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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.

Interposition: Standing Up to the Feds

Interposition: Standing Up to the Feds

Interposition was James Madison’s term for one of the checks and balances in our Constitution. The Constitution contemplates a range of methods, from public relations campaigns to an Article V amendments convention.stop

Just as the legislative, judicial, and executive branches of the federal government have the privilege and obligation of checking each other, so do the states and federal government.

A recent paper published by the Heartland Institute explains interposition and the ways the states can pursue it.  I’ve had a lot of requests for copies.

You can find the interposition paper here.

Although Chief Justice Roberts' Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!

Although Chief Justice Roberts' Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!

041410 Rob Natelson-2

In my last post, I discussed the effect on Colorado’s Taxpayer’s Bill of Rights (TABOR) of the Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n. In this post, I explain why the Arizona case was decided correctly.

Some people may be surprised that I think the holding was correct. I’m politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to cite one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been strenuous.

But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.

The basic issue was the meaning of “Legislature” in the clause of the Constitution that provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . ” (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. We’ll use the latter term here.

Now, it is well established—based on case law and on the Constitution’s original legal force—that part of prescribing the “Places. . . of Elections for . . . Representatives” is drawing the congressional districts within a state.

For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The state’s voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.

Arizona state lawmakers sued, claiming that the term “Legislature” in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.

The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word “Legislature” to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the “Legislature.” Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).

The Supreme Court held that in this case the term “Legislature” meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.

The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term “Legislature” means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.

Of course, the Supreme Court’s precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Here’s why:

* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word “property” in Article IV means “real estate” while same word in the Fifth Amendment means both real estate and personal property.

* Similarly, the Constitution uses the term “Congress” in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word “Congress” to mean the general legislative power. (See, for instance, I-8 and III-3-2). When “Congress” acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.

The fact that the Constitution employs this double usage for the federal legislature implies the same double usage for state legislatures.

* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed “in such Manner as the Legislature thereof may direct.” When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.

* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.

* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislature—by the governor, by executive councils, and by the people themselves.

Finally, here’s a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.

It is politically foolish (you don’t please the voters by attacking them), but it is also wrong as a matter of principle.

In our country, the people are the rightful source of all political power. A “republic,” as the Constitution uses the term, is a government based on the people’s will. Instead of attacking the people’s right to decide, our time is best spent persuading them to make the best decisions possible.

The Greatest Constitutional Document of All

The Greatest Constitutional Document of All

Rob at the Univ. of Montana
Rob at the Univ. of Montana

This article was first published in The American Thinker.

It is said that no second heir to the British throne has been named John because of the reputation of the first.

King John (reigned: 1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his subjects to the point of rebellion. Out of one of those rebellions emerged the most influential constitutional document in Anglo-American history—perhaps the most influential of all time.

On June 15, 1215 in the meadow of Runnymede on the banks of the River Thames, English barons forced John to seal the first version of Magna Carta. The Latin title reflects the document’s Medieval Latin text. It came to be called magna (great) to distinguish it from the lesser Charter of the Forest.

Thus the coming year of 2015 marks the 800th anniversary of the event at Runnymede.

John died in 1216, after having repudiated the Charter. However, his successors have repeatedly pledged their adherence to it. Portions remain law in England today.

In many respects, Magna Carta was similar to other medieval European royal charters granting liberties and privileges, and indeed it restated some terms from a charter issued by Henry I over a century earlier. What distinguished Magna Carta was the universality of its grants. It acknowledged rights and privileges not merely for the barons who extracted it, but also for women, for merchants, for the church, for all free persons, and in some cases even for unfree agricultural workers. A particularly striking provision (Chapter 60 of the 1215 version) provided that the barons would grant to their own vassals all the liberties the king was granting them.

This universality probably was due to the vision of Stephen Langton, Archbishop of Canterbury, a former professor at the University of Paris, and the inventor of our system of dividing biblical books into chapters. Langton played a major role in negotiating the settlement between John and the barons.

Subsequent English Kings repeatedly re-issued or re-affirmed Magna Carta, even if they did not always honor its terms. Copies were lodged in every county in England. Magna Carta became the first entry in the English Statutes at Large. It was read aloud to the populace on regular occasions in public places throughout the realm. During the reign of Edward III (1327-1377), Parliament enacted statutes elucidating the meaning of key provisions. By the close of the Middle Ages, Magna Carta was recognized as a document of constitutional proportions.

Parliamentary spokesmen relied on it during their pivotal struggles with the kings of the Stuart dynasty (1603-1689). The most famous of the Parliamentary spokesmen, Sir Edward Coke (1552-1634), penned a treatise on Magna Carta. This subsequently was included in his Institutes of the Lawes [sic] of England, the single most popular law treatise in Britain and in British America until supplanted by Blackstone in 1765. Coke was therefore a primary source from which the American Founders learned their law.

Magna Carta, particularly as interpreted by Coke, formed a basis for terms in key American governmental documents. Echoes or paraphrases appeared in each colony’s charter, in the Massachusetts Body of Liberties, in Pennsylvania’s Frame of Government, and in similar instruments. During the decade of tension with Britain that preceded the American Revolution, spokesmen for the American cause relied partly on Magna Carta to support their case. After independence, Americans inserted provisions derived from Magna Carta into their new state constitutions, into the Articles of Confederation, and into the federal Constitution of 1787.

The Due Process Clauses of the Fifth and Fourteenth Amendments are the successors of Magna Carta’s famous Chapter 39, which provided that the king would not penalize any subject other than according to the judgment of the subject’s peers or the law of the land. The Fifth Amendment Due Process Clause included an implicit ban on many civil ex post facto laws, which served the goal of its drafter, James Madison, of compensating for the narrow ratification-era understanding of the Ex Post Facto Clauses (Art. I, sec. 9, cl. 3 & sec. 10, cl. 1).

The Constitution’s Privileges and Immunities Clause (Art. IV, sec. 2) stems from Magna Carta’s guarantees of free entry and exit from the kingdom for merchants and other travelers (Chapters 41 and 42). The proportionality rule of the Eighth Amendment derives, in part, from Magna Carta’s bans on excessive amercements and on seizure of the tools people used to earn a living.

Magna Carta contains predecessors of the Sixth Amendment guarantees of a local (Chapter 18) and speedy (Chapter 40) trial, and to confront witnesses (Chapter 38). The Thirteenth Amendment proscription against involuntary servitude is prefigured in Chapter 23; aspects of the Commerce Clause (Art. I, sec. 8, cl. 3) by Chapter 33, and the Weights and Measures Clause (Art. I, sec. 8, cl. 5) by Chapter 35. The Fifth Amendment Takings Clause is anticipated by Chapters 19 and 21 of the 1225 version.

No wonder Justices of the Supreme Court have cited Magna Carta in over 175 cases. It a foundation for American liberties—as it has been a foundation of the liberties widely enjoyed throughout the modern Anglosphere.

Struggling With Nullification

Struggling With Nullification

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises.

Unfortunately, people often discuss—and debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is much quarreling among people who are fundamentally on the same side.

Historically, “nullification” was defined quite narrowly. It referred to a formal ordinance of a state legislature or state convention that declared a federal law void within the boundaries of the state. The state might or might not make the ordinance conditional, and it might or might not impose criminal or civil penalties on persons attempting to enforce the federal enactment. We can refer to this as the narrow, or historical, definition of nullification. It is traditionally credited to the Kentucky Resolutions of 1798, drafted by Thomas Jefferson.

Today the term often is used in a much broader sense by advocates, by opponents, and often by the press.  So used, it refers as well to other mechanisms a state may deploy to assert its prerogatives against federal overreaching—that is, to other methods of what James Madison called “interposition.” The Tenth Amendment Center often uses “nullification” in this broad way.

Thus, “interposition” (by Madison’s definition) or “nullification” (by a broad definition) can refer to state actions such as:

*    State legislative and executive expressions of opinion against a federal measure;

*    State lobbying pressure to get the measure changed or repealed;

*    State-sponsored lawsuits against federal actions deemed unconstitutional;

*    Political coordination among states to promote change or repeal;

*    Refusal of states to accept federal grants-in-aid attached to obnoxious conditions;

*    Refusal of states to allow their officials to cooperate in the execution of federal programs;

*    Refusal of states to render a particular activity that is a federal crime illegal under state law as well (e.g., the use of marijuana in Colorado and Washington); and

*    The state application and convention process of Article V.

Constitutional wonks will recall that Madison anticipated most of these in Federalist No. 46, and included the others in later writings.

All of the interposition methods listed above are perfectly legal and constitutional. For example, there is certainly no requirement that a state duplicate federal crimes in its own statute books, and the Supreme Court has said repeatedly (and held expressly in the NFIB v. Sebelius, the Obamacare case) that the federal government may not “commandeer” state officials in service of federal policy.

Clearly, calling these modes of interposition “nullification” does not render them unconstitutional or wrong.

On the other hand, there are methods of interposition that the Constitution does not authorize. In other words, they are extra-constitutional. Nevertheless, the Founders believed that natural law reserves them to the people in some circumstances.

The most dramatic illustration of an extra-constitutional remedy reserved by natural law is the right of armed revolution, which Madison also discussed in Federalist No. 46. He later stressed that the people should resort to extra-constitutional methods only when the constitutional compact has been irretrievably broken.

Both historically and today, the most serious nullification disputes center on whether states enjoy the constitutional prerogative of adopting formal nullification ordinances. In other words: Does a state have the constitutional power to void what it perceives to be an unconstitutional federal law?

Let’s try to isolate some of the issues:

First: It is clear that in the extreme conditions justifying revolution, resistance need not be conducted solely by private individuals or groups. States may participate officially, as the colonies/states did during the years 1775-83. This is the scenario Madison presented in Federalist No. 46. Obviously, in these circumstances a state may declare federal law void within its boundaries. But this power flows from natural law, not from the Constitution (which in revolutionary circumstances, you recall, would have been irretrievably broken).

Second: What of our current situation—that is,when  there is no revolution, the union continues, federal laws are still widely obeyed, and the Constitution is still largely in operation? In those circumstances, may a state declare void a judicially-sustained federal law that the state deems unconstitutional? The answer to this question turns largely on your conclusion as to the fundamental nature of the Constitution.

Third: What is that fundamental nature?

The Constitution has been characterized as:

*    A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.

*    A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.

*    A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).

You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.

On the other hand, if you adopt the popular grant theory it is much more difficult to justify nullification. This is because the people, not the states, are the parties. By this analysis, the states may, as agents of the people, protest, sue, and protect their own governmental operations, but they may not void federal actions unilaterally, except by their legislators using their delegated power to amend under Article V.

And if you subscribe to Madison’s mixed theory, then, as Madison pointed out in 1830 and again in 1834, there also are conceptual problems with considering nullification as a constitutional right rather than just a natural law remedy.

Fourth: So, again, we must ask, “Which of the three theories of the Constitution is correct?”—state compact, compound compact, or popular grant?

The answer to this question depends on the dominant understanding of (or meaning to) the people who ratified the Constitution between 1787 and 1790.

The answer does not depend on what Thomas Jefferson or James Madison wrote in the Resolutions of 1798, or on what other states proclaimed when they rejected those Resolutions. Even more clearly, the answer does not depend on what Chief Justice Marshall concluded in 1819, or what Madison, John C. Calhoun, or anyone else said in the 1830s.

Rather, determining the fundamental nature of the Constitution requires reconstructing the sense of the document to those who ratified it.

Anyone who has made an honest study of the ratification has to offer conclusions on this particular subject with humility. The ratification record can be confusing and the prevailing meaning at the time can be hard to reconstruct. For example, it is not sufficient to note that the Founders referred to the Constitution as a “compact.” This is because they used that word to refer both to governments established by states (confederations) and to governments established among the people alone.

Nor is it sufficient, as do some writers popular among constitutionalists, to focus only the ratification debates within selected states. You have to view the wider picture. Similarly, it is insufficient to rely merely on a few key Founders, such as Madison, Hamilton, or Jefferson. There were 1648 ratifying delegates—not just two or three—and many had important things to say. So did the orators, newspaper writers, and pamphleteers who influenced them. Jefferson was a great man, but his opinions on the meaning of the Constitution have little value, since as our ambassador to France, he did not participate in the framing or ratification.

Nor can you rely only on the express language of the ratification debate. You have to get into the heads of the ratifiers by reading what they read, and understanding their jurisprudence and their customs.

This is not the place to get into the details (this posting is already too compendious). Suffice to say that long study of the ratification record convinced me that most of the ratifiers probably thought of the Constitution as a grant from the American people rather than as a compact among states, pure or compound (as I once thought). I set forth several of my reasons in The Original Constitution: What It Actually Said and Meant.

At this point, I’ll explain just one reason. (But for for another see here.) It has to do with how 18th century English speakers drafted and read legal documents.

The Constitution famously begins with the phrase “We the People.” States are not mentioned. Now, the script and the placement of that phrase was no accident. It followed the custom by which legal documents granting power listed the grantor first. Thus, in royal charters granting rights and privileges to citizens, the king—that is, the grantor—always appeared first in large and ornate script. (A wholly typical example is the royal charter of Dartmouth College.) Although the Articles of Confederation had given that placement to the states, the Constitution afforded it to the people alone.

How do we know the delegates to the ratifying conventions caught the implications of this? Because some of them said so. For example, William Findley, an Anti-Federalist spokesman at the Pennsylvania ratifying convention, observed:

“In the Preamble, it is said, ‘We the People,” and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”

And Findley’s leading adversary at the convention, James Wilson, agreed with him on this point.

Anti-Federalists not only understood, they objected vehemently. Patrick Henry, chief Anti-Federalist at the Virginia ratifying convention, demanded to know:  “Who authorized [the Framers]to speak the language of, We, the people, instead of, We, the states?”

As events turned out, the delegates elected to represent the people of Pennsylvania and Virginia decided to accept that language. The Virginia delegates even recited in their ratification instrument that “the powers granted under the Constitution [are] derived from the People of the United States.” The delegates in every other state also accepted the “We the People” formulation. Incidentally, among the delegates most responsible for Henry’s defeat on his home ground were two young men named James Madison and John Marshall.

Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution.