Tag Archives: constitution

“The Constitutional Origins of the American Revolution” by Jack P. Greene

Map of the British colonies in North America, ...

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Time for a segment of “A moment in obscure history.” This time, we’re looking at the constitutional dispute that resulted in the American Revolution.

Since sometime in 2009, the Tea Party movement has lead a revival of interest in the US Constitution.  Senator Mike Lee summed up why the increased interest of late during the release of his new book , The Freedom Agenda: Why a Balanced Budget Amendment is Necessary to Restore Constitutional Governmentmany of our problems today stem from when the “federal government started ignoring those Constitutional boundaries about what Congress is supposed to be doing.”

Suddenly, propelled by Glenn Beck, books like The 5000 Year Leap , a right-wing conservative’s guide to the making of the federal constitution, “leaped” to the Amazon best seller list (it’s now listed at 2,615 overall and the top 100 under “Politics”). While it provides only a simple, somewhat white-washed, and superficial vision of the US Constitution, no amount of increased attention in our federal constitution is too little.

“Where does the Constitution,” goes the rallying cry, “give the President and Congress the authority for the laws they are passing?”

Neither the revival, however, nor questioning the constitutionality of the federal laws, is unique in history. In fact, it was a dispute over the constitutionality of a central government’s actions that lead to another major event in our country’s history: the American Revolution.

"The fruit of half a century of research and reflection, Greene's masterly book restores legal pluralism and constitutional controversy to their proper place among the causes, course, and consequences of the American Revolution." - David Armitage, Harvard University

In his short, and dense, review of the century and a half leading up to the American Revolution, The Constitutional Origins of the American Revolution, Jack P. Greene postulates and examines that evidence that the American revolution did not erupt purely as a simple dispute over “taxation without representation,” but rather that such rallying cries emerged after decades of disagreement on who justly had the right to legislate for the American colonies

Whether the king-in-Parliament, the ultimate source of statute law in Great Britain, could legislate for British colonies overseas was the ostensible question in dispute, but many other related and even deeper legal issues involving the nature of the constitution of the empire and the location of sovereignty within the empire emerged from and were thoroughly canvassed during the debate.

(From Constitutional Origins, p. 1)

It was only after the conflicting opinions of metropolitan Britain and that of the colonists failed to be reconciled that open warfare broke out in 1775, and it was why the decision to broach the topic of and ultimately pursue independence from Great Britain was so cautiously and tentatively pursued. The colonists considered themselves British subjects, citizens, not vassals and secession was not a choice they relished.

They saw themselves as part and partial of the British Empire. Indeed, as one Virginia lawyer at the time phrased it, they might be “subordinate to the Authority of Parliament,” but only “in Degree” and “not absolutely so.” (p.78).  As free men and

As free-born Britons, the colonists assumed, they could not be subjected to any but what Bland referred to as “a constitutional Subordination” to the parent state.

(From Constitutional Origins p. 78)

This political cartoon (attributed to Benjamin...

This political cartoon (attributed to Benjamin Franklin) originally appeared during the French and Indian War, but was recycled to encourage the American colonies to unite against British rule. From The Pennsylvania gazette, 9 May 1754. Abbreviations used: South Carolina, North Carolina, Virginia, Maryland, Pennsylvania, New Jersey, New York, and New England. This is a somewhat odd division: New England was four colonies, and Delaware and Georgia are missing. Image via Wikipedia

The nature of this “constitutional Subordination” was such that the colonists readily accepted the authority of Parliament in certain areas, but balked at the idea of taxation, seeing it as beyond Parliament’s authority. “Indeed, considerable evidence suggests that the colonists’ strong initial impulse was to exclude Parliament from all jurisdiction over the domestic affairs of the colonies.” (p.79) Like our modern idea of the federal government, the states concern themselves with their domestic activities while the federal government’s most basic responsibility is national security.

Interestingly, from a historical perspective, we start to see the first signs of federalism in the disputes between the colonies and the home country.

Further,

[s]o long as Parliament confined its regulations to “restrictions on navigation, commerce, or other external regulations,” they reasoned, the ‘”legislatures of the colonies” would be “left entire”and “the internal government, powers of taxing for its support, and exemption from being taxed without consent, and [all] other immunities which legally belong[ed] to the subjects of each colony agreeable to their own particular constitutions” would thereby, according to the “general principles of the British constitution,” remain “secure and untouched.”

Sound familiar? If you hear the foreshadowing of the federalism that would be later inscribed into the US Constitution, there’s a reason. It was rooted in the relationship between Great Britain and its far-flung colonies.

If, during the last couple years, you’ve found yourself at all more interested in the federal constitution and the limitations it places on the federal government, I urge you to look at the role constitutions, and constitutional disputes, played in leading to our own American constitution.

It’s a great read, if a bit scholarly, and evidence that whether a law is constitutional is not a new question, but actually may be  at the very root of the American experiment and its origins in the American revolution. The American revolution was not, nor is it today, an obscure moment in history, but rooted in obscure legal disputes between the colonies and mother country, long predating the Stamp Acts and the Boston Massacre.  It began  as a constitutional dispute between the central government in London and the British colonies in America.

Understanding why the colonist went to war, how they got there, and the legal battles that preceded the battlefields can be useful in understanding why the Founders drafted what they did–into the Declaration of Independence and into the federal constitution–and what those words mean to us now, even in the midst of our own constitutional disputes.

Pick up The Constitutional Origins of the American Revolution by Jack P. Greene from Cambridge University Press, 2011.

(h/t Patrick Charles, who introduced the book to me, and  Conor Friedersdorf of The Atlantic)

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Meet a lawyer who practices Third Amendment law

Really? I doubt it. I’m about 89% sure that this is a joke….

A lawyer who practices Third Amendment law. That’s right. That’s the amendment about quartering soldiers in your home.

T “Scotch” Reynolds: Third Amendment Lawyer | Big Legal Brain.

BLB: Just what is the Third Amendment?

Scotch: I can quote it, if you want, it’s not that long. The Third Amendment provides that “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

BLB: Sounds awful.

Scotch: Not really. It’s one of the more dynamic amendments, especially if you’ve studied it for some time, like I have.

BLB: But, how’s it apply? Give us some applications of the Third Amendment.

Scotch: Great question. Hypothetically, let’s say the military decides that its soldiers and armed personnel need to stay in your house, at no cost to the government. The Third Amendment prohibits that from happening, unless we are in a time of war.

BLB: Wow. All of them in my house?

Scotch: Hypothetically.

BLB: But aren’t we in a war? A War on Terror. I think we’re at level Orange. Scary.

Scotch: Sure. Putting four or five colonels in your house is currently not per seunconstitutional. The U.S. could quarter soldiers in your house but the soldiers have to act mannerly if they do.

Mannerly, eh? Excuse me while I look up the legal definition of “mannerly” in my copy of Black’s…

Catch the rest of this timely and “informative” interview at Big Legal Brain, a blog which “thinks for your practice so you don’t have to.”

We provide big-brained ideas for small-brained attorneys. We concentrate on optimizing the metrics for your practice so that you can take advantage of all cross-platform communication channels and keep your sights on each of your practice goals.

Yep. That’s what she said.

 

Have you read the Utah constitution, lately?

Commentaries on the Utah Constitution | Equity of Law.

When was the last time you reviewed the Utah constitution? Salt Lake Attorney Ben Lusty argues that in all the renewal of interest in the US constitution, we’ve missed the boat with state constitutions.

But this rebirth of constitutional interest ignores the state constitutions.  From this author’s own experience, political activists carry copies of the U.S. Constitution and quote verbatim (and from memory) extended passages of Article I, section 8, or the First Amendment.  The Utah Constitution (or for that matter the constitutions of the other states) remains covered in apathy, or ignorance.  And yet, it is fundamental law within our happy little republic between the mountains and valleys of Utah.

Sure you can quote whole passages of the Bill of Rights, but did you know that under the Utah constitution every able-bodied man is a member of the state militia? That Utah is “forever inseparable” from the United States?

If we live in a federalist system (and you can argue over republic or democracy with someone else), then the state is a sovereign, much as is the federal government in D.C., and as such, we ought to know what our sovereign state’s constitution says.

Read the entire post here. Read the Utah constitution here.

(h/t Equity of the Law)

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Guest Post: Holly Richardson’s “Article V Convention vs Con-Con”

By hollyonthehill

Arguments against a Constitutional Convention (also called a Con-Con) are plentiful and rightly so. The last Constitutional Convention resulted in a new government. Opening up the Constitution could be like opening Pandora’s box.

First page of Constitution of the United States

Image via Wikipedia

But.

What happens with a federal government that is out of control? Representative Ken Ivory says that the distinct line between the federal government and states’ rights is the issue of our time. I believe it’s certainly in the top 2 or 3 issues. Yet how many timeshave the states ceded their power to the federal government. How many times have we rolled over, thrown up our hands and said there is nothing we can do? Or even worse, how many times have states gone to the federal government and asked for handouts, willingly accepting the strings that come with it. In the last year or two, we have seen what happens when “we the people” get fed up with the government. In fact, political pundit LaVar Webb points out:

In the business world, we have often seen the forces of “disruptive innovation” at work. Harvard Business Professor Clayton Christensen has written best-selling books about the inevitable process of large, bureaucratic, top-down, slow-moving businesses or industries being “disrupted” by small, nimble, innovative competitors using the latest technologies. In business, this process, while deadly for lethargic firms, eventually produces better products, superior customer service, and an upward spiral in efficiency, productivity, wealth creation, and quality of life.

This raises an intriguing question: Could the beneficial process of disruptive innovation work in government? Government obviously isn’t subject to the same competitive forces as are private businesses. Government operates by force and coercion, imposing its will by law and regulation, not according to market needs or consumer demand.

State legislatures have the right to tell the federal government to back off. They can do it through (mostly meaningless) resolutions. They can do it through bills that slap the feds in the face. They can do it through nullification attempts. They can also call for an Article V convention.

Article V reads as follows:

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 its equal Suffrage in the Senate.

On a state level, there are a couple of ways to change the state Constitution. The legislature can pass a bill by 2/3 in both the House and the Senate, then have it ratified by popular vote. Or, we can have a citizen’s initiative where a certain percentage of the population drives the movement to get an amendment put on the ballot. On the federal level, we can have an amendment passed (such as the Balanced Budget Amendment currently being talked about in DC), OR, we could have a Con-Con, OR we could have a state-called amendment convention.

If the Founding Fathers were truly concerned with the overgrowth of the federal government – and certainly all evidence points to that as a primary concern – then the inclusion of Article V is not an accident. It was meant to be one more check by the states on the federal government.

By Holly Richardson

Look at DC right now and tell me that we don’t already have a runaway government that is acting outside the bounds of their Constitutional authority. We have TARP, we have Obamacare shoved down our throats, we have unelected, powerful czars and we have lame duck sessions where bills like S510 were passed on a voice vote late in the evening, in spite of significant opposition. In addition, we have secretaries – like Ken Salazar, of the Department of the Interior – who have proclaimed that he and his department can now circumvent the Constitution in declaring wild lands and departments like the EPA who regulate by rule when they can’t get the laws they want passed by Congress.

As someone who loves the Constitution, and who loves this country, I am tired of rolling over and letting the federal government trample our rights. I believe we SHOULD use the tools the Founding Fathers gave us to push back against this egregious federal over-reach and for this reason, I support the states banding together and proposing an Article V amendment convention.

Reprinted with permission from Utah State Representative Holly Richardson. Find the original post here.

Chamber of Commerce v. Whiting before the Supremes

Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:

As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.

The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).

As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.

JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.

The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.

Overall, prognosticators seem to think that the Justices leaned towards Arizona, predicting a 5-3 win for the state. Justice Kagan was not on the bench for the arguments.

Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory.  That is almost a classic example of doing something inconsistent with the federal requirement.”

Apropos: at least one of the Justices  did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)