The Founders on Freedom of Speech

Some thoughts from the founders on the Freedom of Speech…

(1) “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.” – Benjamin Franklin

(2) “[F]or if Men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind; reason is of no use to us—the freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter.” – George Washington

(3) “Reason and free inquiry are the only effectual agents against error.” – Thomas Jefferson

(4) “[T]o preserve the freedom of the human mind then & freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, & speak as we think, the condition of man will proceed in improvement.” – Thomas Jefferson

(5) “It must be seen that no two principles can be either more indefensible in reason, or more dangerous in practice—than that 1. arbitrary denunciations may punish, what the law permits, & what the Legislature has no right, by law, to prohibit—and that 2. the Govt. may stifle all censures whatever on its misdoings; for if it be itself the Judge it will never allow any censures to be just, and if it can suppress censures flowing from one lawful source it may those flowing from any other—from the press and from individuals as well as from Societies, &c.” – James Madison


Give the Gift of the Constitution on #GivingTuesday

#Giving Tuesday takes place tomorrow, November 29, 2016. It is an opportunity to participate in a national movement to make the holiday season about giving back to our communities and nation. It’s similar to how Black Friday and Cyber Monday have become days synonymous with holiday shopping.

This #GivingTuesday, I’m asking readers of my blog to give the gift of the Constitution by supporting the non-profit I have the privilege of running, The Constitutional Sources Project (ConSource).

There is an often-told story that at the end of the Constitutional Convention, Benjamin Franklin was approached by a woman who asked him what sort of government the delegates had created. Franklin famously replied, “A republic, if you can keep it.”

To keep it, we must teach it. You cannot defend what you do not understand. And so in order for citizens to defend the Constitution and the Bill of Rights, they must first understand it.

James Wilson, a founding father from Pennsylvania, once said that “[l]aw and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”

And, yet, countless reports and studies confirm that American citizens of all ages lack a basic understanding of our nation’s history and form of government.

Please consider donating to ConSource on #GivingTuesday to support our important work creating a comprehensive, easily searchable, fully-indexed, and freely accessible digital library of historical sources related to the creation, ratification, and amendment of the United States Constitution. Your donation will also support our educational resources and programs.

High quality life-long civics education is essential for the continued health of the American republic.

Please consider donating $100 or more today.

Your gift will help ConSource ensure that Americans of all ages value, in the words of Noah Webster, “the principles of virtue and of liberty,” and that we “inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.”

An Historic Site Almost Forgotten and Lost to History: The President’s House in Philadelphia, PA

On November 27, 1790, George and Martha Washington arrive in Philadelphia, the temporary capital of the United States.

Robert Morris, who helped finance the American Revolution, and signed the Declaration of Independence, Articles of Confederation and U.S. Constitution, volunteered his house to serve as Washington’s residence. Washington and his family occupied the house from November 1790 to March 1797. During their time in the home, Washington makes several enlargements to the home, including the addition of a slave quarters for the 9 slaves he brought with him from Mount Vernon.

After John Adams succeeds Washington as President, he and his family move into the President’s House in March 1797 and stay there until 1800 when they move to the newly completed White House in Washington, D.C.

Sadly, this historic home, where many important events in our nation’s early history occurred, was demolished.


The Independence Hall Association, a key player in the movement to commemorate the President’s House in Philadelphia, describes how the open-air historic site came into being

The site of the President’s House lies directly across Market Street from the entrance to the Independence Visitor Center. A public bathroom was built on the site in 1954, and stood squarely atop the footprint of the main house until its removal on May 27, 2003. In 2002-03 the Liberty Bell Center was built, partially covering the footprint of the house’s backbuildings. Under the LBC’s porch, 5 feet from the main entrance, is the site of the quarters for the stable workers, two or three of whom were enslaved.

When this was revealed in the press in March 2002, it caused a public uproar. The Pennsylania State Legislature and the Philadelphia City Council called on the National Park Service to commemorate the house and its residents, especially the enslaved African Americans. In July 2002, the U.S. House of Representatives approved an amendment to the 2003 Department of Interior budget requiring the NPS to do the same. In January 2003, preliminary designs were unveiled for a $4.5 million commemoration of the house and its residents. Although it commemorated the enslaved Africans and went a long way in interpreting Black History, the design’s marking of the house’s footprint did not include the slave quarters, and was rejected by Philadelphia’s African American community.

At the Liberty Bell Center’s opening in October 2003, Philadelphia’s Mayor John F. Street pledged $1.5 million toward making the President’s House commemoration happen. In 2005, Congressmen Chaka Fattah and Robert Brady secured $3.6 million in federal funds for the project, and a design competition was begun. Kelly-Maiello Inc. of Philadelphia won the competition in February 2007. The following month, an archaeological dig was begun on a section of the property. Foundations of the main house, the kitchen ell, an underground passage connecting the two, and Washington’s bow window were uncovered. Kelly-Maiello unveiled revised designs, incorporating the archaeology, in December 2007, and the city increased its contribution to $3.5 million. A new $10.5 million budget was announced — $8.5 million for construction, $2 million as an endowment — and Mayor Michael Nutter’s administration held a September 2008 fund-raiser. In February 2009, Delaware River Port Authority approved a $3.5 million contribution. Construction of the commemoration began in August 2009.

Today, on Independence Mall in Philadelphia, you can view an open-air historic site, located near the Liberty Bell Center, that through Porcelite panels and illustrated glass provide a brief history of the site, timelines and dramatic video vignettes. The site also explores the paradox of freedom and slavery in the nation’s first executive mansion.






Dealing with Faithless Electors: A Guide to State Laws Attempting to Bind Electors

Awarding Electoral Votes: Winner-Take-All or District System

All 50 states and DC award electoral votes using either the winter-take-all or district system. In 48 states and DC, when a candidate for president wins a state’s popular vote, that party’s slates of electors will be the one to cast the vote for President on December 19. In Florida, for example, where Donald Trump won the state’s popular vote, the 29 electors nominated by the Republican Party in Florida will be selected and will cast their votes for president. Maine and Nebraska use a District System – wherein, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. Under this system, it is possible to split the state’s electoral votes.

Faithless Electors

Neither the Constitution nor federal law requires electors to vote for the presidential candidate of the party who nominated them. According to FairVote,

Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.

According to the National Conference of State Legislators,

Some states have passed laws that require their electors to vote as pledged. These laws may either impose a fine on an elector who fails to vote according to the statewide or district popular vote, or may disqualify an elector who violates his or her pledge and provide a replacement elector. No elector has ever been penalized or replaced — nor have these laws been fully vetted by the courts.

Below is a list of states with laws attempting to bind electors (this list is missing Maryland; relevant information is included below).

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Relevant Provisions of State Laws Regulating Electors –

Alabama – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when the same is filed with the Secretary of State: “I do hereby consent and do hereby agree to serve as elector for President and Vice-President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such elector for _____ for President and _____ for Vice-President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).”

Alaska – “The party shall require from each candidate for elector a pledge that as an elector the person will vote for the candidates nominated by the party of which the person is a candidate.”

California – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.”

Colorado – “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.”

Connecticut – “The presidential electors shall meet at the office of the Secretary of the State at twelve o’clock, noon, on the first Monday after the second Wednesday of the December following their election and, as required by the Constitution and laws of the United States, shall cast their ballots for President and Vice President. Each such elector shall cast his ballots for the candidates under whose names he ran on the official election ballot, as provided in section 9-175. If any such elector is absent or if there is a vacancy in the electoral college for any cause, the electors present shall, before voting for President and Vice President, elect by ballot an elector to fill such vacancy, and the person so chosen shall be a presidential elector, shall perform the duties of such office and shall cast his ballots for the candidates to whom the elector he is replacing was pledged.”

Delaware –  ”In all cases, the electors chosen or appointed in this State for the election of a President and Vice-President of the United States under this chapter shall be required to cast their individual votes in accordance with the plurality vote of the voters in this State.”

District of Columbia – “Each person elected as elector of President and Vice President shall, in the presence of the Board, take an oath or solemnly affirm that he or she will vote for the candidates of the party he or she has been nominated to represent, and it shall be his or her duty to vote in such manner in the electoral college.”

Florida – “The Governor shall nominate the presidential electors of each political party. The state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Governor before September 1 of each presidential election year. The Governor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent.”

Hawaii – “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States, who are, respectively, the candidates of the political party or group which they represent, one of whom, at least, is not an inhabitant of this State.”

Maine – “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district.”

Maryland – “After taking the oath prescribed by Article I, § 9 of the Maryland Constitution before the Clerk of the Court of Appeals or, in the Clerk’s absence, before one of the Clerk’s deputies, the presidential electors shall cast their votes for the candidates for President and Vice President who received a plurality of the votes cast in the State of Maryland.”

Massachusetts – “The state committees of the respective political parties at a meeting called for the purpose shall nominate the presidential electors. The surnames of the candidates for president and vice president of the United States shall be added to the party or political designation of the candidates for presidential electors. Such surnames and a list of the persons nominated for presidential electors, together with an acceptance in writing signed by each candidate for presidential elector on a form to be provided by the state secretary, shall be filed by the state chairmen of the respective political parties not later than the second Tuesday of September. Said acceptance form shall include a pledge by the presidential elector to vote for the candidate named in the filing.”

Minnesota – “Each elector nominee and alternate elector nominee of a political party shall execute the following pledge: “If selected for the position of elector, I agree to serve and to mark my ballots for president and vice president for the nominees for those offices of the party that nominated me.” Each elector nominee and alternate elector nominee of an unaffiliated presidential candidate shall execute the following pledge: “If selected for the position of elector as a nominee of an unaffiliated presidential candidate, I agree to serve and to mark my ballots for that candidate and for that candidate’s vice-presidential running mate.” The executed pledges must accompany the submission of the corresponding names to the secretary of state.” §208.46: “An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge executed under section 208.43 or 208.45, paragraph (c), vacates the office of elector, creating a vacant position to be filled under section 208.45.”

Michigan – “At any time before receipt of the certificate of the governor or within 48 hours thereafter, an elector may resign by submitting his written and verified resignation to the governor. Failure to so resign signifies consent to serve and to cast his vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated him. Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy.”

Mississippi – “Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when it is filed with the State Board of Election Commissioners: “I do hereby consent and do hereby agree to serve as elector for President and Vice President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such for for President and for Vice President of the United States” (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached). (4) The State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “PRESIDENTIAL ELECTORS FOR (here insert the name of the candidate for President, the word ‘AND’ and the name of the candidate for Vice President)” in lieu of placing the names of such presidential electors on the official ballots, and a vote cast therefor shall be counted and shall be in all respects effective as a vote for each of the presidential electors representing those candidates for President and Vice President of the United States. In the case of unpledged electors, the State Board of Election Commissioners and any other official charged with the preparation of official ballots shall place on such official ballots the words “UNPLEDGED ELECTOR(S) (here insert the name(s) of individual unpledged elector(s) if placed upon the ballot based upon a petition granted in the manner provided by law stating the individual name(s) of the elector(s) rather than a slate of electors).”

Montana – (2) The electors shall vote by separate ballots for one person for president and one for vice president of the United States. (3) The electors shall cast their ballots for the persons who received the highest number of votes for president and vice president of the United States, respectively, in the most recently conducted general election in the state of Montana.

Nebraska – “Each at-large presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in the state and consistent with his or her pledge. Each congressional district presidential elector shall mark his or her ballot for the presidential and vice-presidential candidates who received the highest number of votes in his or her congressional district and consistent with his or her pledge. (4) A presidential elector who refuses to present a ballot, who attempts to present an unmarked ballot, or who attempts to present a ballot marked in violation of his or her pledge vacates the office of presidential elector.”

Nevada – “1. Except as otherwise provided in subsection 2, a nominee for presidential elector or an alternate may not serve as a presidential elector unless the nominee for presidential elector or the alternate signs a pledge in substantially the following form: ‘If selected for the position of presidential elector, I agree to serve as such and to vote only for the nominees for President and Vice President of the political party or the independent candidates who received the highest number of votes in this State at the general election.'”

New Mexico –  “A.   All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors. B.   Any presidential elector who casts his ballot in violation of the provisions contained in Subsection A of this section is guilty of a fourth degree felony.”

North Carolina – “Any presidential elector having previously signified his consent to serve as such, who fails to attend and vote for the candidate of the political party which nominated such elector, for President and Vice-President of the United States at the time and place directed in G.S. 163-210 (except in case of sickness or other unavoidable accident) shall forfeit and pay to the State five hundred dollars ($500.00), to be recovered by the Attorney General in the Superior Court of Wake County. In addition to such forfeiture, refusal or failure to vote for the candidates of the political party which nominated such elector shall constitute a resignation from the office of elector, his vote shall not be recorded, and the remaining electors shall forthwith fill such vacancy as hereinbefore provided.”

Ohio – “A presidential elector elected at a general election or appointed pursuant to section 3505.39 of the Revised Code shall, when discharging the duties enjoined upon him by the constitution or laws of the United States, cast his electoral vote for the nominees for president and vice-president of the political party which certified him to the secretary of state as a presidential elector pursuant to law.”

Oklahoma – “Every party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party. The oath shall be notarized by a notary public and filed with the Secretary of the State Election Board no fewer than ninety (90) days prior to the General Election. Failure of any party nominee to take and file the oath by such date shall automatically vacate his or her nomination and a substitute nominee shall be selected by the state central committee of the appropriate political party. It shall be the duty of the Secretary of the State Election Board to notify the chairman of the state central committee of the failure of any nominee to file the oath. Refusal or failure to vote by a Presidential Elector for the persons nominated for the offices of President and Vice President by the nominee’s party shall constitute a violation of the oath and shall result in the immediate forfeiture of the Elector’s office. In such event, the vote shall not be recorded, a vacancy shall be declared, and the Presidential Electors present shall proceed to fill such vacancy as provided in Section 10-108 of this title.”

Oregon – “A candidate for elector when selected shall sign a pledge that, if elected, the candidate will vote in the electoral college for the candidates of the party for President and Vice President. The Secretary of State shall prescribe the form of the pledge. The party shall certify the names of the selected candidates for elector to the Secretary of State not later than the 70th day before the election of electors.”

South Carolina – “Each candidate for presidential and vice-presidential elector shall declare which candidate for president and vice-president he will vote for if elected. Those elected shall vote for the president and vice-president candidates for whom they declared. Any person selected to fill a vacancy in the electoral college shall vote for the candidates the elector whose place he is taking had declared for. The declaration shall be made to the Secretary of State on such form as he may require not later than sixty days prior to the general election for electors. No candidate for president and vice-president elector shall have his name placed on the ballot who fails to make such declaration by the prescribed time. Any elector who votes contrary to the provisions of this section shall be deemed guilty of violating the election laws of this State and upon conviction shall be punished according to law. Any registered elector shall have the right to institute proper action to require compliance with the provisions of this section. The Attorney General shall institute criminal action for any violation of the provision of this section. Provided, the executive committee of the party from which an elector of the electoral college was elected may relieve the elector from the obligation to vote for a specific candidate when, in its judgment, circumstances shall have arisen which, in the opinion of the committee, it would not be in the best interest of the State for the elector to cast his ballot for such a candidate.”

Tennessee –  “The electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as electors if both candidates are alive.”

Utah – “Any elector who casts an electoral ballot for a person not nominated by the party of which he is an elector, except in the cases of death or felony conviction of a candidate, is considered to have resigned from the office of elector, his vote may not be recorded, and the remaining electors shall appoint another person to fill the vacancy.”

Vermont – “The electors shall meet at the state house on the first Monday after the second Wednesday in December next following their election, to vote for president and vice president of the United States, agreeably to the laws of the United States. If there is a vacancy in the electoral college on that day, occasioned by death, refusal to act, neglect to attend, failure of a person elected to qualify, or for other cause, the other electors present shall at once fill such vacancy viva voce and by a plurality of votes. When all the electors appear or a vacancy therein is filled, the electors shall perform the duties required of them by the Constitution and laws of the United States. If a vacancy occurs and is filled as aforesaid, the electors shall attach to the certificate of their votes a statement showing how such a vacancy occurred and their action thereon. The electors must vote for the candidates for president and vice president who received the greatest number of votes at the general election.”

Virginia – “Electors selected by the state convention of any political party as defined in § 24.2-101 shall be required to vote for the nominees of the national convention to which the state convention elects delegates. Electors named in any petition of qualified voters as provided in § 24.2-543 shall be required to vote for the persons named for President and for Vice President in the petition.”

Washington – “In the year in which a presidential election is held, each major political party and each minor political party or independent candidate convention that nominates candidates for president and vice president of the United States shall nominate presidential electors for this state. The party or convention shall file with the secretary of state a certificate signed by the presiding officer of the convention at which the presidential electors were chosen, listing the names and addresses of the presidential electors. Each presidential elector shall execute and file with the secretary of state a pledge that, as an elector, he or she will vote for the candidates nominated by that party. The names of presidential electors shall not appear on the ballots. The votes cast for candidates for president and vice president of each political party shall be counted for the candidates for presidential electors of that political party; however, if the interstate compact entitled the “agreement among the states to elect the president by national popular vote,” as set forth in RCW 29A.56.300, governs the appointment of the presidential electors for a presidential election as provided in clause 9 of Article III of that compact, then the final appointment of presidential electors for that presidential election shall be in accordance with that compact.”

Wisconsin – “The presidential electors, when convened, shall vote by ballot for that person for president and that person for vice president who are, respectively, the candidates of the political party which nominated them under s. 8.18, the candidates whose names appeared on the nomination papers filed under s. 8.20, or the candidate or candidates who filed their names under s. 8.185 (2), except that at least one of the persons for whom the electors vote may not be an inhabitant of this state. A presidential elector is not required to vote for a candidate who is deceased at the time of the meeting.

Wyoming – “All Wyoming electors shall vote for the candidates for the office of president and vice-president receiving the highest number of votes in the Wyoming general election.”


Women in Presidential Cabinets

48 women have held a total of 54 cabinet or cabinet-level positions in our nation’s history. 31 of these women were appointed by Democratic presidents and 17 by Republicans. Ten presidents – 4 Democrats and 6 Republicans – have appointed women to their cabinets. 7 women currently serve in the Obama administration in cabinet or cabinet-level positions. Donald Trump has thus far nominated two women – Gov. Nikki Haley and Betsey DeVos – to serve in cabinet or cabinet-level positions.

The Women in Cabinet and Cabinet-Level Positions

*Biographical information provided by Center for American Women and Politics*

*Note: list also includes women who have served in an acting capacity.

  1. Frances Perkins – Secretary of Labor, 1933-45: Perkins, the first woman to serve in a president’s cabinet, had a long background of labor-related public service, including serving as Industrial Commissioner in New York State. She was one of only two people to remain in the cabinet throughout FDR’s presidency, helping to draft and implement much of the New Deal legislation. She remained in office briefly after Roosevelt’s death and later became a member of the Civil Service Commission under President Truman.
  2. Oveta Culp Hobby –  Secretary of Health, Education and Welfare, 1953-55: Hobby was named head of the Federal Security Administration; when that agency became part of the newly-established Department of Health, Education and Welfare (HEW), she became the first Secretary of HEW. She had been a colonel in the Women’s Army Corps during World War II and had served as president of the Texas League of Women Voters.
  3. Anne Armstrong – Counselor to the President, 1973-74: Armstrong was a Republican Party activist, co-chairing the Republican National Committee from 1971 to 1973 and keynoting the party’s convention in 1972. As counselor to the President with cabinet rank, she established the Office for Women’s Programs.
  4. Carla Anderson Hills – Secretary of Housing and Urban Development, 1975-77; Special Trade Representative 4, 1989-1993; she served as assistant attorney general in the Ford administration before her appointment as Housing and Urban Development secretary. Prior to her appointment to the Bush administration, she chaired the board of the Urban Institute while practicing law in Washington.
  5. Patricia R. Harris –  Secretary of Housing and Urban Development, 1977-79; Secretary of Health and Human Services 1979-81: Harris was the first black woman to serve in a presidential cabinet and the first woman to hold two different cabinet posts. An attorney and longtime Democratic party activist, she had taught law, served on corporate boards, and served as Ambassador to Luxembourg under President Johnson.
  6. Juanita A. Kreps – Secretary of Commerce, 1977-79: Kreps was the first economist to serve as Secretary of Commerce. She had been a professor and vice president at Duke University and had served on several corporate boards and on the board of the New York Stock Exchange prior to her appointment by President Carter.
  7. Shirley M. Hufstedler – Secretary of Education, 1979-81: An attorney, Hufstedler was the first person to head the newly-created Department of Education. She had been a federal judge on the Ninth Circuit Court of Appeals and returned to practicing law when the Carter administration ended.
  8.  Jeane J. Kirkpatrick – United Nations Ambassador, 1981-85 1: A political scientist, Kirkpatrick taught at Georgetown University before joining the Reagan administration. A Democrat at the time of her appointment, she later switched parties. She wrote one of the earliest books about women and politics, Political Woman, based on information gathered at CAWP’s first Conference for Women State Legislators.
  9. Margaret M. Heckler – Secretary of Health and Human Services, 1983-85: Heckler was a member of Congress (1967- 83) representing suburban Boston and lost a re-election bid when redistricting forced her to run against another incumbent Congressman. Her cabinet service ended when President Reagan appointed her Ambassador to Ireland.
  10. Elizabeth H. Dole – Secretary of Transportation, 1983-87; Secretary of Labor, 1989-90: An attorney, Dole served as a White House aide in the Johnson and Reagan administrations and was appointed by President Nixon to the Federal Trade Commission. She left her Reagan administration cabinet post to work for the presidential campaign of her husband, Kansas Senator Robert Dole. She was appointed Secretary of Labor by President Bush.
  11. Anne Dore McClaughlin – Secretary of Labor, 1987-89: McLaughlin worked in a variety of communications-related posts within and outside the government before becoming a cabinet member. She held two sub-cabinet posts in the Reagan administration: Assistant Secretary of the Treasury for Public Affairs and Undersecretary of Interior.
  12. Lynn Morley Martin – Secretary of Labor, 1991-93: Martin represented northwestern Illinois in the U.S. House of Representatives from 1981to 1991. She was the first woman to achieve an elective leadership post in the House, vice chair of the House Republican Conference. Prior to serving in the House she had served on the Winnebago County board and in both houses of the Illinois State Legislature. Martin lost a bid for a U.S. Senate seat in 1990.
  13. Barbara H. Franklin – Secretary of Commerce, 1992-93: Franklin was one of the first women to graduate from Harvard Business School. As an international trade and governmental management expert, Franklin held several non- cabinet-level appointed positions during the Nixon and Reagan administrations prior to her appointment as Secretary of Commerce by President Bush.
  14. Hazel R. O’Leary – Secretary of Energy, 1993-97: Prior to her appointment, O’Leary was the executive vice president of Northern States Power in Minneapolis, Minnesota. O’Leary also served as a senior energy policy advisor in the Carter and Ford administrations.
  15. Madeleine K. Albright – Secretary of State, 1997-2001; United Nations Ambassador, 1993-97 1: Albright is the first woman to serve as secretary of state and the highest ranking woman in the U.S. government. Before her appointment to the State Department, she served as U.N. Ambassador from 1993 to 1997. Prior to her service in government, she was president of the Center for National Policy. She was also a research professor of International Affairs and the director of Women in Foreign Service at Georgetown University’s School of Foreign Service.
  16. Janet Reno – Attorney General, 1993-2001: As the first woman to serve as attorney general, Reno heads the Justice Department. Prior to her appointment, she served as the state prosecutor of Dade County, Florida. Reno previously was an associate and partner in several law firms, worked for the state prosecutor’s office, and was a staff director to the Florida House of Representatives Judiciary Committee.
  17. Carol M. Browner – Administrator, Environmental Protection Agency, 1993-2001 5: Prior to her appointment, she was secretary of the Florida State Department of Environmental Regulation. Browner previously served as legislative director for then-U.S. Senator Al Gore.
  18. Donna E. Shalala – Secretary of Health and Human Services, 1993-2001: Prior to joining the Clinton administration, Shalala was Chancellor of the University of Wisconsin-Madison and a professor of political science. She served as assistant secretary for policy development in the Department of Housing and Urban Development during the Carter administration.
  19. Cassandra M. Pulley – Deputy administrator and chief operating officer of the U.S. Small Business Administration (SBA), where she was responsible for overseeing the day-to-day operations of the U.S. government agency charged with ensuring the growth and development of small businesses. Prior to the SBA, Pulley was president of Business Strategies International, Inc., a consulting firm she established to assist small firms in developing business in international markets. She was a vice president at American International Group (AIG) in the export insurance and trade finance areas and managed the Exporters Insurance Program and the Direct Loan Program at the Overseas Private Investment Corporation (OPIC). Pulley began her business career in commercial banking at Mellon Bank in Pittsburgh, PA.
  20. Alice M. Rivlin – Director, Office of Management and Budget, 1994-96 9: Prior to her appointment as director, Rivlin was its deputy director since 1993. She was the founding director of the Congressional Budget Office. She served as a Senior Fellow and Director of Economic Studies at the Brookings Institution. Rivlin also served as Assistant Secretary for Planning and Evaluation at the Department of Health, Education, and Welfare.
  21. Laura D’Andrea Tyson – Chair, National Economic Council, 1995-97 8: Prior to Tyson’s appointment, she was chair of the Council of Economic Advisors.7 Tyson was a professor of economics and business administration and director of the Institute of International Studies at the University of California, Berkeley.
  22. Ginger Lew – Under the Clinton Administration, Ms. Lew was the Deputy Administrator and Chief Operating Officer of the U.S. Small Business Administration where she provided day to day management and operational oversight of a $42 billion loan portfolio. Before joining SBA, Ms. Lew was the General Counsel at the U.S. Department of Commerce where she specialized in international trade issues. Ms. Lew was unanimously confirmed by the United State Senate for both positions.
  23. Janet L. Yellen – Chair, Council of Economic Advisers, 1997-99: Prior to her nomination as chair to the Council of Economic Advisers, Yellen served since her appointment by President Clinton in 1994 as a member of the Board of Governors of the Federal Reserve System. In 1977 to 1978, she served as an economist with the Federal Reserve’s Board of Governors. Yellen taught at the Haas School of Business at the University of California at Berkeley. She was appointed in 2014 as chair of the Board of Governors of the Federal Reserve System.
  24. Aida Alvarez – Administrator, Small Business Administration, 1997-2001 2: Alvarez is the first Hispanic woman and the first person of Puerto Rican heritage to hold a position in a president’s cabinet. Prior to her appointment as administrator, Alvarez directed the Office of Federal Housing Enterprise Oversight (OFHEO). Before her service in Washington, DC, she was a Wall Street investment banker, television journalist and president of the largest municipal health care system — the New York City Health and Hospitals Corporation.
  25. Charlene Barshefsky – U. S. Trade Representative, 1997-2001: Prior to her nomination as the U.S. Trade Representative, Barshefsky served as Acting U.S. Trade Representative since April 1996. She served as the Deputy U.S. Trade Representative from 1993 to 1996. Before coming to government service, she was a partner in a Washington, D.C. law firm specializing in international trade law and policy.
  26. Alexis Herman – Secretary of Labor, 1997-2001: Prior to her appointment to the Department of Labor, Herman served as assistant to President Clinton and director of the White House public liaison office. In the Carter Administration, she served as director of the Women’s Bureau at the Department of Labor. Before joining the Clinton White House, she was founder and president of A.M. Herman & Associates, where she advised state and local governments.
  27. Janice R. Lachance – Director, Office of Personnel Management, 1997-2001: Prior to her appointment to the Office of Personnel Management, Lachance served as OPM’s director of Communication. An attorney, she has served as director of communications and political affairs for the American Federation of Government Employees (AFLCIO); served as communications director in the office of Senator Tom Daschle; administrative assistant to Congresswoman Katie Hall. She was also part of the Clinton-Gore transition team.
  28. Christine Todd Whitman – Administrator, Environmental Protection Agency, 2001-03: Whitman was the first female former governor to serve in a presidential cabinet. Prior to being appointed, she was the first woman elected governor in New Jersey, where she served two terms. For two years she headed the New Jersey Board of Public Utilities. She began her political career as a freeholder (New Jersey’s equivalent of a county commissioner) on the Somerset County Board of Freeholders.
  29. Susan Livingstone – is a former Acting U.S. Secretary of the Navy in the George W. Bush administration from January-February 2003. She was the first woman to become Secretary of the Navy in U.S. history. Livingstone played a role in the effort to end coercive and abusive interrogation tactics at U.S. Naval Base Guantanamo Bay, Cuba. At the time, as Under Secretary of the Navy, Livingstone oversaw a large management portfolio, which included lawyers in the Navy General Counsel’s office and investigators at the Naval Criminal Investigative Service who raised concerns about the treatment of detainees at Guantanamo Bay Naval Base.
  30. Ann Veneman – Secretary of Agriculture, 2001-05: Veneman is the first woman to serve as Secretary of Agriculture. Prior to her appointment, she was the first woman to serve as Secretary of the California Department of Food and Agriculture. During the Bush administration, she was deputy secretary of the U.S. Department of Agriculture (USDA), the highest ranking woman ever at USDA. She also served as deputy undersecretary of agriculture for international affairs and commodity programs. During the Reagan administration, she was the associate administrator for the USDA’s Foreign Agricultural Service. Before joining the Bush administration, she was a partner with the law firm Nossaman, Gunther, Knox & Elliot.
  31. Gale Norton – Secretary of the Interior, 2001-06: Norton is the first woman to serve as Secretary of the Interior. Prior to her appointment, she was the first woman to be elected Colorado’s attorney general, where she served for two full terms. She is the founder of the Council of Republicans for Environmental Advocacy. In 1996, she made an unsuccessful bid for a U.S. Senate seat. During the Reagan administration, she worked for two years for the Department of the Interior. As an attorney, she began her legal career at the Mountain States Legal Foundation.
  32. Elaine Chao – Secretary of Labor, 2001-2009: Chao is the first Asian-American woman to serve in a presidential cabinet. Prior to her appointment, she was senior editor and distinguished fellow at the Heritage Foundation. She has been both president of the United Way and director of the Peace Corps. During the first Bush administration, Chao was deputy secretary of the Department of Transportation. During the latter part of the Reagan administration, she served as deputy administrator of the Federal Maritime Administration.
  33. Anne W. Patterson – Served as acting Ambassador to the United Nations under the George W. Bush administration. She is a career diplomat, who currently serves as Assistant Secretary of State for Near Eastern Affairs.
  34.  Margaret Spellings – Secretary of Education, 2005-09: Prior to her appointment, Spellings was assistant to the President for domestic policy. Before her White House appointment, she worked for six years as Governor George W. Bush’s senior advisor with responsibility for education policy.
  35. Condoleezza Rice – Secretary of State, 2005-09: Prior to being appointed Secretary of State, Rice served as national security advisor from 2001 to 2005. Before that, she was a tenured professor at Stanford University. In 1993, she became the first woman and African American to be appointed provost of Stanford, a post in which she served for six years. During the first Bush administration, she rose from director to senior director for the National Security Council on Soviet and East European Affairs. She began her academic career as a fellow in the arms control and disarmament program at Stanford.
  36. Lynn Scarlett – Served as Acting Secretary of the Interior under both the George W. Bush and Barack Obama administrations.
  37. Christina D. Romer – Chair, Council of Economic Advisers, 2009-10 7: Romer, an economic historian, taught at University of California, Berkeley since 1988, and became a full professor in 1993. She taught at Princeton University from 1985 to 1988. In addition, she was co-director of the Program in Monetary Economics at the National Bureau of Economic Research and a former vice president of the American Economic Association.
  38. Hilda Solis – Secretary of Labor, 2009-2013: Prior to her appointment, Solis was a U.S. Representative from California. From 1993 to 2001 she served first as a state assemblywoman and then as a state senator. She was an assistant in the White House Office of Hispanic Affairs under President Jimmy Carter and served as a budget analyst for federal office of Personnel Management in the Reagan administration.
  39. Susan E. Rice – Ambassador to the United Nations, 2009-2013 1: Rice served as a senior policy analyst to the Obama-Biden campaign. She served in the Clinton administration in various capacities: at the National Security Council from 1993 to 1997; as director for International Organizations and Peacekeeping from 1993 to 1995; and as special assistant to the President and Senior Director for African Affairs from 1995 to 1997. She served as a foreign policy aide to Michael Dukakis during his 1988 presidential campaign. In the early 1990’s she was a consultant for the global management consulting firm of McKinsey and Company. She left the U.N. post to become President Clinton’s national security adviser.
  40. Lisa Jackson – Administrator of the Environmental Protection Agency, 2009-2013 5: Jackson served as chief of staff to New Jersey Governor Jon Corzine briefly at the end of 2008. She was commissioner of the New Jersey Department of Environmental Protection from 2006 to 2008, after working there since 2002. Prior to that she had spent 16 years with the U.S. Environmental Protection Agency.
  41. Hillary Rodham Clinton – Secretary of State, 2009-2013: Prior to her appointment, Clinton was U.S. Senator from New York from 2001 to 2008. She was a presidential candidate in 2008 and 2016 and was first lady from 1993 to 2000. Prior to her governmental service, she was a partner in an Arkansas law firm from 1979 to 1992.
  42. Janet Napolitano – 

    Secretary of Homeland Security, 2009-2013: Prior to her appointment, Napolitano served as governor of Arizona. She was Arizona’s elected attorney general from 1998 to 2002. Prior to that she served as U.S. Attorney and as a federal prosecutor.

  43. Kathleen Sebelius – Secretary of Health and Human Services, 2009-2014: Prior to her appointment, Sebelius was governor of Kansas from 2003 to 2009. From 1995 to 2003, she served as Kansas insurance commissioner. She served in the Kansas House of Representatives from 1987 to 1994. She worked in the Kansas Department of Corrections and served on the Kansas Governmental Ethics Commission.
  44. Rebecca Blank – Acting Secretary of Commerce under the Barack Obama’s administration. She became chancellor of the University of Wisconsin-Madison in July 2013.
  45. Karen G. Mills – Administrator, Small Business Administration, 2012-2013: Initially appointed in 2009; SBA was later elevated to cabinet-level status. She served as chair of the Maine Council on Competitiveness and the Economy.
  46. Miriam Sapiro – Acting U.S. Trade representative under the Barack Obama Administration
  47. Rosemary DiCarlo – Acting U.N. Ambassador under the Barack Obama Administration.
  48. Slyvia Mathews Burwell – Director, Office of Management and Budget, 2013-2014; Secretary of Health and Human Services, 2014-present: Prior to her appointment, Burwell was president of the Walmart Foundation. Earlier, she served as president of the Global Development Program of the Bill and Melinda Gates Foundation. From 1998 to 2001, Burwell was deputy director of the Office of Management and Budget.
  49. Sally Jewel – Secretary of Interior, 2013-present: In 1996, after working in the banking industry for twenty years, Jewell joined the board of REI; she was named chief operating officer in 2000, and became CEO in 2005. Jewell has served on the boards of Premera, the National Parks Conservation Association, and the University of Washington Board of Regents. Prior to her appointment, Jewell received the National Audubon Society’s Rachel Carson Award for her leadership in and dedication to conservation.
  50. Penny Pritzker – Secretary of Commerce, 2013-present: Prior to her appointment, Pritzker served on the President’s Economic Recovery Advisory Board and was appointed to the President’s Council for Jobs and Competitiveness. She was the founder, chairman and CEO of PSP Capital Partners and Pritzker Reality Group, as well as co-founder and chairman of Artemis Real Estate Partners.
  51. Gina McCarthy – Administrator, Environmental Protection Agency, 2013-present: Prior to her appointment, McCarthy served as the assistant administrator for the Office of Air and Radiation of the U.S. Environmental Protection Agency. From 2004 to 2009 she was commissioner of the Connecticut Department of Environmental Protection. McCarthy served as an environmental advisor to five Massachusetts governors.
  52. Samantha Power – Ambassador to the United Nations, 2013-present: Power was a senior adviser to Senator Barack Obama early in his presidential campaign. She joined Obama’s State Department transition team in November 2008, and was named Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights on the National Security Council. From 1998-2002, Power was a professor at Harvard’s John F. Kennedy School of Government and the founding executive director of the Kennedy School’s Carr Center for Human Rights Policy.
  53. Maria Contreras-Sweet – Administrator, Small Business Administration, 2014-present: Prior to her appointment, Contreras-Sweet served as secretary of California’s Business, Transportation and Housing Agency from 1999 to 2003.
  54. Loretta Lynch – Attorney General, 2105-present: Lynch was appointed by President Clinton as U.S. Attorney for Eastern District of New York. She served as a board member of the Federal Reserve Board.

A Brief History of Thanksgiving

Thanksgiving is an American holiday steeped in tradition – from gathering families for a large feast to breaking the turkey wishbone to watching football or the annual Thanksgiving Day parade.

It is also a holiday with a rich and interesting history, stemming from the New England custom of celebrating a successful harvest, and the Puritan religious tradition of thanksgivings, which combined solemn prayer and feasting.

The Continental Congress declared the first national Thanksgiving in 1777.

FORASMUCH as it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; to acknowledge with Gratitude their Obligation to him for Benefits received, and to implore such farther Blessings as they stand in Need of: And it having pleased him in his abundant Mercy, not only to continue to us the innumerable Bounties of his common Providence; but also to smile upon us in the Prosecution of a just and necessary War, for the Defense and Establishment of our unalienable Rights and Liberties; particularly in that he hath been pleased, in so great a Measure, to prosper the Means used for the Support of our Troops, and to crown our Arms with most signal success: It is therefore recommended to the legislative or executive Powers of these UNITED STATES to set apart THURSDAY, the eighteenth Day of December next, for SOLEMN THANKSGIVING and PRAISE: That at one Time and with one Voice, the good People may express the grateful Feelings of their Hearts, and consecrate themselves to the Service of their Divine Benefactor; and that, together with their sincere Acknowledgments and Offerings, they may join the penitent Confession of their manifold Sins, whereby they had forfeited every Favor; and their humble and earnest Supplication that it may please GOD through the Merits of JESUS CHRIST, mercifully to forgive and blot them out of Remembrance; That it may please him graciously to afford his Blessing on the Governments of these States respectively, and prosper the public Council of the whole: To inspire our Commanders, both by Land and Sea, and all under them, with that Wisdom and Fortitude which may render them fit Instruments, under the Providence of Almighty GOD, to secure for these United States, the greatest of all human Blessings, INDEPENDENCE and PEACE: That it may please him, to prosper the Trade and Manufactures of the People, and the Labor of the Husbandman, that our Land may yield its Increase: To take Schools and Seminaries of Education, so necessary for cultivating the Principles of true Liberty, Virtue and Piety, under his nurturing Hand; and to prosper the Means of Religion, for the promotion and enlargement of that Kingdom, which consisteth “in Righteousness, Peace and Joy in the Holy Ghost.” And it is further recommended, That servile Labor, and such Recreation, as, though at other Times innocent, may be unbecoming the Purpose of this Appointment, be omitted on so solemn an Occasion.

Presidents Washington, Adams, and Monroe each proclaimed national Thanksgivings, but the custom fell out of use by 1815, leaving individual states to observe the holiday.

Washington’s 1789 Thanksgiving Proclamation stated –

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA – A PROCLAMATION Whereas it is the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor – and Whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.” Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be – That we may then all unite in rendering unto him our sincere and humble thanks – for his kind care and protection of the People of this country previous to their becoming a Nation – for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war –for the great degree of tranquillity, union, and plenty, which we have since enjoyed – for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us. And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions – to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually – to render our national government a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed – to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord – To promote the knowledge and practice of true religion and virtue, and the increase of science among them and Us – and generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best. Given under my hand at the City of New York the third day of October in the year of our Lord 1789. GO. WASHINGTON.

By the 1850s, almost every state celebrated Thanksgiving in some way. Through the efforts of Sarah Josepha Hale, and later Abraham Lincoln, Thanksgiving became a regularly recognized national holiday.

On October 3, 1863, in the midsts of the Civil War, President Abraham Lincoln issued a proclamation setting aside the last Thursday in November as a national day of thanks, thus setting the precedent for the modern Thanksgiving holiday.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA – A PROCLAMATION The year that is drawing toward its close has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added which are of so extraordinary a nature that they can not fail to penetrate and soften even the heart which is habitually insensible to the everwatchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign states to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere, except in the theater of military conflict, while that theater has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defense have not arrested the plow, the shuttle, or the ship; the ax has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased notwithstanding the waste that has been made in the camp, the siege, and the battlefield, and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently, and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow-citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next as a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners, or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty hand to heal the wounds of the nation and to restore if, as soon as may be consistent with the divine purpose, to the full enjoyment of peace, harmony, tranquillity, and union. In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this 3d day of October A.D. 1863, and of the Independence of the United States the eighty-eighth. ABRAHAM LINCOLN

Thanksgiving was celebrated on the last Thursday of November for every year from then until 1939, when President Franklin D. Roosevelt moved it up by a week in an attempt to increase holiday retail sales during the Great Depression. This move, known as Franksgiving, was met with much opposition, and, as a result, Congress passed a bill that Roosevelt reluctantly signed into law making Thanksgiving again the fourth Thursday in November.


Amending the Constitution: Understanding Article V of the U.S. Constitution

There’s a lot of talk these days about amending the Constitution – whether it’s on the right with calls for a Convention of the States, or from the left with a new effort to abolish the electoral college.

I thought it might be useful to discuss how to amend the Constitution via Article V of the United States Constitution, and to provide a brief history of Article V.

Article V of the U.S. Constitution

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.

Two Ways to Amend the Constitution

Article V provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Note: none of the 27 amendments to the Constitution have been proposed via the latter process.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Note this language in Article V: “[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.” [Article I, Section 9, Clause 1 prohibits Congress from abolishing the slave trade prior to 1808; Article I, Section 9, Clause 4 reads “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.]

The Federalist: Explaining Article V

Federalist No. 43 (James Madison)

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other. The exception in favour of the equality of suffrage in the Senate was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the Legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.

Federalist No. 49 (James Madison)

The author of the “Notes on the state of Virginia,” quoted in the last paper, has subjoined to that valuable work, the draught of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783 by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power, against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present enquiry, ought not to be overlooked.

His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it, a convention shall be called for the purpose.”

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?

There is certainly great force in this reasoning, and it must be allowed to prove, that a constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.

In the first place, the provision does not reach the case of a combination of two of the departments against a third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one-third of its members, the remaining department could derive no advantage from this remedial provision. I do not dwell however on this objection, because it may be thought to lie rather against the modification of the principle, than against the principle itself.

In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are antient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.

The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honour to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

But the greatest objection of all is, that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments. The appeals to the people therefore would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as, by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: And their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influencial part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.

It might however sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious colouring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measure, to which the decision would relate. The passions therefore not the reason, of the public, would sit in judgment. But it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.

We found in the last paper that mere declarations in the written constitution, are not sufficient to restrain the several departments within their legal limits. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision, for that purpose. How far the provisions of a different nature contained in the plan above quoted, might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

Commentaries on the Constitution

Joseph Story in his Commentaries on the Constitution writes –

§ 1821. Upon this subject, little need be said to persuade us, at once, of its utility and importance. It is obvious, that no human government can ever be perfect; and that it is impossible to foresee, or guard against all the exigencies, which may, in different ages, require different adaptations and modifications of powers to suit the various necessities of the people. A government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.

§ 1822. In regard to the constitution of the United States, it is confessedly a new experiment in the history of nations. Its framers were not bold or rash enough to believe, or to pronounce it to be perfect. They made use of the best lights, which they possessed, to form and adjust its parts, and mould its materials. But they knew, that time might develope many defects in its arrangements, and many deficiencies in its powers. They desired, that it might be open to improvement; and under the guidance of the sober judgment and enlightened skill of the country, to be perpetually approaching nearer and nearer to perfection. It was obvious, too, that the means of amendment might avert, or at least have a tendency to avert, the most serious perils, to which confederated republics are liable, and by which all have hitherto been shipwrecked. They knew, that the besetting sin of republics is a restlessness of temperament, and a spirit of discontent at slight evils. They knew the pride and jealousy of state power in confederacies; and they wished to disarm them of their potency, by providing a safe means to break the force, if not wholly to ward off the blows, which would, from time to time, under the garb of patriotism, or a love of the people, be aimed at the constitution. They believed, that the power of amendment was, if one may so say, the safety valve to let off all temporary effervescences and excitements; and the real effective instrument to control and adjust the movements of the machinery, when out of order, or in danger of self-destruction.

§ 1823. Upon the propriety of the power, in some form, there will probably be little controversy. The only question is, whether it is so arranged, as to accomplish its objects in the safest mode; safest for the stability of the government; and safest for the rights and liberties of the people.

§ 1824. Two modes are pointed out, the one at the instance of the government itself, through the instrumentality of congress; the other, at the instance of the states, through the instrumentality of a convention. Congress, whenever two thirds of each house shall concur in the expediency of an amendment, may propose it for adoption. The legislatures of two thirds of the states may require a convention to be called, for the purpose of proposing amendments. In each case, three fourths of the states, either through their legislatures, or conventions, called for the purpose, must concur in every amendment, before it becomes a part of the constitution. That this mode of obtaining amendments is practicable, is abundantly demonstrated by our past experience in the only mode hitherto found necessary, that of amendments proposed by congress. In this mode twelve amendments have already been incorporated into the constitution. The guards, too, against the too hasty exercise of the power, under temporary discontents or excitements, are apparently sufficient. Two thirds of congress, or of the legislatures of the states, must concur in proposing, or requiring amendments to be proposed; and three fourths of the states must ratify them. Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judgment may be passed upon them, unless some pressing emergency calls for instant action. An amendment, which has the deliberate judgment of two-thirds of congress, and of three fourths of the states, can scarcely be deemed unsuited to the prosperity, or security of the republic. It must combine as much wisdom and experience in its favour, as ordinarily can belong to the management of any human concerns. In England the supreme power of the nation resides in parliament; and, in a legal sense, it is so omnipotent, that it has authority to change the whole structure of the constitution, without resort to any confirmation of the people. There is, indeed, little danger, that it will so do, as long as the people are fairly represented in it. But still it does, theoretically speaking, possess the power; and it has actually exercised it so far, as to change the succession to the crown, and mould to its will some portions of the internal structure of the constitution.