Posts Tagged Alexander Hamilton

The Federalist and The Promise of American Life


Written by David Corbin & Matt Parks

“Equal rights for all and special privileges for none.”

The death of the American Progressive Party early in the 20th century was a testimony to its ideological victory, coinciding with the embrace of progressivism by leading Republicans and Democrats. Herbert Croly, founder of The New Republic and father of its house progressivism, discovered in Republican Teddy Roosevelt and Democrat Woodrow Wilson two giant political egos willing to take up the cause of a “new nationalism” — a program of federal intervention that aimed to fulfill what he believed was the egalitarian promise of American life.

While fully understanding the radical nature of his political project, Croly provided in his The Promise of American Life (1909), an imperfect description of the American republic as originally intended. How did Americans first define the rules of their political life? Croly writes,

The ordinary American answer to this question is contained in the assertion of Lincoln, that our government is “dedicated to the proposition that all men are created equal.” Lincoln’s phrasing of the principle was due to the fact that the obnoxious and undemocratic system of negro slavery was uppermost in his mind when he made his Gettysburg address; but he meant by his assertion of the principle of equality substantially what is meant to-day by the principle of “equal rights for all and special privileges for none.” Government by the people has its natural and logical complement in government for the people. Every state with a legal framework must grant certain rights to individuals; and every state, in so far as it is efficient, must guarantee to the individual that his rights, as legally defined, are secure. But an essentially democratic state consists in the circumstance that all citizens enjoy these rights equally. If any citizen or any group of citizens enjoys by virtue of the law any advantage over their fellow-citizens, then the most sacred principle of democracy is violated. On the other hand, a community in which no man or no group of men are granted by law any advantage over their fellow-citizens is the type of the perfect and fruitful democratic state. Society is organized politically for the benefit of all the people. Such an organization may permit radical differences among individuals in the opportunities and possessions they actually enjoy; but no man would be able to impute his own success or failure to the legal framework of society.

Therefore the founders and Lincoln’s principle that “equals be treated equally” must on pragmatic grounds be set aside, since it was not required by any natural principle of justice.

In Croly’s account, democratic governments grant rights to citizens equally whereas for Lincoln and the Founders the first task of government was to protect already existing, God-given (equal) natural rights. For Croly, referencing (or even applying) the moral standard of human equality was suspect if it permitted “radical differences among individuals in the opportunities and possessions they actually enjoy.”

Therefore the founders and Lincoln’s principle that “equals be treated equally” must on pragmatic grounds be set aside, since it was not required by any natural principle of justice. Only the building of a national government with leviathanic power that intentionally discriminated in the pursuit of equal outcomes would fulfill the promise of American life.

The reality of progressive power politics has been much different. The celebrated 20th century assault on natural and circumstantial inequality has empowered a ruling class and its bureaucratic minions, and often only added by its artifice to the permanency and severity of the inequality it purports to combat.

In order to make everybody equal, some have to be more equal than others.

What did the Founders know about the promise of American life that we have forgotten in our day? To begin with, they had much less confidence in politics as the means of securing human flourishing.

The second volume of The Federalist (essays 37-85) begins with James Madison addressing the limits of political wisdom and closes with Alexander Hamilton quoting the Scottish philosopher David Hume on the same theme. There is an obvious rhetorical value to the argument: it will be easier to convince skeptics to support the ratification of the Constitution if they are willing to “doubt a little of [their] own infallibility,” as Benjamin Franklin put it at the close of the Constitutional Convention. But it is not a merely rhetorical point.

The case for limited, republican government that runs beneath The Federalist’s defense of the Constitution is itself dependent on a modest view of the possibilities of political life, as several of its most famous arguments illustrate:

  • The effects of faction can be controlled, but the causes cannot be prevented (Federalist 10).
  • Ambition can counteract ambition, but there are no angelic statesmen to govern the equally non-angelic people (Federalist 51).
  • The people must cement their union because “we are yet remote from the happy empire of perfect wisdom and perfect virtue” (Federalist 6).

The Federalist, in other words, suggests that there are important limits to both what we can know and what we can do in politics. In Federalist 85, Hamilton particularly notes (citing Hume) how much of political wisdom must be uncovered piecemeal, through the “judgments of many,” guided by “experience” gained through often painful “inconveniences” over the course of “time”–and, as Hume’s reference to “inconveniences” suggests, we often learn more about what doesn’t work than we learn about what does.

What set progressivism apart from other, earlier challenges to the founders’ political vision was its explicit rejection of these limits. As Croly argues, the American regime “must cease to be a democracy of indiscriminate individualism, and become one of selected individuals who are obliged constantly to justify their selection.” An elite class must henceforth impose order upon American society and “make [popular government] expressly and permanently responsible for the amelioration of the individual and society.”

If all goes well, the wise and worthy will take up this burden, to be replaced when they cease to be wise and worthy. But replaced how? By whom? There is much less left to the chance results of popular elections in the progressive system, as powerful new EPA “climate change” and FCC “net neutrality” regulations make clear.

If, then, the same bruised reeds that Publius wrote about attain these now much higher and more secure offices, will they not be tempted to perpetuate their power far past the expiration of its public usefulness? Will they not be likely to bring others into the ruling class who confirm, rather than challenge, their prejudices, who are stamped with the same seal of approval from the same credentialing agencies–the same universities, political networks, and social classes? Will they not in the name of fighting political, economic, and social inequality, secure their unequal perch through force, fraud, and plutocratic fraternité?

The ruling class is always the ones they, at least, have been waiting for. And, thus, when their supposed wisdom turns out to be profoundly unwise, how will they know–especially if they have, as, increasing, our ruling class has, managed to fence themselves off from the “inconveniences” their folly imposes upon others?

Progressivism, in sum, requires a capacity for self-criticism that its epistemic pride and solipsistic self-flattery make all but impossible. President Obama’s comical self-confidence is but the logical outcome of his ideology.

How fundamentally different was the political vision of Abraham Lincoln who gave his Second Inaugural Address 150 years ago this week. President Obama recently claimed credit for “saving the economy.” Lincoln might have crowed that he had (all-but) saved the Union and the republic. Instead, he delivered a speech unlike any other in American political history, confessing, before a divided nation, how little the American people, north and south–and he foremost among them–had understood the origins, meaning, and consequences of the civil war that was only then drawing to a close.

In the first half of the speech, Lincoln uses “all” four times and “both” twice to suggest the surprising unity of mind and purpose among the friends and enemies of the Union. His litany of similarities ends with the sobering observation: “Both read the same Bible and pray to the same God, and each invokes His aid against the other.”

The pride of mid-19th century Americans did not manifest itself in their confidence in the latest social science metrics, but rather, Lincoln suggested, in their confidence that God was on their side. Logically, as Lincoln noted, both parties could not be right. But, more fundamentally, he argued: “The Almighty has His own purposes.” Those purposes, it was plain by March, 1865, had not been to vindicate either side in the conflict. Might they have been, instead, to humble both (Lincoln suggests a better prayer: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.”) and pay down the American (not southern) debt to justice accumulated “by the bondman’s two hundred and fifty years of unrequited toil”? Lincoln was not sure, but, if so, none could complain. Quoting Psalm 19, he asserted: “The judgments of the Lord are true and righteous altogether.”

It would do violence to language and mock an enormous toll in human suffering to call the Civil War an “inconvenience,” but Lincoln would not miss the lesson it taught. Given the malice toward many bound up in the history of Reconstruction, Jim Crow, and much of our politics today, it is not clear that the nation learned it equally well.

Today’s largely secular ruling class might not identify with Lincoln’s biblical call to humility any more than with the religious pride Lincoln opposed. But it would do well to doubt a little of its own infallibility and, more than that, the virtue of its judgments and the purity of its motives. A regime that seeks “equality for all and special favors for none” may leave many social challenges to non-expert friends and neighbors, but it will also avoid the “inconveniences” and gross injustices (from unfunded pensions and entitlements to crony capitalism and abortion on demand) a century of progressivism has imposed on our nation–and vindicate, in our day, the founding generation’s “honorable determination . . . to rest all our experiments on the capacity of mankind for self-government.”


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Comical Politics In An Anything But Comical Age


Comedy and comedians have always shaped political regimes.

Written by: David Corbin and Matt Parks

 Who needs to arm a mob with swords when you can tame and incite it with laughter.

The public response to last week’s announcements regarding the departure of news anchors Brian Williams and Brian Williams is further proof that Americans are drawn to a comical politics in an anything but comical age. And this is anything but a laughing matter.

While Williams was involuntarily taken off the air for at least six months, presidential advisor Dan Pfeiffer seemed prepared to place the retiring Stewart next to Walter Cronkite on the Mt. Rushmore of nightly news anchors, stating “He essentially invented a new way to deliver the news that spoke to a younger generation less trusting of the traditional sources but still very interested in the world.”

What connects both the Williams and Stewart stories is trust. Our intellectual and cultural elite sorely want Americans to trust them. They placed Williams and Stewart in important positions designed to build that trust. Williams, in his most serious tragic pose, was to use the nightly news to provide Americans with a progressive political education. Stewart was to do the same, but with a peevish grin that validated the audience’s prejudices and was as cliquish as it was cool. The hope among many elites this week is that Stewart’s politically effective use of comedy will overshadow the mounting criticism of mainstream media tragedians as they suffer their latest setback. The political and media’s establishment continued rule over American society will require as much.

Comedy and comedians have always shaped political regimes. From Aristophanes’ The Clouds to Dante’s Divine Comedy and beyond, the comic artist has had a surprising degree of influence in forming public opinion. The United States in particular has had at least its fair share of both comedic politicians (Franklin, Lincoln) and political comedians (Twain, Chaplin). But the difference between this earlier class of individuals and most of the comedians of our day is that the former sought to encourage course corrections in society by using comedy to tell uncomfortable truths, whereas the latter employ comedy in the service of ideology, as puppets of the regime.

Progressivism had a least a part in producing this comedic shift in American politics. Historian Paul Johnson notes in Modern Times that the American comedic climate changed forever when H.L. Mencken found Americans unwilling to laugh at President Franklin Roosevelt during the Great Depression. Perhaps unsurprisingly, the depression wasn’t a laughing matter. Neither was it considered funny to ridicule a politician who told us that he felt our pain and would try anything he could to alleviate our material discomfort. The lesson: better to serve the regime than to attack it, especially if one was hustling for a mass audience in an age of growing statism.

As the American regime became more morally and culturally relativistic on ideational matters, dissenting comedians were invited into the public square to make the taboo the norm. Andy Griffiths became Archie Bunkers on their way to Jerry Seinfeld and Homer Simpson. It would take some time before American comedians would learn that membership in the regime has its benefits. Yet that’s exactly been the story as the love affair between unserious politicians and comedians has grown, the same way that it flowered generations earlier when comedians were enlisted to help fight the war against material want.

In a similar vein, Harvard Professor of Government Harvey Mansfield argued in his 2007 NEH Jefferson Lecture, ”You can tell who is in charge of a society by noticing who is allowed to get angry and for what cause, rather than by trying to gauge how much each group gets.” A year earlier Mr. Mansfield, a teacher of political philosophy, had invited a first hand demonstration of this truth by publishing a provocative work of political philosophy, Manliness. Much like Allan Bloom’s Closing of the American Mind two decades earlier, Mansfield criticized the philosophic shift in the American regime that sapped Americans of their political virility.

Whereas Bloom’s argument produced a strong, serious, and critical response from the academic community that was on the cusp of exchanging its scholarly currency for political power, Mansfield’s effort garnered some attention, but was more ripe for comedic ridicule of the “Colbert Report” variety. The lesson this time: it’s easier to unreflectively laugh away ideas we disagree with than to engage them in philosophic contest. In comedians we trust; in comedians the realm of politically correct inquiry is entrusted. Who needs to arm a mob with swords when you can tame and incite it with laughter.

The American founding deliberately challenged the idea that the mass of the community could engage in political life only as the domesticated pet or stampeding herd of an artful elite.

In Publius’s valedictory essay, Federalist 85, Alexander Hamilton claims the credit due to him and his co-authors for the serious tone of their effort: “I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution.”

As he reflects further, he acknowledges that there were perhaps moments when being charged with conspiring “against the liberties of the people,” among other “circumstances,” “may have occasionally betrayed [him] into intemperances of expression which [he] did not intend.” Still, the body of work itself bears consistent witness to the patience and sobriety with which Publius engaged in the important debate.

The question, at the time of Hamilton’s writing, remained whether that would be enough to secure the ratification of the Constitution. Seven states had approved the Constitution by the end of April, 1788, but it would take nine for it to go into effect. Moreover, what was, at least from Publius’s perspective, the main event was about to begin: the near-simultaneous ratification conventions in Hamilton’s own New York and his co-author Madison’s home, Virginia.

Thus, Hamilton follows his reflections on his own method with an appeal to a similar seriousness on the part of the people:

Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. ‘T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act.

This is the burden and blessing of self-government: the responsibility to judge political matters–and to judge them well.

The ironic cynicism that defines the approved humor of our day affects a position of superiority above the hurly-burly of political life and the unironic citizens who engage it. All those not protected from scorn by their affirmation of progressive pieties are summarily ridiculed and dismissed. But beneath the surface of this breezy smugness is a nihilism absolutely destructive to republican self-government–that cannot distinguish “accident and force” from “reflection and choice.”

Alexander Hamilton began The Federalist in the hope that the United States might demonstrate the possibility of “good government from reflection and choice.” He closed the work in the hope that Publius’s careful reflections on a most serious choice might be met with an equally responsible hearing by the people. He would earn their trust, if he earned their trust, with the strength of his argument, not the power of his declamation or the cleverness of his demagoguery.

From the Middle East and Russia to the Washington, D.C., chambers of the Supreme Court, there is much in our politics today that requires serious reflection and distressingly little evidence that our ruling class is up for the challenge. Where Hamilton led, he hoped the people would be persuaded to follow. In our own day, we must hope that if the people will lead, their supposed leaders will follow. But are even the people willing and able to listen over the political laugh track that will lure them to shipwreck?


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Constitutional Rights and Wrongs

Bill of Rights

For a politics guided by definitions, not polls or power-plays.

Written by: David Corbin and Matt Parks

 A week and a half ago, the Supreme Court agreed to take up the two constitutional questions at the heart of the contemporary gay marriage debate:

1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

How will the Court decide? How should the Court decide?

Richard Weaver, in The Ethics of Rhetoric (1953), highlights and evaluates three types of arguments in political rhetoric: reasoning from consequences, reasoning from circumstances, and reasoning from definition. These correspond well to the three approaches to constitutional interpretation that we can expect from the Court as it takes up these questions.

The Progressive pragmatist judges the case based on the result desired; that is, from its consequences. Now that Progressives have adopted the gay marriage cause, and only now that they have done so the Fourteenth Amendment’s “equal protection” clause must require states to sanction and recognize gay marriages.

The establishment moderate judges the case with a political calculator; that is, from its circumstances. Now that gay marriage is legal in thirty-six states (albeit mostly because of federal court action and inaction) and supporters of gay marriage consistently outpoll opponents (though not in a number of individual states)–and only because such is the case, it is time to square the Fourteenth Amendment with this emerging consensus . . . and thereby strengthen that consensus by putting the moral weight of the Constitution behind it.

The problem with both of these rhetorical approaches is obvious: they make the judge both a sovereign and an interested party rather than the impartial arbiter he is intended to be.

The constitutional jurist, on the other hand, would measure the state laws in view against the meaning of the Fourteenth Amendment at the time of its adoption; that is according to the definition of its terms. Most relevant in this case is the second sentence of Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Anyone reasonably conversant with the history of the Fourteenth Amendment would readily conclude that mandating gay marriage is far beyond its scope: no one in 1868 could have possibly conceived that they were redefining marriage when they voted to ratify the Amendment. But even leaving that aside, there is nothing inconsistent with “the equal protection of the laws” in a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) and excludes, for all, every other combination.

But then, one might argue, wouldn’t the same logic justify a law that allows any one (adult) man to marry any one (adult) woman (not of near relation) of the same race and excludes, for all, every other combination? States, of course, had such laws until the last were annulled by the Supreme Court, rightly applying the Fourteenth Amendment against them in its 1967 decision, Loving v. Virginia. And, in fact, they had justified them on exactly these grounds, winning an 1883 Supreme Court case (Pace v. Alabama) on that basis. What makes the Loving decision right, the Pace decision wrong, and a decision constitutionalizing gay marriage wrong is the same thing: the nature (i.e. the definition) of marriage. Race is an accidental quality of a marriage partner; sex is an essential quality,  bound up in the natural complementarity of men and women. The court mistook the accidental for the essential in upholding laws against interracial marriage; it will mistake the essential for the accidental if it strikes down one man-one woman marriage laws.

This pattern, and the implicit appeal to consequences and circumstances, rather than definition–has been the norm rather than the exception in deciding cases through appeals to the Fourteenth Amendment.

For example, in Plessy v. Ferguson (1896) the Supreme Court rendered the clear meaning of the rights entailed in all four clauses of the first section of the Fourteenth Amendment irrelevant, suggesting that Plessy’s inability to ride in a whites-only railcar in no way denied him of his full possession of equal political liberty. Writing for the 7-1 majority, Justice Henry Billings Brown argued:

We consider the underlying fallacy of the plaintiff’s [Plessy] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

For Justice Brown and the rest of the majority, Plessy’s possession of equal political liberty was a subjective matter both on his part and theirs. Since the Court felt that a “separate but equal” rail car was good enough for the Fourteenth Amendment, the onus was on Plessy to put the same construction on the matter. If he didn’t feel equal because he wasn’t allowed to ride in a whites-only train, too bad: the objective reality that he was denied access to a public railcar was of no consequence. Rather, the Court, in quintessential pragmatic and progressive Olympian terms, proclaimed truth in his case subjective, and the lines of admissible subjectivity, their own.

When the Court reversed course in Brown v. Board of Education (1954), it did so utilizing the same circumstantial and outcome-oriented reasoning that the Plessy Court had employed sixty years prior. It might have ground its decision in Justice John Marshall Harlan’s definition-based Plessy dissent, that rightly asserted that “separate but equal” violates the principle of a “color-blind constitution” in which “the law regards man as man, and takes no account of his surrounding or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Instead, the Brown Court ruled that societal circumstance and elite preference could no longer ignore the subjective damage done by a “separate but equal” legal regime. American ruling elites had come a long way on the race issue, but not so far as to capture the intellectual and moral essence of Justice Harlan’s brave dissent.

Justice Clarence Thomas demonstrated what might have been (and what yet could be) in an important, though widely ignored, statement on the jurisprudence of civil rights, arguing in his concurring opinion in Missouri v. Jenkins (1995) that the Brown Court “[Did] not need to rely upon psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens according to race. . .that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.”

The rarity of Thomas-style arguments and the ubiquity of circumstance- and consequence-based constitutional reasoning presents a difficult challenge for those committed to preserving a republican judiciary today. At the time of the founding, Alexander Hamilton argued (in Federalist 81) that the danger of systemic judicial abuse “is in reality a phantom,” given the inherent weakness of the judicial branch and its accountability to Congress through the impeachment power. Unfortunately, his argument, as our experience shows, is much less compelling today, for several reasons Hamilton could not have anticipated.

In Federalist 80, he argues that the federal courts must have the authority to enforce the limits of the Constitution against state laws, a power that, he acknowledges, can be abused. The limits on the states in the original (pre-Bill of Rights) Constitution were few, however, and the interests of the states directly represented in a Senate comprised of members chosen by state legislators. Today, the Court’s expansive application of the Fourteenth Amendment against state laws has increased exponentially the opportunities for abuse–and the shift to a popularly-elected Senate has decreased the incentives for holding the court accountable for abuses. How often can we expect Congress to provoke a fight with the Court over a usurpation of state authority, especially when it may very well like the Court’s judgment?

The Congress can still act in ways that encourage responsible judicial behavior, if it wishes. A careful review of judicial nominees, the use of impeachment where merited, and passing laws that properly define the jurisdiction of the federal courts (as described in Federalist 80 and 81) remain available tools, if some of the institutional motivation for using them has been lost. But the right employment of such tools would likewise require the legislative branch to reason from definition, a prospect more to be dreamed of than expected, given the power that often self-defeating political calculations seem to have over even the most well-intentioned proposals (note to pro-life House Republicans: neither an unborn child’s humanity nor his capacity to feel pain is affected by the circumstances under which he is conceived).

Those wishing to recover republican government, especially those seeking to lead a movement or party, must take the advice of Richard Weaver and engage the larger cause of responsible political argument:

This is a world in which one often gets what one asks for more directly or more literally than one expects. If a leader asks only consequences, he will find himself involved in naked competition for power. If he asks only circumstance, he will find himself intimidated against all vision. But if he asks for principle, he may get that, all tied up and complete, and though purchased at a price, paid for. Therefore it is of first importance whether a leader has the courage to define.

The lesson in all this: As “ideas have consequences,” so will the reasoning we employ to uphold or deny the self-evident truth of human equality continue to have consequences for the American republic.


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Roe v. Wade: An Impeachable Offense?

Roe versus Wade

Roe v. Wade is no ordinary case of judicial activism. The Court landed on the wrong side of the first principle of justice: “all men are created equal.”

Written by: David Corbin and Matt Parks

We don’t know if President Obama’s promise to go on “offense” for the remainder of his presidency means he’ll give the Supreme Court another browbeating in tomorrow night’s State of the Union Address. We can be sure, however, that if there is one, the former constitutional law lecturer won’t be admonishing them for failing to do their constitutional duty.

The last major division of The Federalist (essays 78-83) concerns the judiciary. As with James Madison and Alexander Hamilton’s earlier reflections on the legislative and executive branches, the principal theme of these essays is the judiciary’s compatibility with republican principles. All three branches are measured against a two-fold test of republican orthodoxy:

  1. Are the officeholders adequately responsible to the people (form)?2. Is the branch’s structure, powers, and relationship with other branches consistent with the rule of law (substance)?

The judiciary, as Federalist 78 demonstrates, plays a critical role in promoting the rule of law–especially the rule of the fundamental law, the Constitution. In a system where the people have imposed important limits on the power of government (and did so before the adoption of the Bill of Rights), the judiciary must possess and exercise the power to declare laws contrary to these limits unconstitutional by refusing to apply them in cases that come before it.

As Alexander Hamilton acknowledges, this can go wrong in two ways. The court can erroneously uphold unconstitutional laws, allowing the will of the people’s agents (the Congress) to trump that of the people themselves. Alternatively, the court can strike down laws that are actually constitutional, enforcing its own will in the place of the people’s judgment.

Because of his fears of a gross imbalance of power between the (weak) judiciary and (strong) legislature, Hamilton was far more worried about the first case than the second: that the judiciary would be unwilling to upset the Congress by declaring one of its laws unconstitutional. That’s why he stresses the importance of lifetime tenure (in Federalist 78) and a secure salary (in Federalist 79) as critical props for judicial independence and, thereby, the rule of law–not as special perks for judges.

In our day, however, the second problem, a judiciary that finds conflicts between laws and the Constitution where they don’t exist, is at least as important as the first. How this came to be is a story with a number of key twists and turns, but the short version is that Progressive judges began to read the Bill of Rights and, critically, the 14th Amendment, in ways that went far beyond (and, indeed, often contrary to) their original intent, especially in applying the former to the states through the latter.

Thursday will be the 42nd anniversary of the most notorious instance of this judicial usurpation, Roe v. Wade, where the Supreme Court created, whole cloth, a constitutional right to an abortion, with limits so narrow and boundaries so permeable that it took the Court two tries to uphold a ban on aptly-named partial-birth abortions.

One could attempt to engage the constitutional argument for a right to an abortion presented in Roe v. Wade except that there isn’t one. The Court simply asserted that the “right to privacy” it had discovered in the shadows of various amendments in an earlier case (Griswold v. Connecticut) was broad enough to include the deliberate killing of a prenatal human being.

The consequences have been as grisly as one might have predicted. Although the number of pre-Roe abortions is a matter of dispute, there is no question that the first years after Roe brought about a significant (and, perhaps, several-fold) increase. Moreover, while Roe was handed down during a period where public support for legalized abortion was increasing, it has since prevented the codification of an important shift in public opinion in the opposite direction,  thereby continuing to add to the number of abortions each year. Note to Justices weighing the politics of nationalizing gay marriage: History can sometimes reverse course.

The effort to overturn Roe v. Wade will, no doubt, be part of the subtext at least of the upcoming presidential election campaign whenever the discussion of Supreme Court appointments comes up. But that we may have some further sense of why this is not a tangential matter, it is helpful to return to Hamilton’s discussion of the republicanism of the judiciary.

To be republican, the judicial branch must promote the rule of law. This it manifestly failed to do in Roe v. Wade. But it must also be accountable for its failure to exercise its constitutional responsibilities.

Although under the Constitution bad Supreme Court rulings can be undone by constitutional amendment and prevented by congressional limitations on the Court’s appellate jurisdiction (see Article III, Section 2), the only tool of accountability for individual justices is impeachment.

The history of Supreme Court impeachments is short. Samuel Chase, accused by Jeffersonian Republicans of “arbitrary, oppressive, and unjust” partisan behavior from the bench, was impeached by the House in 1804 only to be acquitted the next year by a bipartisan coalition of Republican and Federalist senators. The end.

We may, of course, be grateful for the fact that no Supreme Court Justice has (been discovered to have) committed the sorts of offenses (like taking bribes) that have led, over the years, to the impeachment and removal of eoight lower court federal judges and the resignation of three more.

The partisan stain of the Chase proceedings (observers then and since believed it to be a test case for the impeachment of Chief Justice John Marshall) seems to have confined the impeachment power to limits too narrow to satisfy its original republican purpose. President Thomas Jefferson, whose own role in and hopes for the Chase impeachment are a matter of scholarly dispute, wrote three years later: “impeachment is a farce which will not be tried again”–correct to date, at least regarding Supreme Court Justices.

Yet a consideration of Hamilton’s argument of Federalist 79 is helpful in determining what went wrong in that particular case and how a republican understanding of the proper employment of impeachment might be revived in our day.

Hamilton begins the essay by noting that given “[A] power over a man’s subsistence amounts to a power over his will,” it is essential, if it is to reap the republican benefits of an independent judiciary, that a political society provide its judicial officers with the requisite material support. But just as essential as securing a judge’s independence by maintaining “the ground upon which he stands,” is a society’s willingness to employ the counterbalancing instrument of impeachment when justified. Hamilton writes:

The precautions for their responsibility are comprised in the article respecting impeachments. They  [federal judges] are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other.

The question of what type of behavior warrants impeachment was one of the more hotly disputed questions of the Constitutional Convention. Upon the urging of George Mason, who rightly contended that there are a multitude of activities that endanger republican regimes, the Convention added “other high Crimes and Misdemeanors” to the original, more specific list of impeachable offenses (“treason and bribery”).

There has been much debate about the meaning of this more ambiguous phrase, a substitute for Mason’s proposed “maladministration,” after Madison argued convincingly that Mason’s proposal would decisively compromise judicial independence. But The Federalist leaves no doubt that it is not limited to indictable offenses. Hamilton, in examining the Senate’s role in the impeachment process, writes in Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

It is clear from The Federalist and from the broader context of the founding-era debate over impeachment, that it was not meant to be a means of resolving normal or even particularly intense or important political disputes. But it is equally true that violations of the public trust need not involve criminal activity. For impeachment to play its intended role in securing the accountability of officeholders–particularly unelected judges–it would have to be available for cases of gross misconduct measured against the constitutional duties of their office.

Roe v. Wade is no ordinary case of improper judicial activism. The “misconduct” of the Justices responsible for the decision is emphatically not the result of their landing on the wrong side of a public policy dispute. It is rather that they have landed on the wrong side of the first principle of political justice (“all men are created equal”) in the most decisive way: by requiring the people of each state to sanction the arbitrary killing of unborn human beings. The “logic” of Roe v. Wade does not stop until (as Hadley Arkes has decisively shown) it has devoured the entire notion of natural rights, the protection of which, according to the Declaration of Independence, is the essential task of (our) government–the reason for the framing of the Constitution and the case against its predecessor, the Articles of Confederation. However prudential considerations might shape our actual political behavior (one need not impeach every time it is merited), in our republic, at least, the Roe v. Wade decision must be an impeachable offense.

The intransigence of President Obama and the general placidity of the Congress have brought attention to a problem deeper and more pervasive than we typically imagine: our near abandonment of so many of the “constitutional means” granted to federal officeholders for maintaining the separation of powers and enforcing the limits of the Constitution. Recovering those means does not mean using them in needlessly divisive, foolish, or partisan ways (an outcome likewise discouraged by Hamilton in Federalist 65). But it does require accepting, once again, the logic of our republican system: that every officeholder is accountable for fulfilling his oath to uphold the Constitution.

Link to The Federalist:

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A Federalist Today Presidential Straw Poll

Jeb bush

What insurgent can break the establishment winning streak?

 Those who are not ready for Jeb or Mitt (much less Hillary) are now officially on the clock–tasked with finding a credible conservative insurgent capable of going toe-to-toe with the Republican establishment’s favorite in the primary elections that begin fourteen months from now.

The clearest path to victory for the establishment, as they have publicly made clear, is to rally around one high profile candidate while conservative and libertarian-leaning Republicans divide themselves among a half dozen or more until the early primaries begin to cull the field. A divided right and a (more) united middle has carried the establishment to victory in every open primary since the contemporary system emerged (in 1988).

Jeb Bush’s exploratory committee announcement last week is a large step toward uniting the middle–either around Bush himself or, if he fails to gain traction, Mitt Romney, called in from political retirement as a management consultant Cincinnatus to save the day. For what? Beyond the benefits to properly-credentialed job seekers, we can expect another campaign for expert mastery of the economy, a 98-cents-on-the-Progressive-dollar budget, democratic self esteem-promoting missions abroad, and market-oriented but beltway-directed education (if Bush) or health care (if Romney) “reform.”

As Josh Kraushaar argued last week at the National Journal, such a program is unlikely to energize the Republican base. But the base won’t matter if the Republican establishment standard-bearer can win the early primaries and caucuses with 30-40% of the vote and build an air of inevitability around his nomination before the campaign hits the states where most of that base resides. Meanwhile, renewed rumblings about the end of the Ames, Iowa, straw poll (related to new Republican National Committee rules to discourage party-sponsored voting events prior to the official Iowa caucus) and plans to limit the number of pre-primary debates make the early unification of conservatives all the more unlikely.

Last week, we proposed calling a series of regional pre-primary caucuses featuring candidate debates and straw polls (sample below) that would openly, fairly, and naturally work to unite conservatives behind a single insurgent candidate several months before the primaries begin. The idiosyncrasies of the early-voting states would still favor the establishment candidate, but he’d have to get something close to a majority of the vote to defeat a conservative/libertarian insurgent who had established himself as the clear choice of the non-elite.

What sort of an insurgent could run this gauntlet and break the establishment winning streak? Being willing to take on the Republican branch of America’s ruling class would be a good start. But that could be the pathway for demagogues and attention-seekers as much as true republicans.

The test will be in the alternative he advocates. After eight years of President Obama, we expect the establishment candidate to talk about reform, but we hope an insurgent reformer would bend us toward more constitutional government, not merely more efficient government. A true reform candidate would be able to highlight the important difference between the American presidency as first conceived, and the celebrity, hegemonic, mind-everyone’s business executive that the position has become, to the discredit of both the office and the country.

How, then, do we know if we’ve found the genuine article? There is no better place to rediscover the true nature of a constitutional executive than Alexander Hamilton’s Federalist essays on the American presidency (numbers 67-77). There Hamilton describes:

President Obama’s greatest contribution to reviving the American republic has been his blatant disregard for this model–standing in such a stark contrast to the original that it has drawn our attention back to it.  He is not the first to have left the Founders’ republican ideal behind. But he has been the most audacious in trying to hammer the nails into its coffin.

He has usurped legislative authority time and again and then threatened to use his veto to prevent the reassertion of Congress’s constitutional powers. He has undermined our peace by suffering injury to American interests from one rogue state after another and exacerbating our political, economic, and racial divisions. He has expanded government power and bureaucratic discretion while leading an executive branch that views the defenders of self-government with suspicion and disdain.

There is enough low-hanging fruit here for any ambitious Republican. Criticizing President Obama on the 2016 campaign trail will be easy and, so long as his approval ratings remain low, politically cheap. But whatever measure of political success another not-Obama campaign might bring, it will take the persuasive presentation of a compelling alternative to begin the revitalization of our republic.

The ideal conservative running for President would, therefore, be one who understands that that which he is attempting to “conserve” is the Founders’ vision of republican executive authority, exceptional both in their day and ours. True republican reform would amount to a refinement of current executive practices that bring the office back into alignment with the original understanding of the American presidency. Perhaps most difficult of all, it would require the new president to foreswear many of the executive prerogatives asserted by President Obama, even, or especially, when they appear to be the only way to achieve his favored policy. When he takes the oath of office, he must “swear to his own hurt” (Psalm 15)  to “preserve, protect, and defend the Constitution of the United States.”

Who among the current Republican contenders is best positioned to make the case for this understanding of the American presidency and then live up to it in office? The combination of intellectual and moral virtues necessary to accomplish this is difficult to find. Add the administrative gifts necessary to govern well and the task becomes more difficult still. We hope that over the next year there will be a very robust and public debate centered on this question, despite the efforts of the GOP establishment. Let’s start today. Who do you think is best able to re-constitutionalize the presidency? Participate in our straw poll and add your comments below.


David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.




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It’s Time To Exercise the Legislative “Veto”

Veto CongressAnd funding a constitutional government worth funding.

The apoplectic and apocalyptic will scoff at the suggestion that this past week’s executive amnesty could help fuel a partial revitalization of our republic. So why is there room for optimism that something can be done–and what?

President Obama’s threatened and now announced executive amnesty has, not for the first time, drawn pundits, politicians, and the American people, Left and Right, back to the Constitution to reflect on what, exactly, the president and Congress are supposed to do. That, in and of itself, is a good thing–an indication that, at some level, we all still recognize the need to square our political behavior with our (collective) political principles.

Judging by the results, those on the Left have not liked what they have found in the Constitution. The leading talking point of the last week has been “Republican presidents (including Ronald Reagan) did the same thing.” A number of people have shown that, in fact, the actions of President Reagan and his successor, George H.W. Bush, are clearly distinguishable from President Obama’s.

But suppose they weren’t. Tu quoque (“you too!”) may be good politics, but it’s bad logic and, if possible, worse legal and constitutional reasoning. (It’s not a solid defense against speeding to suggest that you were only keeping pace with the car in front of you.) Better to conclude that both Republican and Democratic presidents have violated the plain intent of the Constitution than to wrench the Constitution into justifying what they did, simply out of partisan loyalty. Are any of us willing to prostitute our integrity for parties so unworthy of the sacrifice?

The president’s (slightly) more sophisticated defenders have resorted to a “devil made me do it” defense. Who’s the “devil” in this case? First choice is, naturally, House Republicans, who, according to outgoing Senate Majority Leader Harry Reid, had 510 days to do something about immigration, starting the clock from when the Senate passed an immigration reform bill.

Choosing not to legislate is, of course, a perfectly legitimate legislative act–one that Harry Reid (tu quoque) knows a lot about, with more than 300 House bills awaiting action in the Senate. Surely the House doesn’t have to pass a bill it disapproves to keep the president from implementing part of what it disapproves. Shorter Senator Reid: heads I win; tails you lose.

But if the House’s (in)action is perfectly legitimate and we’re still stuck, then maybe the devil is actually the (founders-designed) system. That, at least, was the suggestion of Garrett Epps, writing for The Atlantic last week. Prof. Epps argues in ominous tones that we could use a “six month moratorium on paeons to the wisdom of the framers,” since they failed to anticipate “divided government”–when one party controls the Congress and another party the presidency–leaving us in a “dangerous” position that will “probably” lead to government “shutdown, perhaps default, and possibly impeachment.”

Much could be said in response to this charge against the founders–starting with the fact that the they didn’t justanticipate divided government, they designed the government to be divided with the separation of legislative, executive, and legislative powers. If they erred, it was in assuming (a) that the government would be divided as much (or more) legislature against executive as Party X against Party Y and (b) that parties would be more numerous and fluid than they have turned out to be.

They hoped, in other words, for something better in congressional leaders than sycophantic ideologues, like Senator Reid, who invite the president to “go big” in usurping legislative authority, but they harbored no illusions that their system would facilitate expansive legislative programs, which were neither needed (see Federalist 53) nor conducive to self-government (see Federalist 62).

Gridlock, most of the time, was a better option that bad or frequent lawmaking–and the occasional times when it frustrated good initiatives were a reasonable price to pay for avoiding the assaults to enterprise and liberty of a voluminous and unstable legal code.

We The peopleThat, in fact, was one of the two reasons Alexander Hamilton gives in Federalist 73 to justify the president’s veto power. The other (and, in Hamilton’s view, even more important) is equally instructive in this case: to protect the president “against the depredations of the [Congress]”–that is, to maintain the separation of powers.

The president needed such protection, both Madison and Hamilton argued, because of the natural strength of the legislative branch in a republican system. As our regime has democratized, we’ve argued elsewhere, the executive branch has become ascendant–indeed all but hegemonic.

As a result, while we still need a presidential veto to protect the executive branch from the (infrequent) assaults of the Congress, we need, much more, an understanding and forthright application of the Congress’s own “veto” power.

The idea of a legislative veto in our system should be something of an absurdity because there are very few places under the Constitution where the executive branch has the initiative–a precondition for a veto power (you veto someone else’s measure, after all).

However, in our day of pseudo-law executive orders and claims of prosecutorial discretion, pseudo-treaty executive agreements, and a dormant Congressional power to declare war, presidents have seized the initiative in almost every area of policy-making. As a result, Congress must consciously and publicly reconceive its appropriation (and correlative defunding) power as not only policy-making, but policy-stopping.

To inactivate or deactivate programs and agencies with the power of the purse is legislative activity fully within its Constitutional authority.

In quiet ways, of course, this is already done. As The Federalist’s Sean Davis writes:

Congress adds riders and prohibitions to appropriations bills all the time. Why? Because it can [“Article 1, Section 9 of the U.S. Constitution”]:

‘No money shall be drawn from the treasury, but in consequence of appropriations made by law[.]‘

And from that power of the purse come the most powerful words in federal law:

“Notwithstanding any other provision of law, no funds shall be appropriated or otherwise made available for ______.”

What has yet to happen, however, is for Congress to make the political case, in any kind of systematic or persuasive way, that defunding parts of the federal bureaucracy is not a precursor to a Congress-initiated government shutdown and default, the two horsemen of the Progressive fiscal apocalypse (see Prof. Epps), but a defensive mechanism needed to protect Congress from the “depredations” of the president.

Congressional Republicans, in other words, would improve their ability to respond to the president’s assaults if they spent more time talking about the need for a Constitutional course correction and less time making idle and often insincere threats. When the crisis point in the game of chicken comes, it is too late for a previously chest-thumping Congress, with all the rhetorical disadvantages of diffuse leadership and political division (not to mention a hostile press), to win the sympathy of the general public.

Unfortunately, the lesson Republicans have learned from their previous encounters with President Obama is that a “shutdown” must be avoided at all costs. But if not satisfying the president’s fiscal demands is tantamount to causing a shutdown, we’re back where we started on the immigration question: heads the president win; tails Republicans lose.

Madison wrote in Federalist 48: “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” This is the state of affairs that President Obama has furthered and taken advantage of in his personal appropriation of legislative power on a host of issues. The One Hundred Fourteenth United States Congress would go down as the one of the finest and most dutifully active and vigilant if it were to employ its power of the purse to ensure that constitutional government of, by, and for the American people did not perish on its watch.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.




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Choosing an Energetic President To – “Take Care That The Laws Be Faithfully Executed”

Alexander HamiltonAs we enter the last week of the midterm campaign, we find ourselves ringside in a battle between President Obama’s vanity and Democratic Senate candidate’s cynicism.

It seems the president’s sense of self-importance won’t allow him to stop saying things unhelpful to Democrats trying to free themselves from the heavy weight of his unpopularity by wearing camouflage jackets, rediscovering their drawl, and ostentatiously standing up for local industries on the wrong side of environmental history.

First President Obama claimed that “every single one” of his policies is “on the ballot” this fall. Then he reminded voters that the endangered red state Democrats are “all folks who vote with me” and who “have supported my agenda in Congress.” Most recently, his spokesman contradicted Alaska Senator Mark Begich’s claim that Mr. Obama, with just two years left on the job, was “irrelevant,” despite the support Mr. Begich received, with several layers of irony, from once and future (?) co-president Bill Clinton (who had to defend his own relevance after the Republican electoral tsunami of 1994). Wonder who Mr. Clinton thinks should be leading the party?

Three rounds in, vanity appears to be ahead of cynicism on points, as President Obama simply won’t let others be the changed candidates they want to be. Fearing a November 3rd knockout, most Democratic operatives, it seems, would like nothing more than for Mr. Obama to find a new hobby.

He might even try being president.

We’ve written about the dangers of a hegemonic presidency, inspired by President Obama’s unprecedented use of executive orders, among other violations of the separation of powers. But what is equally striking–and equally dangerous in its own way–is his tendency to neglect the core duties of his executive office as he acts aggressively in areas properly assigned to others.

  • The president instructs the Justice Department not to defend the Defense of Marriage Act before the Supreme Court, but tells the Court to its face that it misread the First Amendment in striking down campaign finance restrictions and then opines that his own evolving views on gay marriage now require the Court to nationalize it as soon as politically expedient.
  • U.S. Immigration and Customs Enforcement saves money by releasing 2,200 detainees, including 629 with what it (and the Administration)  falsely claimed were only low level criminal records, while the president prepares an executive order that will essentially rewrite American immigration policy–not just without Congressional consent, but in terms that could probably not win the votes of 10% of the members of Congress (whatever their private views might be).

More could be said about his Administration’s failure to enforce laws like Obamacare or passivity in the face of growing health and military threats (from) abroad. But what a former aide to Harry Reid said about the president’s approach to the fall campaign might be said about his approach to the presidency in general: “President Obama doesn’t like to get his hands dirty. He seemingly floats above it all.”

Unfortunately, the presidency, as designed, requires a very different sort of person: one who will take up his constitutional responsibilities (but only those responsibilities) with vigor. As Alexander Hamilton argued in Federalist 70, far from being inconsistent with republican and constitutional government, “[e]nergy in the Executive is a leading character in the definition of good government.”

After showing that the Electoral College would likely produce the election of a republican president (Federalist 68) and suggesting that American presidents would be constrained to remain republicans in office, if not by their own design, then by the Constitution, the people, and the other branches of government (Federalist 69), Hamilton posits that only the energetic execution of the office will serve its republican purpose.

Why? Because an “energetic” president would be best able to secure:

  1. the protection of the community against foreign attacks;
  2. the steady administration of the laws;
  3. the protection of property, and
  4. the people’s liberty “against the enterprises of ambition, of faction, and of anarchy.”

Obviously, there are many ways that energy, oriented in the wrong direction, could be harmful to the American republic. But, as Hamilton argues:

A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. 

Thus Hamilton’s argument in Federalist 70 follows the earlier argument he had made in Federalist 23 regarding the energy requisite to carry out the essential tasks of the federal government:

This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. 

Debate all you wish whether the federal government in general or the president in particular ought to be responsible for accomplishing x, y, or z. But once you’ve said ‘yes,’ it will be no boon to the people’s liberty or security if you withhold the power necessary to actually accomplish the given task.

For the president to be the servant-leader he was expected to be, Hamilton argued, he must be able to employ with confidence the powers that he had been granted. There ought to be no doubt that his energetic employment of his constitutional means for the sake of constitutional ends would be beyond reproof.

Hamilton never doubted that trouble would always be around the corner for Americans as it had been for the Romans and for other once-republican regimes. Any hope that an executive’s republican character and obedience to his parchment powers alone could secure the United States against enemies both foreign and domestic was the stuff of stargazing. He must be of the right stuff to execute his office when danger approached. Here, once again, we can with little doubt think of Hamilton writing Federalist 70 with George Washington in mind.

Choosing an energetic president means choosing someone willing to embrace the often unglamorous tasks enumerated above–and leaving the Court to be the court and the Congress to be the Congress, and pundits, celebrities, and other self-centered egoists to do their business as well. There will, in the end, be plenty of room for admiration from a grateful people more secure in their person, their property, and their liberty because the president knew what his business was, and energetically pursued his business well.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.



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