“[G]overnment of the people, by the people, for the people shall not perish from the earth”: Lincoln Delivers His Gettysburg Address On This Day in 1863

On November 19, 1863, in the midst of the Civil War, President Abraham Lincoln delivers his Gettysburg Address. The Gettysburg Address is one of the most memorable speeches in American history. The short but powerful speech is reproduced in full below –

 

“Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”

Event Announcement: Special 225th Anniversary of the Bill of Rights Panel Discussion on December 15 at National Archives

My non-profit The Constitutional Sources Project (ConSource) and the National Archives are hosting a special celebration of the 225th anniversary of the ratification of the Bill of Rights. The program information, including how to register and/or watch online, is below.
 

The Bill of Rights in the 21st Century 

Thursday, December 15, at 7:00 p.m.
National Archives, William G. McGowan Auditorium

Join ConSource and the National Archives for a distinguished panel of federal judges who will discuss the Bill of Rights in the 21st century, including the impact of technology.
 
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Moderated by Supreme Court correspondent Jess Bravin from the Wall Street Journal, panelists include Judge Thomas Griffith, United States Court of Appeals for the District of Columbia Circuit;Judge Patricia Millett, United States Court of Appeals for the District of Columbia Circuit; and Judge Andre M. Davis, United States Court of Appeals for the Fourth Circuit.
 

The Founders on Freedom of the Press

Below are a selection of quotes from the Founding generation on the importance of the freedom of the press.

(1) Benjamin Franklin, Apology for Printers (1731)

“Printers are educated in the Belief, that when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter.”

(2) John Peter Zenger, The New-York Weekly Journal (1733)

The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole.  Even a restraint of the press would have a fatal influence.  No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.”

(3) Massachusetts Constitution (1780)

“The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.”

(4) Thomas Jefferson to Dr. J. Currie (1786)

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

(5) Thomas Jefferson to William Green Mumford (1799)

“[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.”

(6) James Madison, Report on the Virginia Resolutions (1800)

“[T]o the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

 

The Founders on Religious Liberty and Toleration

Below are a selection of quotations from the Founding generation on religious liberty and toleration.

(1) Charter of the Colony of Rhode Island (1663)

“[N]oe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and theire owne judgments and consciences, in matters of religious concernments[.]”

(2) Thomas Paine, Thoughts on Defensive War (1775)

“[S]piritual freedom is the root of political liberty.

First. Because till spiritual freedom was made manifest, political liberty did not exist.

Secondly. because in proportion that spiritual freedom has been manifested, political liberty has encreased. . . .

As the union between spiritual freedom and political liberty seems near inseparable, it is our duty to defend both.”

(3) John Adams to Dr. Price (1785)

“We should begin by setting conscience free. When all men of all religions . . . shall enjoy equal liberty, property, and an equal chance for honors and powers. . . we may expect that improvements will be made in the human character and the state of society.”

(4) James Monroe, Address to the Virginia Assembly (June 20, 1785)

“We hold it for a fundamental and inalienable truth that religious and the manner of discharging it can be directed only by reason and conviction and not by force and violence. The religion, then, of every man must be left to the conviction  and conscience of every man to exercise it as these may dictate.”

(5) Virginia Act for Religious Freedom (1786)

“Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

(6) George Washington, Letter to the United Baptist Church of Virginia (1789)

“[E]very man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience.”

(7) George Washington, Letter to the Hebrew Congregation of Newport, Rhode Island (1790)

“While I receive, with much satisfaction, your Address replete with expressions of affection and esteem; I rejoice in the opportunity of assuring you, that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport, from all classes of Citizens.

The reflection on the days of difficulty and danger which are past is rendered the more sweet, from a consciousness that they are succeeded by days of uncommon prosperity and security. If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.”

(8) Thomas Jefferson to the Baptist Association of Danbury, Connecticut (1802)

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

(9) Thomas Jefferson to Dr. Benjamin Rush (1803)

“It behooves every man who values liberty of conscience for himself, to resist invasions of its it the case of others.”

(10) James Madison to Mordecai Noah (1818)

“I have ever regarded the freedom of religious opinions and worship as equally belonging to every sect.”

The First Constitution of the United States: The Articles of Confederation Were Adopted By the Continental Congress 239 Years Ago Today

On June 7, 1776, Richard Henry Lee of Virginia, introduced a resolution in the Second Continental Congress proposing independence for the American colonies. The resolution read:

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

Four days later, the Continental Congress appointed three committees in response to the Lee Resolution. One of these committee was created to determine “a plan of confederation,” and was composed of one representative from each colony. John Dickinson of Delaware served as the principal drafter.

After 16 months of debate, the Continental Congress adopted the Articles of Confederation and Perpetual Union on November 15, 1777. The Articles set out that

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

And that

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The Articles did not go into effect until March 1, 1781, when the last of the 13 states – Maryland – ratified it.

The Articles provided for a loose federation of the states; a single legislative body, where each state had one vote, and a president who chaired the legislative assembly. The Confederation Congress had the following powers: to make war and peace; conduct foreign affairs; request men and money from the states; coin and borrow money; regulate Indian affairs; and settle disputes among the states. The following powers were reserved to the states: enforcing laws, regulating commerce, administering justice, and levying taxes.

No provision was made for an executive authority to enforce the laws or a judicial system to interpret them.

Within a short time, the weaknesses of the Confederation became apparent:

[The Continental Congress] could — theoretically — declare war and raise an army, but it could not force any state to meet its assigned quota for troops or for the arms and equipment needed to support them. It looked to the states for the income needed to finance its activities, but it could not punish a state for not contributing its share of the federal budget. Control of taxation and tariffs was left to the states, and each state could issue its own currency. In disputes between states — and there were many unsettled quarrels over state boundaries — Congress played the role of mediator and judge, but could not require the state to accept its decisions.

The result was virtual chaos. Without the power to collect taxes, the federal government plunged into debt. Seven of the 13 states printed large quantities of paper money — high in face value but low in real purchasing power — in order to pay veteran soldiers and a variety of creditors, and to settle debts between small farmers and large plantation owners.

. . . .

A weak central government, without the power to back its policies with military strength, was inevitably handicapped in foreign affairs as well. The British refused to withdraw their troops from the forts and trading posts in the new nation’s Northwest Territory, as they had agreed to do in the peace treaty of 1783. To make matters worse, British officers on the northern boundaries and Spanish officers to the south supplied arms to various Indian tribes and encouraged them to attack American settlers. The Spanish, who controlled Florida and Louisiana, as well as all territory west of the Mississippi River, also refused to allow Western farmers to use the port of New Orleans to ship their produce.

Although there were signs of returning prosperity in some areas of the fledgling nation, domestic and foreign problems continued to grow. It became increasingly clear that the Confederation’s central government was not strong enough to establish a sound financial system, to regulate trade, to enforce treaties or to exert military force against foreign antagonists when needed. Internal divisions between farmers and merchants, debtors and creditors, and among the states themselves were growing more severe. With Shay’s Rebellion of desperate farmers in 1786 vividly in mind and only recently crushed, George Washington warned: “There are combustibles in every state which a spark might set fire to.”

As a result, the new nation was on the brink of political and economic chaos. In 1785, George Washington wrote to Henry Knox saying “it does not appear to me, that we have wisdom, or national policy enough to avert the evils which are impending—How should we, when contracted ideas, local pursuits, and absurd jealousy are continually leading us from those great & fundamental principles which are characteristic of wise and powerful Nations; & without which, we are no more than a rope of Sand, and shall as easily be broken.” (Emphasis Added).

On July 21, 1786, the Virginia General Assembly passed a resolution proposing “a joint meeting of the states to consider and recommend a plan for regulating commerce.”

That convention met in Annapolis, Maryland, on September 11, 1786. Only 12 delegates were present at the meeting, representing only the states of New York, New Jersey, Pennsylvania, Delaware, and Virginia. On September 14, Alexander Hamilton introduced a resolution calling for a special convention of all the states to amend the Articles of Confederation.

This ultimately led to what we now call the Constitutional Convention of 1787. You can read James Madison’s notes of the Constitutional Convention here.

A Brief History of the Emoluments Clause

The Emoluments Clause of the U.S. Constitution is in the news today as ethics lawyers consider the ethical and legal implications of president-elect Trump’s foreign business dealings. I thought it would be useful to provide here a brief history of the Emoluments Clause.

Text of the Constitution – Article I, Section 9, Clause 8

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”

Debates in the Constitutional Convention

(1) James Madison’s Notes, August 6, 1787

Sect. 7. The United States shall not grant any title of nobility.

(2) James Madison’s Notes, August 23, 1787

On the question to agree to Art. VII–sect. 7. as reported It passed nem: contrad:

Mr Pinkney urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert–after Art VII sect 7. the clause following–“No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State which passed nem: contrad.

The Federalist Papers

(1) The Federalist No. 22 (Alexander Hamilton)

Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to over-balance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.

Early Commentaries on the Constitution

(1) St. George Tucker, Blackstone’s Commentaries

Corruption is too subtle a poison to be approached, without injury. Nothing can be more dangerous to any state, than influence from without, because it must be invariably bottomed upon corruption within. Presents, pensions, titles and offices are alluring things. In the reign of Charles the second of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory. The economy which ought to prevail in republican governments, with respects to salaries and other emoluments of office, might encourage the offer of presents from abroad, if the constitution and laws did not reprobate their acceptance. Congress, with great propriety, refused their assent to one of their ministers to a foreign court, accepting, what was called the usual presents, upon taking his leave: a precedent which we may reasonably hope will be remembered by all future ministers, and ensure a proper respect to this clause of the constitution, which on a former occasion is said to have been overlooked.

(2) William Rawle, A View of the Constitution of the United States

There cannot be too much jealousy in respect to foreign influence. The treasures of Persia were successfully distributed in Athens; and it is now known that in England a profligate prince and many of his venal courtiers were bribed into measures injurious to the nation by the gold of Louis XIV.

A salutary amendment, extending the prohibition to all citizens of the United States, and disfranchising those who infringe it, has been adopted by some of the states; but not yet by a sufficient number. The clause in the text is defective in not providing a specific penalty for a breach of it. Disfranchisement, or a deprivation of all the rights of a citizen, seems the most appropriate punishment that could be applied, since it renders the seduction useless to those who were the authors of it, and disgraceful to the person seduced.

(3) Joseph Story, Commentaries on the Constitution

§ 1346. The other clause, as to the acceptance of any emoluments, title, or office, from foreign governments, is founded in a just jealousy of foreign influence of every sort. Whether, in a practical sense, it can produce much effect, has been thought doubtful. A patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions. Still, however, the provision is highly important, as it puts it out of the power of any officer of the government to wear borrowed honours, which shall enhance his supposed importance abroad by a titular dignity at home. It is singular, that there should not have been, for the same object, a general prohibition against any citizen whatever, whether in private or public life, accepting any foreign title of nobility. An amendment for this purpose has been recommended by congress; but, as yet, it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary.

 

Our Nation’s First Presidential Cabinet

As president-elect Trump considers who he will choose to fill his cabinet, I thought it might be useful to look at the men who comprised our nation’s first presidential cabinet.

Today, the president’s cabinet includes includes the Vice President and the heads of 15 executive departments — the Secretaries of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, and Veterans Affairs, as well as the Attorney General.

George Washington cabinet, by contrast, included just four original members: Secretary of State Thomas Jefferson, Secretary of Treasury Alexander Hamilton, Secretary of War Henry Knox, and Attorney General Edmund Randolph. Below I have included a brief biographical sketch of each cabinet secretary.

(1) Secretary of State Thomas Jefferson

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Thomas Jefferson, after attending my alma mater the College of William & Mary, practiced law and served in local government as a magistrate, county lieutenant, and member of the House of Burgesses. He also served as a member of the Continental Congress and was chosen in 1776 to draft the Declaration of Independence. Jefferson left Congress in 1776 and served in the Virginia legislature. He was elected governor and served in the office from 1779 to 1781. Following his governorship, Jefferson wrote his famous Notes on the State of Virginia. In 1784, he returned to public service by serving first a trade commissioner in France and then as Benjamin Franklin’s successor as minister to France. After serving as Secretary of State during President Washington’s administration, Jefferson went on to serve as Vice President under John Adams and then President of the United States. He sold his collection of books to the government, which formed the nucleus of the collection of the Library of Congress. At the age of 75, he founded the University of Virginia.

(2) Secretary of Treasury Alexander Hamilton

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Alexander Hamilton, born in Nevis, British West Indies, left school at King’s College (later renamed Columbia) in 1774 to begin a career in politics. That same year, he wrote “A Full Vindication of the Measures of Congress,” defending the Continental Congress’ proposal to embargo trade with Great Britain. In 1776, after the Revolutionary War began, Hamilton was commissioned as a captain in the Continental Army. In 1777, he accepted a position on General George Washington’s staff. He served admirably throughout the war. After the war’s conclusion, Hamilton passed the New York bar and practiced law in New York City. In 1787, Hamilton served as a New York delegate to the Constitutional Convention, where he advocated for the creation of a stronger central government. Along with James Madison and John Jay, Hamilton wrote “The Federalist,” a collection of 85 essays on the origins, purpose, and design of the United States Constitution. Hamilton wrote 51 of the essays. He served in New York’s ratifying convention and was instrumental in securing ratification of the new Constitution in the state. As the nation’s first Treasury secretary, Hamilton crafted a monetary policy that saved the nation from financial ruin. He was responsible for creating the First Bank of the United States, and his Report on Manufactures promoted commercial and industrial development in the new nation.

(3) Secretary of War Henry Knox

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Henry Knox began his life as a bookbinder. During the Revolutionary war he served as General Washington’s chief of artillery and eventually rose to the rank of Major General. During the war, his most notable accomplishments include leading the expedition to transfer captured British cannon from Fort Ticonderoga to Boston, directing Washington’s famous crossing of the Delaware River, and take charge of the placement of the artillery at Yorktown. He served as secretary of war under the Articles of Confederation before serving as Washington’s Secretary of War under the new Constitution.

(4) Attorney General Edmund Randolph

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Edmund Randolph studied at the College of William & Mary and studied law under his father’s tutelage. During the Revolutionary War, Randolph served as aide-de-camp to General Washington, and also attended the convention that adopted Virginia’s first state constitution in 1776 (he was the convention’s youngest member at the age of 23). He served as mayor of Williamsburg, Va, and Virginia’s attorney general. In 1779, he was elected to the Continental Congress, and in 1786 became the Governor of Virginia. He attended the Annapolis Convention in 1786, and was a delegate from Virginia during the Constitutional Convention of 1787. He presented the Virginia Plan on behalf of the Virginia delegation. Despite his support of Virginia Plan, he ultimately declined to sign the Constitution. By the time of the Virginia ratifying Convention, Randolph supported the Constitution and worked to secure its ratification in his state. He stated his reason for his switch as “The accession of eight states reduced our deliberations to the single question of Union or no Union.” He served as attorney general under President Washington until Jefferson resigned as Secretary of States, at which point Randolph assumed the role of Secretary of State.

The Founders on the Separation of Powers

Although, the Constitution does not expressly mention the “separation of powers,” the government created by the 1787 U.S. Constitution presupposes and gives expression to it. Below are quotes from the founding generation on why the separation of powers is referred to by Madison in The Federalist No. 47 as an “invaluable precept in the science of politics.”

(1) “The chief improvement in government, in modern times, has been the compleat separation of the great distinctions of power; placing the legislative in different hands from those which hold theexecutive; and again severing the judicial part from the ordinaryadministrative. ‘When the legislative and executive powers (says Montesquieu) are united in the same person, or in the same body of magistrates, there can be no liberty.'” – Centinel No. II (October 24, 1787)

(2) “Liberty therefore can only subsist, where the powers of government are properly divided, and where the different jurisdictions are inviolably kept distinct and separate. . . . This doctrine is not novel in America, it seems on the contrary to be every where well understood and admitted beyond controversy; in the bills of rights or constitutions of New-Hampshire, Massachusetts, Maryland, Virginia, North-Carolina and Georgia, it is expressly declared. “That the legislative, executive and judicial departments, shall be forever separate and distinct from each other.” InPennsylvania and Delaware, they are effectually separated without any particular declaration of the principle.” – “William Penn” No. 2 (January 3, 1788)

(3) “No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself however, that it will be made apparent to everyone, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct.” – The Federalist No. 47 (James Madison)

(4) “The conclusion which I am warranted in drawing from these observations is, that a mere demarkation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” – The Federalist No. 48 (James Madison)

(5) “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state. But it is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common de pendence on the society, it will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative, on the legislature, appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion, to the several state constitutions, and to the federal constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.” – The Federalist No. 51 (James Madison)

(6) “The same rule, which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive, or the judiciary, from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples, in some preceding numbers. In governments purely republican, this tendency is almost irresistable. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves; and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious controul over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.” – The Federalist No. 71 (Alexander Hamilton)

(7) “It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.” – George Washington, Farewell Address (1796)

The Federalist No. 68: A Defense of the Electoral College

As has become customary after a closely divided election (especially, one where the popular vote winner loses in the electoral college), there is a growing chorus of individuals calling for the abolishment of the electoral college. Just last night on Real Time With Bill Maher, former Attorney General Eric Holder called for an end to the electoral college.

I suspect these debates will continue not just this year, but in future elections, as well, and so I thought it might be useful to spotlight The Federalist No. 68, wherein Alexander Hamilton explains why the Framers created the electoral college system.

The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded. I venture somewhat further; and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired.

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analizing the qualities adapted to the station, and acting under circumstances favourable to deliberation and to a judicious combination of all the reasons and inducements, which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each state, are to assemble and vote in the state, in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? But the convention have guarded against all danger of this sort with the most provident and judicious attention. They have not made the appointment of the president to depend on any pre-existing bodies of men who might be tampered with before hand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of electors. Thus, without corrupting the body of the people, the immediate agents in the election will at least enter upon the task, free from any sinister byass. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time, as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations, founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the executive should be independent for his continuance in office on all, but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will be happily combined in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state and vote for some fit person as president. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates, who shall have the five highest numbers of votes, the man who in their opinion may be best qualified for the office.

This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says–

“For forms of government let fools contest–  That which is best administered is best.”

–yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.

A Brief History of Veterans Day

Today is Veterans Day. I’m proud to say that many members of my family have bravely and admirably served in the U.S. armed forces – including, my mother, maternal grandfather, paternal grandfather, and paternal great uncle.

A Brief History of Veterans Day

During WWI, an armistice was reached on the 11th hour of the 11th day of the 11th month of 1918. The following year, November 11th was commemorated as Armistice Day. It became a federal legal holiday in the United states in 1938. After World War II and the Korean War, Armistice Day became Veterans Day, a holiday dedicated to American veterans of all wars.

President Woodrow Wilson’s Armistice Day Proclamation in 1919

To us in America, the reflections of armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations.”

President Dwight Eisenhower’s Veteran’s Day Proclamation in 1954

Whereas it has long been our custom to commemorate November 11, the anniversary of the ending of World War I, by paying tribute to the heroes of that tragic struggle and by rededicating ourselves to the cause of peace; and

Whereas in the intervening years the United States has been involved in two other great military conflicts, which have added millions of veterans living and dead to the honor rolls of this Nation; and

Whereas the Congress passed a concurrent resolution on June 4, 1926 (44 Stat. 1982), calling for the observance of November 11 with appropriate ceremonies, and later provided in an act approved May 13, 1938 (52 Stat. 351), that the eleventh of November should be a legal holiday and should be known as Armistice Day; and

Whereas, in order to expand the significance of that commemoration and in order that a grateful Nation might pay appropriate homage to the veterans of all its wars who have contributed so much to the preservation of this Nation, the Congress, by an act approved June 1, 1954 (68 Stat. 168), changed the name of the holiday to Veterans Day:

Now, Therefore, I, Dwight D. Eisenhower, President of the United States of America, do hereby call upon all of our citizens to observe Thursday, November 11, 1954, as Veterans Day. On that day let us solemnly remember the sacrifices of all those who fought so valiantly, on the seas, in the air, and on foreign shores, to preserve our heritage of freedom, and let us reconsecrate ourselves to the task of promoting an enduring peace so that their efforts shall not have been in vain. I also direct the appropriate officials of the Government to arrange for the display of the flag of the United States on all public buildings on Veterans Day.

In order to insure proper and widespread observance of this anniversary, all veterans, all veterans’ organizations, and the entire citizenry will wish to join hands in the common purpose. Toward this end, I am designating the Administrator of Veterans’ Affairs as Chairman of a Veterans Day National Committee, which shall include such other persons as the Chairman may select, and which will coordinate at the national level necessary planning for the observance. I am also requesting the heads of all departments and agencies of the Executive branch of the Government to assist the National Committee in every way possible.

In 1968, Congress passed the Uniform Holiday Bill (Public Law 90-363 (82 Stat. 250)). The law was intended to ensure three-day weekends for Federal employees by celebrating four national holidays on Mondays: Washington’s Birthday, Memorial Day, Veterans Day, and Columbus Day. It was thought that these long weekends would encourage travel, recreational and cultural activities and, therefore, stimulate the economy. Many states did not agree with this decision and continued to celebrate the holidays on their original dates.

The first Veterans Day under the new law was observed with much confusion on October 25, 1971. Several years later in 1975, President Gerald Ford signed Public Law 94-97 (89 Stat. 479), returning the annual observance of Veterans Day to its original date of November 11, beginning in 1978. And Veterans Day has continued to be celebrated on the November 11 ever since.