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

Image via Wikipedia

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 Government: many 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 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)

A false dilemma: Support a Dictator, or Support Oppressed People…How about instead support the “Constitution, limited government, limited executive power to kill people, [and] limited executive power to put our armed forces at risk…”

"Duh. It's for the children. Now don't ask any more questions."

When in doubt of winning a debate, re-frame it as a false dilemma.

In other words, make it impossible for people to choose anything but your side. Never mind if it means ignoring the Constitution or killing people, just to start.

It takes a lot of restraint to put things in their fair perspective. Evidently, Secretary Clinton does not have that restraint.

Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered.

Never mind wise: is war on Libya even constitutional?

We’ve been at war with Libya for about a week. The question here is not whether we should be at war with Libya, but rather, does the President have the right to take us to war with Libya absent a provocation against the United States?

Giving the power to go to war to Congress, the U.S. Constitution states under Article I, section 8 that “Congress shall have the power … to declare war…” While the President is the Commander-in-Chief, the Constitution does not give him the right to use the armed forces at will. Does that, as CATO scholar John Samples and others have asked, make the acts of war in Libya unconstitutional?

Some members of Congress think so. Rep. Scott Ringell, a freshman from Virginia, said that the Libya hostilities “should trigger a debate within Congress and [among] the American people about proper interpretation and application of [the] Constitution. […]” Some Democrats have spoken out questioning the validity of the action. In the past, Senators Obama and Biden both said the president lacks the authority to do what President Obama has done.

Kind of reminds me of the old saying that “[w]here you stand on an issue depends on where you sit.” Now that he’s in the Oval Office, and after pressure to “do something,” the Barack Obama the President’s position is the opposite of Barack Obama the Senator from Illinois and candidate for President. Same for the Veep.

Flip-flops aside, does the President have the right bomb Libya? Does the Constitution support his unilateral action against Libya without the consent of Congress?

Perhaps Vice-President Biden can offer the President some guidance on the topic. As Samples notes, Biden has spoken on the original meaning of Art.1, Section 8 of the Constitution before:

Vice President (then Senator) Joseph Biden recalled that meaning in a speech on the Senate floor on July 30, 1998. He noted that the original draft of the Constitution would have empowered Congress to “make war.” James Madison and Elbridge Gerry moved that the language be changed to “declare war” so that the president would have the power “to repel sudden attacks.” Biden pointed out that only one framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.

Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.” Presidential candidate Barack Obama agreed in 2007: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

In the opinion of the Veep, then, the President is acting outside of his Constitutional powers. Biden went on:

The rationale for vesting the power to launch war in Congress was simple. The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.

Don’t for a minute think that it is only the conservatives in Congress that are questioning the President’s authority, either. Rick Warnick questions the rationale, too.

And so, once again America has attacked an oil-rich Arab country. This time by order of a Democratic commander-in-chief. Next time somebody tells me, “Elections have consequences,” I think I’ll ask for proof. When you look at it substantively, there is just too much bipartisanship in Washington.

It’s not just bipartisanship, Rick; it’s corruption. Power corrupts, on both sides of the aisle. All too often, that has nothing to do with the party, and everything to do with the system. As long as the White House is held by an individual more interested in “doing something” than in “doing the right thing,” then we will have the kind of lawless and dangerous actions that we’re seeing now in Libya.

Congress has to step up to the President if we’re to see a check to his little war in Libya. But I’m not optimistic. Pigs will fly before we see leadership necessary out of the House or Senate. While there have been a few speeches criticizing or condemning the action, we are unlikely to see anything more. The President has little to lose from Congress, and he knows that Congress will fold if backed against the wall.

Related articles

• The Constitution and Libya (opiniojuris.org)
• Obama Does an End Run Around Congress and the Constitution to Hit Libya, Where’s the Anti-War Movement? (sfcmac.wordpress.com)
• Biden Flip Flop – Could President could be Impeached over Libya? Let’s ask Biden (ironmill.wordpress.com)
• Does Obama’s War on Libya Violate the Constitution? (reason.com)

An Impressive New Blog in Utah: the “Utah Political Summary”

Reading up on some of the local blogger commentary on HB 477 this morning, I ran into a blog I’d not seen before: the Utah Political Summary.

Written and published by local attorney Curt Bentley, the blog purports to provide a political commentary with dual purposes: “(1) to help people who want to know get informed about local politics despite the existence of these traditional barriers and a federal-focused media, and (2) to give me a place to vent intelligent commentary.” (Ignore for a moment the ironic placement of “vent” directly before “intelligent,” and just assume that such is possible…)

Although he’s an attorney, it is by no means a site intended for attorneys, or to provide a legal perspective on politics. That said, Bentley does a great job of integrating his legal training to enhance his analysis of policies and politics. A few examples:

On the Commerce Clause :

Although the exact extent of Congress’ authority under the Commerce Clause can be (and has been) debated ad naseum, I think we can safely say one thing: the Constitution’s drafters and ratifiers never intended for the Commerce Clause to give Congress a general legislative power like that enjoyed by the states. Constitutional lawyers refer to the general legislative authority of the states as the “Police Power,” or the power to legislate broadly for the health, safety, and welfare of the people. And if we interpret the Commerce Clause as authorizing Congress to legislate to require people to purchase health insurance, one can make a persuasive argument that we have just conferred on Congress the functional equivalent of a federal police power.

On “American Exceptionalism”

In its original sense, American Exceptionalism refers to view that the developmental path taken by the United States of America (and its citizens) was, and is, objectively different from the developmental path taken by other countries and their citizens.  The concept has its roots in some obvious contrast between America and other nations, particularly  that fact that America was both republican in government and had a quasi-religious zeal for commerce.  People who subscribed to, or studied, the idea of American Exceptionalism, acknowledged only that America was different in significant ways from other countries and had a different developmental history — not that anything about that history was inherently superior.

And speaking of “exceptionalism,” Utah Political Summary is exceptionally well written and very readable, for layman and wonk alike. Thoughtful and articulate, Bentley’s style manages to walk the line between analysis and information without falling over into heavy rhetoric or ever spouting a party talking point. With so many blogs sounding more like trumpets for one political ideology or another and without any regard for reasoned analysis, Bentley’s voice is a fresh take on politics, and one you should consider adding to your reader.

(Just to be clear, I do not know Bentley and he has not asked me to write this to plug his site. I just like it that much.)

What is American Exceptionalism, Anyway? | Utah Political Summary.

The Commerce Clause, Federal Police Power, and Judicially-Enforced Federalism | Utah Political Summary.

Related articles

• Looking to follow the Utah Legislature? (lawafterthebar.wordpress.com)
• Thomas on the Commerce Clause- “Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence.” (joshblackman.com)
• Utah Legislature Watch: “Lawyers should be good lobbyists…” (lawafterthebar.wordpress.com)
• ‘Card-Check’ Is The Latest Commerce Clause Battleground (businessinsider.com)