant’s acceptance of a division between mind and matter leads him to divide the a priori and the synthetic and a similar division between determined economic forces and human freedom. It is more likely that there is an interplay between the moral, physical and other forces in human history than some kind of tandem coordinated operation. This is more in line with the thinking of C.S. Pierce than with the ideas of Kant.

In my view just as the quantum level of physical reality is characterized by freedom as well as the operation of scientific laws, so also in the realm of politics all decisions and all forms represent the free acts of human beings within the limitations of the laws of the physical universe, choices that may lead for good or evil. In other words, there is no universal movement towards a better future separate from human choices that create such a world.

The Unfolding of Universal History. In 1784, Kant published a work entitled, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History”. [6] This essay is important as it sets out a line of thinking that eventually emerges as a materialistic idea of the unfolding of history found in Marx. Kant theorizes that the forces of human history seen as the actions of the human will unfold in a deterministic pattern. Kant sets out his thesis as follows:

Considering that men, taken collectively as a body, do not proceed, like brute animals, under the law of an instinct, nor yet again, like rational cosmopolites, under the law of a preconcerted plan, one might imagine that no systematic history of their actions (such, for instance, as the history of bees or beavers) could be possible. At the sight of the actions of man displayed on the great stage of the world, it is impossible to escape a certain degree of disgust: with all the occasional indications of wisdom scattered here and there, we cannot but perceive the whole sum of these actions to be a web of folly, childish vanity, and often even of the idlest wickedness and spirit of destruction. Hence, at last, one is puzzled to know what judgment to form of our species, so conceited of its high advantages. In such a perplexity there is no resource for the philosopher but this,—that, finding it impossible to presume in the human race any rational purpose of its own, he must endeavour to detect some natural purpose in such a senseless current of human actions; by means of which a history of creatures that pursue no plan of their own may yet admit a systematic form as the history of creatures that are blindly pursuing a plan of nature. [7]

Kant unpacks his thesis noting that while human actions are free, these actions are guided by “nature” to a predetermined social end, the formation of a “universal civil society of all human beings founded on the idea of political justice.” In this line of thinking, Kant, whether consciously or unconsciously, laid the foundation for the kind of Marxist Millennialism that was found so destructive in the 20^th Centuries, and which evolved not into a “universal civil society of all human beings founded on the idea of political justice,” but into a kind of intolerable dictatorships that in its current forms look much like Nazism—a union of wealth and government in all-encompassing, dictatorial oligarchy.

Conclusion

Originally, I had intended to spend only one week on Kant and move to Hegel before returning to the American Constitution, but Kant is too complex and rich for such a plan. Next week, I will return to Kant as an interpreter and admirer of Rousseau, and look at the way in which the Romantic ideas of Rousseau influenced his political philosophy. For this week, I want to leave readers with the understanding that, at just the time that America was formed, the Enlightenment was entering a new period—a period that would produce Darwin, Marx, and others, whose thought is not sympathetic to the American constitutional project or free human societies.  Perhaps more fundamentally, cracks were forming in the optimistic, progress expecting, human centered foundations of the Enlightenment project, cracks that continue to grow. By the early to mid-20^th Century, the foundations of the Enlightenment had completely eroded and human history was entering the period in which we know live, often referred to as “post-modernity.”

[1] Kant begins his Groundwork for the Metaphysics of Morals by explicating this division and its fundamental importance. Immanuel Kant, Groundwork for the Metaphysics of Morals tr. Allen W. Wood (New Haven: Yale University Press, 2002), 3-4.

[2] “Kant on the Synthetic A Priori” (August 21, 2018). https://phil871.colinmclear.net/notes/kant-on-synthetic-a-priori/ (Downloaded September 17, 2021)/).

[3] See, Werner Heisenberg, Physics and Philosophy: The Revolution in Modern Science (New York, NY: Harper Perennial, 1958), 60-66. Importantly, Heisenberg concludes that, “no physicist would be willing to follo Kant here if the term “a priori” is used in the absolute sense given to it by Kant.” Id, at 62.

[4] Kant, Groundwork, at 37.

[5] I would just note that it would take a pretty big optimist to see in the current unfolding of the polities of the East and West anything like inevitable progress, which is one of the reasons many thinkers view the Enlightenment project as now clearly failed.

[6] Seem Immanuel Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History” https://en.wikisource.org/wiki/Idea_of_a_Universal_History_on_a_Cosmopolitical_Plan (Downloaded September 21, 2021).

[7] Id.

This week’s blog is a breather and chance to take stock of where we are in this review of political philosophy and theology and to look just a bit at the way forward. The adoption of the United States Constitution was the high-water mark of the Enlightenment’s contribution to politics. The establishment of the United States created for the first time a government born of the theories at which we have been looking from Hobbes through Locke (especially), Rousseau, Montesquieu, as well as other 18^th century thinkers we have not been able to review. The American Revolution was successful and a high point in the development of the modern world and modern democracy. History, however, never stops—and difficulties were to come.

French Revolution

Immediately after the Constitution was enacted, the French Revolution (1789-1799) erupted, with its nihilistic violence and the rise of Napoleon Bonaparte, causing thinking people everywhere to question its revolutionary idealism. The French Revolution, like other revolutions since, did not produce in France the stable democratic government and prosperity for which Enlightenment thinkers hoped. Instead, it produced deadly and erratic violence followed by a dictatorship that was a return to an imperial form of government characteristic of Alexander the Great and the Roman empire. Inevitably, the nations of Europe were engulfed in a long war against an aggressive military conqueror. Despite the progressive ideals of the Enlightenment, history seemed to be moving backwards.

American Unresolved Questions

The American Constitution, as critics often point out, left unresolved the question of slavery. During the first two-thirds of the 19^th Century, after a brief period of solidification of the national government and its structures, the question of slavery was the dominant political issue of the day—and an issue that American politicians found impossible to resolve peacefully. This led to the American Civil War and the adoption of the several amendments to the Constitution that both permanently outlawed slavery and eventually vastly expanded the powers of the national government. The Civil War and its amendments will be the subject of future blogs this fall.

The Civil War settled the questions of slavery and of whether the states were sovereign and free to leave or sovereign but subordinate to the Federal Government. Furthermore, the Civil War began the rapid emergence of the United States as an industrial, economic, and military power. This set the stage for American involvement in the two great world wars of the 20^th Century and what has been called, “The American Century.”

Political Philosophy After Locke

Philosophically, in my view, two thinkers brought the first phase of the Enlightenment to a close: George Berkeley (1685-1753) and David Hume (1711-1776). In particular, Hume’s radical skepticism threatened the entire Enlightenment project. [1] Immanuel Kant (1724-1804), who credited Hume for “waking him from his dogmatic slumbers,” and Fredrich Hegel (1770-1831) represent attempts to salvage Enlightenment on idealistic grounds. With Hegel the stage was set for the work of Karl Marx and the rise of 20^th Century Marxism. This period is what I will call the second stage of the Enlightenment Project.

Interestingly from the point of view of political philosophy, Hume and Kant represent a continuation of the hopeful political thought of Descartes, Newton, Locke and others. They tacitly accept the division of the universe into matter and energy (force) and the division sponsored by Descartes between mind and matter, as two sperate things. They are suspicious of revealed religion and especially the Roman Catholic Church. They supported republican democracy, and their work was designed to defend the social and political achievements of the Enlightenment.

Naïve Idealism

George Berkeley was a critic of the materialism of Hobbes, the rationalism of Descartes, and the empiricism of Locke. Faced with the stark mind body dualism of Descartes, Berkeley defended a kind of naive idealism in which the fundamental reality is not matter but mind. There is no mind body dualism because everything is mind. Berkeley saw the weakness of Lockean empiricism in the fact that all the ideas and knowledge human beings possess comes from the senses via the mind. There is no necessary connection in Locke’s empiricism between the material world and our ideas of it. We do not know things, only sense impressions.

In Berkeley’s system, there is no stable external reality, only ideas. The ground of the continuity of our ideas is God, who functions for Berkeley as the ground of reality and the guarantor of the validity of human perception and thought. Politically, Berkeley viewed God as the source of the moral and laws. As one author notes, “Berkeley conceived of his immaterialism as part of his lifelong struggle against what he variously called atheism, skepticism or free-thinking – the challenge to religious authority over the social world.” [2] Politically, he was a supporter of the status quo, of slavery, and of social stratification. His political thought has never been popular or important

Hume’s Skepticism

The radical idealism of Berkeley was gleefully and most people think successfully attacked by David Hume. Hume died the year tyear the American Revolution began, and in this sense he is a thinker that preceded the Constitution. His work, however, has been more influential in years since the American Revolution. Born in Scotland, Hume was the leading thinker of what is sometimes called the “Scottish Enlightenment. He was the son of a Presbyterian minister, who gave up his faith for a kind of radical skepticism. Although Hume was a congenial person, his conclusions made him anathema to the Scottish leaders of his day, and he was twice denied professorships. Early on he published his Treatise on Human Nature (1737-8) which did not receive the notice for which its author hoped. Only later was his work appreciated, which is why he appears at this stage of our study.

No less a skeptical thinker than Bertrand Russell found the conclusions of Hume convincing but horrifying, and could only hope for a valid refutation, none being forthcoming up to his lifetime. [3] Hume accepted Berkeley’s notion that all we know are sense impressions. In Hume’s system, however, there is no God to guarantee the stability of the world and human perception, nor is there any necessary connection between successive sense impressions. His radical disjunction between the human mind and the material universe led to conclusions that undermined the validity of all human knowledge, including Newtonian science.

In this regard, most philosophers focus on Hume’s denial of causality. Hume denies that we can know causes. We only observe a succession of impressions and infer cause from that succession, but that inference is not a direct observation of cause. In other words, Hume uses empiricist idea that all of our ideas are based on sense impressions to eliminate one of the foundations of modern thought, the notion of cause. Thus, he concludes:

In a word, then, every effect is a distinct event from its cause. It could not, therefore, be discovered in the cause, and the first invention or conception of it a priori, must be entirely arbitrary. [4]

Taken at face value, this conclusion makes scientific thought impossible. All science could conceivably do is establish wholly arbitrary connections among sense impressions. [5] Here we see the beginnings of Positivism, which will emerge in the 19^th and early 20^th Centuries.

From the standpoint of moral and political thought, Hume’s skepticism has two other results. First, is Hobbes conclusion that there is no human “self”. Remember that Descartes began his philosophical system with the observation that the thinks therefore he must exist. [6] Hume denies that this is a valid conclusion. According to Hume, all we can know is successive perceptions which succeed on another. In this, as in other areas, Hume is a forerunner of the radical denial of a stable “self” characteristic of some forms of modern and post-modern thought. [7] Although his common sense approach to morals and politics ignores the implications of his conclusions, in the end if there is no stable self, there can be no stable moral actor in personal or public morality.

Second, Hume is a radical nominalist. All generals are illusory. They are simply names we give successive sense impressions based upon future expectations, which are often unwarranted. All of our general ideas are simply terms annexed to successive sense impressions that enable us to recall those sense impressions. Thus, ideals such as the good, the true and the beautiful, the notion of virtue and other transcendental ideals are emptied of content except for their base in sense and expectation. C. S. Peirce, as readers may recall, viewed this as the end of all thinking and a gigantic error. Once again, Hume raised in Christian Europe and in a traditional Scottish household accepted the common early Enlightenment hostility towards tradition and attitude that Christianity could be stripped of all its supernatural aspects, such as miracles without undermining morality. He did not grasp that the emotional response that a middle-class 18^thCentury Scottish intellectual would have towards murder and other crimes might not be sustainable on the basis of a common human feeling of revulsion against such crimes.

Finally, Hume was a religious sceptic. As a child, he seems to have been religious, but in his adult life he rejected the miraculous and any form of orthodox Christianity. His radical empiricism and nominalism resulted in a denial of the rational validity of religious belief. He does not seem to have been an atheist so much as an agnostic, that is a person who does not believe that the question of whether there is or is not a god can be answered. His most famous religious conclusion is that no amount of evidence could possibly be created for miracles since some other natural explanation, however incredible, would be more likely to be true on empirical grounds. This view was based upon his definition of a miracle as something that transgresses a law of nature, a definition that many philosophers of religion reject.

Hume’s Political Thinking

Hume rejected both the notion of social contract maintaining that no government has ever been formed based on the universal consent of those governed, and any supernatural, divine source of government. Historically, Hume sees the contract theory as impossible, since there is no historic evidence for such a contract and many governments have been formed without such a contract, for example by conquest. In any case, even if there had been such a contract, no such contract would bind a future generation. Hume also rejects Locke’s notion of tacit consent, waging at attack on the idea that is nearly impossible to refute.

Hume grounds his political thought on the notion that people are loyal to a political system out of self-interest in the maintenance of a stable society. However a government is formed, it establishes a stable rule by creating conditions acceptable to its subjects. Once a stable government has emerged, it is founded on convention, that is on the mere fact that it exists and is performing the duties of a government. As such, Hume believes that there is no duty to support a government that is not performing its duties on behalf of society.

Hume’s practical, moral reasoning was empirical based upon the utility of an action. [8] Similarly, his political thought is utilitarian. Human governments are matters of convention based upon the need for protection from violence and justice in human relationships. Political legitimacy is based upon a government furthering the interests of its people. Government is legitimate only insofar as it promotes the common good. Once again, Hume seems not to have grasped that the notion of common good in his day was profoundly impacted by the Greco-Roman and Judeo-Christian tradition, and would not be able to be defended on Enlightenment principles alone.

Hume’s thought is also evolutionary. His view of political life is based upon his understanding of the gradual emergence of existing governmental forms, which was his own experience in Great Britain and its long history of the gradual evolution of democratic institutions. Hume was a political moderate, believing that excessive political conflict is ruinous to government. He supported the mixed form of government characteristic of Great Britain in his day.

Conclusion

I have placed Hume here in our philosophical wanderings because his thought, though not important during his lifetime contains the seeds of the final end of the Enlightenment project that emerges by the end of the 19^th Century. His radical skepticism will eventually win the day. Fortunately, by the early 20^th Century, a new physics and philosophical approach to fundamental issues will emerge, and with it hope to reconstruct a sound basis for freedom on somewhat different grounds. I am out of time and space, but hope to return to Hume again before this series of blogs is complete.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] When I refer to the Enlightenment Project, I am referring to the Age of Reason and the early enlightenment philosophers and their followers, who believed that human reason would liberate the human race from religious prejudice, monarchy, limited liberty, and usher in an era of unlimited progress. This period ended with the work of Darwin, Marx, Nietzsche and Freud whose work undermined confidence in human reason and exposed the psychologically dark materialistic, power-worshiping side of modernity. We will cover the “Four Horsemen” of the end of modernity in the Fall of 2021 Spring of 2022, I think.

[2] Tom Jones, On the necessity of obedience https://aeon.co/essays/from-immaterialism-to-obedience-in-the-philosophy-of-berkeley (downloaded, September 10, 2021).

[3] Bertand Russell, A History of Western Philosophy (New York, NY: Simon and Shuster, 1945), 659

[4] David Hume, Essay Concerning Human Understanding, Part I, Section 25 in Hutchins, Robert Maynard. 1955. Great books of the Western World. Chicago: Encyclopedia Britannica, Volume 35: “Locke, Berkeley, Hume”

[5] This was Alfred North Whitehead’s conclusion concerning the impact of Hume’s reasoning. See, Science and the Modern World (New York, NY: Beacon Press), 1925. We will examine Whitehead’s response to Hume when we look at process thought and its political implications.

[6] “Cognito Ergo Sum” or “I think, therefore I am.”

[7] Once again, Whitehead’s philosophy contains an explicit, and I think convincing answer to Hume, which will be dealt with in due time. Our personal identity does evolve under the pressure of all the incidents of our lives, which the self absorbs and integrates all of the experiences of our life, occasionally with fundamental results, but the notion of personal identity is fundamental in the self-identity experienced by human beings. See, Whitehead, Adventures in Ideas (New York, NY: Beacon Books, 1933) 186-187. From a religious point of view, a transforming moment of faith changes the human person in fundamental ways, but also leaves present the person who has come to faith.

[8] In this sense Hume is a forerunner of Utilitarianism, which will be dealt with later in these blogs. In passing, I note that Hume can also be seen as the forerunner of logical positivism.

The first Amendment to the Constitution provides that “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.” [1] As mentioned last week, this provision provides Americans with five freedoms: religion, speech, the press, public assembly, and petitioning government for redress of grievances. In this blog, I am only going to address the first of these, but they are all of fundamental importance to American life.

Freedom of Religion

Why this particular list of rights was placed first in the list? Why was freedom of religion so important to the nation at the time of its founding—so important that Congress was more or less required to pass the First Amendment as part of the process of ratification of the Consitution? Was it just a matter of convenience or chance? I do not think so. The experience of the founders and their study of history persuaded them that these rights are fundamental to the maintenance of the form of representative democracy.

In Europe, prior to the American Revolution, all of these rights were restricted in many ways. As to religion, it was customary in Europe for governments to establish a national religion, to which all persons and all leaders had to subscribe. In Great Britain for example, the king and leaders of the government were required to be Anglicans, and before that Roman Catholics. Often those not of the established religion suffered political and economic disadvantages. Upon occasion those not of the established religion were persecuted. As a result, there was social conflict. The founders did not want the United States to experience the kind of conflict Europe had experienced over these matters. Therefore, they enshrined in the Bill of Rights a restriction on the establishment of any particular religion to be required of citizens..

In addition, at the time of the adoption of the Constitution, many of the states had established churches. In the South, the Anglican faith was often the established church, while in the North, it was frequently a particular Protestant faith group. Naturally, there was a fear among all these faith groups that some other group would end up as the established religion of the new nation. This would have provoked the exact situation that many colonists had come to America to avoid—religious persecution. In order to remedy the danger, the establishment clause was deemed necessary.

The text of the amendment was largely authored by James Madison, who modeled the amendment after the Virginia Declaration of Rights. By its terms, the freedom of religion provisions of the First Amendment apply only to the national government; however, in the 20^th Century the First Amendment was applied to the states via the 14^thAmendment. [2] There have always been tensions between the national government and a particular social consensus and the right of religion and such tensions continue to exist today. [3]

The Central Importance of Freedom of Religion

In guaranteeing freedom of religion, the founders were acknowledging that in our form of government people may have an ultimate loyalty different than loyalty to the state. That is to say that having religious faith, even a faith of which the dominant party does not approve, is a basic American right. It is not unfair to say that freedom of religion is the ground and basis of all other rights, for in granting this freedom a government is acknowledging a fundamental limitation on what government can and should legislate. Government may legislate in matters related to the public good of a society, but cannot interfere with the private ultimate concerns of individuals nor the exercise of their religious faith except under very limited conditions as it regulates matters which is entitled to regulate. [4]

It is difficult to over-estimate the importance of religious freedom to the maintenance of a free society. Totalitarian regimes of the 20^th Century have persecuted some religious group. In the Soviet Union it was Orthodox Christians. In Nazi Germany, it was Jews and Christians who did not align themselves with the ideology of the regime. In parts of China today, it includes Muslims and other religious groups. In some Muslim nations it is all non-Muslims. For citizens of the United States, the First Amendment ensures their fundamental right to practice their religion and to speak publicly concerning their faith. [5]

Separation of Church and State

Perhaps the most contentious application of the First amendment in modern times has been the implication of the First Amendment that there must be some kind of “separation” of Church and State. Any analysis of this view must begin with the plain fact that the First Amendment simply says that Congress cannot establish a religion. It says nothing about separation. However, the grant of religious freedom itself implies some degree of separation, since the government cannot make laws that restrict religious freedom and the expression of religious faith.

As early as 1635 Roger Williams, the founder Rhode Island and separatist/puritan, publicly stated his belief an genuine Christian church required “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Williams was a contentious individual, and had been in conflict with the religious and other leaders of Massachusetts over his views on property and religious matters.

In 1802, Thomas Jefferson used the phrase “Wall of Separation” in a private letter to describe his feelings about the nature of the separation the Constitution embodies. Jefferson wrote to the leaders of the Danbury Baptist Church:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. [6]

Jefferson’s letter, however has been important to the United States Supreme Court. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause. Writing for the Court, Justice Black, after setting out in detail the history summarized here stated:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” [7]

Before, and ever since Everson, the language of “Wall of Separation” has been a phrase of contention and difficulty for the Court and scholars. The phrase itself is not very helpful, for there never was nor can there be such a “wall.” It is better to stay with the idea of rights to believe and exercise that belief free from interference by the government.

One continuing idea of this series of blogs is the notion that human beings and human societies are inherently social and interconnected. It is neither desirable nor possible to divorce individuals nor to enforce some kind of artificial division between religious faith and public life. There are and must be areas in which religion is free to operate without governmental inferference. There are also areas where government is free to operate which may impact religious groups—and these areas are not necessarily separated. For example, freedom of religion does not permit religious sects to engage in human sacrifice, and the state has a valid concern in protecting “life, liberty and property” in regulating the taking of life.

Wall of Separation language is used to buttress decisions made on other grounds—and can lead courts to bad decisions. It is a better notion to talk about religion and government as operating in different spheres of human life, touching upon each other and impacting one another at various points. The goal of the Constitution and courts in interpreting the First Amendment is to express limitations upon each in the proper exercise of their functions. There is and can be no “wall of separation” because human life is unitary and our ultimate concerns impact our political life and our political life impacts our ultimate concerns.

Limitations on First Amendment Rights

The current Covid19 epidemic has provided a series of challenges that can be helpful in thinking through what the First Amendment does and does not allow and prohibit. There have been a number of cases challenging public health initiatives, mask regulations, restrictions on gatherings, and the like on religious grounds. The responses of the courts sometimes have sometimes had a political tone, nevertheless the following seems to be the case:

1. The states and national government have a valid interest in protecting against Covid19, and religious groups have no absolute religious exemption from reasonable, valid health regulations.
2. If a state is to have restrictions that apply to religious organizations, such restrictions cannot be different than those on comparable groups, and of course, cannot be motivated by animus against religion or a religious group.
3. The courts are not equipped or empowered to, nor should they, second guess governmental determinations about the seriousness of the epidemic or adequate health regulations equally applied to all similarly situated entities, including churches. [8]

It would be nice to think that we are past the Covid19 cases, but the emergence of the Delta variant and the pressure to bring back masks and some forms of restrictions on public meetings may render this untrue. On the part of government, restrictions need to be carefully crafted, recognizing the importance of religious institutions to human life. On the part of churches, there needs to be an acceptance of the fact that the First Amendment does not give religious institutions any kind of absolute exemption from public health regulations.

It would seem to me that these principles are those that ought to guide the court in this area as in other areas. For example, there is no absolute exemption to religious groups for zoning regulations; however, a zoning regulation that seems to target churches, is dissimilar to regulations governing other entities that are similar, for example non-profit groups, and which would render the freedom of religion meaningless, should be suspect on exactly the criteria mentioned above.

Conclusion

We are not finished with the First Amendment, to which I will return near the end of these blogs. I count myself among those who are concerned about the state of religion and religious freedom in our nation. It is the premise of these blogs that religion plays an important role in human life and in human society. Its voice needs to be heard in matters of public concern, and there should be few restrictions imposed under the guise of restricting “hate speech.” In a free society, we all have to tolerate a people with beliefs and policy preferences to which we object. This is true for all Americans. On the other hand, the right to speak and to exercise religious faith in public is not a carte blanche to ignore the good of society or not be faced with legitimate regulation for the public good. Public health reputation is a very good example of a legitimate area of governmental interest.

This is where the “politics of love” has something to say, and Christians should be in the forefront of moving our society from its beguilement by identity politics and emotion-laden language about public matters. Public officials need to serve all their constituents, including religious groups, giving them the most freedom that is possible in any given situation. Religious groups need to give public agencies the benefit of their views and the benefit of their willingness to compromise in the process of seeking the public good.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Amendment 1.

[2] I will discuss the 13^th, 14^th, and 15^th Amendments when we reach the Civil War and its aftermath in this study. See, Cantwell v. Connecticut 310 US 396 (1940).

[3] For example in Reynolds v. United States 98 US 145 (1879), the U.S. Supreme court was faced with a challenge to a law prohibiting polygamy on the grounds that such a restriction would interfere with the religious beliefs of Mormons. Reynolds was a Mormon and claimed that polygamy was an essential part of the practice of his rekgions faith. The court upheld the law prohibiting polygamy. In Engle vs Engel v. Vitale, 370 U.S. 421 (1962), the court held that public schools cannot have a written prayer as a part of the their day, as whatever the form of that prayer, it would interfere with students of some other religion in such a way as to establish a religion.

[4] I am using this term made popular by the theologian Paul Tillich. In his book Dynamics of Faith, Tillich uses this definition of faith as state of being ultimately concerned. If an object of faith (God or whatever any religion claims ultimate) such faith demands the total surrender of the person who accepts this claim on his or her life, and that faith promises total fulfillment even if all others have claim to be subjected to it or rejected (See Paul Tillich, Dynamics of Faith (New York, Harper & row, 1958), 1.

[5] In the beginning, the First Amendment protected minority Christian sects and Jewish people from religious persecution. Today, the Supreme Court has recognized that, under the pluralistic condition of contemporary America that freedom extends to all religious.

[6] Thomas Jefferson, Letter to the Danbury Church (January 1, 1802).

[7] Everson v. Board of Education, 330 US 1 (1947).

[8] The Federal Courts and US supreme court have been faced with a variety of challenges to various restrictions placed upon religions organizations due to the Covid epidemic. Justice Ginsburg died during the emergence of these cases and there has been some change in the direction of the court since Amy Comey Barrett joined the court. However, the general direction of the court has changed only in degree, in my opinion, not in legal substance. For a complete list of cases see, United States courts, “Court Orders and Updates During COVID-19 Pandemic” https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic, downloaded September 1, 2021.

 

During the convention, there was considerable attention given to the process for adoption of the Constitution. Initially, the issue revolved around whether the Constitution should be sent to the Congress to be ratified as was the Articles of Confederation (and thereby treated as no more than an amendment to that document). The founders were of the view that the transformation of the government into a supreme national government required a different ratification process. They felt the document needed to be ratified in some way by the people themselves and not by the states, which would establish the sovereignty of the new government within its sphere of responsibility.

A second procedural question revolved around how many states would be required to institute the new government. This was an important question, for all states were required to adopt the new Constitution it would surely fail, but if too few states joined, it might also fail. In the end, Article VII provided that if nine of the thirteen states were to ratify the Constitution, it would be sufficient to create the new government among the states so ratifying the document. [1]

Ratification

As mentioned above, Article 7 provided that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” [2] Notice that Article VII establishes a procedure by which each state would have a convention made up of representatives of the people who would ratify or fail to ratify the Constitution. This particular provision was not without controversy at the time because the Articles of Confederation provided that it would take a unanimous agreement of all states to amend the document. [3]

In Federalist No. 40, Madison defended the action of the Convection as warranted because this was not merely an amendment of the Articles of Confederation but a fundamental change of the form of government to which the people ought to consent. Thus, Madison wrote in The Federalist No. 40 that, “in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” [4] In other words, from a practical point of view, ratification by the people was the best means, since a substantial change in the form of the national government was to be effected.

From a practical point of view, the process was necessary to remedy in practice a defect of the Articles of Incorporation: it required unanimous consent for amendments, which was too high a bar for effective government. The founders were practical people. They wished to create a process that would ensure that changes were not made for purely political or passing reasons, but which would enable the document to be modified when necessary. The founders, and especially Hamilton did not consider that they were omniscient or had created a perfect document, and they wanted to provide a reasonable chance for change. [5]

On June 21, 1788, not a year after the proposal was sent to the states, New Hampshire became the nineth state to ratify, and the Constitution became the supreme law of the land. It is notable that after New Hampshire, two of the most powerful states, New York and Virginia ratified the document, indicating their desire not to be “left behind” in the establishment of the new nation and disadvantaged by the new union. [6]

Need for the Initial Bill of Rights

The single greatest objection to ratification of the Constitution was the absence of a Bill of Rights. In the end, the first ten amendments were added to the document to satisfy those who opposed the Constitution on this basis. During the Constitutional Convention, it was understood that the absence of a Bill of Rights could be a barrier to adoption of the Constitution. On September 12, 1787, George Mason of Virginia made a motion to the Convention to create a Bill of Rights. Elbridge Gerry of Massachusetts seconded the motion. Since both were opposed to the new form of government, they might not have been the best persons to make the motion, and Mason’s motion failed. However, their motion was an indication of the importance a Bill of Rights might be in the ratification process.

This was not the end of the matter. Thus far, I have been quoting the Federalist Papers, but the Federalist Papers were not the only papers prepared. The antifederalists had their own intellectual army. Robert Yates, writing under the pseudonym of Brutus, wrote the following:

Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage. [7]

The situation in Massachusetts was especially violent and a warning to the Federalists of problems in securing the ratification of the document in certain states. By this time, the need for a Bill of rights was obvious and during the first Congress, James Madison, now a Congressman from Virginia, went about the business of creating one. He made an examination of various potential amendments and made a proposal, ten of which were enacted as the first ten amendments to the Constitution in 1791.

Bill of Rights as Adopted

Set out below is a brief description of the Bill of Rights:

• The First Amendment: Five Freedoms. The First Amendment protects five basic liberties. They are (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to right wrongs. These were the guarantees that the Anti-Federalists complained were importantly missing in the new Constitution.
  • Freedom of Religion means that the government may not force you to accept one set of religious beliefs nor may it interfere with the way you worship. [8]
  • Freedom of Speech entitles American citizens to say what they think, provided they do not intentionally hurt someone else’s reputation by making false accusations. Neither may they make irresponsible statements deliberately harmful to others, such as yelling, “Fire!” in a crowded theater when there is no fire. There are many issues about which Americans disagree, from child-rearing practices to baseball teams to Presidential candidates. Freedom of speech enables people to state their opinions openly to try to convince others to change their minds.
  • Freedom of the Press makes it possible for Americans to keep informed about what is going on in government. It helps them to be responsible citizens. Reporters and editors can criticize the government without the risk of punishment, provided they do not deliberately tell lies. Newspapers, magazines, and books, as well as television and movie scripts, do not have to be submitted for government inspection before they are published. This censorship would violate the First Amendment.
  • Freedom of Assembly makes it possible for Americans to join clubs or political parties, even if those groups represent unpopular views.
  • Freedom to Petition allows people to tell the government what they think is needed. They can try to prevent the government from acting in a certain way. They can complain to the government without fear of penalty when things aren’t going the way they should.
  • The Second Amendment: The Right to Bear Arms. The Second Amendment both recognizes that individual have the right to maintain “a well-regulated militia,” and that citizens have the right to “keep and bear arms.” [9]
  • The Third Amendment: Housing Troops. The Third Amendment pledges that in peacetime citizens will never have to keep soldiers in their homes without consent.
  • The Fourth Amendment: Searches and Seizure. The Fourth through Eighth Amendments concern the rights of people suspected of a crime. The Fourth Amendment protects citizens from improper searches of their bodies, possessions, or homes. It requires that a detailed warrant be issued by a judge listing what can be searched. There has to be a good reason for the search.
  • The Fifth Amendment: Rights of the Accused, Due Process of the Law, and Eminent Domain. The Fifth Amendment protects the rights of anyone accused of a crime. It assumes that everyone is innocent until proven guilty.
    • Grand Jury. When a person is accused of infamous crime, including especially one for which the punishment could be death, the Fifth Amendment requires that a “grand jury” look at the charges before that person can be brought trial. A grand jury is a group of citizens who decide if there is enough evidence to try a person. It is intended to prevent people from being falsely accused of a serious crime
    • Multiple Trials. The Fifth Amendment states that the person cannot be tried twice for the same crime, prohibiting so-called “Double Jeopardy.”
    • Self-Incrimination. The Fifth Amendment guarantees citizens freedom from against “self-incrimination.” This means people cannot be forced to testify against themselves. Under the Fifth Amendment, law enforcement officials must produce the evidence necessary to convict a person of a crime. The accused person cannot be made to provide it. The guarantee against self-incrimination makes sure that unfair pressure cannot be used to make a person confess.
    • Due Process of the Law.Another section of the Fifth Amendment holds that “no one can be deprived of life, liberty, or property without due process of law.” In other words, the government must follow certain legal procedures before deciding on a penalty. It can’t jail a person because it suspects that the person committed a crime. It must prove the accusation by following certain rules and methods.
    • Eminent Domain.Finally, the Fifth Amendment requires the government to pay citizens when it takes over their property for a public use. The government’s right to take this property is called “eminent domain.” Suppose the state wanted to build a highway which would run right through your residence. It would have to pay the owners a reasonable price for the property. The government could force you to move, but at least it would have to provide you with the money to relocate.
  • The Sixth Amendment: Fair and Speedy Trials. The Sixth Amendment provides more requirements for a fair trial in criminal cases. It guarantees a speedy, public trial by an impartial jury in the area where the crime was committed. The defendant must be able to question the accusers and to force favorable witnesses to testify. The accused has a right to a lawyer.
  • The Seventh Amendment: Jury Trials. The Seventh Amendment guarantees that Americans will receive a jury trial in civil (as opposed to criminal) cases involving property worth more than $20 and no fact can be retried without a jury making findings of fact.
  • The Eighth Amendment: Bails, Fines, and Punishments. The Eighth Amendment protects people from having to pay unreasonably high “bail” in order to be released from prison before they go to trial. Bail is money given to pledge that a person accused of a crime will appear for trial. The Eighth Amendment also protects people from unreasonably high fines. Finally, it outlaws cruel and unusual punishment. This requirement, as well as the Fifth Amendment’s guarantee against self-incrimination, protects citizens from the use of torture. [10]
  • The Ninth and Tenth Amendments: Reserved Powers. The last two amendments address the liberties of citizens and the rights of states. The Ninth Amendment states that the Constitution and the Bill of Rights do not define all of the fundamental rights people have. Such rights exist whether or not they are defined. The Tenth Amendment makes a similar claim concerning the rights of the states. It holds that the states and the people have powers that are set aside and not listed item by item. These powers are called “reserved powers.” They can be contrasted with “express powers,” which are specifically defined in the Constitution.

With the adoption of the Bill of Rights, the Constitution as it was initially created was complete.

Conclusion

The Bill of Rights is important for a number of reasons, and much Constitutional Law revolves around application of its provisions. The Bill of Rights is initially important for by forcing its adoption and experiencing the ratification process, the United States of America put into effect the amendment process, and showed that a free people could be trusted to amend their fundamental charter. The elites of the nation, and especially Hamilton, did not think that a Bill of Rights was either necessary or desirable. The people disagreed and it was the will of the people which prevailed. In the beginning more than ten amendments were proposed, but ten were finally chosen. Today, one can hardly imagine the United States Constitution without the Bill of Rights. Its importance to the nation and to human liberty cannot be over-estimated.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Article VII.

[2] Id.

[3] Articles of Confederation, Article XIII.

[4] Federalist Papers, No. 40 (Madison).

[5] As an aside, I doubt that the Constitution could have been adopted in its original form had the convention process with a nine-state minimum not been devised for ratification. Patrick Henry, of Virginia, was a leader of the group opposing ratification.

[6] The states ratifying the document and dates are: Delaware – December 7, 1787, Pennsylvania – December 12, 1787, New Jersey – December 18, 1787, Georgia – January 2, 1788, Connecticut – January 9, 1788, Massachusetts – February 6, 1788. Maryland – April 28, 1788, South Carolina – May 23, 1788, New Hampshire – June 21, 1788, Virginia – June 25, 1788, New York – July 26, 1788, North Carolina – November 21, 1789, Rhode Island – May 29, 1790. Vermont was not a state at the time the Articles of Confederation were adopted and did not participate in the Convention or ratification.

[7] See, “Brutus,” Essays I, VI, X-XII, and XV (Oct.18 and Dec.27, 1787; Jan. 24 and 31, Feb. 7 and March 20, 1788) for a full series of the antifederalist arguments.

[8] I intend to do a separate blog on this particular amendment, since it is important to the reason for these blogs.

[9] Because criminals often used unlicensed weapons to hurt others, some people have urged the national government to control the sale of guns. Other people have argued that gun control is a violation of the Second Amendment. The wording of the document would seem to indicate that to attempt to regulate this would interfere with a fundamentally state right.

[10] Currently, the most important cases involving this amendment concern whether the death penalty is a form of cruel and unusual punishment.

Article VI of the Constitution provides for the assumption by the new government of the debts of the United States as it existed under the Articles of Confederation, that the US Constitution, and all laws made from it are the Supreme Law of the Land (the so-called “Supremacy Clause”), and all that officials, whether members of the state legislatures, Congress, judiciary or the Executive have to swear an oath to the Constitution, with the limitation that no religious test can ever be made for holding of public office.

Assumption of Debts

As indicated previously, one of the most vexing problems under the Constitution involved payment of the national debt, most of which was incurred during the Revolutionary War, and the payment of which was made impossible by the lack of a taxing authority in Congress under the Articles of Confederation. The inability of the national government to make full payment on this debt was both an embarrassment and a source of difficulty in securing the new nation a position among the nations of the world, and particularly those, like France, who had assisted the new nation during the war. One of the most important goals of those who supported a stronger national government was to provide for the payment of these debts.

Under international law, it was possible that the debts of the nation might be avoided due to the radical change in form the Constitution would envision. The first clause of Article VI was inserted with the intention of avoiding the inference that this was the case and to assure the creditors of the nation that the new government would pay the debts of the old. [1] Madison thought the provision declaratory of the intention not to attempt to avoid the debts created under the Articles of Confederation by a legal devise, but to meet the economic obligations of created under the former form of government. [2]

Supremacy Clause

The Supremacy Clause provides that the laws of the United States, laws enacted by Congress, and valid treaties made according to the process set out in the Constitution are the supreme law of the land, binding on both state and federal officials. Neither other provisions of the Constitution nor any state laws may allow or create a contrary result. Today, Americans take the supremacy of the national government for granted. However, it is important to remember that this was not the case in 1787. The danger at the formation was not of a federal power capable of rendering state sovereignty illusory, but of states that rendered the national sovereignty illusory.

Under the Articles of Confederation, state courts had the power to interpret the Articles of Confederation and any enactments of Congress under the prevailing doctrinal fact that the national government was not supreme, but only the organ of a confederacy of independent states. This meant that the thirteen states could end up with thirteen different interpretations of federal law. The result was chaos.

The framers were creating a form of government in which there would be dual sovereignty: the states supreme with respect to the matters entrusted to their control and the national government supreme as to matters entrusted to its control.

Hamilton defended this dual sovereignty in Federalist 27, saying:

It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [3]

The phrases put in capital letters gives Hamilton’s view of the situation. The Federal Government’s supremacy extended to its enactment and enforcement of laws pursuant to its “legitimate, enumerated powers.” Federal and state magistrates, legislatures and courts are bound by such enactments as far as the just and constitutional authority extends.

It was not long, however, before the rather narrow boundaries set by Hamilton were extended by the courts. Chief Justice Marshall, speaking for the Court, stated that ‘‘the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” [4]  In the court’s view, their decision was “the unavoidable consequence of that supremacy which the Constitution has declared,” a position that the Court has not changed in the intervening period. [5]

Oaths and Religious Tests

Under the third clause of Article VI, Senators, Representatives, Members of the state legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by oath to support the Constitution; however, no religious test can be required as a qualification to any office or public. This provision has two distinct features:

1. Both state and national officers must take an oath of loyalty to the Constitution.
2. While Congress can designate a form for such and oath, no such oath can involve a “religious test.”

From the beginning, it was envisioned that both state and national officers would need to pledge loyalty to the system of government that the Constitution established. As Madison notes in the Federalist Papers, various provisions contained in the Constitution require the cooperation of state officials to bring to fruition, matters such as the election of Senators and Congressman, and electors for the office of President. [6] While not without controversy, it is clear that, for the national government to be supreme within its sphere of influence, it would be necessary for state officials to support and defend the Constitution as well as faithfully execute their offices where constitutional matters were concerned. The reverse was not felt to be true, because state governments were sovereign already and the functions of the state government were not similarly intertwined.

A bit of history helps one to understand the prohibition on religious tests. The founders were aware that, at various times, religious tests for office had been a feature of British law, used to force compliance with the religious views of a king or queen. These laws were used during the instability surrounding the period from Henry VIII to the Glorious Revolution in such a way that Catholics and Protestants were impacted. The founders wished to avoid the recurrence of this kind of religious persecution on American soil.

Conclusion

By and by large, the success of Article VI is demonstrated by the relative lack of controversy that it has engendered in recent times. The responsibility of the United States government for the debts incurred under the Articles of Confederation is a problem long solved. Today, the greater problem is the seemingly endless amount of debt the federal government incurs.

In the beginning, it was necessary to work out the implications of the Supremacy Clause, for some if not all of the states were impacted by this provision and it was natural that its scope would have to be defined. Today, the greater difficulty might be in defining the limits of the Supremacy Clause, for today the scope of federal power and responsibility is much greater than at the time of adoption of the Constitution. Consistent with the relational and organic position of these blogs, my view is that the Supremacy Clause is not a warrant for the federal government to ignore the sovereign rights of the states. In a state of dual sovereignty, it is the duty of the greater power to not interfere with the lesser powers without due cause.

The oath of office controversy was substantially a controversy that impacted the adoption of the Constitution and the operation of the government in the early years when fidelity to the Constitution could not necessarily be assumed. Today, the greater issue is the effectiveness of oaths in a world in which oaths and moral commitments are often not seen to be binding.

A particular continuing item of importance is the prohibition on religious oaths. Various more liberal members of Congress have from time to time voiced the opinion that Christians, perhaps especially more conservative Christians, should not be able to serve in certain offices. When the religious tests provision was included in the Constitution, the obvious concern was to prevent a dominant group, probably Protestants, from requiring an oath that would prevent minority religious groups, probably Catholics, from holding office. This was a problem that they clearly recognized as a feature of English history to be avoided. Today, what might be called “secularism” functions as a religion for many people, especially among political and economic elites. The religious tests provision provides (or should provide) a barrier against religious discrimination of exactly the kind the founders sought to avoid.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved 

[1] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961) No. 43 (Madison), found at 278. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[2] It is most interesting that Madison believed the debt to be a moral obligation that should not be avoided by recourse to international law. Id.

[3] Federalist Papers No. 27 (Hamilton)

[4] McCulloch v. Maryland 17 U.S. 436 (1819).

[5] Id.

[6] Federalist Papers, No.44 (Madison).

This week, I intended to write the final blog on the original Constitution, leading to a review of the ratification and Bill of Rights. Then, I took time to read a book, Bonhoeffer’s Seminary Vision, for another project in which I am involved. ^[1] The book made such an impression, and was so important for the project, that I am doing a blog on Bonhoeffer’s vision for theological education. This undertaking is not wholly unconcerned with the larger issue of political theology, because Bonhoeffer wrote much related to political theology and his life is a testament to faithful Christian political involvement in difficult times. Near the end of this series of blogs, we will again consider the life and thought of Dietrich Bonhoeffer. It seems to me that he is the most important figure of the Twentieth Century for those who wish to ponder the role of faith in political life.

Bonhoeffer’s Life and Seminary Experience

Briefly, Dietrich Bonhoeffer was born in February 1906 to Karl and Paula Bonhoeffer. His father was a psychiatrist and not religious. His mother came from a family which included notable German pastors and was deeply religious. There is no question but what his mother’s faith impacted Dietrich. Shortly after an elder brother was killed in World War I, young Dietrich announced to the family that he would be a pastor.

At eighteen, Bonhoeffer entered the University of Berlin. There Bonhoeffer first read and was influenced by the work of Karl Barth. He became a Biblical theologian deeply influenced by Barth’s neo-orthodoxy. He finished his doctoral dissertation, entitled, The Communion of Saints: A Theological Study of the Sociology of the Church at the age of twenty-one. [2] By his late twenties, Bonhoeffer was teaching theology and making a name for himself as a theologian. His interest in theology and church practice continued for the rest of his life.

In 1930, after a brief pastorate in Barcelona, Spain and finishing post-doctoral work in Germany, Bonhoeffer had the chance to visit the United States to do post-graduate work at Union Theological Seminary in New York. There, he had a spiritual awakening, largely as a result of his experience with the black community and their congregations. For the rest of his life, he was dedicated to putting faith to work in life, first and foremost in his own life.

When Hitler came to power in 1933, Bonhoeffer immediately opposed his rule, and was known as an adversary of the Nazi regime from its inception. When the German Church movement began, instituting both Nazi control of the German church and Nazi ideology within its confessional life, Bonhoeffer opposed Hitler and the Nazi party and joined the Confessing Church movement. When the Confessing Church movement needed a person to lead its efforts at theological education, it naturally turned to Bonhoeffer, and so in 1935 he became head of the seminary of the Confessing Church. [3] He served in this position until 1940 when the seminary was closed. Shortly after the closing, he became involved with the German resistance to Hitler in a different way. He was arrested in 1943 after an unsuccessful attempt was made on Hitler’s life. He spent the rest of his life in custody, and was executed in April 1945.

During his years as leader of the Confessing Church seminary, Bonhoeffer wrote two of his most important books, Cost of Discipleship and Life Together. ^[4] Both books emerged from, and drew upon, his experience as a seminary leader and instructor, his already well-developed theology of the church, and his experience as a leader of the Confessing Church, who was concerned for the faithfulness of the church within a hostile political and cultural environment.

Cost of Discipleship grew out of lectures on the Sermon of the Mount that Bonhoeffer gave at the seminary. Its concern was to warn the pastors in training about the danger of “Cheap Grace” and to empower them to model discipleship in their ministries. The original German title best translates, “Following.” His concern was that German Protestantism had become too much a matter of intellectual subscription to a creed and attendance at worship and too little concerned with hearing the call to “Follow me” as a disciple willing to live and experience life just as did Jesus Christ. In the book, he describes Cheap Grace as, “the preaching of forgiveness without requiring repentance, baptism without church discipline, Communion without confession, absolution without personal confession. Cheap grace is grace without discipleship, grace without the cross, grace without Jesus Christ, living and incarnate.” [5] His belief was that the Protestantism of his day in Germany had been guilty of this offense against the Gospel.

The most distinguishing characteristic of the Confessing Church seminary was the integration of spiritual disciplines and theological education. Life Together is a theological reflection drawn from the “Rule of Life” by which the seminary lived, which included, in addition to academics, prayer, Bible Study, meditation, common worship, and confession. The daily times of worship included singing, scripture, prayer, and sermons, often given by Bonhoeffer. Bonhoeffer lived in the community except on the occasions when his other duties for the Confessing Church took him away. In particular, he was the first to confess in the community when present to set an example for the students. Not all of the students appreciated Bonhoeffer’s approach but those who did were profoundly changed by the experience.

Application of Bonhoeffer’s Seminary Vision

Bonhoeffer’s Seminary Vision outlines the implications of Bonhoeffer’s life and thought for modern seminary education. For the most part, the book draws Life Together and the Cost of Discipleship in making its case.  In so doing, House develops a consistent, Biblical, and historical challenge to much of contemporary theological education on all sides of the denominational and theological spectrum. The book is so well-written and theologically and biblically deep that I will not even try to give a detailed account of his argument, but will be content to summarize House’s conclusions. I do encourage anyone interested to read the book. With this background, here is a summary of House’s conclusions:

1. Seminaries Need to Educate Committed Students to be Committed Pastors. As anyone remotely interested in education knows, seminaries have been profoundly impacted by changes in American society and by the implications of certain policies for education generally. In particular, some students attend seminary not out of a call to ministry, but out of a desire to explore Christian faith. Student loan programs have made it possible for many more people to attend seminary than would attend without generous scholarships, federally-insured loans, and admission committees willing to admit nearly anyone who can find a way to pay the cost of the education. The result has been a decline in the pastoral quality, and perhaps particularly in the spiritual qualities, of students. Students who attend seminary with an immature faith, poorly-formed spiritual habits, and little commitment to a “Costly Discipleship,” often do not find in seminary the kind of spiritual formation they need for pastoral ministry. The need to focus on recruiting pastors who are committed to emulating Christ and doing the kinds of things Christ did in his earthly ministry means seminaries must be smaller and almost certainly connected to local congregations in some real way.
2. Seminaries Need Committed Faculties, with Significant Pastoral Experience. Given that students today need more pastoral formation than students in the past, faculties primarily made up of scholars with limited pastoral experience are not able to give students the formation experience they need. This need cannot be met by having a limited number of pastor/teachers on a faculty, often part-time. The need is too great. The movement to electronic classrooms, made worse by Covid¹⁹, is an additional threat to effective pastoral formation. Just as Jesus came in the flesh and had a personal, concrete, physical relationship with his disciples, so also contemporary seminaries need to provide that experience for their students. To paraphrase a line from the book, “Jesus did not send an email or text message. He came in the flesh to disciple his followers.” [6] Pastors must be willing to do this, and seminaries need to find ways to model this for students. Bonhoeffer lived in common life (a “life together”) with his students, modeled a pastoral devotional life, and sacrificed himself for Christ in the presence and in personal relationship with his students.
3. Seminaries must focus on developing pastors with the skills to disciple people, build congregations, and serve their congregations with the same commitment that took Christ to the Cross. This is particularly important. When I went to seminary, we got a good education in Biblical studies, theology, and even preaching and some pastoral care. However, few students got any education in the hard jobs of evangelism, discipleship training, small group formation, and other skills that not only are necessary today, but are likely to become even more important in the future. Bonhoeffer saw that the spiritual condition of Germany and the loss of faith in society would demand a new kind of seminary. The same is true in America today. The emerging post-modern, post-Christian American society requires a different set of skills for future pastors, a set of skills and character more in line with Bonhoeffer’s vision.

Discipleship and Seminary Education

House’s purpose in writing Bonhoeffer’s Seminary Vision was to inform the community of those interested in seminary education. In reading the book, and in reflecting on Cost of Discipleship, it struck me that discipleship is not unconnected with seminary education and both lay persons and professionals will be helped by the message of the book. We often think of discipleship and professional training as two different things. This is not strictly true. Seminary is actually one part of the life of discipleship for those called into seminary training to become full-time pastors. Ideally, a person attending seminary is already a disciple of Christ, already known to have spiritual and natural gifts for ministry, but needs the kind of specialized training that pastors need to meet the needs of their congregations. As such, seminary should be an extension of the normal life of a disciple.

By the same token, congregational discipleship programs are not “little seminaries” but experiences designed to assist laypersons in living out their vocations as disciples of Christ. The two cannot be completely divided, though they will in some ways be different. Both involve active learning to be a better disciple of Christ in a specific situation. In both, the role of life together under the word of God cannot be ignored. If seminaries need committed students and committed faculty, churches need committed disciples and committed pastors, which is why Bonhoeffer designed the program for the Confessing Church seminary the way he did.

Conclusion

Before attending seminary, I was an active layperson for over fifteen years, during which time I was a deacon, elder, Sunday school class teacher, and lay preacher. Our church helped send us to seminary, and there was little doubt but which I would be able to pastor some church somewhere, someday. While I have never regretted the fine theological and Biblical education I received, a good bit of what made the difference was a personal devotional life that had already weathered storms before seminary, experience in the leadership of a church for a considerable period, prior activity in small groups, and a host of other discipleship skills learned before seminary and only much improved by seminary experience. As mentioned above, seminary was simply a continuation and extension of an already existing discipleship path.

It is common for churches to complain that they cannot find a pastor and for pastors to complain that it is difficult to attract associate pastors, especially to smaller and less appealing congregations. I believe that the final resolution of these needs will involve something like the vision Bonhoeffer’s Seminary Vision has for seminary education: a form of education that is smaller, more congregational, interested in pastoral character and formation as well as skills and Biblical and Theological knowledge, intentionally designed for the culture in which contemporary pastors must minister. It will focus on creating shepherd/servant pastors who can create the kind of community and discipleship Bonhoeffer tried to create for the Confessing Church.

Pastors and Church leaders will want to read Bonhoeffer’s Seminary Vision, and they will not be personally or institutionally disappointed by what they learn.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Paul House, Bonhoeffer’s Seminary Vision: A Case for Costly Discipleship and Life Together (Wheaton, IL: Crossways, 2015), hereinafter “BSV”.

[2] Dietrich Bonhoeffer, Sactorum Communio: A Theological Study of the Sociology of the Church Collected Works, Vol. 1 (Minneapolis, MN: Fortress Press, 1998).

[3] Although there were actually three locations for the seminary, it is often referred to as the “Finkenwalde seminary” even by scholars. House treat it as such, though the situations resulted in slightly different seminary experiences for the students. House is careful to delineate the differences

[4] Dietrich Bonhoeffer, Life Together (New York, NY: Harper One, 1954) and Cost of Discipleship (New York, Macmillan, 1960). Both of these books are available on the internet and often in bookstores in various editions.

[5] Cost of Discipleship, at 47.

[6] The exact quote from Bonhoeffer is, “God sent witnesses, not a recording.” See, BSV at 99.

A fundamental dispute prevalent in Constitutional theory is between those who see the Constitution as a “living and to be interpreted in light of the times” and those who see the Constitution in a more stable light, as a fundamental document of democracy which is to be interpreted in light of the original intention of the framers. [1] The one group is dominated by an evolutionary, progressive notion of history, the other by a respect for tradition and the past. As will become evident as time goes on, both views contain both truth and challenges, and the dispute cannot be resolved within the framework of the world views that produced the theories.

This blog argues that the framers did believe in a living constitution, but its living nature was not dependent upon the courts, but the people, the states, and their leaders into whose hands the process of amendment was deposited by the terms of Article V. The living nature of the Constitution was to be guaranteed by the wisdom of the people and the states. In addition, the organic nature of the union sought by the founders is evident in the process that was created for amending the Constitution.

Process of Amendment

As often mentioned, the founders were practical people trying to make practical adjustments in the form of government established under the Articles of Confederation. Their goal was to create a “more perfect union.” They were not deluded enough, as modern people so often are, to believe that they could create a perfect society, just a better form of government that could meet the challenges of their day. Because the understood that the document might need change, they provided a means by which future generations could amend the Constitution.

According to Article V, both states and Congress may initiate the amendment process.  Amendments may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by resolutions to call such a convention adopted by two-thirds of the State legislatures. No existing amendment to the Constitution resulted from a constitutional convention, though proposals have been made for such a convention. [2]

In the case of a nationally proposed amendment, Congress proposes an amendment in the form of a joint resolution passed by a two-thirds majority of both houses. Interestingly, the President has no role in the amendment process, perhaps because it was felt that this was an area in which Congress and the States should work without interference from the executive. In a government of the people formed by their state governments, it was thought that the executive should not interfere with the prerogatives of the elected representatives of the people.

In any case, the amendment process contains its own checks and balances because of the process of recommendation and ratification. By whatever means an amendment is proposed, it is made part of the Constitution when ratified by the legislatures of a super-majority of the states. A simple majority cannot amend the Constitution. It requires two thirds of the legislatures and/or Congress to propose amendments and a vote of three-fourths (75%) of the states to adopt amendments. This process is a significant barrier to unwise changes in the constitutional structure of the nation.

Administration of Amendment Process

Subsequent to Congress proposing an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 USC 106b. [3] The original document is forwarded directly to NARA’s Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes. The OFR also assembles an information package for the States which includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist then submits the proposed amendment to the States for consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their respective legislatures or the state calls a convention, depending on what Congress has specified in its adopting resolution. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. Each state then notifies the Archivist of its action on the proposed amendment, and when and if the required number of states have adopted the amendment, official notice is given to the Congress that the amendment process has been completed. [4]

The Intent of the Founders

Madison’s notes recording the actions and debates of the Convention of 1787 reflect the views, especially of Hamilton, that the method of amendment under the terms of the Articles of Confederation were manifestly inadequate. [5]Under the Articles of Confederation, it required a unanimous agreement of the states to amend its terms, giving any state a veto over change. The Articles of Confederation were simply unable to adapt or confront the various differences among the states and the need for a stronger national government. In response to this experience, the founders realized there needed to be a means to amend the Constitution to remedy “probable defects” in the document. [6] It is almost certain that Hamilton and others intended to include provisions regarding slavery in the category of defects to be remedied at a later date.

In view of the experience with the Articles of Confederation, why was it necessary to have an amendment process that, quite obviously, would take much time to conclude, especially as more states were added to the union? The answer is to be found in the nature of the government the founders were instituting. The Constitution was to be founded on the consent and ratification of the people of the United States. This ratification was to be accomplished by the people through delegates elected by them in each state. The very ratification of the Constitution was done on a federal basis, and the union to be formed was a federal union founded on the consent of the people. [7] The amendment process enshrines the federal, republican nature of the Constitution in an amendment process over which the people and the states have ultimate authority.

The goal of the founders was to strike a balance between a constitution that could not be amended, freezing the nation in a form that could never change, and a constitution that was too easily amended, and which was therefore unstable and subject to constant change. Thus, Madison, in defending the Constitution observes as follows:

That useful alterations will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. [8]

The humility and wisdom of the founders, and the practical wisdom with which they accomplished the task of recommending the Constitution to the nation are nowhere more evident than in this quotation. They were aware that they were not omniscient and that defects would be found in the document. They were aware that changing circumstances would require adjustments. What they intended was a system of change that would protect the freedom of the people and the sovereign rights of the states in the “more perfect union” which they were attempting to create.

Conclusion

For most of the 20^th Century, the greatest changes to the Constitution were not established by the people, but by the unelected courts of the nation, as both congress and the states abrogated their responsibility to create consensus on fundamental changes. The result has been a loss of faith in the Constitution and social conflict. It is not a strength of our system of government but a weakness that those who were originally given the power of amendment have found it more convenient to allow the courts to undertake what the people and their representatives should do. In the long, slow process of convincing the people of the need for a change is the opportunity for the development of collective wisdom in a way that nine Supreme Court justices can never achieve.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] The actual dispute is more complex for many in both camps see the wisdom and necessity in the views of the other. I hope to deal with this precise dispute as seen from an organic view of nature in a later blog.

[2] In recent years, however, there have been calls for a convention of the states, generally by conservatives concerned about federal spending and related matters. For the views of those who would call such a convention, see https://conventionofstates.com/ (downloaded August 5, 2021).

[3] This analysis is from the Federal Register and can be found at https://www.archives.gov/federal-register/constitution (downloaded August 5, 2021).

[4] Id.

[5] Id. Because the institution of slavery was tacitly acknowledged by the convention, many contemporary people have thought that the entire document is tainted. The only adequate response to this is to note that the government could never have been formed unless the issue of slavery were deferred to a later time. Washington, Madison, Hamilton, and many others at the Convention were of the view that the institution of slavery was inconsistent with a free, republican government. The issue came up with respect to the amendment process for the slave states would not agree to the Constitution if it could be amended to eliminate slavery. A compromise was reached that provided that no amendment to the provisions impacting slavery could be made prior to 1808.

[6] See, James Madison, “Notes of the Constitutional Convention” (September 10, 1787). https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-9-10/ (downloaded August 5, 2021). It is revealing to see that Hamilton was under no illusions as to the ability of the founders to create a perfect system of government. He expected changes and a means was needed to provide for them.

[7] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961) No. 39 (Madison), found at 243. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[8] Federalist Papers, 43 (Madison), at 278.

This week, we finalize our brief look at the three branches of our government by a considering our national court system.

The Need for a Federal Court System

The founders recognized that a federal court system was a necessary aspect of the Constitution and the government they envisioned. Alexander Hamilton viewed the need for a federal court system as one of the “axioms,” or fundamentally required aspects of a successful polity. [1] He viewed as irrational to establish a government without the judicial power to enforce its legislation. A government without the power to adjudicate all of its constitution and laws would be imperfect. A judiciary that was compelled to enforce unconstitutional legislation would not be able to protect the citizens of the state. Against those who wanted no federal judiciary and those who wanted a subservient federal judiciary, Hamilton leveled some of his most potent attacks in the Federalist Papers.  [2]

This being the case, it was necessary for there to be an appropriately structured judicial branch of the new federal government. Thus, on the very second day of the Convention, the Virginia Plan was introduced, which provided in part:

Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony. [3]

The Scope of the Federal Judiciary

The Constitution as adopted created a court of last resort, the United States Supreme Court, established the tenure of judges, and gave Congress the power to create other federal courts. Article III also contains provisions that govern the compensation of judges, the right to trial by jury in federal criminal cases, and defines and regulates prosecution for the crime of treason.

Article III, Section II of the Constitution grants jurisdiction to the Supreme Court in two fundamental ways:

1. The Supreme Court has original jurisdiction regarding suits between two or more states and cases involving ambassadors and other public ministers; and
2. The Supreme Court has appellate jurisdiction regarding cases that involves a point of constitutional or federal law. [4]

It was recognized from the beginning that there needed to be a federal court system of some kind, though the founders had no idea just how large the nation would become or how many courts would be required. [5]  At the time of the writing of the Constitution, there were already disputes among states that could not be fairly heard or resolved in state courts. These disputes and the difficulties they caused were already known to be problematic. Second, allowing ambassadors and other public ministers to be potentially tried in thirteen (or fifty) state courts would be a constant irritation to friends and enemies alike.

There were other areas of the law requiring a federal judicial system. As Hamilton noted, admiralty cases, are by their very nature likely to involve international law and the citizens and representatives of other nations, therefore, placing admiralty within the federal judicial domain. Thus, the Constitution assigned the following areas to the federal judicial system: cases and controversies arising under or affecting (i) the Constitution, (ii) the laws of the United States, (iii) treaties made under the United States, (iii) ambassadors, other public ministers and consuls (iv)  admiralty and maritime matters; (v) the United States as a party, (vi) two or more States, (vii) between a State and Citizens of another State; (viii) between Citizens of different States, (ix) between Citizens of the same State claiming land under grants made by different states, and (x) between a state, or the citizens thereof, and foreign states, citizens or subjects. [6]

It can be seen that the nature of the grants envision that the United States courts would be supreme in matters involving:

1. The Constitution itself and laws promulgated under it.
2. Foreign powers and international law.
3. Cases in which the United States of America is a party.
4. Disputes involving the states and their citizens where it is likely that no single state court could fairly or adequately resolve the matter.

Hamilton went to great lengths in defending the Constitution to assure his readers in the Federalist Papers that the grant of these powers would not infringe upon the existing judicial powers of the states, except where reason and sound judgement indicated that they either could not or could not fairly resolve the issues. In other words, the grant of powers to the judiciary was intended to be limited to those areas in which the federal government had been given powers and responsibility, but was coextensive with those powers and responsibilities.

Independence and Protection of Federal Judges

The Virginia Plan included significant protections for federal judges, protections that were inserted into the Constitution. Federal judges were not to be elected or serve for stated terms, but elected to serve during “good behavior.” [7] Only the House of Representatives by impeachment and the Senate by trial and conviction can remove a federal judge once appointed by the President and confirmed by the Senate. Second, their salaries cannot be reduced during their term in office. These provisions were included to avoid judges from becoming tools of the legislature for political and economic reasons.

Hamilton strongly argued that to make federal judges subject to legislative reduction of salaries would be to corrupt the political system the founders intended. Similarly, in a time where retirement plans were unavailable, it was necessary for appointments to be for life. Otherwise, the judges would have to look out for their monetary future, which would open a door to corruption. [8] Service for life conditional upon good behavior was the solution to these problems. [9]

Juries and Treason

Finally, there were two matters of special political importance that the founders had to address in the Constitution. The abrogation of trial by a jury of private citizens was one of those sacred rights the British Crown had sometimes ignored. No constitution could hope to be approved by the people which did not provide for the trial by jury. In point of fact, the provision included in the Constitution was not deemed sufficient and was vigorously attacked by the anti-federalists, and so the Bill of Rights included the Sixth and Seventh Amendments to make stronger and clearer this right. Nevertheless, the Constitution provides that:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Similarly, the crime of treason was much misused in Europe generally and by the British crown for political reasons. Therefore, the Constitution contains specific provisions limiting the use of treason as a criminal offense. Article III, Section 3 of the Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Least Dangerous Branch

Perhaps the most famous words of Hamilton (or anyone else) in the Federalist Papers is his description of the judiciary as “the least dangerous branch.” [10] The founders could not have conceived of the vast extension either of federal power or the power of the federal courts that the 20^th Century brought. In particular, Madison’s and Hamilton’s view that the courts would be a bulwark against legislative excess has only been partially realized. Nevertheless, the Supreme Court and federal Courts generally are a moderating influence in our system of government. [11]

The founders never considered the emergence of a judicial theory that did not involve some form of natural law or the impact that such a theory might have on the Constitution and the role of judges. Modern power-based theories of law had not emerged and there was no reason to believe that judges would cease to be guided by principles of justice considered to be antecedent to the law itself. This will also be the subject of a later blog as we examine Justice Oliver Wendall Holmes and the emergence of what is commonly known as “legal realism.”

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 80 (Hamilton). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.

In Federalist 80 Hamilton observes “If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number.”

[2] Hamilton’s analysis and defense of the Constitution as regards the judicial powers of the government are found in Federalist Papers, Nos. 78-83.

[3] Madison’s Notes, May 29, 1787 (https://avalon.law.yale.edu/18th_century/debates_529.asp, downloaded from the Avalon project July 21, 2021).

[4] Article III, Section 2.

[5] Federalist Papers, 81. Hamilton thought that the number would be about half a dozen! Today, there ninety-four federal districts courts and thirteen Federal Courts of Appeal covering the United States and the District of Columbia. There are also bankruptcy, tax, and other specialized courts that Congress has created pursuant to Article III.

[6] Article III, Section 2.

[7] It is interesting that the term “good behavior” as opposed to “high crimes and misdemeanors” is used. Some hold that that a different and somewhat lower standard was intended for judicial removal than for removal of a President. In practice, however, judges are not removed except for the kind of misconduct that high crimes and misdemeanor language prohibits. See, https://constitution.congress.gov/browse/essay/artIII_S1_2_1_3/#ALDF_00014180 (downloaded July 21, 2021).

[8] Federalist Papers, 79. “In the general course of human nature, a power over a man’s subsistence is a power over his will.”

[9] There are aspects of Hamilton’s argument that may no longer make complete sense. For example, given the longer life spans of today together with the real possibility of judges serving beyond their time of capacity, it may be that some kind of term limits are needed.

[10] Federalist Papers, 78.

[11] I have decided to deal with the balance of powers in a later blog because of the complexity of the various provisions that create and limit this balance in the Constitution.

Article 2 of the Constitution begins with one simple phrase that says it all, but within which there is a long story to be told. Here is the phrase: “The executive Power shall be vested in a President of the United States of America.”

The Executive Branch

The Executive branch manages the day-to-day operations of the United States government through federal departments and agencies, such as the Departments of State, Treasury, Defense, Justice, and the like. At the head of this branch is the nationally elected President of the United States, who is also Commander in Chief of the Armed Forces and shares with the Congress by veto certain legislative powers and with the Judiciary certain judicial powers involving appointment. [1] The President’s powers include making treaties with other nations, appointing federal judges, department heads and Ambassadors, and determining how to best run the country and run military operations. Unlike European parliamentary systems, the President is also the Head of State, making him a powerful figure in American political life.

The Need for a Strong Executive

The Constitutional Convention believed the new nation needed a strong executive function. This was lacking under the Articles of Confederation. Under the Articles, there was no single individual possessing executive power sufficient to provide energy and direction to the national government. In particular, it was recognized that in times of danger there was no clear authority to defend the nation. As mentioned in an earlier blog, the Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [2] There was no effective central executive function with a clear and unambiguous authority to execute government policy. Obviously, this made coordinated public administration, international diplomacy, and defense nearly impossible.

The Need for an Energetic Executive

As mentioned above, the Constitutional Convention united in the view that a strong executive function was needed to remedy the defects of the Articles of Confederation. Not all members agreed as to how strong the executive function needed to be, and there was much debate over the exact powers to be given the President and the limitations on those powers. Nevertheless, it was recognized that an energetic and effective executive was needed. Here is how Hamilton put it in Federalist 70:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high handed combinations that sometimes interrupt the ordinary course of justice; to the security of liberty against the assaults of ambition, of faction, and of anarchy. [3]

Therefore, the first goal of the Convention was that the executive had to have the powers necessary for the effective conduct of the office. It was also recognized that a weak executive function was a danger both to the execution of the laws and to the security and well-being of the nation. [4] In order that there be an energetic executive, Article 2 provides that the President is the commander in chief of the armed forces, has the power to negotiate and enter into treaties, appoints ambassadors, public officials, judges and all other officers of the United States that Congress does not otherwise provide for. [5] Somewhat less important powers include the power to recommend to Congress various courses of action, a power that has become institutionalized in the annual state of the Union message that often includes a list of legislative proposals that the President feels necessary for the well-being of the nation. Presidents also routinely recommend legislation through other avenues.

The Need for a Responsible Executive

Naturally, having only recently won independence from a monarchy, and having a reasonable fear of the recurrence of the kinds of usurpations that monarchy can create, it was desired that there be limitations on the activities of the executive. The most important of these limitations is the need for the Senate to concur with presidential appointments by a two thirds majority of the Senators present. [6]

A second limitation is the power of the House of Representatives to impeach the President and the senate to try such impeachments, a provision that has been used three times in my lifetime and is increasingly being misused by Congress to the detriment of the nation. Article II, Section 4 provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The first two offenses are clear on the face of the Constitution, treason and bribery undermine the very foundation of the government. It is likely, therefore that the terms “other high crimes and misdemeanors” was intended by the founders to include similar offenses. It would seem that the nature of the offenses intended to be covered are those that would undermine the government the founders were creating. Madison saw impeachment as against “incapacity, negligence or perfidy of the chief Magistrate.” [7] This indicates that impeachment is to be used only against a president who is unable or unwilling to perform his or her duties or is corruptly conducting those duties.

Despite the necessity of some form of impeachment, the founders were concerned that the power of impeachment not render the executive incapable of independence from the legislative function. The power of impeachment was not to be a “rod” to be used against a public official. [8]

George Washington

The debate and discussion of the scope of executive power under the Constitution and the powers and limitations of the President took place in the most unusual circumstances: Sitting at the head of the Convention was the person nearly everyone believed would be that executive officer. General George Washington was clearly the person to be chosen as first President. The most famous American alive, with the possible exception of Benjamin Franklin, who was too old to serve, the former commander of the Continental Army, was a successful Virginia planter, citizen one of the most populist states, and a person trusted and admired by nearly everyone, and especially by nearly everyone at the Convention. His leadership was known to be careful, thoughtful and steady.

Had Washington wanted to be a king, it would have been hard to deny him the role—and had he desired, it is likely he could have raised the army to make it so. Fortunately for the nation, George Washington was not a “man who would be king.” His public career began in 1752, when he became a commander of the Virginia militia during the French and Indian War. In that war he earned a reputation for bravery under fire and skill as a leader of men. He was also considered extremely lucky in battle. In 1759, Washington was elected to the Virginia House of Burgesses, where he served until 1774—just two years before the American Revolution. As a result of his business experience, he felt that the American Colonies needed to be independent of the harmful tax policies of the British Government. [9] Washington served as a delegate to the first Continental Congress and was appointed Commander of the Continental Army at the beginning of the war. As Commander of the Army, he had experienced first-hand the defects of the Articles of Confederation. His tenacity as commander of the Continental Army through defeat, disaster, and want made him a legend.

At the Constitutional Convention, Washington seldom spoke, but he was an impressive figure and gave wise and sound leadership to the Convention. His steady hand was felt by all participants, and his leadership was calm and direct. He worked to dispel anger when the debate became too heated, and created an atmosphere in which debate could reach a consensus. Although he had opinions, including about the powers of the executive branch, he largely kept them to himself, allowing the delegates to reach their own conclusions. By the end of the Convention, he was the clear choice to be the First President, a position to which he was elected once the new Constitution was ratified and an election held.

Conclusion

In some ways, the debate over the powers and prerogatives of the President were the most important of the Convention. At various points in American history the actual implementation of these powers has differed, and different Presidents have interpreted and used their powers differently. Since the Presidency of Ronald Regan, we seem to have been exiting the period of the Imperial Presidency that began with Roosevelt, which may be a good thing over time, if the Legislature and Judiciary act wisely in upholding their own constitutional responsibilities.

Copyright, G. Christopher Scruggs, All Rights Reserved

[1] The president swears an oath to ‘faithfully execute’ the responsibilities as President and to ‘preserve, protect and defend the Constitution of the United States’. While this goes beyond his role as Commander in Chief, it includes a commitment to faithfully defend the nation.

[2] Articles of Confederation, Article IX.

[3] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 70 (Hamilton). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.

[4] Id, at 423.

[5] United States Constitution, Article IV, Section 2.

[6] Article IV, Section 2.

[7] Madison’s Notes, July 20, 1787.

[8] Id.

[9]  See the prior blog on Edmund Burke and Declaration of Independence for additional information about the role of British tax policies on the American Revolution.

The American legislative function is divided into two different chambers – the House of Representatives and the Senate. Congress is the legislative body that holds the power to draft and pass legislation, borrow money, declare war and raise a military, and perform the basic tasks of government. It also has the power to check and balance the other two federal branches through the use of specific powers granted under Article 1. Today, there are 435 Representatives apportioned by population and 100 Senators, two for each state.

The legislative branch is first described in the Constitution, for it is in the legislative branch that the sovereignty of the people and their control over the course and direction of their government is primarily vested. At the time, this was an innovation and decided break with the medieval developments of European thought and practice—as well as a break with the practice of nearly all governments in human history. Historically, with rare exceptions in Greece and Rome, the king or emperor was primary and the executive function primary. The legislative function was normally a conciliar body to represent the views of the nation and its “estates” to the ruler. In the new nation, the founders conceived all power would ultimately rest with the people and their representatives. This development constituted a profound change in human history.

Structure of the Legislative Branch

Article 1 begins: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In this sentence, there are two basic principles announced: The power to make laws belongs to Congress, the legislative body created under the Constitution. This means that the executive and judicial departments are not to make laws but instead to administer and interpret them. [1] From time immemorial kings made laws and issued decrees. This provision was intended to create a barrier against the executive branch making laws without the consent of the representatives of the people. Another implication is the notion that that the bureaucratic function found in every executive should not make laws, but instead carry out laws made by the Congress. [2]

Secondly, the division of the executive function between the House of Representatives and the Senate was intended to create an internal check upon the legislative function that would make it more difficult for factions to dominate the legislature and promote some kind of mob rule of the majority. Here we see the principle of checks and balances within a particular branch of the government to prevent legislative excess. The idea was to prevent a “faction” or “mob” from gaining power, as happened in France during the French Revolution. [3]

The Senate and House are complimentary bodies, one deliberately populist the other initially reserved to the states to maintain the federalist balance. This is an example of how the Constitution has changed and been modified to adapt to cultural changes. Initially, the Senate was chosen by State Legislatures. This provision was intended to ensure that the States, as sovereigns states, were represented in the counsels of the national government. It was also thought that the states, being represented in the national congress would not fear but support the national government. However, this system did not necessarily work as planned, and the division over slavery was one of the impediments to its operation. During the mid-19^th Century, as the Republican Party gained power in the Northern States and the anti-slavery movement gained force, it was sometimes impossible for divided legislatures to act responsibly and elect Senators, resulting in vacancies.

After the Civil War, legislatures were sometimes corrupted and Senate seats bought, resulting in bribery allegations. Eventually the Seventeenth Amendment was adopted (1913), providing for the direct election of senators, replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, the amendment permits the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

Hamilton’s Basic Principle

In defending the constitution against those who wished to continue the Articles of Confederation in a modified form, Hamilton set out a basic principle which he felt ought to guide the debate over adoption of the Constitution and the powers given to the new government: The new government ought to have the powers necessary to conduct the public business entrusted to it without the flaws of the Articles of Confederation. This meant the power of direct taxation and the ability to enforce its laws, both lacking under the Articles of Confederation. Thus, he writes:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible., free from every other control but a regard for the public good and the sense of the people. [4]

These principles have positive and negative implications. As Hamilton intended, the people must grant to the legislature and national government the power to accomplish things that are felt in the public good—and care might need to be taken as to how much the people expect the federal government to accomplish. It is to be noted that it is a characteristic of Hamilton’s thought to restrain the exercise of power to the accomplishment of the public good and by common morality.

Taxation and the Federal Budget

The primary defect of the Articles of Confederation was that, while the national government had responsibility for matters like national defense, it had no independent, direct power to raise the funds necessary to accomplish this and other tasks. As a result, the government was chronically under-funded and unable to pay the substantial debts incurred in the revolutionary war. In order to remedy this situation, the first enumerated power in Article 8 reads as follows:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;….

Immediately thereafter the Congress is granted the power to borrow money on the credit of the United States.

Perhaps unfortunately, the founders never considered the possibility that the Congress would one day be able to use the power to borrow to fund numerous programs without much hope that the debt could be repaid. The days of fiat money and the status of the U.S. Dollar as the world’s primary currency of trade were far in the future, and the results could not be foreseen. Today, the problem with the legislative power is not an inability to raise funds, but the inability to exercise fiscal discipline. Numerous attempts have been made to remedy the situation through various forms of balanced budget amendments, but to date they have been unsuccessful.

Regulation of Commerce

The second power, vastly expanded in the 20^th century, is the ability to regulate commerce with foreign nations, among the states, and with the Indian tribes. This power was needed in response to the danger of states having different import and export policies to the detriment of the prosperity and peace of the nation as a whole and the propensity of the states to engage in a kind of economic warfare with each other. Subsequent to the Civil War, as the economy became increasingly industrial and national in scope, this power was greatly expanded, especially in response to the Great Depression. Today, there are very few areas of commerce that Congress cannot regulate.

National Defense

The Constitution gives Congress a variety of powers to provide for the defense of the nation. Congress may declare war, grant letters of marque and reprisal, make rules related to the capture of persons and property, raise armies, maintain a navy, make rules governing land and naval forces, provide for calling up militia to execute laws and suppress rebellion and invasion, provide for organizing, arming and disciplining militia and for governing such part of the militia of the states as are serving the United States, and erect forts, magazines, arsenals, dockyards and other structures necessary for the defense of the nation.

Consistent with the principle that Congress must have the tools to accomplish the tasks committed to the national government, Congress may tax and borrow to defend the nation. The only limitation on these powers restricts appropriations to a term of no more than two years.

Judiciary

A grave defect of the Articles of Confederation was the lack of a federal court system empowered to enforce federal law. It is of no use for Congress to adopt laws unless there exists a means by which these laws can be enforced. Article 3 of the Constitution established a Supreme Court, but Congress was given several powers related to the court system: the power to constitute tribunals inferior to the Supreme Court, to define and publish piracies and felonies on the high seas, and offenses against the law of nations (in other words to provide for admiralty laws and enforce international law), and to establish naturalization laws and uniform bankruptcy laws. Thus, unlike the Articles of Confederation, Congress could create a judicial branch with the power to enforce national laws.

Shared Sovereignty

It may be recalled that the states were not necessarily in favor of the creation of a national government that would limit their sovereignty. The framers responded to this reality by creating a system of shared sovereignty. In other words, there were areas in which the national government was sovereign and those in which the states were sovereign. At the time, the greater threat was that the states would interfere with the new national government, so there was added a specific section, Section 10 of the Constitution, that prohibits actions by the states that would interfere with the federal government in the exercise of its functions.

States are prohibited from carrying out their own foreign policy and entering into treaties, alliances, or confederations with foreign powers. This was a specific threat to the nation that the Federalist Papers held to be a reason why a new constitution was necessary. [5] The existing situation created a risk of foreign alliances that would weaken or undermine the union the Articles of Confederation created.

In addition, states cannot levy import taxes or duties on imports or exports, except for small charges necessary to inspect goods that are being imported or exported. States were prohibited from having their own armed forces and navies, which would be used to control the seas and therefore the export and import of goods, nor could states enter into a war except for self-protection when invades and necessity required a response.

On the other hand, Article 10 of the Bill of Rights, which was added to the Constitution in order for it to be adopted provides that “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.” In other words, unless the federal government is specifically given a power, the power not delegated to the national government remains within the sovereignty of the state or the people themselves.

Conclusion

Article 1 of the Constitution is consistent with the goal of the framers to place the government first and foremost in the hands of their elected representatives. It is also consistent with their goal of both limiting the powers of the national government and of balancing those powers within and among the branches. In the aftermath of the Civil War, and the social dislocations wars of the early 20^th Century, there developed four different challenges to the system the framers envisaged:

1. The emergence of the national government as the dominant sovereign power;
2. The development of large administrative bureaucracies with the power to make regulations that they then enforce and interpret;
3. The emergence of the so-called “Imperial Presidency,” in which the President began to be the dominant figure in the national government, replacing the legislative branch in its constitutional supremacy;
4. The growth of the role of national financing in legislative elections, limiting the reliance of legislators on local funds for elections and their responsiveness to the needs of the people.

Near the end of this series of blogs, the challenges to limited government posed by each of these developments will be considered. Here, it is sufficient to remember that the framers could not have foreseen the complex, corporate society in which Americans now live with the consequent growth of the administrative agencies of government. The American Civil War resulted in a determination concerning the supremacy of the federal government, a supremacy that leaves open what would be best for the federal government to leave to the states. The Great Depression, Second World War, and Cold War ultimately resulted in the expansion of the federal government size and function far beyond what might have been anticipated by the framers. Finally, concentration of wealth and the development of large corporations who fund elections and seek corresponding control and benefits from government has created defects in the legislative role and responsibility.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] This does not mean that the other bodies are not involved in the legislative process. The President can propose and veto legislation subject to Congressional override. Existing interpretations of laws give guidance to legislators concerning what might or might not be appropriate legislation.

[2] The proper role of administrative agencies in rule-making, enforcement and interpretation are important issues for contemporary political thought.

[3] The founders, and especially Madison, were concerned about the danger of unrestricted democracy resulting in mob rule and the dominance of what he called “factions.” See, Federalist 10.

[4] Federalist Papers, No. 31.

[5] See, Federalist Papers, No. 42. The power to make war and the power to conduct foreign affairs are intimately intertwined, as the authors of the Constitution understood. Failures of foreign policy are a fertile seed ground for war, and therefore lodging both the power to make war and the power to conduct foreign policy in the national government are necessities for a functioning government.

The preamble of the Constitution is important, and understanding its deeper implications helps to understand why the body of the document took the form that it did. The Preamble 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.

We the People of the United States

We the People. As the preamble begins, we remember a point previously made: Social compacts, constitutions, and the like rest upon a deeper foundation than the document itself. Compacts and constitutions follow pre-existing relationships and consequent identity. The Constitution begins with “We the People,” a recognition that a “people” already exist. In preceding weeks, we saw that the colonies that formed the United States had from the beginning a unique sense of identity. A significant number of citizens were from Europe, especially Great Britain. They spoke a common language. They were inheritors of a common social and political heritage, stretching from Biblical Times, to Greece and Rome, to Middle Ages Christendom, to the Enlightenment Era in which they lived and of which they were a product.

The thirteen members of the Articles of Confederation were conscious that they were forging a new nation different from those of the Europe. They were, as Edmund Burke noted, instinctively opposed to any form of servitude and for the extension of freedom. The states did not want to recreate in America the monarchies and nobility of Europe. They commonly resisted attempts by the British government to treat them in an unfair manner. They had fought as comrades in arms a long and bitter war, suffering near defeat before unexpected victory. They had a common series of legends from Lexington and Concord to Valley Forge to Yorktown.

The governmental institutions of the several states were similar despite their differences. They were all some form of representative democracy. They all subscribed to some version of English Common Law, and supported a government restrained by the rule of law. They had formed the United States of America through the vehicle of the Articles of Confederation, and they wanted that union to endure. They did not want a state-established religion.

Those that came to Philadelphia with minor adjustments in the Articles of Confederation in mind and those who came feeling that a dramatic adjustment needed to be made, both came with an identity as a part of “We the People of the United States.” They were one “people” and willing to make the compromises and adjustments required to protect their existing common political arrangements from failure.

We the People Forming a Different Form of Union. There is more to the “We the People” than a recognition that a people existed before the Constitution. The founders were forming a government that Lincoln would call “By the People, of the People, and for the People.” [1] In the beginning, many delegates assumed that the revisions to the Articles of Confederation would be approved not by the people, but by the sovereign states themselves.

The Convention ultimately disagreed with this strategy as they proposed to create a form of government with two sovereignties: the National Government, supreme in its spheres of operation, and the Sovereign States, sovereign within their retained spheres of responsibility. This system of dual sovereignty was an important innovation, and points towards and understanding that a nation dedicated to freedom would allow local governments, which by their nature are closer to the people a large measure of freedom in adapting to changing situations and in adopting innovative solutions to problems. At the same time, the national government would be supreme within the areas of responsibility given to it under the Constitution.

In Order to Form a “More Perfect” Union

As indicated last week, by May of 1787, there was a consensus that the union of the states created by the Articles of Confederation was seriously flawed. They had a union, but it needed to be improved. Notice that the founders did not propose that the union they were creating would be “perfect” It could be made “more perfect.” Those that met in Philadelphia in the summer of 1787 were aware that there were weaknesses in the Constitution they proposed. As indicated last week, slavery was an issue and many delegates disliked the Connecticut Compromise as finally adopted. It was necessary to enable the nation to move forward, but it allowed to continue an institution that many found immoral which was destined to be eliminated on both religious and moral grounds. [2]

The founders provided for an amendment process because of their understanding that the Constitution as proposed would need change to the extent that provisions were subsequently found unworkable. In point of fact, the “Bill of Rights” was added as part of the initial price of adopting the Constitution, so that by the time the constitution was adopted a “perfection” that many found lacking was supplied by amendment. In the history of the Constitution, it has been amended twenty-seven times in the process of the gradual “perfection” of the form of government the founders established.

Here we see the humility and pragmatism of the founders. They knew that the document was not perfect. It would have to be changed from time to time in a lawful process. Their idea was that a process of amendment and change enabled the Constitution to endure and adapt, and it also provided a way for change in the fundamental form of our government without violence and conflict.

The Goal of the Constitution

The founders had a goal stretching back far into the history of political philosophy. As far back as the Greeks and Romans, from Augustine to the end of the Middle Ages, it was recognized that governments had a goal: the “Common Good,” as that term was understood from time to time. The goal of a government was often phrased as either “the common good” or “peace” (such as in Augustine), which often amounts to the same thing. In the case of the Preamble, there is a recognition that there cannot be peace without justice. The kind of constant disturbance that had occurred under the Articles of Confederation was contrary to the ideal of social peace, as there had been rebellions (Shay’s Rebellion, for example), states engaging in economic warfare against one another, and other activities contrary to the attainment of the common good or social peace. [3]

Shay’s Rebellion, and the obvious foreign threats to the new nation, created a concern about the ability of the thirteen states to defend either themselves or the nation as a whole. In particular the inability of the Articles of Confederation to provide for a strong navy to protect commerce and a military establishment sufficient to deter foreign schemes to control one or more of the colonies was on the mind of the Convention in seeking to “provide for the Common Defense.” The continued economic warfare involving states attempting to secure economic advantage, was contrary to the ideal of the United States as what we would call a “free trade zone,” which most business interests regarded as necessary to promote the General Welfare of the states.

Taken as a whole, the opinion of the framers was that the Constitution as drafted would provide for a government more capable of securing the peace and prosperity, i.e., the “Common Good” or “General Welfare,” as they phrased it, of the several states. In my view, one of the signs of the deterioration of the existence of a notion of a “common good” in our society is the kind of “politics as war” that we have endured for many years. Those in power have lost the notion of the General Welfare or Common Good (not just the good of their party or group) and Social Peace as the end of society, which cannot be created without a concern for justice for everyone so far as possible. In particular, the utopian visions of many in our society are pursued with the mistaken notion that Social Peace will be the result when their views are adopted and those they see as retrograde removed permanently from political life. This is completely antithetic to a stable democracy and any lasting social peace.

Secure the Blessings of Liberty for Ourselves and our Posterity

Finally, the goal of the founders went beyond the immediate. Their desire was to see that the liberty and form of government that they had fought so hard to create was secured for future generations as well as for themselves. After the adoption of the Constitution, and continuing to this day, there was and are different ways of thinking about the legitimacy of the Constitution. The views of John Adams and of Thomas Jefferson often frame the discussion.

On the one hand, Jefferson thought that each generation had to reaffirm the fundamental validity of the Constitution. He was famously sympathetic to periodic revolutions. Other thoughtful statesmen, like John Adams felt that future generations owed a debt to the founders that was “paid” so to speak by their preservation and protection of the form of government we enjoy. This leads at some point to the idea of a living constitution, an ideal often criticized unfairly by conservatives.

At some point in the future, I intend to look at Jefferson’s notion of “Generational Sovereignty.” For now, I want to focus on the word “Posterity.” Obviously when a person is concerned about their “posterity” he or she attempts to leave them an inheritance. Once the person dies, he or she cannot manage that inheritance. Either the heirs will manage it or it will be managed by a trustee for their benefit. Most of the time, if wealth is inherited, it will have to be managed, and the assets that constitute that wealth will differ in character and make up from that immediately inherited. Changes will be made to adapt to changing circumstances.

It seems to me that this is the best analogy to guide Americans in maintaining our freedoms and the democratic republican form of government bequeathed to us by the founders. We are like heirs, and our political leaders are like trustees. Changes in our government must be made because society changes and will always change. Adaptations must be made.  In the future, I want to visit about the ways in which population growth, industrialization, emergence of large corporations, the growth of technology, an “information society, and the complexities of modern bureaucratic government have changed the way we live and for better and worse have put new stresses on our society and upon our form of government.

Against those who propose radical change in the character of the French Revolution and the modern revolutions of Europe and Asia, I think what is called for is good and wise stewardship of the government and institutions we have inherited. This involves both continuity and change. This continuity and change are the way in which, as heirs of wise parents, we manage the inheritance we have so fortunately received.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Abraham Lincoln, Gettysburg Address, November 19, 1863.

[2] The clause that counted slaves as only partial citizens was flawed from the beginning. It was necessary in order to entice the southern states to agree to the new form of government. The result of this compromise, however, was a continuing discord that would only be eliminated by the Civil War. The fact was that many of the delegates were opposed to slavery on religious and moral grounds. They did not desire to do anything that would continue the institution of slavery. I will deal with this aspect of the constitution in more detail when discussing the civil war amendments.

[3] Shays’ Rebellion was an armed rebellion in 1786-7 centered in the Western Massachusetts area led by a Revolutionary War veteran in response to an ongoing debt crisis and in opposition to the state government’s efforts to collect taxes both on individuals and their trades. Those who supported a stronger federal government, such as George Washington, felt that the rebellion was symptomatic of the need for a stronger national government. This event as much as any other galvanized those who felt a stronger national government was needed to action, resulting in the calling of the Constitutional Convention