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

Last week, we looked at the Articles of Confederation and Perpetual Union (Articles of Confederation), which constituted the first attempt of the colonies to form a common government. We learned that the Articles of Confederation were essentially the creation of a federation of independent states. The difficulty with this federation was that it lacked some essential elements of a strong polity: There was only an inadequate executive and judicial function, meaning there was no way to effectively carry out policy or enforce the failure of the states to meet financial and other obligations. There was no method of taxation, resulting in a state of constant near-bankruptcy. There was no effective way to stop the independent states from engaging in obstructions of interstate commerce. The provisions for the United States of America to conduct foreign affairs were not satisfactory. Finally, there was no way to mount a consistent effective defense establishment, with the result that the new nation was vulnerable to attempts to intervene in its affairs militarily. The result was that in 1786, the first Constitutional Convention was called.

The convention opened on May 25, 1787 in Philadelphia, Pennsylvania. The story of the convention is beyond the scope of this blog, but it merits study by every American. There are many fine studies of the event, the most popular of which is “Miracle in Philadelphia” by Catherine Drinker Bowen. [1] The convention is unique in history for the quality of its leadership and the experience and judgement of its members.

As its initial act, George Washington was elected its presiding officer. Washington did not talk a great deal during the convention but his presence was important. Nearly everyone present knew that whatever form of government was chosen, Washington was its likely first leader. His prestige was such that, even without talking, he influenced events.

One of the delegates, future President James Madison, is of special note. During the course of the convention three basic structure were suggested. Many delegates initially felt that the convention had been called to make amendments to the Articles of Confederation, and that the convention was neither authorized nor was it entitled to suggest the kind of sweeping change the Constitution ultimately embodied.

What is known as the “Virginia Plan” was the first presented and formed the course of the debate. Authored by James Madison of Virginia, this plan provided for three distinct branches of government (legislative, executive, and judicial) with legislative branch divided into both an upper and lower house. Madison arrived well-prepared and with the basic books and materials he felt necessary for the guidance of the convention intellectually. He was the most important drafting force behind the final document. Madison’s notes taken as a journal during the convention are, next to the Federalist Papers, the most important primary source for interpreting the constitution in light of the intent of its framers. [2]

Many smaller and southern states and delegates were unsure of the wisdom of the Virginia Plan.  They initially opposed Madison’s ideas. In response to Madison’s ideas, William Patterson of New Jersey submitted the “New Jersey Plan.” This plan was similar to the Articles of Confederation, with a unicameral legislature would be in which each state had a single vote. In fairness to this plan, it was probably much closer to what those who called the convention intended. Patterson is largely forgotten today, but he was one of the foremost intellectual figures at the convention.

Finally, the “moderate” Virginia plan and the more traditional New Jersey plan functioned to guide the debate towards a compromise, but it was not certain that the compromise would be effective. Alexander Hamilton then proposed “the Hamilton Plan,” which envisioned a much stronger central government along the lines of Great Britain. Under Hamilton’s plan the national government would be supreme and would appoint state governors. There would be a strong national governor with broad executive powers. It was unclear then, and is still unclear today whether Hamilton was serious about the plan or whether its presentation was tactical to push the inevitable compromise towards a stronger central government.

In the end, two delegates from Connecticut, Roger Sherman and Oliver Ellsworth proposed that has become known as “the Connecticut Compromise” or the “Great Compromise,” a way of breaking the deadlock between the larger and smaller states on the issue of legislative representation. This compromise proposed a system of dual representation. There would be a House of Representatives in which each state’s number of seats would be proportional to population. There would also be a Senate in which all states would have the same number of seats. [3] In July 1787, the Great Compromise was adopted by a one-vote margin, clearing the way for the adoption of a final constitution.

Conclusion

The adoption of the constitution is one of the great stories of human history. We were blessed that an unusually capable group of leaders were chosen to address the problems of the Articles of Confederation. Naturally, they were human, and mistakes were made—as they are and always will be made within the boundaries of human history. Nevertheless, they did the best they could and structured a republican democracy that has endured for centuries.

The fact that they were willing to compromise is something needed in our current situation. The “all or nothing” politics of power that has characterized our political system for decades now is not functional and prevents the kind of practical compromise that is needed in many areas, taxation and the deficit being two very important areas. We are in need of wise statesmanship.

[1] Catherine Drinker Bowen: Miracle in Philadelphia: The Constitutional Convention May to September 1787 (New York, NY: Little Brown and Company, 1966). This is a very well-done popular history. For those with a more scholarly bent, there are various others with a more academic tone. I believe her work to be unmatched, however.

[2] These notes are available both online and in printed form. See, “Notes of Debates in the Federal Convention of 1787” https://avalon.law.yale.edu/subject_menus/debcont.asp (Downloaded June 2, 2021). Printed versions are available on amazon.com.

[3] In the end, the Connecticut compromise was amended to base representation in the House on total white population of each state and three-fifths of the black population. This provision of the Constitution is the most debated today and the most criticized. As any close student of the debate knows, it was reluctantly agreed to because without it there could be no agreement and the convention would have failed. Nevertheless, it had predicable unfortunate consequences that took the American Civil War to resolve.

The Revolutionary War (April 19, 1775 – September 3, 1783) was a crucible that required the thirteen original colonies to learn to work together. For most of the war, they did do without any formal constitution. The result was that the Continental Army, led by George Washington, was chronically underfunded and the colonies very nearly did not survive the conflict. Beginning with Benjamin Franklin, several attempts were made to create a stable government that would enable the colonies to survive. Only with the adoption of the Constitution of the United States of America in 1789 was the problem of providing a stable government finally solved.

Many Americans do not realize that our current Constitution is not the first the United States of America possessed. A document known as “Articles of Confederation and Perpetual Union” (Articles of Confederation) was the initial written constitution of the United States. It was ratified on March 1, 1781, with the Revolutionary War already five years in duration. [1] The reasons for the delay were many. Each of the colonies already had a government, which government was considered sovereign. The states were reluctant to give up this sovereignty in any meaningful way. This meant that diplomatically any nation in Europe that wanted to recognize the fledgling union theoretically had to reach treaties with thirteen independent states.

As a sovereign state, each state had the sole power of taxation, and the Continental Congress and Army was completely dependent upon the voluntary funding of the several states of any commitments they made. The raising of troops to conduct the conflict was similarly voluntary. This defect was early understood by Washington and other leaders. Equally problematic were the many disputes between the states over land, and the fear of smaller, states that larger states, like Virginia would dominate their neighbors.

The Articles of Confederation

Under Articles of Confederation, the individual states remained sovereign and independent. [2] The United States of America was not really a nation but a “firm league of friendship.” [3] This “league of firm friendship” had certain characteristics in common with the leagues of ancient Greece and Germany,  and was subject to all their defects. [4]

The problem of international diplomacy was “solved,” as Congress was given the power to make treaties and alliances, and maintain armed forces. [5] There was however no means by which these powers could be effectively wielded.

Generally speaking, only Congress could declare war. [6] However, the central government could not levy taxes to assure the effective conduct of a war. This, of course, meant that the problem of the perennial bankruptcy of the federal government was not solved. A case in point were the debts incurred to prosecute the Revolutionary War. [7] They were assumed by the Articles of Confederation, but the Congress could not levy and enforce the taxes necessary to pay them. After the conclusion of the Revolutionary War, this meant that the United States of America was constantly unable to pay the substantial debts it had incurred in prosecuting the war.

The small, new and independent nation with a form of government unlike any of its European trade partners, allies and foes, was under constant threat. Obviously, as the War of 1812 proved, Great Britain had not necessarily given up any colonial ambitions in the New World. France, Spain,  and other European nations might also seek some kind of conquest of the new nation. The inability to tax and support a military establishment meant that the United States of America might be an inviting target for invasion.

Central Defects of the Articles of Confederation

The defects in the Articles of Confederation were many. At the core of the problem was the simple fact that the states retained complete sovereignty, and the federal government lacked the power to be effective. [8] In the end, the former colonies were accustomed to external protection and the resolution of intra-colonial disputes by the British government, and the Articles of Confederation provided no means by which the former colonies could experience the benefits of the effective central government whose protection they had formerly enjoyed.

The only institution of government was the Congress. There was no executive or judiciary. The Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [9] There was no effective, permanent, central executive function. Obviously, this made administration and defense nearly impossible. The absence of a judiciary (Congress had some judicial powers) meant that the resolution of disputes was difficult.

Those familiar with Montesquieu and the division of republican government into three separate and independent departments clearly saw the deficiency of this model for a government. It had only a legislative function and lacked the robust executive and judicial functions necessary for a stable polity. The entire scheme was unlikely to withstand any severe test.

The inability to tax meant that the government was weak and unable to act without begging for money, which did not always arrive in a timely manner, if at all.  The problem with the Articles of Confederation was that although Congress had certain powers, it had no real power to exercise or enforce those powers. As Hamilton and Madison were quick to point out, a confederation with responsibilities but no powers to accomplish those responsibilities sort of war was sure to fail. [10] In the end, this led to governmental inefficiency and chaos.

Finally, under the Articles of Confederation there was no means by which the states could be prevented from engaging in economic policies which were injurious to one another and to the general prosperity of the union. There were constant interstate conflicts as states attempted to gain some kind of economic advantage over each other. In addition, there was no central agency that could regulate international commerce to the benefit of all. [11] Congress was unable to protect the freedom of commerce within the nation because it lacked the powers necessary to do so.

By 1787, wise minds recognized that the situation was not tenable. Changes had to be made. Unfortunately, there was no unanimity as to what those changes might be. Many people thought that only slight changes in the Articles of Confederation were needed—changes that could be accomplished by amendment. Others, like Alexander Hamilton, thought the Articles of Confederation fundamentally defective and in need of complete replacement. There were even those who felt that the solution to the problems of the Articles of Confederation was to substitute two or more smaller confederations of like-minded states for the single entity that existed under the Articles of Confederation. [12]

Conclusion

As indicated above, by the eve of the Constitutional Convention of 1787, nearly all the best leadership of the United States of America realized that its current form of government would have to be revised. It was impossible for the new nation to adequately provide for its common defense or to secure the respect and trust of other nations under the current situation. It was for this reason that, in February of 1787, Congress provided for a convention, which originally was to seek ways to amend the existing Articles of Confederation, and from which our current constitution emerged.

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

[1] See, United States Code: Articles of Confederation – 1777 (1952), hereinafter, “Articles of Confederation.”

[2] Articles of Confederation, Article II. “Each State retains Its sovereignty, freedom and independence, and every power, juris-diction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

[3] Articles of Confederation, Article III.

[4] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 18 (Madison and Hamilton). All references to the Federalist Papers are to this edition and will be cited, “Federalist Papers Number, and Author.

[5] Articles of Confederation, Article VI.

[6] Articles of Confederation, Article 4. If actually invaded by a foreign power, staters could conduct wars under the Articles of Confederation.

[7] Articles of Confederation, Article XII.

[8] Federalist Papers, No. 15 (Hamilton).

[9] Articles of Confederation, Article IX.

[10] Federalist Papers, No. 18 (Madison and Hamilton).

[11] Federalist Paper No. 15 (Hamilton)

[12] Several of the Federalist Papers authored by Alexander Hamilton, John Jay, and James Madison are devoted to exposing the obvious flaws of this solution, which would have inevitably resulted in different states and confederacies having differing treaties and alliances, that might easily result in conflict among the states.

As indicated last week, Charles baron de Montesquieu is a significant thinker for understanding the political ideas of the Enlightenment and American democracy. His work Spirit of the Laws is the most quoted philosophical work by the founders, quoted more often than John Locke. [1] His work was important for the development of our notion of limited government and separation of powers. He was also significant because of his understanding of the importance of religion and the development of religious freedom is reflected in our Constitution.

Born in 1687, he was raised a Roman Catholic but married a Protestant Huguenot. Like Burke, his experience of religious intolerance under the Bourbon kings impacted and formed his views on religious liberty. The exact character of his religious faith is the subject of academic discussion, but my view is that he considered himself a Christian, though like many Enlightenment thinkers, he is not consistently committed to any particular theology or interpretation of Christian faith. As a political thinker, his interest in Christian faith is practical and moral.

Virtue and Religion

As indicated last week, Montesquieu believed that a democratic republic must be founded on the virtue of its citizens. Without the kind of virtue that results in love of liberty, no democracy can sustain itself. As a result, moral education and moral formation are essential in the formation and maintenance of a republican government.

The formation of moral character and the ability to restrain immediate desire for the long-term good are fundamental to the Christian religion and to Western culture generally. The theological virtues of faith, hope and love and the cardinal virtues of justice, prudence, fortitude, and temperance lay the core of the historic Catholic notion of virtue in Montesquieu’s day as they do for Christians in our own day. Justice that lies at the basis of all good government; Prudence is necessary for the wise management of public affairs; Fortitude is necessary in times of danger; and Temperance is necessary to restrain the passions.

Religion and the State

Because of its role in the promotion of those virtues required to support a stable government, religion plays and important role in Montesquieu’s thought. Montesquieu recognizes that, as a matter of historical fact, religion has deeply impacted all human civilizations. [2] In the case of Israel (Judaism), Europe (Christianity), the Middle East (Islam), China (Confucianism), and Japan (Shinto), religion can be seen as having an extraordinary impact on society. As his analysis proceeds, Montesquieu shows a familiarity with each of these religions, and the way in which they formed the culture and laws of a society.

As a Christian and citizen of a Christian state, Montesquieu believed that the Christian religion played an important role in the evolution and development of republican democracy and the avoidance of despotism:

The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospel is incompatible with the despotic rage with which a prince punishes his subjects, and exercises himself in cruelty. As this religion forbids the plurality of wives, its princes are less confined, less concealed from their subjects, and consequently have more humanity: they are more disposed to be directed by laws, and more capable of perceiving that they cannot do whatever they please. [3]

In Montesquieu’s view, Christianity stamped its character on the social mores and jurisprudence of the West due to its crucial role in creating the distinct characteristics of Western civilization. The “mildness” of the Gospel portrayals of God impacted the willingness of Westerners to obey the state and avoid violent, revolutionary, destructive social behavior. The way in which Christianity in the West incorporated the values on ancient Greece and Rome, contributed to the evolution of republican government in Europe.

In the west today, Christians can best recommend themselves as guardians of republican democracy by urging and demonstrating the virtues of love for the other, tolerance of other views, and abhorrence of violence as a political tool. Christianity is no longer dominant in the West, and Protestantism is no longer dominant in America. We live in a “post-Christian” society. This does not mean what we live in a society where people are not touched by self-giving love and an example of wise and healthy living.

To say that Christians should demonstrate and support traditional Christian values is not to say that other groups should not share their values. As will be seen below, secular humanism functions like a religion for many Westerners today, and it brings with it virtues that are part of the formation and maintenance of the modern state. What is necessary, and hopefully possible, is for secular people and religious people to create a political social space in which all views can be peacefully heard in a common quest for a just and peaceful society.

Love as Guard Against Despotism

One of the most important Christian contributions can be the creation of a “politics of love” in the center of democratic societies. As Montesquieu notes, the centrality of love in Christian thought is conducive to development of a society in which human beings peacefully seek the best for one another. “The Christian Religion, which ordains that men should love each other, would, without doubt, have every nation blest with the best civil, the best political laws, because these, next to religion are the greatest good that men can give and receive.” [4]

By its very nature, Christianity seeks a moderate government that is best created in some form of republican democracy. Thus, “the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospels is incompatible with despotic rage with which a prince punishes his subjects and exercises himself with cruelty.” [5] In particular, Montesquieu sees that Protestantism is particularly compatible with a freedom of liberty. [6] In this respect his views are similar to those of Burke.

In a stunning warning that foresees the demonic character of the French Revolution and the violence of revolutionary movements of the 20^th and 21^st Centuries, Montesquieu notes that “Those who forsake religion are apt to forsake civilization and morals, becoming like beasts that bite and devour one another and seek to destroy every chain of restraint that law and society may feel necessary on behavior.” [7] Over and over in the 20^th Century, in Soviet Russia, in Nazi Germany, in Maoist China, in Cambodia and North Korea, we have seen the cruelty and violence into which purely atheistic regimes can descend. Only a politics of love can avoid the recurrence of this kind of prideful violence in Western culture today.

Freedom of Religion

Like nearly every early Enlightenment thinker, Montesquieu defends religious freedom. In his view, penal laws ought to be avoided with respect to religious belief, and the fear associated with the possibility of punishment is not conducive to religious freedom and progress. In particular, Montesquieu opposed the use of law for religious persecution, such as had been found in the case of the Spanish Inquisition. In what I think one of the most moving passages of theSpirit of the Laws, Montesquieu reprints at length a letter from a Jew who was put to death by the Inquisition.  In the letter, this unknown Jew makes a point that in this kind of behavior, Christians were not behaving as their founder, Christ, would have behaved and urged them to behave. [8]

Establishment and Tolerance

Implicit in the arguments that Montesquieu advances is the underlying idea that religious belief cannot be compelled, and even if established, as it was in France and England, other views should be tolerated by the dominant group and their leaders. In the case of France, this meant to Montesquieu that Protestantism should be tolerated even though Catholicism is established. In England, it would mean that Catholicism should be tolerated even if Protestantism is established.

Some readers misread Montesquieu as having no religious preferences, thinking them all equally false. [9] I think that the foregoing discussion shows that this view of his work is mistaken. There can be no doubt that Montesquieu prefers Christianity. However, his views on religion, and his goal as a law-giver and rationalizer compel him to the belief that religious toleration is required from the state.

In the Europe of Montesquieu’s day, Christianity was the dominant religion. In southern Europe, the Roman Catholic Church was dominant. In northern Europe, the Protestant faith had become increasingly dominant. The issue of religious freedom and tolerance was substantially between these two sects and Judaism, which was often persecuted by both. Today, what scholars and writers sometimes call “secular humanism” is the dominant view by many elites in Europe and America, and their tendency is to be hostile to Christian faith in all its forms, since it is the dominant faith in their nations. [10] The call for religious tolerance is most necessary to be heard today by secular elites.

Separation of Church and State

Although Montesquieu is not generally considered important in the formation of the uniquely American doctrine of separation of the church and state, his Spirit of the Laws made an important contribution to developing a way of thinking that encourages such a separation.  In a section called, “Of Laws in Relation to the Order of Things Which They Determine” Montesquieu establishes a principle that “We ought not to decide by divine laws what should be decided by human laws; nor determine by human laws what should be determined by divine law.” [11]

Implicit in this statement is the view that secular society should not legislate on religious matters nor should religious groups be given authority in secular matters. This is for the protection of both parties. Secular law is by its nature subject to change as society changes, while religious laws are permanent. Human laws govern circumstances that are always changing, with the result that many laws that are passed by legislatures and promulgated by the courts are likely to change. We see here a progressive view of society as often in a state of flux, requiring constant adaptation by the magistrate. If you remember the blog on Marcus Aurelius, one of the frequent recognitions of those who are actually in politics is a realization of the inevitability of change. Those who speculate can, like Plato, speculate on creating a perfect, static polity. Those who long bear the burden of magistracy, know better.

Conclusion

Leaving Montesquieu, like leaving Burke, is like leaving an old and dear friend. There is much out of date in his thinking, but there is also much of eternal relevance. In these two short blogs, I have been unable but to scratch the surface of his wisdom. One area I did not have time to cover is the area of taxation and budgeting constraints. One characteristic of a wise and prudent government is the ability to live within a reasonable budget.

The ability to tax is the most powerful element of governmental power, and one susceptible of misuse. A government that is imprudent with its finances is destined for trouble. The French Revolution was brought about by the inability and unwillingness of the Bourbon rulers to discipline their spending and the blatant unfairness of the French tax system. This is a point that should not be lost on contemporary policy makers.

Finally, this blog brings us to the founding of the United States of America and the Constitution. This summer, my intention is to make a slow journey through the Articles of Confederation, the Constitution, and the Bill of Rights. For most of the summer, the only external source that will be referenced is the Federalist Papers, and the weekly posts will be shorter.

As mentioned from the beginning of these blogs, the Founders were well-educated in the Judeo-Christian, Greco-Roman, Medieval Catholic, Protestant, and Enlightenment writers. At a moment in history, the influence of all the writers we have looked at thus far, from Plato to Burke, came together in a moment of synthesis as our system of government was formed. That formation is not the end of the story, but it the original defining moment in the story of the development of the government we enjoy today. It is worth spending time understanding the structure of our government and the initial modifications that were made in order to achieve ratification of the document. For now, we have come to a place to rest a bit as summer begins.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, Volume 38 “Montesquieu and Rousseau” Mortimer Adler, ed. (Chicago, Ill: Encyclopedia Britannica, 1952).

[2] Id, 197.

[3] Id, 201.

[4] Id, 200.

[5] Id, 201

[6] Id.

[7] Id, 200

[8] Id, at 212-213.

[9] I read several such views in preparing this blog. It is not really possible to read Spirit of the Laws without Enlightenment prejudices and not conclude that while Montesquieu has doctrinal doubts about all that the Roman Catholic Church teaches, and is suspicious of, and hostile to, all forms of extremism, he is sympathetic to Christianity and supportive of its generally positive impact on society.

[10] Interestingly, in France in particular, it is the Muslim faith that suffers the most opposition from the secular state, which has seen it possible and thought it wise to prohibit the Burka (a women’s dress) and to prohibit the wearing of certain religious garb, which constitutes a suppression of Islam. In America, an increasingly hostile secular left has taken to suggesting that Christians should not be allowed in politics, etc.

[11] Id, 214.

Baron de Montesquieu is one of the most interesting thinkers who influenced the founders of our nation. He was highly thought of by both Jefferson and Madison, among others. Through Madison and others, his work influenced the final form of our Constitution. He also represents an important writer of the Enlightenment, and perhaps the most important and representative continental political philosopher. From the perspective of these blogs, reading Montesquieu is important for another reason: He, like Rousseau, represents a synthesis of the emerging modern and Classical and Renaissance ways of thinking. [1] He is both representative of a new way of thinking and, at the same time, a continuation of a way of thinking characteristic of Western political thought from Greece to Rousseau—something needed in our day as well.

Montesquieu, whose full name was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, was born January 19, 1689, one year after the Glorious Revolution in England and 100 years before the beginning of the French Revolution. [2] He was from a noble family, and inherited a large estate, which he managed for a time. He was educated as a lawyer, and was for a time the chief administrative and judicial officer of Bordeaux, a position that allowed him ample time to reflect upon the law. Like many Enlightenment thinkers, Montesquieu was interested in natural science.

In 1724, Montesquieu published a successful political novel, “Parisian Letters.” This event changed his life, as he transitioned from a magistrate to being an intellectual figure. Montesquieu travelled widely in Europe, and while visiting Great Britain became an admirer of the British parliamentary system. In 1731, he began his masterpiece, the “Spirit of the Laws,” which he completed in 1748. Both the Parisian Letters and Spirit of the Laws are political and social commentaries and both defend freedom against despotism.

Spirit of the Laws

Spirit of the Laws is without doubt one of the most important and influential books of political philosophy in Western history. [3] In it, Montesquieu systematically sets out his legal philosophy in a work filled with references to laws and legal systems of history. The book is dense with examples from Greek, Roman, French, British, and other legal systems. He attempts, as he says at the beginning, to not follow his prejudices, but the “nature of things,” following the inner connections between laws that connects a law as a singular human achievement. [4]

Montesquieu as a Natural Law Thinker. There is a good deal of debate over whether and to what degree Montesquieu is a Natural Law thinker. The mere appeal to law as “an inquiry into the nature of things” indicates that, in some way, he is. Montesquieu, however, rejected Hobbes dreary form of Natural Law and his “war of all against all” theory. Instead, Montesquieu sees human beings as essentially social, desirous of human interaction and society. The growth of law and society is, therefore, a natural development of human nature and potential. This nature differs from people to people, climate to climate, practical situation to practical situation. Nevertheless, “Before laws were made there were relations of possible justice.” [5] Before the emergence of specific, positive laws of a people, there are laws of nature that take their content from the “fame and nature” of the human person. [6]

Positive Law according to Montesquieu. Every concrete human society forms specific, positive laws to organize social life and provide a legal structure for measuring out justice and resolving disputes. This positive law, though based upon fundamental notions of justice, varies according to the conditions of the people who organize a legal system and create its laws. Geographic, climatological, economic, social, and other factors function in such a way that no two societies will have the same positive laws nor do differences between them indicate than any particular system is unjust. Thus, … “the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favor it is established.” [7]

Forms of Governments. Just as the laws of a particular society will differ from other societies, there are different forms of government by which societies are organized. For Montesquieu, the forms are basically three: Monarchies, Republican Democracies, and Despotisms. Throughout his works, Montesquieu exhibits a dislike of despotism, which is the rule of one person according to his or her own whims. Monarchies are the rule of one, but this rule is moderated by the nobility and citizens of the nation, each with their own sphere of liberty and influence. Republics are representative governments, governments in which the people chose representatives. [8] Montesquieu goes into great detail in describing the characteristics of each form of government. For the purpose of this essay, we will concentrate on that form most important for Americans: representative, democratic, republican government.

Principles of Republican Government. In a republican form of government, either the people as a whole or, more frequently, their elected representatives possess the supreme power to legislate and organize the government. In order to maintain this order, virtue is required and virtue is the fundamental principle of republican government, for “in a popular state, one more spring is necessary, namely virtue.” [9] Obviously, if virtue is central, then education and character formation are of supreme importance for maintaining a republican form of government, where the whole power of education is required to form a citizen capable of self-rule. [10]

Here it is that our educational system most clearly fails. It is not enough that children learn facts and figures, citizens must love the nation in order for a republic to sustain itself:

This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues, for they are nothing more than that preference itself. This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it. [11]

It is a defect in contemporary education that it concentrates to an unhealthy degree upon the defects of our democracy and fails to educate our youth in its fundamental principles, historic successes, and gradual improvements. This is true in public and many private schools alike. It is particularly present in those universities that form future leaders. Too often young people leave institutions of higher learning alienated from our republican institutions and unable and unwilling to appreciate its achievements. This is an area in which a healthy balance needs to be restored.

Goal of Legislation in Republican Democracies. In order to create a coherent body of law, there must be an animating principle of legislation. In the case of republican democracies, the animating principle must be the achievement of greater equality. In the case of 16^th Century France, this liberty could only be achieved by restricting the wealth and power of the nobility and king. [12] In contemporary America, the use of antitrust laws, incentives for employee ownership of corporations and private businesses, and the removal of barriers that render small businesses unable to compete, and inheritance taxes are just a few of the ways that economic liberty and equality can be maintained. As to social liberties, in a well-formed republic certain civil rights are maintained to allow the full exercise by citizens of their gifts and talents.

This principle of equality is not, however, absolute in republics. There can be an excess of equality. “The principle of democracy is corrupted not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those he has chosen to command him.” [13] True equality is not some abstract “extreme equality” that ignores differences of attainment, gifts, and effort. [14]

Moderation and Balance of Powers. Moderation is essential for liberty to exist. “Political liberty is to be found only in moderate governments.” [15] Unfortunately, moderation is difficult to achieve because it is in the nature of human leaders to press their quest for power as far as possible. In one of his most perspicuous passages, Montesquieu notes that:

Whenever we observe in any age or government the different bodies of state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments as an evident mark of their corruption. Through a fatality inseparable from human nature, moderation in great men is rare: and it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior class of people, it is less difficult, perhaps to find men virtuous than extremely prudent. The human mind feels such an exquisite pleasure in the exercise of power: even those who are lovers of virtue are so excessively fond of themselves that there is no man so happy as not still to have reason to doubt his honest intentions;…. [16]

Based upon this observation concerning human nature, it is easy to see that it is inherently dangerous for the legislative, judicial and executive functions to be combined:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . . Again, there is no liberty if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control: for the judge would then be the legislature. Were it joined with the executive power the judge might behave with violence and oppression.”[17]

The solution is to separate and make these functions both independent and mutually inter-dependent, so that one power cannot overcome the others. This pattern of thinking was influential in the way in which the U.S. Constitution separates and divides power among the legislative, executive, and judicial branches of government.

In my view, the greatest danger to our system of government relates to the way in which the growth of a bureaucratic state with immense administrative agencies has created a fourth center of government that often acts as legislator (issuing regulations), judge (interpreting and enforcing regulations) and executive (administering and issuing orders under regulations). The balance of powers upon which republican democracy rely are largely absent in dealing with this vast, only partially accountable bureaucracy. When we get to De Tocqueville and his Democracy in America, we will take a look at the first person to perceive the threat of bureaucracy to democratic government.

Conclusion

As mentioned at the beginning, Montesquieu was an important thinker for the writers of the United States Constitution. He was quoted more frequently than any other writer by the founders as they explained what they had done and why. The Spirit of the Laws is not just important for the form of the Constitution, for the founders also understood his views on war and peace, on taxation, and on a number of other issues that impacted the form of the document. His views and concerns are of value even today—and it is too bad that more of our leaders do not read and ponder his thought.

I had intended to spend only one week on Montesquieu, but next week I intend to write a shorter blog dealing with religion and the state.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] As I have observed in prior writings, the term post-modern is really a place-holder as a name for an emerging era in human history. All “post-modern” means is “after-modern.” The term does not describe a new and emerging world view. Many prominent “post-modern” thinkers seem to me to be really “end game-modernity,” that is following modernity to its logical, and ultimately destructive, conclusion. Having attempted to construct human life and understanding on a fully naturalistic, materialistic, hyper-individualistic model, since Nietzsche modernity has been degenerating into nihilism. In some respects, I think of modernity as a kind of human adolescence: Having discovered its full range of intellectual, scientific, and technological powers, modernity rebelled against tradition and often common sense. The next era may be something like the “mature-era,” as a post-adolescent modernity begins to recover a deeper sense of community with the past.

[2] This brief review of Montesquieu’s life and work is dependent upon, among other works, “Baron de Montesquieu, Charles-Louis de Secondat,” Stanford Encyclopedia of Philosophy (downloaded May 17, 2021).

[3] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, volume 38 “Montesquieu and Rousseau” Mortimer Adler Ed. (Chicago, I’ll: Encyclopedia Britannica, 1952).

[4] Id, at xxi, 1.

[5] Id.

[6] Id, at 2.

[7] Id, at 3.

[8] Id, at 4.

[9] Id, at 9.

[10] Id, at15.

[11] Id.

[12] Id, at 19-20.

[13] Id, at 51.

[14] Id, at 52.

[15] Id, at 69.

[16] Id, at 250.

[17] Id, at 70.

This is the last of my blogs on Edmund Burke (for the time being). I feel like it is a sad goodbye to a good and respected friend. By the time of the French Revolution, Burke (1729-1797) was close to the end of his public career and life. In this last years, he conducted a one-person crusade against the French Revolution and those in England who wished to emulate the excesses of the French. In particular, Burke wrote against the lack of respect for past human achievements, disregard of human rights, lack of respect for persons, violence, foolish self-seeking, and revolt against religion that too often animated French revolutionaries. In so doing, he finalized his views on politics in a way that has been profoundly useful and important in subsequent times, including our own.

French Revolution (1789-1799)

In August 1789, a “Declaration of the Rights of Man and of the Citizen” was adopted by the National Assembly of France. Historically the national assembly of France (the “Estate General”) was composed of representatives of all the citizenry of France, which were divided into three estates, the nobility, the clergy, and the remainder of the people. As a practical matter, average French-persons were massively underrepresented. [1]  In 1789, the first Estate General since 1614, a gathering of all three of the Estates of France, was called by the French king, Louis XVI, to address a financial crisis into which France had been plunged by financial mismanagement, foreign adventures, domestic overspending, and support for the American Revolution. [2]

In June 1789, the Third Estate  alone declared itself the “National Assembly” and events began taking a revolutionary turn. The ancient privileges of the crown, the nobility, and the clergy of France were now certain to be modified, or as matters turned out, eliminated altogether. In the end, the French Revolution was a massive, violent failure, ending in the dictatorship of Napoleon Bonaparte.

The French revolutionary experiment began optimistically. The king and nobility knew that there needed to be, would have to be, substantial modifications of their system of government for the nation to recover from the disaster into which mismanagement had led it. Many of the nobility, some of whom would later be executed during the Reign of Terror (1793-1795), agreed and supported needed change. Many of the more moderate adherents of the revolution desired to model the French Revolution after the American Revolution, which had established a stable constitutional state. Others desired to see a system of limited monarchy, similar to that in Great Britain. However, there were serious differences between both the British Glorious Revolution of 1688 and the American Revolution of 1776. These differences ultimately caused the French Revolution to take a tragic turn. [3]

The leadership of the British and American revolution, though impacted by the Enlightenment, were substantially unaffected by the anti-religious and radical sentiment that emboldened the French Revolution. In the case of Britain, the Glorious Revolution was intended to preserve and secure the rights of the people and Protestant character of the state. As to the American revolution, protection of religious freedom generally was one goal of the revolution. In both the cases, the propertied classes, nobility (in England), and business interests were represented and had influence over events. Finally, the moderate political views of British thinkers guided the Glorious and American Revolutions, whereas more radical ideas of Rousseau, Voltaire, and others guided the French Revolution.

Burke’s Response

A year or so after the French Revolution began, Burke published his “Reflections on the Revolution in France” [4]This was before the reign of Terror and the worst excesses of the revolution, which Burke foresaw and partially wrote his response to the way in which the French were managing their revolution to avoid. By the end of the century, Burke’s views were seen as both accurate and prophetic.

Failure to Keep Public Faith. In Burke’s view, the French Revolution resulted from the various “estates,” that is the people that made up all the citizens of France, failing to keep faith with one another in matters of importance. In so doing, the government of France reached a point of revolution:

The constituted parts of a state are obligated to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with the separate communities: otherwise competence and power would soon be confounded, and no law would be left but the will of a prevailing power. [5]

In Burke’s view, the government, the nobility, the clergy, and the people owed reciprocal duties to one another. It was, for example, a breach of public trust for the nobility, clergy, and crown to saddle the Third Estate with a tax burden they could not meet and condemn the majority of the people to poverty. This was not just a violation of the social compact (though it was), it was also a violation of natural law and exposed France to revolution. In the end, all that was left was power, which in the case of the French fell into incompetent, corrupt, radical and violent hands. [6] This duty was a duty both of those whose mismanagement provoked the revolution and those who were conducting it.

A Fixed Rule of Change. According to Burke, in the case of France, there was no “fixed rule of change,” that is to say there was no way the Third Estate could effectively express their grievances and effect a peaceful change of government. By the time of the Glorious Revolution in England, the British people had endured the Cromwellian Revolution, the Restoration of the Stewart Dynasty, the substitution of James I for Charles II, and the Glorious Revolution itself. In the process, Parliament had both gained power and sustained social order. By 1688, no one wanted to return to the violence of prior periods, and so an orderly change in the state was accomplished. During the American Revolution, there was a strong desire to maintain the historic rights of British citizens for the American people. There was no such order available in the French Revolution. The result was that the Third Estate grabbed all power, and all the institutions of society were subjected to radical, violent, and in the end, failed change.

A Sense of Inheritance. In what I take to be one of the most important and pertinent arguments of Reflections on the Revolution in France, Burke argues that the British and American revolutions could be distinguished from that in France by the absence of a sense of continuity and inheritance:

The Revolution (of 1688) was made to preserve our ancient indisputable laws and liberties, and that ancient constitution of government which is our only security for law and liberty. If you are desirous of knowing the spirit of our constitution, and the policy that predominated in that great period which secured it to this hour, pray look in our histories, in our records, in our acts of Parliament and journals of Parliament…. We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. [7]

This notion that the institutions of a stable government that protects the rights and property of its citizens are “an inheritance” is an important aspect of Burke’s organic view of government. He believed that a wise constitutional order works after the “order of nature,” like a parent bequeathing an inheritance to a child. Thus, a sound constitutional order is an inheritance from those who established that order. This inheritance is to be received, built upon and improved by subsequent generations.  Burke’s notion of an “order of nature” is consonant with the view that human history is a kind of evolving process, in which each generation receives the benefits of civilization and passes that inheritance on in either better or worse, but certainly different, condition that it was received. [8]

Failure of the French to Build on Historical Foundations. In his emphasis on “inheritance” Burke reveals his sense of stewardship of the past, and the notion that the past, both good and bad, limits and directs the activities of a wise statesperson. In the case of France, Burke was well aware that the French Constitution and social order was in disorder. Nevertheless, there was an order, and that order was capable of being  peacefully altered to protect the interests of the people of France. In order to do this, Burke felt it would have been wise to build on the existing foundations rather than tear apart the social order in its entirety. In failing to do this, the National Assembly had been guilty of great foolishness and unleashed a great suffering on the French people. [9] History has generally judged Burke correct in his views. [10]

Reliance on “Metaphysical Speculation” as Opposed to Practical Experience. Underlying Burke’s critique of the French Revolution is his pragmatism and instinctive distrust of what he termed “metaphysical speculations,” which in the case of the French Revolution involved a dramatic shift in society led by people with only an abstract idea of where they were leading the state based upon the speculation of social theorists, like Rousseau with little or no experience in government and politics. Burke spends a great deal of time in Reflections on the Revolution in France outlining the lack of experience, wisdom, and attainments in those who made up the French National Assembly of Revolutionary France. In his view, the clergy and nobility chosen were not of the best leadership, and the assembly was too much led by lawyers with little or no magisterial experience. [11]

In Burke’s view, legislative bodies should be made up of persons of an established position in life, attainments, property, well-educated and with fixed experience and habits that would enable them to serve the state and its citizens well. This is an aspect of Burke’s thought that could be important to our own day. We do have age requirements for public office in most areas, but qualifications are a different matter. As a matter of choice, voters need to ponder the life experience and qualifications that they feel public servants at every level should have. I would only state that political experience may not be the only relevant kind of experience to be considered as necessary.

Opposition to Religion and Historic Morals. Finally, Burke saw the anti-religious and sometimes immoral foundation of the radical French Revolution as symptomatic of its rejection of a kind of humility that sees human institutions as subject to a higher power, which created and sustains the universe, and therefore, at least indirectly human institutions of all kinds. This humility also encourages leaders to see themselves as stewards of the past and the public trust.  Burke saw that social institutions must themselves rest upon the foundation of a sound morality, for everything cannot be made subject to law.

In one of his most impassioned passages, Burke exclaims to the reader:

There is no qualification for government but virtue and wisdom, actual or presumptive. Wherever they are actually found, they have, in whatever state, condition, trade, the passport of Heaven to human place and honor. Woe to the country which would madly and impiously reject the service of the talents, virtues, civil, military, or religious, that are given to grace and to serve it; it would condemn to obscurity everything formed to diffuse the luxury and glory around a state. Woe to the country too, that, passing into the opposite extreme, considers a low education, a mean, contracted view of things, a sordid mercenary occupation as preferable title to command. [12]

We live in a time in which an Enlightenment kind of reasoning is all too common, and rejecting religious faith and morals is a commonplace. Burke believes, and warns us against rejecting the role of religious faith in society and politics. Unlike Burke’s day in England, this warning is against the a priori rejection of any religious group. It is also a call to religious groups to think long and carefully about the service they may make by restraining their energies to a focus on the spiritual and moral condition of society. Woe to the society that rejects the input of religious groups on matters of public importance. Woe also to a religious group that does not undertake its mission in public life without a spirit of service and self-sacrifice.

Conclusion

At this point, we must leave Burke for the time being. I can only urge readers to consider reading the primary source for themselves. His thought is often so complex, and so embedded in a particular historical reality that it is difficult to follow, much less synthesize for a casual reader. His morally-informed pragmatism, his respect for history and for tradition, his belief in natural law embedded in common law, and his distrust of abstract idealism in politics seem to me to be the basic foundations of his thought to be remembered and internalized by interested readers.

Copyright, G. Christopher Scruggs, All Rights Reserved 2021

[1] Historically, franc was made up of three estates, each of which were represented within the Estates‐General. These three orders were the nobility, the clergy, and all other French citizens, known as the “Third Estate.” Ultimately, the Third Estate became the ultimate legislative body, and responsible for the excesses of the revolution.

[2] Under the existing French taxation system, the clergy and the nobility did not pay their fair share of taxes, resulting in a huge burden of taxation falling on the Third Estate, which lacked the economic resources to support the spending of the government of Louis XVI. The luxurious lifestyle of the Bourbon kings, their many wars with England, and their support of the American Revolution, all combined to bankrupt the state.

[3] This is not the place for me to give a full history of the French Revolution or the cultural differences between the Glorious Revolution of 16888 and the American Revolution of 1776. However, in my mind, these differences need to be studied and internalized by contemporary Americans. The current brand of revolutionary ideology being promoted publicly bears an unfortunate resemblance to the French Revolution. Those who wish our nation to adapt to its current issues, need to study the French Revolution and the events leading up to it.

[4] The quotations from this work and from other works of Burke upon which this blog is based are found in Edmund Burke: Selected Writings and Speeches Peter J. Stanis, ed. (Washington, DC: Regency Publications, 1963). Unless otherwise noted, all quotations are from this edition of Burke’s thought.

[5] Id, at 522.

[6] This might serve as a warning to our leaders. There is no doubt but that the spending habits of the US government have resulted in an enormous debt burden that constitutes a failure of the government to keep faith with its people.

[7] Id, at 527. I have added the parenthetical reminder of the date for readers unfamiliar with Burke.

[8] I cannot give this aspect of Burke’s thought all the consideration it deserves, but will return to it later in these blogs as we begin to examine the impact of modern physics and the view of reality that has emerged in what has become known as “process philosophy” on the issue of our current difficulties. Post-modern physics is sympathetic to a vision of reality as an evolving process, with each future state incorporating the past in a process of continuity and change. This view of reality was given prominence by Alfred North Whitehead in his great work, Process and Reality: An Essay in Cosmology (New York, Free Press, 1929). At this point, it is enough to introduce the notion that the citizens of a state inherit a set of existing conditions as an “inheritance,” representing something like an “initial state” and will pass on this “inheritance” with such modifications as they may wisely or foolishly make. The views of Whitehead and his followers are sometimes referred to as a kind of “constructive post-modernism,” that can in a positive way incorporate post-modern thinking. Many weeks from now, we will look at Whitehead as a political thinker.

[9] Id, at 530.

[10] Burke’s reputation as a stateman and thinker were very much enhanced by the fact that as early as 1789 he was able to predict the violent and destructive of the French Revolution and its fundamental causes.

[11] See, Burke, at 554ff.

[12] Id, at 540.