Federalist No. 45

Posted on 2008-12-31 by David

I wish we had a constitutionally limited federal government such as the one that Madison is promoting/defending in Federalist No. 45.

the next question to be considered is, whether the whole mass of {the powers transferred to the federal government} will be dangerous to the portion of authority left in the several States.

Madison argues that there is little danger from the federal government to the authority of the states. Perhaps we can forgive him as his frame of reference was that:

history does not inform us that either {the Achaean league or the Lycian Confederacy} ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities.

With the advantage of hindsight we can see where we diverged in practice from the foundations laid for oureffective but limited government.

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures.

Today it would be much more accurate to say that state governments may be regarded as constituent, but in no way essential, parts of the federal government while the federal government is absolutely essential to the operation and organization of the state governments (financial dependence will do that to you every time). State governments now play a token role (if any role at all) in the election of the President, the senate is no longer elected in any way by the state legislature, and the fact that the members of the house of representatives is drawn from the ranks of those who would also be chosen into the state legislatures is no form of protection for our liberties.

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.

The number of people employed by the federal government and its many agencies is enormous and while it may not have been true in the 1880’s, today more people can name their representative and senators at the federal level than can do so for their state representatives (admittedly, many people can not name any of their representatives). This discrepancy illustrates that the influence of the federal officers exceeds the influence of the local officers even at the local level (despite the fact that the local officers have more direct impact on the lives of citizens).

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

While the powers granted to the state governments are still indefinite today, the definer of those powers in practice has been the Federal government. And while the powers delegated tot he federal government are defined, the federal government has felt no obligation to limit their exercise of authority to those defined powers. Also, as the federal government has exercised increased authority, they have generally done so over "internal objects" which concern the lives, liberties etc. of the citizens in their ordinary course of affairs – directly infringing upon those areas of authority which were to be within the purview of the state government.

It should be noted that most of these changes in our society and political structure are a direct result of ill-advised changes in the Constitution. Those which are not a result of changes in the Constitution are a result of the Constitution being trampled and ignored.

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Federalist No. 44

Posted on 2008-12-30 by David

Although it is not the central point of Federalist No. 44, I found it very interesting to read the fervent distrust of paper money that the defenders of the Constitution had based on their experience – especially considering our present circumstances of economic uncertainty that are largely due to the instability of paper currency (which we manipulate, and experience steady inflation and erratic deflation).

I also found another example of an assumption of our founders which has since been rendered false – this one relates to the checks and balances to be found between state and federal authority.

as every such act of the {federal government} (to violate their Constitutional authority) will be an invasion of the rights of the {state governments}, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

If our states today were truly guarding their constitutional autrity with the jealousy that the founders envisioned I doubt that we the federal behemoth that we are carrying around today which, due to its sheer size, has convinced a large portion of our society that it is capable of solving all our perceived woes. The unfortunate truth is that our states today hardly even whimper at any violation of Constitutional authority by the federal government. There are rare exceptions – such as the backlash against the Real ID Act – but those cases are often nothing more than a plea for full funding when they are asked to implement a federal program that exceeds the Constitutional authority of the government. The states no longer guard their authority – they simply guard their balance sheets.

At the same time, the statement that there are no intermediaries watching the state governments and calling the people to action reamins as true as it was presented in 1788. One might expect that job to be handled by an independent and free press, but the press has done no better at that task than the state governments have done on their level.

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The Revolution

Posted on 2008-12-29 by David

After the primary season and the surprises from the Ron Paul campaign I have wanted to read his book, The Revolution – A Manifesto, for quite some time. I had to wait or quite a while before it became available at my library (apparently I was not very early in placing my hold). I was interested to see what Ron Paul would write considering what he had said and what had been said about him.

I think the shortest accurate review of the book would read like this:

Forget everything you know, or think you know, about Ron Paul before you start reading this book. After you have read it decide what you really think about what he says here.

I honestly believe that the greatest disservice that most people could do to themselves when reading this book would be to color their reading with preconceived notions of how radical his ideas are. Personally I think it is always well worth my time to explore the ideas of a person who can alienate conservatives and liberals at the same time as he unites people from across the political spectrum.

After having read the book I would love to have someone, anyone, go through the book and refute the points that Rep. Paul makes with evidence and statistics rather than the simple and meaningless marginalizing treatment that he and his campaign receved throughout the primary process. I would love to see someone who could do that or the entire book, but I would be surprised if anyone could accomplish the feat for a single chapter of The Revolution.

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Christmas Present

Posted on 2008-12-26 by David

My wife surprised me for Christmas this year by giving me a pocket edition of the Constitution (which also contained the Articles of Confederation, the Annapolis Convention, the Massachusetts Bill of Rights, the Virginia Statute on Religious Liberty, and various other documents) – I was very excited. This morning I was at Lowe’s talking with an employee there who asked me what I got for Christmas. When I told her that I got a pocket edition of the Constitution she paused for a second before responding, "Is that what you wanted?"

Sometimes the only thing I would like more than that would be to have the ability to give a copy of the Constitution to every voter who has not already read it.

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Who Should Adopt?

Posted on 2008-12-24 by David

The debate over who should be allowed to adopt a child is a sensitive one. We have a system which tries to provide the best situation to children in need of good families, but there are more children than available families under the current definition. I think it is natural to be skeptical of the idea that we should let unwed partners adopt because that opens a door for some very unstable situations which are not beneficial to the children involved. The gay community (those that are interested in this particular issue) consider this to be discrimination because in this state all gay couples are unwed by definition. Of Rep. Rebecca Chavez-Houck’s "Forever Homes for Every Child" bill Senate President-elect Michael Waddoups accurately identifies the major objection/hurdle by saying:

That sounds like they’re trying to set up a family relationship that under [Utah’s same-sex marriage ban] isn’t allowed. … If we’re going to change the definition of a family, we should do it constitutionally — not through end runs.

Even if this is not intended as an end run around our Constitutional ban on gay marriage it will easily be perceived as such. The proposed bill gives adoption preference for married couples – which respects our value favoring a traditional family structure – but it opens the door for adoption by unwed couples with the consent of the biological parent(s) or if the child is in state custody. I believe that one minor modification the bill would support our value of granting primacy to the institution of family in this state. Simply put – I do not trust the state to make the decision to allow unwed couples to adopt children. If this proposal were changed to allow an unwed person or couple to adopt a child only "with the consent of the biological parent(s) and any legal guardian" I would fully support it.

The couple cited in the article is a biological mother (using a sperm donation) and her partner who are the only family their child has ever known. It makes perfect sense that the partner would be allowed to adopt and naturally the biological mother would grant the necessary consent. This change in the proposal would allow the biological parent(s) to specify one unmarried person or both members of an unwed couple as potential adoptive parents. It would allow the state or an established legal guardian to block such an adoption where the biological parent(s) choice of adoptive parents may be undesirable. Most importantly it would prevent the state from selecting unwed couples or individuals as adoptive parents for children who’s biological parent(s) objects or who do not have biological parents to speak in their defense or grant the necessary consent.

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Federalist Nos. 41 – 43

Posted on 2008-12-23 by David

These papers by Madison cover topics that had previously been addressed by Hamilton in Federalist Nos. 24 – 28, and 30 – 36 (covered here, here, and here).

Federalist No. 41 focuses primarily on the issue of standing armies, Federalist No. 42 concerns issues of foreign relations, law enforcement, and interstate commerce, and Federalist No. 43 addresses further specifics of law enforcement, interstate commerce and other miscellaneous powers specified in the Constitution.

I love this description of the Articles of Confederation from Federalist No. 42:

the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.

Federalist No. 43 contains a statement that describes a principle weakness of the United Nations:

Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.

I do not consider the words of Madison either inferior or superior to Hamilton on these subjects. I do believe that some people would be more swayed by one approach while other people would connect more with the approach of the other.

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Human Rights

Posted on 2008-12-19 by David

A post at the Utah Amicus this morning shared a short video based on the Universal Declaration of Human Rights.

The video and the overall message is good, but starting at 2:51 in the video the message departs from the reality of human rights and enters the Utopia of idealism. I think it is important to recognize the difference between the real and the ideal if we are to have any hope of establishing true liberty. Of all the categories which this declaration lists as distinctions which cannot alter basic human rights there is one category which they fail to list which tears some of their "rights" to shreds – placement in history. We have no rights today that were not also the rights applicable to our great grandparents. I do not mean to say that those rights have never been infringed upon, but if we call something a right today which could not have been delivered in all ages of civilization then it is not actually a right.

Those who subscribe to the Conservative/Libertarian philosophy would rightly point out that there is no such thing as gay rights, womens rights, or minority rights of any kind – there are only individual rights. In other words, membership in any group, majority or minority does nto grant any rights that are not equally applicable to those outside the group. The same holds true of responsibilities. Society, nor any group in society, has no responsibilities. Only individuals have responsibilities.

So, while it is nice to say that society has a responsibility to help you develop the truth is that for better or worse society does help you develop. It is the moral responsibility of every individual to encourage those they interact with to develop in a positive way according to their individual capacities. In other words, a teacher can help a child to learn and a police officer can encourage a child to respect the law. The teacher and the police officer may have some influence outside those spheres, but we cannot expect one to fill the role of the other. The real truth is that we cannot expect society to take on any responsibility – we can only expect ourselves to take on any necessary or desirable responsibility (and we can encourage others to do the same).

There is no right to employment – only the right to receive the fruits of your labor. It is the responsibility of others to treat you fairly, but that does not entitle you to a any given job nor does it mean that employers must make work for you. I can appreciate the idea of a right to a fair salary, but I am confident that the meaning of those promoting this Universal Declaration of Human Rights mean a social guarantee of some minimum salary – which is not a right and cannot be enforced without taking away true liberty.

The happy sentiment that each workday should not be too long is completely meaningless. First we must define "too long" and second we must find a way to enforce it. A standard definition of "too long might be 8, 10, or 12 hours per day. Tell that to those who produced their own food on a family farm when an 18-hour workday was little better than subsistence. We no longer live in that age, but it goes to prove that needs, resources, and capacities are outside the control of society and thus the "too long" workday cannot be artificially defined or equitably enforced. The same argument holds true wtih the reference to "a decent standard of living."

The right to go to school was not available in any for for long ages of many societies and that lack had nothing to do with oppression – it had to do with subsistence. I have the right to be treated fairly regarldess of my economic curcumstance, but I do not have the right to go to school when school is not avaliable or when I do not have the capacity to go to school and still meet my real human needs. The same holds true for participation in the arts and sciences of my community.

While it is nice to think about an education that promotes peace and understanding among all people the reality is, again, that this tries to place on society a responsibility that every individual has to treat (and teach others to treat) all people with respect and dignity. Education (meaning public or formal educaiton) should focus on academic disciplines and teach/promote respect and understanding by example more than indoctrination.

In short, there are no group rights or responsibilities. We must each shoulder our responsibilities – which include protecting and respecting the rights of others. Second, real rights are rights regardless of historic reference point. Any right which could not be enforced (as distinct from simply "was not enforced") at all points in history is not a right, no matter how noble or desireable it is.

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Federalist No. 40

Posted on 2008-12-18 by David

It is only very recently that I heard someone express the sentiment that the Constitutional Convention of 1787 exceeded their authority in the Constitution they proposed. I was therefore more interested in reading Federalist No. 40 which addresses this exact question. The conclusion is a resounding dismissal of the charge save in one particular:

In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation.

The charge was repeated in the context of lamenting what might happen if a new Constitutional Convention were convened in our day. If that is ever to happen, I only hope that those chosen to attend the convention can use their mandate with as much wisdom to produce a Constitution that is as well-suited to good government as the one we have today.

Personally I think the best single change would be for us to adhere to the Constitution we have.

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Federalist No. 39

Posted on 2008-12-17 by David

Federalist No. 39 seems to contain the central argument that is being addressed in the debate over ratifying the constitution:

"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken?

It seems that it was commonly assumed that the only proper form of government was a republican form. If we had a new constitutional convention today I would not be surprised if many people felt that the proper form of government would rightly be a democratic form. I believe that the reason for this lies in the distinction between a federal government and a national government:

The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. (a national government) Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. (a federal government) In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. (my notes added)

As our government has taken on a more national character (as the local levels of government have become more subordinated to the federal government) it is natural for people to want a more direct say in the actions of that general government and thus the assumption of the desireability of a democratic form of government. I worry about this mindset.

The conclusion is that the government formed by the Constitution is a balance of federal and national in form. The proper solution to our national political ills is not to advance further down the misguided path that the founders were studiously avoiding (a democratic form and a national form) but to return to the solution that they so wisely pursued (the republican form balanced between national and federal in character). We need to teach the body politic the virtues of the republican form of government and the virtues of a balance between federalism and nationalism so that they will demand that their government, which is structured  for just that balance, will act as it was designed to act so that their liberty is preserved as it was intended to be.

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Federalist No. 38

Posted on 2008-12-16 by David

It was very interesting to read in Federalist No. 38 that one primary difference between this Constitution and the constitutions of Greece and Athens (among other examples) is that this one was developed by a group instead of being drawn up by a single respected individual.

The bulk of this Federalist paper goes to show how lively and varied the debate was which surrounded the ratification of the Constitution. Warning – this is undoubtedly the longest paragraph in the federalist papers so far with a total length of 1100 words. It is worth the time to read it, but without paragraph breaks it is easy to lose you place in such a long passage. With the advantage of being able to look back it is interesting to see which changes that were being considered were added to the Constitution (e.g. the Bill of Rights) and which were left unchanged (e.g. the 20 year moratorium on discussion the issue of slave importation) by the end of the debate.

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