The Repeal Amendment or State Vetoes

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of its projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

 

Did the Framers seek an imperial presidency after all?

The Balkinization blog held a symposium the past week on Bruce Ackerman's new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman's book, and he also provides a nice recap for the uninitiated:

Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality.

I have not read Ackerman's book yet, so I cannot comment on it.. However, I would like to comment on Gardaum's essay, Empire Rises. Gardaum agrees with Ackerman's assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:

 

I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.

I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers' conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to "declare war" truly is only a legislative function and the authority -- indeed, the expectation -- to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.

To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.

 

Amar's Bill of Rights: The Misappropriation of the Fourth Amendment

The Fourth Amendment, in many respects, is the closest thing to a right to privacy that can be found in our federal Constitution. This Amendment has become the bulwark of personal security and liberty in our country, even as we struggle to understand the limits our security should place on our liberty and the imposition that technology places on both. But in Chapter 4 of his book The Bill of Rights, Akhil Reed Amar argues that the Founders were not primarily building an individual right to security and privacy in the Fourth Amendment, rather they were providing another tool for civil juries to keep oligarchical and repressive governments in check.

Let's walk through Amar's development of his argument because, even if we do not wish to adopt the Founders' interpretation of the Fourth Amendment -- after all, there is a place for a right to privacy in our constitutional structure -- there are principles the Founders' view of the Fourth Amendment have to teach us.

The Fourth Amendment reads as follows:

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The use of the word "people" in this Amendment rings with echoes of the context of the other Amendments employing this word -- the First, Second, Ninth, and Tenth Amendments. This is the clarion call to the sovereignty of "We, the People of the United States." Amar imagines what the Amendment might mean for us if we take this popular sovereignty perspective alone in its interpretation:

 

On one reading, the amendment's language of "the people" could be read as reminding us that we must be especially watchful of government efforts to use search-and-siezure powers to interfere with people's political activities -- circulating petitions (literally the people's papers), attending political meetings (with the literal persons), assembling in a constitutional convention (which might be seen as a house of the people), and so on. But without more, this reading seems a bit too cute; surely, the main "houses" to be protected here are private abodes, not public assemblies.

Amar argues that the 1763 English case Wilkes v. Wood must have served as an influence for Madison:

 

Wood involved a famous cast of characters -- both the target of the government, John Wilkes, and the author of the opinion, Lord Chief Charles Pratt (soon to become Lord Camden), became folk heroes in the colonies.... Wilkes, a champion of the people and a member of Commons, had used the press to communicate with his constituents and criticize George III's ministry and majesty. When the government reacted by trying to use general warrants to suppress his political activity, breaking into his house and rummaging through his personal papers, Wilkes brought suit in Wood and successfully challenged the legality of those warrants. Wilkes also brought suit to challenge the "seizure" of his "person." (The government had imprisoned him in the Tower of London.) In a companion case to Wood, the lord chief justice ordered Wilkes released on habeas corpus on the ground of his Parliamentary privilege from arrest.

Madison quickly turns from the "political to the personal, from the 'the people' out-of-doors in conventions and suchlike to "persons" very much indoors in their private homes."

 

Yet even here, in taking the familiar talk of individual rights, we must be wary of anachronism and must not automatically assume that the right was essentially countermajoritarian. As with virtually every Bill of Rights provision thus far examined, the Fourth Amendment evinces at least as much concern with the agency problem of protecting the people generally from self-interested government policy as with protesting minorities against majorities of fellow citizens. A self-dealing and oligarchic government, after all, could threaten rights of the people collectively by singling out certain persons -- opposition leaders like John Wilkes, for example -- for special abuse. To counter this and other threats, the Fourth and Seventh Amendments armed civil juries, drawn from "the people," with special weapons to protect both individual persons and the collective people against a possibly unrepresentative and self-serving officialdom.

Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probably cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures -- with various exceptions, such as exigent circumstances -- as per se unreasonable. Otherwise, the Court has reasoned, the requirement that a neutral magistrate verify probable cause ex ante would be obviously frustrated -- the special safeguards of the warrant clause would be all but meaningless.

But this conflation of the warrant clause with the probable cause clause is not what the amendment says and effectively rewrites the amendment by adding a second sentence: "Absent special circumstances, no search or seizure shall occur without a warrant."

Amar invites us to rethink our assumptions:

 

To begin rethinking, consider the paradigmatic way in which Fourth Amendment rights were to be enforced at the Founding. Virtually any search or seizure by a federal officer would involve a physical trespass under common-law principles. An aggrieved target could use the common law of trespass to bring suit for damages against the official -- just as Wilkes brought a trespass action against Wood. If the search or seizure were deemed lawful in court, the defendant would prevail; but if, as in Wood, the search were found lawful, the defendant government official would be held strictly liable. There was no such thing as "good faith" immunity.

The problem with the Supreme Court's modern approach is that the proper role of the jury is displaced, and the role of citizens to act as a check on the professional judiciary and powerful magistrates has been hijacked. General warrants are too, well, general, and the ability of juries to review facts and determine appropriate awards and damages for cases in which they deem rights were violated is compromised. As in our loss of understanding of the militia, the modern jury is a sad shadow of its former energetic self and fundamental structural principles of the original Constitution have been lost.

Marriage: social order or individual freedom?

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains - if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it - the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should "stay out of the bedroom," etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can't be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even if that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburban drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion -- politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can't trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.

Amar's Bill of Rights: The Military Amendments

In considering the constitutional state of war powers a few years back, I worried that "executive excesses would probably be tied to [the president using the military domestically], as might be the case if a President sought dictatorial powers through the imposition of martial law." At the time, I was not prepared to offer a structural solution to prevent such a calamity, and for good reason. Smarter people than I have pondered this problem before me, including the Founding Fathers.

Their solution to the question was in the way they structured the Union's military system. A standing, professional army as a dangerous concept to the Founding generation, having just fought the Revolutionary War to throw off the oppresive yoke of the British. Alexander Hamilton notes the danger in The Federalist 28:

 

[I]f the persons instrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government each, can take no regular measures for defense. The citizens must rush tomultuously to arms, without concert, without system, without resource....

The answer for the Founders was to be found in federalism, and the militia under the command and control of the state governments. Jon Roland helpfully reviews the original constitutional meaning of "militia", which is important when considering that the Constitution in Article 1, section 8, clause 16 gives States the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Amar expands this thought on page 50 of his book The Bill of Rights:

 

in the event of central tyrrany, state governments could do precisely what colonial governments had done at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army.

Amar quotes Madison in The Federalist 46, which is worth repeating here to drive home the point of just how much the Founders were counting on the local militia:

 

[T]he State governments with the people on their side would be able to repel the danger.... [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.

The standing, professional army of the eighteenth century was often a hoarde of foreign mercenaries that had no allegiance or fealty to the people in the local countryside where they were ordered to fight. The very structure of the militia meant that it was composed of family members and neighbors who lived and worked together. Already tightly knit and bound to return to life together after war, the militia was bound together by trust and need, so picking their own leaders among them helped tighten their cohesion.

Yet this federalism check on military adventurism by the central government did not quell the objections of the Anti-Federalists. Many pointed out that Congress still had power "to provide for organizing, arming, and disciplining, the Militia." The Second Amendment was designed to limit congressional manipulation of the militia and leave them available to arming by the State governments.

While the meaning of militia has morphed over 200 years, the core concepts of the Second Amendment are still applicable: the militia was composed of all the people capable of bearing arms, so "the people", subjects of the federalism-based rights of the First Amendment, are also the subjects of the Second Amendment. And, as Amar argues, the "well-regulated" can't mean the power to disarm, as this was the very power it sought to keep away from Congress. Localism was the very heart of the militia system and for that reason, along with the experiences of the ratifiers of the Fourteenth Amendment that relied on standing armies to preserve the Union against the tyranny and abuses of localities and states (ironically the opposite experience of the Founders), there is good reason to incorporate the Second Amendment against the states.

As an aside, Amar also argues that the conscription is unconstitutional because Congress circumvents the power of the State governments to appoint the officers of the militia and training the militia. "Under this reading, the federal government cannot directly force ordinary citizens into it's army, but state governments can conscript, organize, and train their respective citizens -- the militia -- who can in times of emergency be called into national service." (p 53)

The Third Amendment also acts to support civilian values against an overbearing military, working to subordinate the military to the civil power. Amar writes:

 

No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle intimidation. The Second Amendment's militia could thwart any open military usurpation - say, a siege - but what about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerilla warfare, day by day, house by house? Bostonians who had lived under the hated Quartering Act of 1774 knew that this was no hypothetical. Hence the Third Amendment was needed to deal with military threats too subtle and stealthy for the Second's "well-regulated Militia." (p. 59)

Modern jurisprudence has a tendency to use the Third Amendment to construct rights of privacy for the individual, but the original context of the Third Amendment placed further limits on Congress' conscription power and further enforced separation of powers between the legislative and the executive. Congress' conscription power was restricted because if civilians could not be impressed upon to limited service as Innkeepers and cooks for soldiers, then what sense does it make that civilians can be pressed into full military service? Separation of powers were further defined because it took Congress, not the executive, "in a manner prescribed by law" to conscript a person's house.

So we see that the Second and Third Amendments work together to subordinate the military to the civilian power and to place checks against the executive's misappropriation of the military for his own purposes. Combined with Congress' complete power to raise and govern the military and to declare war, the Founders erected a wonderfully symbiotic system to ensure that all parts of society truly believed war was necessary before the nation was committed to war and, once it was, that the military would be used in a responsible manner.

Some argue that is was necessary for the United States to evolve away from the militia system in order to become a great power. The Bible reminds us that Israel abandoned its reliance on God to anoint a King "like all the nations." If we want to wield power "like all the nations," then in order to not become serfs to tyranny "like all the nations", the people of the United States must insist on a symbiotic system of checks and balances around our modern-day war powers for our military arrangements, just as the Founders did for their own. Yet another lesson we have forgotten in our modern rush for convenience, efficiency and power.

 

"Declare war" is synonymous with going to war

Congress has the sole power to decide when, where, against whom, and to what extent the United State will go war, according to this paper from Saikrishna Prakash: Unleashing the Dogs of War: What the Constitution Means by "Declare War". For the Founders, Prakash argues that there was more than the formal way to declare war that we typically think of today. Attacking an enemy was considered a declaration of war, so the Constitution leaves it solely to Congress to decide whether the nation goes to war. The President, as Commander-in-Chief, has standing constitutional authority to defend the property, territory and people of the United States, but he does not have inherent authority to take offensive actions without authorization from Congress.

The paper does a superb job of looking at what "declare war" meant in the 17th through early 19th centuries and why the "formalist" theory of the war power - that the President is free to wage war as he sees fit and that Congress' ability to declare war only changes the formal state of relations between two nations and triggers certain legislation at home - doesn't make any sense and falls under its own contradictions.

If we held to this construction of war powers today, much of the consternation this blog has expressed regarding the war power would be moot.

 

Amar’s Bill of Rights: Our First Amendment – Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....

The freedom of religion is one of the most cherished and most fundamental of American bedrock principles. One would have to look far and wide to find an American who would advocate support of a particular religion or sect by the government or, more still, would support the interference by the government in the right of a person to practice and observe -- or not -- his own system of belief. George Washington summed it up for all of us when he wrote to the United Baptist Chamber of Virginia in May of 1789:

 

Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience.

But these vague boundaries of the First Amendment's two complementary religion clauses -- the Establishment Clause and the Free Exercise Clause -- are about the only things regarding the line of separation between State and religion that Americans do agree on. For while these are indeed complementary clauses (one cannot exist without the other), they are also clauses that live in constant tension, striving over against the other to gain dominance. Peace and balance can only be maintained in one <i>not</i> gaining dominance over the other.

This tension did not exist in the Framers' original conception of the First Amendment, however. Amar makes clear their expectation that federalism would inform the interaction of State and religion, not the federal Constitution:

 

The establishment clause did more than prohibit Congress from establishing a national church. Its mandate that Congress shall make no law "respecting an establishment of religion" also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments. In 1789, at least six states had government-supported churches -- Congregationalism held sway in New Hampshire, Massachusetts, and Connecticut under local-rule establishment schemes, while Maryland, South Carolina, and Georgia each featured a more general form of establishment in their respective state constitutions. Even in the arguably "nonestablishment" states, church and state were hardly separate; at least four of these states, for example -- in their constitutions, no less -- barred non-Christians or non-Protestants from holding government office. According to one tally, eleven of the thirteen states had religious qualifications for officeholding. Interestingly, the federal establishment clause as finally worded most closely tracked the proposal from the ratifying convention of one of the staunchest establishment states, New Hampshire, that "Congress shall make no laws touching religion." (pp. 32-33)

The matter was simply excluded from Congress' Article 1, Section 8 list of delegated powers and left to the states. So, Amar argues, the establishment clause should not necessarily be incorporated against the states through the Fourteenth Amendment, as the rest of the First Amendment rights should be:

 

Incorporation of the free-speech clause against states does not negate state legislators' own First Amendment rights to freedom of speech in the legislative assembly. But incorporation of the establishment clause has precisely this paradoxical effect; to apply the clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right clearly confirmed by the establishment clause itself. (pp. 33-34)

Our federal establishment clause is the American equivalent to the 1648 European Treaty of Westphalia that established religious policy as a local matter, so the question presents itself - how can a requirement for locality on the matter be incorporated against the very localities empowered to decide the matter? In this way, the establishment clause is more akin to the Tenth Amendment, preserving states' rights, than the rest of the Bill of Rights (whether they primarily protect majoritarian rights against repressive government or minority rights against overbearing majorities).

Seen as protecting states' rights, it becomes easier to understand why the First Congress lumped the religion clauses and the rights to speech, press, assembly, etc all together in the First Amendment.

 

Thus our First Amendment opened with words suggesting an utter lack of enumerated power to regulate religion in the states or restrict speech -- "Congress shall make no law" -- in sharp contrast to the language of later amendments dealing with areas where Congress clearly did enjoy enumerated Article I power to "make ... law." (The militia and war power clauses of Article I gave Congress broad power over military matters addressed by the Second and Third Amendments; federal searches and seizures -- the subject of the Fourth Amendment -- clearly fell within Congress' explicit power to regulate customs and captures, among other things; and Article I expressly authorized Congress to "constitute tribunals," whose procedures werethe main subject of Fifth, Sixth, Seventh, and Eighth Amendments.)

The "Congress shall make no law" amendment's precise location in the original Bill is also quite illuminating. The orginal First Amendment on congressional size modified Article I, section 2; and the original Second amended Article I, section 6, dealing with congressional salary. Then came our "no law" amendment, glossing the Article I, section 8 catalogue of enumerated congressional powers by suggesting that Congress lacked power to censor expression or regulate state religious policy -- a kind of reverse "necessary and proper" clause.... When we remember that Madison originally proposed to interweave his amendments into the original Constitution rather than tack them on at the end, it makes sense that the order of amendments would track the order of the Constitution itself. (pp. 36-37)

John Yoo's problem with Elana Kagan

John Yoo has an op-ed piece in the New York Times today that takes Elana Kagan, President Obama's nominee to replace outgoing Supreme Court Justice John Paul Stevens, to task for her limited view of presidential powers. I have not seen enough to know whether I would vote to affirm Kagan's nomination were I a Senator (ah, the hubris runs deep this day...), but given John Yoo's constitutionally unanchored advocacy of a unitary executive, his professed problems with her view of inherent presidential authority is a big plus for her, in my opinion.

We have discussed the theory of the unitary executive on this blog before, and there is nothing wrong with that theory, per se. Indeed, it actually has a lot going for it as an interpretative grid for Article II. The problem, however, is with John Yoo's hijacking of the theory to push his extreme view of the presidency as a monarchical law unto itself. When Yoo argues that the President can commit the nation to war without congressional authorization, he runs into a constitutional wall. And when Yoo suggests that the President ignore laws that interfere with his "inherent constitutional powers", he has entered into a fantasy land where words on the constitutional page can not mean what they seem to imply.

 

The swine that rushed down a steep place into the sea

After the final episode of Lost, with all of its unsatisfying twists and mysteries, I am more convinced than ever that it spoke to us because it is a reflection of the state of our own souls and, more fully, of our own culture. This state is no better expressed than this brilliant review of the series finale: I once was found, but now I am Lost.

As with everything else the whirlwind of "the West" touches, the thing is turned inside out and the shell of the thing is all that is left, disorientation and confusion riding in the wake. It's not the problem of the East, which is riddled with an eternal changelessness that is more akin to the timelessness of the dead. No, the West is very much alive. Truth be told, it is too much alive, at least alive with the wrong animating spirit, groping for what it does not have, only realizing what it needs after it has lost it.

But whatever it is, it is something that G.K Chesterton diagnosed almost 100 years ago in his book The New Jerusalem. This is a long quote, but it is well worth the insight that is gained:

 

In a word, the modern world will probably end exactly where the Bible begins. In that inevitable setting of spirit against spirit, or god against god, we shall soon be in a position to do more justice not only to the New Testament, but to the Old Testament. Our descendants may very possibly do the very thing we scoff at the old Jews for doing; grope for and cling to their own deity as one rising above rivals who seem to be equally real. They also may feel him not primarily as the sole or even the supreme but only as the best; and have to abide the miracles of ages to prove that he is also the mightiest. For them also he may at first be felt as their own, before he is extended to others; he also, from the collision with colossal idolatries and towering spiritual tyrannies, may emerge only as a God of Battles and a Lord of Hosts. Here between the dark wastes and the clouded mountain was fought out what must seem even to the indifferent a wrestle of giants driving the world out of its course; Jehovah of the mountains casting down Baal of the desert and Dragon of the sea. Here wandered and endured that strange and terrible and tenacious people who held high above all their virtues and their vices one indestructible idea; that they were but the tools in that tremendous hand. Here was the first triumph of those who, in some sense beyond our understanding, had rightly chosen among the powers invisible, and found their choice a great god above all gods. So the future may suffer not from the loss but the multiplicity of faith; and its fate be far more like the cloudy and mythological war in the desert than like the dry radiance of theism or monism. I have said nothing here of my own faith, or of that name on which, I am well persuaded, the world will be most wise to call. But I do believe that the tradition founded in that far tribal battle, in that far Eastern land, did indeed justify itself by leading up to a lasting truth; and that it will once again be justified of all its children. What has survived through an age of atheism as the most indestructible would survive through an age of polytheism as the most indispensable. If among many gods it could not presently be proved to be the strongest, some would still know it was the best. Its central presence would endure through times of cloud and confusion, in which it was judged only as a myth among myths or a man among men. Even the old heathen test of humanity and the apparition of the body, touching which I have quoted the verse about the pagan polytheist as sung by the neo-pagan poet, is a test which that incarnate mystery will abide the best. And however much or little our spiritual inquirers may lift the veil from their invisible kings, they will not find a vision more vivid than a man walking unveiled upon the mountains, seen of men and seeing; a visible god. [The New Jerusalem, end of Ch. 8]

Chesterton continues in Chapter 9:

Going down from Jerusalem to Jericho I was more than once moved by a flippant and possibly profane memory of the swine that rushed down a steep place into the sea. I do not insist on the personal parallel; for whatever my points of resemblance to a pig I am not a flying pig, a pig with wings of speed and precipitancy; and if I am possessed of a devil, it is not the blue devil of suicide. But the phrase came back into my mind because going down to the Dead Sea does really involve rushing down a steep place. Indeed it gives a strange impression that the whole of Palestine is one single steep place. It is as if all other countries lay flat under the sky, but this one country had been tilted sideways. This gigantic gesture of geography or geology, this sweep as of a universal landslide, is the sort of thing that is never conveyed by any maps or books or even pictures. All the pictures of Palestine I have seen are descriptive details, groups of costume or corners of architecture, at most views of famous places; they cannot give the bottomless vision of this long descent. We went in a little rocking Ford car down steep and jagged roads among ribbed and columned cliffs; but the roads below soon failed us altogether; and the car had to tumble like a tank over rocky banks and into empty river-beds, long before it came to the sinister and discoloured landscapes of the Dead Sea. And the distance looks far enough on the map, and seems long enough in the motor journey, to make a man feel he has come to another part of the world; yet so much is it all a single fall of land that even when he gets out beyond Jordan in the wild country of the Shereef he can still look back and see, small and faint as if in the clouds, the spire of the Russian church (I fancy) upon the hill of the Ascension. And though the story of the swine is attached in truth to another place, I was still haunted with its fanciful appropriateness to this one, because of the very steepness of this larger slope and the mystery of that larger sea. I even had the fancy that one might fish for them and find them in such a sea, turned into monsters; sea-swine or four-legged fishes, swollen and with evil eyes, grown over with sea-grass for bristles; the ghosts of Gadara.

And then it came back to me, as a curiosity and almost a coincidence, that the same strange story had actually been selected as the text for the central controversy of the Victorian Age between Christianity and criticism. The two champions were two of the greatest men of the nineteenth century; Huxley representing scientific scepticism and Gladstone scriptural orthodoxy. The scriptural champion was universally regarded as standing for the past, if not for the dead past; and the scientific champion as standing for the future, if not the final judgment of the world. And yet the future has been entirely different to anything that anybody expected; and the final judgment may yet reverse all the conceptions of their contemporaries and even of themselves. The philosophical position now is in a very curious way the contrary of the position then. Gladstone had the worst of the argument, and has been proved right. Huxley had the best of the argument, and has been proved wrong. At any rate he has been ultimately proved wrong about the way the world was going, and the probable position of the next generation. What he thought indisputable is disputed; and what he thought dead is rather too much alive.

Huxley was not only a man of genius in logic and rhetoric; he was a man of a very manly and generous morality. Morally he deserves much more sympathy than many of the mystics who have supplanted him. But they have supplanted him. In the more mental fashions of the day, most of what he thought would stand has fallen, and most of what he thought would fall is standing yet. In the Gadarene controversy with Gladstone, he announced it as his purpose to purge the Christian ideal, which he thought self-evidently sublime, of the Christian demonology, which he thought self-evidently ridiculous. And yet if we take any typical man of the next generation, we shall very probably find Huxley's sublime thing scoffed at, and Huxley's ridiculous thing taken seriously. I imagine a very typical child of the age succeeding Huxley's may be found in Mr. George Moore. He has one of the most critical, appreciative and atmospheric talents of the age. He has lived in most of the sets of the age, and through most of the fashions of the age. He has held, at one time or another, most of the opinions of the age. Above all, he has not only thought for himself, but done it with peculiar pomp and pride; he would consider himself the freest of all freethinkers. Let us take him as a type and a test of what has really happened to Huxley's analysis of the gold and the dross. Huxley quoted as the indestructible ideal the noble passage in Micah, beginning "He hath shewed thee, O man, that which is good"; and asked scornfully whether anybody was ever likely to suggest that justice was worthless or that mercy was unlovable, and whether anything would diminish the distance between ourselves and the ideals that we reverence. And yet already, perhaps, Mr. George Moore was anticipating Nietzsche, sailing near, as he said, "the sunken rocks about the cave of Zarathustra." He said, if I remember right, that Cromwell should be admired for his injustice. He implied that Christ should be condemned, not because he destroyed the swine, but because he delivered the sick. In short he found justice quite worthless and mercy quite unlovable; and as for humility and the distance between himself and his ideals, he seemed rather to suggest (at this time at least) that his somewhat varying ideals were only interesting because they had belonged to himself. Some of this, it is true, was only in the _Confessions of a Young Man_; but it is the whole point here that they were then the confessions of a young man, and that Huxley's in comparison were the confessions of an old man. The trend of the new time, in very varying degrees, was tending to undermine, not merely the Christian demonology, not merely the Christian theology, not merely the Christian religion, but definitely the Christian ethical ideal, which had seemed to the great agnostic as secure as the stars.

But while the world was mocking the morality he had assumed, it was bringing back the mysticism he had mocked. The next phase of Mr. George Moore himself, whom I have taken as a type of the time, was the serious and sympathetic consideration of Irish mysticism, as embodied in Mr. W. B. Yeats. I have myself heard Mr. Yeats, about that time, tell a story, to illustrate how concrete and even comic is the reality of the supernatural, saying that he knew a farmer whom the fairies had dragged out of bed and beaten. Now suppose Mr. Yeats had told Mr. Moore, then moving in this glamorous atmosphere, another story of the same sort. Suppose he had said that the farmer's pigs had fallen under the displeasure of some magician of the sort he celebrates, who had conjured bad fairies into the quadrupeds, so that they went in a wild dance down to the village pond. Would Mr. Moore have thought that story any more incredible than the other? Would he have thought it worse than a thousand other things that a modern mystic may lawfully believe? Would he have risen to his feet and told Mr. Yeats that all was over between them? Not a bit of it. He would at least have listened with a serious, nay, a solemn face. He would think it a grim little grotesque of rustic diablerie, a quaint tale of goblins, neither less nor more improbable than hundreds of psychic fantasies or farces for which there is really a good deal of evidence. He would be ready to entertain the idea if he found it anywhere except in the New Testament. As for the more vulgar and universal fashions that have followed after the Celtic movement, they have left such trifles far behind. And they have been directed not by imaginative artists like Mr. Yeats or even Mr. Moore, but by solid scientific students like Sir William Crookes and Sir Arthur Conan Doyle. I find it easier to imagine an evil spirit agitating the legs of a pig than a good spirit agitating the legs of a table. But I will not here enter into the argument, since I am only trying to describe the atmosphere. Whatever has happened in more recent years, what Huxley expected has certainly not happened. There has been a revolt against Christian morality, and where there has not been a return of Christian mysticism, it has been a return of the mysticism without the Christianity. Mysticism itself has returned, with all its moons and twilights, its talismans and spells. Mysticism itself has returned, and brought with it seven devils worse than itself.

But the scientific coincidence is even more strict and close. It affects not only the general question of miracles, but the particular question of possession. This is the very last element in the Christian story that would ever have been selected by the enlightened Christian apologist. Gladstone would defend it, but he would not go out of his way to dwell on it. It is an excellent working model of what I mean by finding an unexpected support, and finding it in an unexpected quarter. It is not theological but psychological study that has brought us back into this dark underworld of the soul, where even identity seems to dissolve or divide, and men are not even themselves. I do not say that psychologists admit the discovery of demoniacs; and if they did they would doubtless call them something else, such as demono-maniacs. But they admit things which seem almost as near to a new supernaturalism, and things quite as incredible to the old rationalism. Dual personality is not so very far from diabolic possession. And if the dogma of subconsciousness allows of agnosticism, the agnosticism cuts both ways. A man cannot say there is a part of him of which he is quite unconscious, and only conscious that it is not in contact with the unknown. He cannot say there is a sealed chamber or cellar under his house, of which he knows nothing whatever; but that he is quite certain that it cannot have an underground passage leading anywhere else in the world. He cannot say he knows nothing whatever about its size or shape or appearance, except that it certainly does not contain a relic of the finger-joint of St. Catherine of Alexandria, or that it certainly is not haunted by the ghost of King Herod Agrippa. If there is any sort of legend or tradition or plausible probability which says that it is, he cannot call a thing impossible where he is not only ignorant but even unconscious. It comes back therefore to the same reality, that the old compact cosmos depended on a compact consciousness. If we are dealing with unknown quantities, we cannot deny their connection with other unknown quantities. If I have a self of which I can say nothing, how can I even say that it is my own self? How can I even say that I always had it, or that it did not come from somewhere else? It is clear that we are in very deep waters, whether or no we have rushed down a steep place to fall into them.

It will be noted that what we really lack here is not the supernatural but only the healthy supernatural. It is not the miracle, but only the miracle of healing. I warmly sympathise with those who think most of this rather morbid, and nearer the diabolic than the divine, but to call a thing diabolic is hardly an argument against the existence of diabolism. It is still more clearly the case when we go outside the sphere of science into its penumbra in literature and conversation.

There is a mass of fiction and fashionable talk of which it may truly be said, that what we miss in it is not demons but the power to cast them out. It combines the occult with the obscene; the sensuality of materialism with the insanity of spiritualism. In the story of Gadara we have left out nothing except the Redeemer, we have kept the devils and the swine.

 

On socialism

"The problem with socialism is that eventually you run out of other people's money."

--Margaret Thatcher

 

Amar's Bill of Rights: Our First Amendment - Expression

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.

We see the First Amendment of the Constitution as the bedrock of our rights, protecting our freedom of speech and religion. As we have analyzed already, the primary role that the Bill of Rights plays in constitutional jurisprudence today is the protection of minority rights against repressive majorities. But the Founding generation was not looking for the protection of minorities. They had just suffered at the hands of British imperialism and militarism, and they sought protection against repressive central government.

The structure of the First Amendment sounds in majoritarianism, localism and federalism. One need look no further than the language of the amendment to see evidence of this truth: "Congress shall make no law..." Amar elaborates:

The body that is restrained is no a hostile majority of people, but rather Congress; and the earlier two amendments remind us that congressional may in fact have "aristocratical" and self-interested views in opposition to views held by a majority of the people. (p. 21)

Because of Congress' distance from local constituencies and the large number of constituencies represented by each congressman, the general concern was that Congress would "be less likely to reflect majority will." The courts were not expected to be the main arbiters of First Amendment rights either. Rather elections and states were expected to fill that role, as evidenced in the successful rallying against the Alien and Sedition Acts and the elections of 1800 which turned control of Congress over to Jefferson’s Republican Party. 

Local juries also played a part in enforcing the freedoms of expression guaranteed by the First Amendment:

The common-law rule against “prior restraint” – courts could not enjoin a publisher from printing offensive material but could entertain civil and criminal prosecutions for libel and sedition afterward – had bite largely because of the structural differences between the two proceedings. The former could occur in equity courts, presided over by permanent government officials on the government payroll (chancellors), but the latter required the intervention of ordinary citizens (jurors) free to vote for the publisher without fear of reprisal. (p. 23)

Many publishers invoked the First Amendment at their jury trials for libel and sedition prosecutions under the Alien and Sedition Acts. The Federalists insisted that the right to free speech was not absolute, but in the English tradition, free speech rights grew up out of Parliament. In Article 1, Section 6 of the original Constitution, congressmen were shielded from various reprisals “for any Speech or Debate in either House.” Absolute freedom to speak one’s mind in the constitutionally-recognized legislature was a foundational principle in a society of parliamentary sovereignty. So in a society where the People were sovereign (America), why should the People as citizens not have absolute freedom to speak? No court ever declared the Alien and Sedition Acts unconstitutional, but several juries refused to find publishers guilty under the Acts because of the First Amendment. After the Federalists lost control of Congress in the elections of 1800, the Acts were allowed to expire, free-speech rights defended through the work, jealousies and vigilance of the People, rather than by the hand of government. 

The Civil War and Fourteenth Amendment shifted this bias toward the insulated federal judiciary as it is unpopular, minority speech that is prosecuted in the courts. Rather than trusting popular opinion and the sentiment of that body of local citizens, defendants seek the protection of speech from judges who are free from popular political pressures. We will look at the Fourteenth Amendment in more detail when we examine what Amar has to say about its provisions, but for now it is enough to say that the First Amendment’s protections of free speech and expression are incorporated against the States through the Fourteenth Amendment’s Due Process clause  (though incorporation really should be accomplished through the Privileges and Immunities clause, but again, we will discuss this in the appropriate place). 

This progression should not surprise us, but the focus on individual and minority rights bleach out the rich tapestry of the popular-sovereignty logic and the roles of elections, states and local juries in protecting and building up the freedoms we all enjoy under our First Amendment.

imported from Wordpress. Original post date 5/21/2010

Civil Religion in America

Every society needs some prevailing worldview that binds its conscience together and forms the starting point for its most important debates. Without this common frame of reference, a society simply cannot cohere. This is a good article by Robert Bellah on the role that Civil Religion in America.

The cross symbolizes something. Except when it doesn't.

This is an excellent op-ed by Stanley Fish. (h/t: Dr. Pursiful)

In the latest chapter of this odd project of saving religion by emptying it of its content, Justice Anthony Kennedy, writing for a plurality in Salazar v. Buono, ordered a district court to reconsider a ruling that Congress had impermissibly promoted religion by devising a plan designed to prevent the removal of a cross standing in the Mojave National Preserve. The cross had originally been erected in 1934 by the Veterans of Foreign Wars to commemorate American soldiers who had died in World War I. In 2002, Frank Buono, a retired Park Service employee, filed suit alleging a violation of the Establishment Clause and “sought an injunction requiring the government to remove the cross.
...
Notice what this paroxysm of patriotism had done: it has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements. (According to this reasoning the cross should mark the winning of championships in professional sports.) It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place.

It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them, either by claiming for them a non-religious meaning as Kennedy does here, or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don’t stand for anything sectarian; they stand for diversity. So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead.

Fish makes clear that he does not oppose accommodation of religious symbols in public life, but the reasoning we use to reach that accommodation matters:

My distaste for Kennedy’s opinion has nothing to do with its result. In general, and for the record, I have no problem with the state accommodating religious symbols and I am not bothered by the thought of a cross standing in a remote part of the Mojave desert even if the land it stands on is owned by the government. I do have a problem with reasoning that is patently dishonest and protests too much about its own motives and the motives of those it defends. But that is what the religion clause drives you to when in one of its clauses — the free exercise clause — it singles out religion for special positive treatment, and in the other clause — the Establishment Clause — it places a warning label (watch out for this stuff; it’s trouble) on religion. It’s no wonder that the justices who try to deal with this schizophrenia tie themselves in knots and produce opinions that are as unedifying as they are disingenuous.

I am a big fan of the work of the Baptist Joint Committee for Religious Liberty in its ongoing efforts to ensure common sense balance between free exercise or accommodation of all religions and government non-establishment or favoring of a particular religion. Its Executive Director Brent Walker has said it well:

As I have said, both of these clauses in the First Amendment ensure religious liberty, but in different ways. The Establishment Clause keeps government from indirectly hurting your religion by helping somebody else’s religion and Free Exercise keeps government from harming your religion directly. Even though these provisions are complementary, sometimes—when taken to their logical conclusion—they rub up against the other clause.

This tension between the two clauses is good. If one assiduously enforces the Establishment Clause and forgets about free exercise, an environment of hostility to religion can result. However, if one concentrates only on the Free Exercise Clause and forgets about no establishment, the logical outcome can be a theocracy or something close to it. In either case, religious liberty would be diminished.

In short, it is important that we understand that government should accommodate religion, without advancing it; protect religion, without privileging it; sometimes lift burdens on the exercise of religion without extending religion an impermissible benefit.

Although U.S. constitutional law has come up with elaborate typologies to help us sort through this dilemma (mandatory, permissible and impermissible exemptions), I like to employ a common sense exercise. Every time we say “no” to government activity to uphold the Establishment Clause, we should find a way to say “yes” to its Free Exercise counterpart. This allows us always to try to find a “win-win” solution.

As with anything else in life, it is balance and preserving the healthy tension that leads to the best possible outcome. This is, in the end, the essence of the Governance Imperative: struggling with what is moral in right within a pre-erected structure or framework of fairness.

Jesus did not give us a theory. He gave us a meal.

Editor's Note: This is the first post on this blog that is of a pointedly religious nature. It has probably not been hard for readers to discern that this author is informed in his worldview by his Christian faith, but this is the first overtly Christian post I have released in this space. While I do not want to see the focus of this blog changed, I would, perhaps, like to toy with expanding it a bit.

Religion plays an undeniable part in forming how we as humans approach societal problems. I occasionally write on topics that are directly theological, such as this one, and while our Constitution rightly demands a separation of church and state in the implementation of government laws and policies, it does not and can not call for a debate sterile of religious perspective. The best such a vacuum would produce would be all questions of morality resolved solely through the unforgiving lens of constitutionality alone, and there is nothing human in that.

Reading through N.T. Wright's book Evil and the Justice of God has been more than the consumption of Yet Another Book. It's been a journey of discovery, and I highly recommend it for every Christian who is looking for answers to the infamous Problem of Evil. Because you won't find answers here. At least not the ones you think you're looking for.

That sounds contradictory, I know. Let me explain.

Since the atrocious and evil terrorist attacks on 9/11/2001, I have noticed a significant increase in questions regarding the nature of evil and what God, if He exists at all, is doing about it. People like the New Atheists have used the existence of evil as one of the best arguments that God cannot exist. Others have not lost all hope for the existence of God, per se, but they do not see how God can be all-powerful if He is good. Otherwise, the argument goes, He would not allow evil to flourish and dominate.

Christians have responded with a number of rebuttals and theories, and many of these are quite satisfactory. At least as far as they go. For people looking for theoretical answers and philosophical insight, these might provide some entertaining rejoinders. The best of these (known to me) is not recent, however. You will find no better defense of Christianity in this field of inquiry than C.S. Lewis' The Problem of Pain.

Nevertheless, these sterile and, in some ways, inhuman theoretical defenses miss the point and leave people in real pain untouched, uncomforted, and, if possible, more miserable. Most of the pain I have felt in life has been because of childhood issues and events that were beyond the fault or control of my immediate family. A large portion of my early twenties was spent running away from who I was and searching for a way, anyway, to recreate myself after my own image of who I thought I should be. It was not until I met the woman who would become my wife that my journey of healing and reconciliation began. It wasn't until I found acceptance as who I was that I was able to come to grips with where I had been. It was only then that I stopped running and searching for an illusive shadow that could never have been. My wife saved me, and she continues to do so every day.

This is how theories miss the point. Pain is real, and it requires real people, real events, real interaction to come to grips with pain and deal with it. N.T. Wright gets this, and in his book Evil and the Justice of God, he shows that orthodox Christianity gets this as well. Wright starts the book by taking Western society to task for its inadequate and immature response to evil. Since the Enlightenment, we have tried to outrun evil through technological progress and the thing we call civilization. We have thought evil merely a lack of provisions and opportunity that could be solved with enough money, technology and stuff. Two world wars, repeated genocides, perpetual hunger among the world's lost billion, and the spectre of nuclear holocaust has snapped our illusions that evil is something we can conquer on our own. However, the response of postmodernism has been anemic at best. Acknowledging evil as a real and personal force, we now don't know what to do about it. So we do nothing.

Wright then surveys what the Old and New Testaments have to say about evil and God's response to it. Over a span of a thousand years, the Scriptures consistently acknowledge the presence of evil in the world, and they persistently insist on the goodness and omnipotence of God. Yahweh created the universe, so it is good. But it is also contaminated, and God is working through His people to set things right. And that's it. No defense of God. No theory as to why evil is here and why God, given who the Bible says He is, does not eradicate it.

Rather, we are given an insight into the breaking heart of God who is here with us, breaking into the world to advance His Kingdom. We meet a first-century Palestinian rabbi, Jesus of Nazareth, who lives for those around Him and is killed for His efforts. In His execution on the cross, we see all of the forces of evil in the world (personal, political, social, demonic) focus all their energies and do their worst to kill God. And they succeed!! But the extraordinary claim of the Scriptures is that God raised Jesus from death and made evil impotent. It has done its worst and failed. Now, through the power of the Spirit, followers of Christ are called to spread the work that Jesus started throughout the world, appropriating God's action for our time and place.

So what do we have for an answer to evil? A person. An event. Ourselves.

In the end, Wright does not wonder that the Church has not settled on a specific theory of atonement, of what Christ did for us on the cross. While each one of our theories offer a valuable insight into what occurred, none of them present the whole picture. Wright offers the answer to which all Christians should return and keep at the forefront of our faith and practice: "[W]hen Jesus himself wanted to explain to his disciples what his forthcoming death was all about, he didn't give them a theory, he gave them a meal."

Amar's Bill of Rights: the Founder's Second Amendment that became #27

Money, who has it, and who should get to spend it are pervasive questions that haunt every generation. From Jesus' warning that "you will always have the poor with you" (Matthew 26:11) to our Founding Fathers to today, society and government have always struggled to find the proper balance between preserving liberty and freedom and providing the proper level of coverage (e.g., of food, clothing, shelter) for the poor and dispossessed.

Congress controls the purse strings for the federal government, so, through the legislative process, it sets the priorities for the nation. This is a lot of power to provide one institution, especially if it is not representative of the People. The Founders provided for frequent elections in an attempt to ensure Congress was representative, but they also provided several constitutional mechanisms to guard against the agency problem. Sourcing the House and Senate from different societal constituencies was one way; the presidential veto was another; judicial review a third.

Madison presented an additional structural safe-guard to the First Congress in the form of the second of the twelve initial proposed amendments to the Constitution. Amar briefly considers the amendment in his book The Bill of Rights: Creation and Reconstruction, highlighting its place behind the amendment expanding congressional size as further proof that the original Bill of Rights was more concerned with preserving majority rights against oppressive central government than about protecting repressed and disenfranchised minorities.

Madison's second amendment sought to control the rules under which Congress could grant itself a pay raise: "Article the second.... No law, varying the compensation for services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Coupled with the emolument clause of Article 1, Section 6, this amendment sought to clearly assign responsibility and hold government officials accountable to the People through elections.

Madison's second amendment was only ratified by by six states in the 1790's; this is perhaps indicative of the very agency problem Madison was fighting - how could state legislatures pass this amendment without triggering demand within their own states for a similar amendment in their state's constitution? But this Rip Van Winkle amendment survived into the 1990's when it received the requisite three-fourths of States to become the Twenty-Seventh Amendment of our Constitution.

The one meaningful response to the BP oil spill

Thomas Friedman has a valid point in his latest article No Fooling Mother Nature.

There is only one meaningful response to the horrific oil spill in the Gulf of Mexico and that is for America to stop messing around when it comes to designing its energy and environmental future.

We do need to stop messing around, but I differ with him on exactly how we are currently messing around and what we need to do to stop messing around. He thinks more government regulation and taxation is the answer to change behavior and to push the markets toward green technology. Rather than Yet Another energy bill from Congress loaded with taxation, regulation, and tax breaks that skew the market, Congress should pass an energy bill that removes tax breaks for the oil industry and keeps only regulation that guards against large-scale disasters (rather than, for example, worrying about caribou in ANWR or fish in California).

We will eventually get off oil (we will run out or some other fuel source will become more economical), but without perverse government policies in place, the market can drive what technologies can be introduced and when. The past ten years should have proven definitively the absolute inability of government bureaucrats to competently orchestrate big systems with lots of moving parts.

 

Amar's Bill of Rights: the Founder's First Amendment

Before we venture into the Bill of Rights that is familiar to us, let us examine what Akhil Reed Amar has to say in his book The Bill of Rights: Creation and Reconstruction about the amendment that James Madison listed as first in the First Congress:

Article the first.... After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be regulated by Congress, that there shall be not less that one hundred Representatives, not less that one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, not more than one Representative for every fifty thousand persons.

This proposed amendment was passed by the Congress and proposed to the States, but it fell one state short of the requisite three-fourths needed to ratify it. We shall examine why in a moment, but its failure to be ratified means it is obscure to many in this day and age. Nevertheless, its prominence on the list of so many weighty amendments reveals the importance the Founding generation placed on erecting proper safeguards in the government structure to ensure the liberty and rights of society. While we are used to the federal government, especially the courts, championing and advancing the rights and freedoms of the people, the federal government was still unproven in 1787. Anti-Federalist fears were centered around the small size of the House of Representatives and the lack of a Bill of Rights that would explicitly remove certain areas from Congress' purview of legislation.

Probably the deepest Anti-Federalist objection to the Constitution was that the document took the skimming principle too far: Congress was too small, too rich, too "refined." Indeed, this structural concern underlay most of the Anti-Federalists' other arguments. Because the legislature was so small, the Anti-Federalists feared that only great men with reputations spanning wide geographic areas could secure election. [Amar 10-11]

So the Anti-Federalists fell squarely in line with the views of traditional replublicanism, classically expressed by Montesquieu:

It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation; there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.

In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected. [Montesquieu, Spirit of Laws, Book 8, Ch. 16]

The Federalists knew that this was a legitimate concern, and Madison, Hamilton, and John Jay, famed authors of The Federalist Papers, devoted the first section of their work to this topic. Madison's Federalist No. 10 is today a great treatise on the implementation of a Republic over a great mass of land and people, but extensive republics were untried in the eighteenth century, and it was far from certain that the scheme as laid out in the new Constitution would work. So Madison sought a compromise with the Anti-Federalists and proposed his First Amendment that increased the size of the House from that prescribed in Article 1, Section 2 of the Constitution: "the Number of Representatives shall not exceed one for every thirty Thousand" constituents.

So if the proposed amendment would increase the size of the House and this was such a burning concern, why did the amendment fail to obtain ratification? According to Amar, several reasons present themselves:

• The amendment's mathematical formula made little sense and introduced too great of a complexity. The word "more" was strangely substituted for the word "less" in the last sentence of the amendment: "not more than one Representative for every fifty thousand persons." Unless the U.S. population rose from 8 to 10 million in the first decade, this provision would have proved inconsistent with the requirement preceding in the same clause, that there "not be less than two hundred Representatives".


• What the amendment gave in the short-run - a larger House - it took away in the longer run. The final clause established a maximum on the House's size, rather than a minimum. Whether Madison purposefully slipped in this language to enforce a maximum size, we can only speculate. His original wording did include a maximum size, but Congress had rejected that idea. Perhaps he saw an opportunity to reintroduce the maximum principle once he was on the conference committee for the twelve proposed amendments. After all, Madison was quite clear of his philosophy on the proper size of a legislative body in Federalist No. 10:
  

  
  It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.
  



• Small state like Delaware (which ratified the ten amendments that did pass) might have been seeking to preserve the advantage a smaller House provided them. Since every state is guaranteed at least one Representative in the House, increasing the size of the House would have diluted the voting power of a small state.

Regardless, if Madison's First Amendment had become our First Amendment, it would be harder for us to miss the fact that the original Bill of Rights was more concerned with governmental structure than it was about individual and minority rights. If that had been the case, the Bill would begin and end (in the form of our Tenth Amendment) with articles unmistakeably added to deal with structural issues.

Amar's Bill of Rights

Akhil Reed Amar's book The Bill of Rights: Creation and Reconstruction is a fascinating walk, first, through the first ten amendments of the Constitution and, second, the Bill of Rights as recast through the prism of the 14th Amendment. Through this series of posts, I want to look at some of the perspectives Amar brings to each of the first ten amendments - first as the Founders would have expected each amendment to be interpreted after ratification in 1787 and, second, through their refinement by the Radical Republicans in 1866 through the 14th Amendment.

In our world in which the Bill of Rights is viewed as a bulwark of protection for minority rights against over-aggressive majorities, we have lost sight of the fact that the Founding generation was more concerned about protecting their liberties against an over-aggressive central government and standing army. Having just fought and won a Revolution against the British Empire because of the onerous policies and taxes passed by Parliament, the first twelve amendments proposed by James Madison in the First Congress were designed to shore up the structure of the federal government through strengthening the structures of federalism, localism, and majoritarian control of government.

This perspective was skewed by the experiences of slavery, the oppression that State governments practiced on their people in their defense of that sorry institution, and the stabilizing role that the Union Army played in preserving both liberty and union. We live under a Constitution that was nationalized by the Fourteenth Amendment, but we cannot understand what this means until we understand how the first ten amendments of the Constitution functioned before the Civil War.