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The Poetry in the Constitution’s Preamble

The Poetry in the Constitution’s Preamble

This article first appeared in The American Spectator on Feb. 13, 2018.

The person most responsible for the Constitution’s final form was Gouverneur Morris. The Preamble, which begins with “We the People,” is one of the world’s most recognizable bits of prose — prose that, at least in some ways, approaches poetry.

Morris had been well educated in poetics. At King’s College (now Columbia University), his two favorite subjects were mathematics and Latin. His Latin studies introduced him to VirgilOvid, and other Roman poets, and his writings contain occasional references to Ovid. From studying Shakespeare, Morris learned English prosody as well. As a young man, he sometimes wrote verse himself.

Fortunately, Morris did not essay to render the Constitution in poetry — although at least one modern author has attempted it. Nor is the Preamble technically blank verse. But it certainly was written with meter in mind.

The Preamble can be divided readily into 12 lines grouped into six couplets. I have reproduced them below. The marks beneath each line show how it is scanned. Morris wisely did not try to impose Latin meter on English; his meter is based on the English stress accent.

One can quarrel over the scanning. Pronunciation has changed somewhat since the 18th century, and my daughter Sarah, who draws on far more formal classical training than I, disagrees with me over some details. But the scansion marked below is close enough for present purposes.

Here is the first couplet:

We the People of the United States,
  –  .  .  .  .  –  –
in order to form a more perfect Union,
. –  .  . – .  . –  – .

Both lines contain the same number of syllables: ten. Both contain the metrical foot called a molossus, which consists of three heavy syllables (— — —). Poets typically use molossi to convey grandeur.

The couplet is further tied together by alliteration. The “p” sound appears in “People” and “perfect,” and voiced and unvoiced “f” letters appear in “of,” “form,” and “perfect.” The second line also contains a soft, or semi-rhyme, (ORder … fORm). The open sounds of those two words further serve to convey grandeur.

Here is the second couplet:

establish Justice,
. –  – .
insure domestic Tranquility,
. – .  –  .  .  –  .  .

The meters of these two lines are less similar than the two in the initial couplet, but they are tied together in other ways. Both lines are relatively short compared with those surrounding them. Together, they contain four “s” and two “sh” sounds.

The word “Tranquility” marks the end of both the couplet and of poem’s first third — that is, of its first four lines. “Tranquility” forms a metrical foot called a secundus paeon (. — .  .).

The third couplet is:

provide for the common defence,
. –  .  .  –  .  . –
promote the general Welfare,
.  –  . –  .  .  –  .

These two lines begin with the same syllable: “pro.” Each has the same number of syllables (eight), and their metrical schemes are nearly identical.

Careful readers may observe that this couplet contains one of the few instances in which Morris forgot to capitalize a noun: “defence.”

Here is the fourth couplet:

and secure the Blessings of Liberty
.  .  –  .  –  . .  –  .
to ourselves and our Posterity,
. .  –  .  –  .  –  . .

These two lines share nearly the same number of syllables and a similar metric scheme. Each line features alliteration based on the letter “s.” They end with the near-rhymes “Liberty” and “Posterity.”

Just as “Tranquility” marked the end of the Preamble’s first group of four lines, so “Posterity”—another secundus paeon — signals the end of the second group.

Here is the fifth couplet:

do ordain
. . –
and establish
. . –.

The Preamble can be divided into halves as well as into couplets and thirds. The lines in the middle couplet of the first half (“establish Justice, ensure domestic Tranquility”) are very short. The fifth couplet represents the middle of the second half. Its lines are also very short. In this case, moreover, their metrical schemes are similar.

Finally, we reach the sixth couplet:

this Constitution
.  –  –  –  .
for the United States of America.
. . . –  –  – . .  –  . .

I have scanned each line as containing a molossus. Sarah prefers to read my molassi as cretics (— . —). Either way, the Preamble has returned to its initial grandeur. The last word (“America”) is the secundus paeon denoting the end of the last group of four lines.

My book The Original Constitution points out that Gouverneur Morris inserted other cultural signals in the document. But the metric nature of the Preamble is particularly striking. Americans had prepared many state constitutions and constitutional-style papers before 1787, but Morris’ approach was unique and has served as an inspiration for constitution-makers ever since.

Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

This post first appeared in The Hill on January 30, 2018.

Some leading proponents of centralized federal power have caught that ole-time states’-rights religion.

New York Governor Andrew Cuomo, for example, has been a fervid defender of ObamaCare and other congressional programs invading traditional areas of state control. But, he says, Congress violated the rules of federalism when its new tax law capped income tax deductions for state and local taxes paid (SALT deductions).

Are Cuomo and his allies correct? Does the Constitution require Congress to include SALT deductions in its income tax laws?

The Constitution’s actual language does not say so.

Some cite a 1985 speech by the late Senator Daniel Patrick Moynihan (D.-N.Y). arguing for the SALT deduction. But that particular speech is cast in generalities, and does little to address specific constitutional questions.

They also point to Controller v. Wynn, a 2015 case in which the Supreme Court struck down a Maryland law taxing out-of-state income. But that case centered on interstate commerce issues not present in the new tax law.

Still others contend that the original Constitution banned income taxes until the Sixteenth Amendment approved them, and that amendment would not have been approved unless it implicitly required SALT deductions. For several different reasons, however, this argument is extraordinarily weak.

First, its initial premise is wrong: The original Constitution did not ban income taxes. On the contrary, it granted Congress broad authority to impose “direct taxes,” including income taxes. The only restriction was that if Congress imposed a direct tax it had to divide the expected revenues among the states by population. The Sixteenth Amendment eliminated that restriction, but Congress always had enjoyed power to impose an income tax.

Second, cited evidence for the founders’ supposed anti-income tax view actually cuts in the opposite direction. According to one Cuomo ally, “It was feared that the new federal income tax would ‘monopolize’ all of the country’s resources, leaving little money left in state coffers … Alexander Hamilton outlined this precise fear as early as the 1780s, in Federalist Paper No. 31.”

What the writer fails to mention is this fear arose chiefly among the Constitution’s opponents, and that Hamilton “outlined” it only to rebut it. Specifically, Hamilton pointed out that the Constitution tasked the federal government with national defense and internal order—and that because it was impossible to predict how much revenue would be needed for such functions, additional limits would be unworkable.

For better or worse, most of the founders agreed with Hamilton. They repelled efforts to further curtail Congress’s taxing authority.

Finally, there is little basis to the claim that, “the 16th Amendment likely would not have been ratified without SALT deductions in mind.”

When constitutional language is unclear or exact definitions uncertain, courts may clarify the terms by examining common practices and representations considered part of the “ratification bargain.” But the presence of SALT deductions in short-lived tax bills in 1862 or 1894 tells us little about how the ratifiers understood the Sixteenth Amendment decades later. Moreover, on those rare occasions when legislatures or conventions ratify an unclear measure on the basis of particular meanings, they can say so — which, in the case of the Sixteenth Amendment, they apparently did not.

More importantly, the Sixteenth Amendment is not ambiguous or uncertain. It is straightforward and clear: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Where in this amendment, pray tell, lurks any mandatory SALT deduction?

Opponents of the new tax law are right to be concerned about federal overreaching, but they are barking up the wrong tree. They are inventing a fictional limit on federal authority while ignoring real ones.

For example, when drafting the Affordable Care Act Congress permitted the Senate to insert economic regulations in a tax bill, thereby violating an explicit constitutional rule called the Origination Clause. That violation has not induced Cuomo and his allies to withhold their support. They also have failed to object when Congress ignores other constitutional limits on its powers.

Governor Cuomo and his allies should honor the Constitution’s real restrictions on federal power. When arguing constitutional questions, however, they should not invent non-existent ones.

New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

This article first appeared in The Hill on January 24, 2018.

Opponents of education reform often ask the courts to void programs of school choice.

They commonly claim that state constitutional provisions banning “sectarian” aid prohibit choice programs that include religious schools. Opponents won on this basis in a 2015 case, in which Colorado’s highest court struck down a voucher program because it included religious schools. (That decision was vacated recently.) A somewhat similar case is now pending in Montana.

Most of the “anti-sectarian” bans date from the 19th century. The Colorado provision, for example, became effective with ratification of that state’s constitution in 1876. The Nevada ban was added to that state’s 1864 constitution in 1880. The Montana clause is a 1972 re-enactment of one adopted in 1889.

Advocates and opponents of school choice have tussled for decades over the validity of these clauses. Somewhat misleadingly, they often are called “Blaine provisions” because of superficial similarities to a federal constitutional amendment proposed in 1875 by prominent politician James G. Blaine.

Thus far, the legal issues surrounding Blaine provisions have been clouded. However, historical research published this month in the scholarly journal Federalist Society Review likely will change that. The new findings show that “anti-sectarian” clauses — at least those adopted in the 19th century — almost certainly violate the U.S. Constitution as the Supreme Court now interprets it.

The new findings tell us that both advocates and opponents were operating from misunderstandings that made the constitutional issue seem harder than it is.

Advocates of school choice traditionally claim that when 19th-century lawmakers banned aid to “sectarian schools,” they really meant “Catholic schools.” Discrimination against some religions in favor of others, they contend, violates the First Amendment’s requirement that government treat religions equally.

Almost everyone agrees that the First Amendment requires government to treat religions equally, but advocates cannot always show direct connections between anti-Catholic sentiment and particular state constitutions.

School choice opponents traditionally respond that those who adopted 19th century constitutions understood “sectarian” as meaning merely “religious.” They argue that by banning aid to “sectarian” schools, states are maintaining a healthy separation from all religions equally. The Colorado Supreme Court took this position in its 2015 case.

So I undertook to learn the facts: What did 19th century constitution-writers really mean when they barred aid for “sectarian” purposes?

In quest of an answer I reviewed 19th century state constitutions and constitutional documents. I examined all relevant definitions in ten 19th century dictionaries. And I collected hundreds of contemporaneous newspaper articles from states throughout the country.

Here’s what I learned:

  • In the 19th century, “sectarian” never meant merely “religious.” It always referred to a particular kind of viewpoint.
  • Its principal use was as an insult. It was employed to tar people and views seen as narrow-minded or out of the mainstream. Nineteenth century writers, speakers, and political activists used “sectarian” in much the same way their modern counterparts employ the term “extremist.”
  • Mainstream Protestantism, which was then dominant in America, was almost never viewed as sectarian. That is why administrators prescribed reading the “non-sectarian” King James Version of the Bible in preference to “sectarian” scriptures favored by other religious groups.
  • Catholics frequently were attacked as “sectarians,” but so also were other unpopular groups: Mormons, Muslims, Jews, and even some Protestants perceived as overly-zealous.

Thus, the core purpose of the bans on “sectarian” aid was to require state officials to discriminate against minority and unpopular religions.

How did the states think they could get away with this? Because the Supreme Court had not yet determined that the Constitution requires states to follow the same rules of religious neutrality that regulate the federal government.

Last year, the Supreme Court found a similar state constitutional provisionpartially unconstitutional, although that case did not involve a school choice program. Moreover, it ordered the Colorado tribunal to re-examine its own decision.

Although for political reasons the Colorado case is unlikely to continue, within a few years, the Supreme Court probably will be confronted with the question of how state “anti-sectarian” clauses impact school choice programs.

These new findings suggest the court will find his kind of state discrimination flagrantly unconstitutional.

The article was published in the Federalist Society Review, and can be accessed here.

It was made possible by funding from the Education Policy Center at the Independence Institute.

Where the Constitution’s Word “Convention” Came From

Where the Constitution’s Word “Convention” Came From

“The Congress . . . shall call a Convention for proposing Amendments, which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ” U.S. Constitution, Article V

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”                                 U.S. Constitution, Article VII

The late Phyllis Schlafly, when opposing a convention for proposing amendments, repeatedly likened it to the Republican and Democratic National Conventions. The idea, apparently, was to conjure up images of the chaotic mob scenes we have seen on television.

By so doing, Schlafly committed the common fallacy of anachronism: reading into history or a historical text the meanings and values of another time. The most common kind of anachronism is transferring a modern notion into a time or text when things were quite different—as if a scriptwriter for an old Western movie had John Wayne check his smart phone.

Anachronism can lead to grotesque distortion of the truth: In fact, a convention for proposing amendments is almost as different from a national party convention as the eye of a person is from the eye of a hurricane.

The Constitution uses the term convention three times. It appears twice in Article V and once in Article VII (the ratification provision). The “convention for proposing amendments” refers to an interstate gathering. The other two are assemblies within individual states.

We know from prior and subsequent practice how these conventions are chosen. The in-state gatherings consist of delegates directly elected by the people in pre-set geographical districts. The interstate gathering is a diplomatic gathering of representatives of the state legislatures of the kind called a “convention of the states.”

Schlafly did her best to deny that a convention for proposing amendments is a “convention of the states.” But the evidence is both uncontradicted and overwhelming, and has been confirmed by the U.S. Supreme Court. Myths to the contrary were promoted by a disinformation campaign fostered in academic literature and the press during the 1960s, ‘70s, and ‘80s by establishment liberals who opposed amendments to reduce federal power.

Prior to and during the Founding Era, Americans struggled with what to call ad hoc meetings of these kinds. They were not legislatures, because they were temporary and selected outside the usual legislative procedures. So Americans dubbed them with three different words: congress, committee, and convention.

Congress derives from Latin. It means “a walking together.” Before 1775, it referred to a diplomatic meeting of delegations from different governments. Thus, it was a natural term for a conclave among colonies or states. There was a 1754 Albany Congress, a 1765 Stamp Act Congress, the First Continental Congress (1774), and so forth. New York created a “provincial congress” that administered affairs after the colonial legislature was disbanded and until Independence was declared. The name congress reflected the fact that delegates were elected by towns or counties.

Beginning in 1775 the Second Continental Congress became a quasi-permanent legislative body. In 1781 it was succeeded by the Confederation Congress and in 1789 by the Federal Congress. Application of “congress” to the federal legislature discouraged people from applying it to other assemblies.

A small convention of states sometimes was called a committee. (This term, also, is Latin: the verb committere means to commit to, entrust to.) Further, the word could mean a delegation sent to a convention of states. But these “committees” were easy to confuse with committees within other assemblies, as in “the convention’s rules committee” or “the ways and means committee of the legislature.”

Convention (from the Latin convenire, to come together) originally signified only a meeting. However, “convention” became the name of a policy-making body in Scottish Presbyterian practice, and during the constitutional crises of 1660 and 1689 the English called their emergency assemblies “Convention Parliaments.” In the latter year, Americans began to apply the word to temporary “congresses” and to emergency assemblies.

Thus, throughout much of the 18th century, Americans might call the same kind of gathering by several different words. After Independence was declared but before election of the state legislature under the new state constitution, New York was governed by a “Convention of Representatives.” Beginning in January, 1788, the state convention consisted of members of the new state legislature, which had not yet been formally convened.

To add to the confusion, the identical assembly might be referred to by several names. The records of the New York Provincial Congress show it addressing the Continental Congress as the “continental convention” and the Continental Congress addressing the Provincial Congress as the “provincial convention.”

Fortunately, by the time the Constitution was written, this verbal confusion had been pretty much sorted out.  Temporary in-state conclaves increasingly were called conventions. Interstate meetings were nearly always called “conventions” rather than committees or congresses.

That’s why the framers selected the word “convention” rather than some other term for insertion in Articles V and VII.

Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

This article originally appeared in The Hill.

If you are like me, your retirement account rose substantially in value during 2017.

The end of the stubborn economic lag of the Obama years is a signal event affecting the life every American. It’s not just the stock market that’s up, but GDP and job growth as well.

Presumably because it would make the Trump administration look good, the mainstream media have given this development relatively little attention—as illustrated by the New York Times’ non-treatment in its 2017 Year in Review. (The Denver Post’s December 31 print edition review provides another example.) When the mainstream media have discussed the economy outside their business pages, they sometimes have done so only to belittle the progress made.

On the other side of the political divide, President Trump is (of course) claiming credit. No doubt he is entitled to some.

But let’s face it: The election of almost any of the major presidential candidates other than avowed socialist Bernie Sanders probably would have triggered a similar boom. It might have been greater under a President Rubio or President Kasich or less under a President Clinton. But the upsurge would have come because its principal cause has not been who was elected, but who has departed.

Those departed are Barack Obama and an administration comprised largely soft-totalitarian “progressives” who showed little respect for the rule of law during their eight-year reign.

Economists across the political spectrum agree that the rule of law is key to a healthy economy, particularly in developed countries. When legal rules are clear and predictable, investors are more willing to risk their capital than when rules are fuzzy and subject to random change.

The American Founders recognized this. One reason they adopted the Constitution was to strengthen the rule of law. Under the Articles of Confederation (1781 – 1789) legal stability was jeopardized by demagogic policies pursued in some of the states. Partly as a result, the United States in the 1780s was mired in an economic depression.

James Madison wrote in Federalist No. 44:

The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs [i.e., opportunities for unfair gain] in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

Madison focused on legislative violations of the rule of law. The Obama years saw some of these, including largely inscrutable legislation that mauled our health care and financial systems.

However, most of the threats to the rule of law came from executive action: a frenzy of new economic regulations; illegal immigration orders; unwarranted privileges to the politically-powerful, such as exemption from Obamacare mandates; the use of federal grants to skew scientific research; IRS attacks on dissident groups; subsidies to some businesses at the expense of others; and increased surveillance of political opponents.

Of course, the Obama administration was not the first presidency to threaten the rule of law. But most other serious presidential attacks occurred during wartime. Moreover, the Obama administration’s assault was unusually comprehensive—far more so than, for example, sporadic efforts by prior presidents to turn the IRS against political enemies.

President Trump also has expressed an unfortunate preference for distorting the legal playing field. But so far his administration has done nothing comparable to the Obama presidency’s third-world-style behavior.

No wonder why so many Americans are breathing a sigh of relief—and then following it up with concrete investments in our country’s future.