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Practical Aspects of Gun Control, Part 3

PracticalGunControlPart3    <== PDF version

Dear readers:

This post is available only as a pdf owing to its considerable length.  It continues the examination of the historical aspect of gun control, focusing on the true extent and meaning of the Second Amendment.

Thanks for reading.


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Posted in Alexander Hamilton, Bill of Rights, Early American history, Federalist Papers, gun control, James Madison, Second Amendment | No Comments »

A Free Reprint of The Federalist Papers

FederalistPapersReprint   <== FREE PDF reprint of The Federalist Papers

24 Nov 2011

Dear Readers:

The Federalist Papers are a series of 85 essays by James Madison, Alexander Hamilton, and John Jay published from the fall of 1787 to the spring of 1788.  Their purpose was to explain and defend the newly-crafted U. S. Constitution (intended to supercede the Articles of Confederation)  during the ratification debate in New York.  In the course of these essays, these three founding fathers discuss the philosophy of limited government with necessary powers, the separation of powers between the states and the federal government, and how these were implemented in the Constitution.

It is important for those who believe in limited government to read and understand the Federalist Papers.  They are as relevant today as they ever were.  Page 2 of the reprint (available in pdf only due to its length) contains a  commercial for a book that will help you understand it better; I hope you will consider that too.

The Federalist is in the public domain, and there is nothing copyrighted in this reprint.  Please distribute it as you see fit.

Thanks for reading,

Ed Duvall

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Posted in Alexander Hamilton, Articles of Confederation, Early American history, Federalist Papers, James Madison, John Jay, U. S. Constitution | No Comments »

The Defects of the Articles of Confederation, Part 15

Defects_of_the_Articles_of_Confederation_15   <== PDF version

The first fourteen essays in this series covered in detail some of the most serious problems encountered under the Articles of Confederation.  Most of them arose because Congress did not have sufficient power under that agreement to perform necessary duties.  It is important to remember that the U. S. Constitution, as a successor to the Articles, represented in some ways, a transfer of power from the several states to a new federal government.  There was not much question that a change was necessary — the nation was beginning to fall apart owing partly to the weakness of Congress and partly to the jealousies of the states.

A formal transfer of power is not to be taken lightly.  The people of that era knew full well that if the states agreed to give up powers to the federal government, those powers would never return to the states.  It is a testament to the wisdom of those who wrote the Constitution as well as those that urged its ratification on the state level, that the founding generation got the division of power between states and the federal government about right.  The system worked well from 1788 to about the time of World War I, when the federal government began in earnest to assert undue powers.  That is of course a very big subject for a later time.  For now, the following is a summary of the powers that were not granted to Congress under the Articles of Confederation, but were granted to some portion of the federal government in the U. S. Constitution.

1.  The creation of an Executive Department per Article 2, to: a) enforce the laws, b) control foreign policy, c) to be Commander-in-Chief of the military, d) make treaties, subject to ratification by the Senate; e) nominate federal officials, including Supreme Court justices, f) is charged with ensuring that the laws are executed faithfully; and g) has power to commission all officers of the U. S.  See parts 3, 4, 5, and 14 of this series.

2.  The creation of a judicial system per Article 3, to: a) hear all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties; b) those affecting ambassadors, other public ministers and consuls; c) of admiralty and maritime jurisdiction; d) those in which the United States is a party; e) between two or more states; and f) certain types of cases involving citizens and states.  The Supreme Court also has appellate power in both law and fact except as Congress may determine.  See part 14 of this series.

3.  The power to obtain direct revenue for the federal government through the “power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”  See part 9 of this series.

4.  The power to call out the militia to: a) execute the laws; and b) respond to invasions and revolts.  Congress also is granted the power to organize, arm, and determine the actions of the militia when called out to service under the United States.  See parts 2 and 8 of this series.

5.   The power to determine regulations for the regular armed forces, transferring the power to provide for the regular army from levies on the states to a central federal power.  See part 2 of this series.

6.  The power to guarantee a republican government in every state in order to ensure that the states would be immune from political revolutions.  See part 8 of this series.

7.  The power to: a) administrate territories; and b) admit new states.  These were necessary in order to regularize the large western area that was rapidly being populated until such time as they qualified for statehood.  See part 6 of this series.

8.  The power to regulate: a) foreign commerce; and b) commerce between the states.  These powers were necessary to respond to the acts of foreign nations affecting the economy of the U. S and also to control the predatory activities of some states upon the others.  See parts 3 and 5 of this series.

9.  The exclusive power to: a) coin money; b) regulate its value; c) regulate the value of foreign money; and d) define and punish counterfeiting of the coin and securities of the U. S.  These powers were necessary to end the abuses of paper currency issued by the states and confusion caused by the different values of state issues.  See part 10 of this series.

10.  The power to impose taxes and duties in order to affect the slave trade; see part 11 of this series.

11.  The power to punish offenses against the law of nations.

12.  The power to establish uniform rules on bankruptcy.

13.  The power to create post-roads.

14.   The power to grant patents and copyrights.

15.  The power to establish a new class of federal property, such as docks, arsenals, forts, etc.

The next edition will review the powers that were originally granted to Congress under the Articles of Confederation, but were modified or clarified in the Constitution.


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The Defects of the Articles of Confederation, Part 13

Defects_of_the_Articles_of_Confederation_13   <== PDF version

It was only a week after the Declaration of Independence that a committee in the Continental Congress reported out an initial plan for organizing a confederation of the states to be united in the effort against Great Britain.  Although reported out of this committee on 12 Jul 1776, it could have no practical effect until the members of Congress agreed to all of its terms and proposed it to the states.  This was a sensible approach, given that the Articles represented a purely federal system, that is, a compact between states in their sovereign capacity.  Congress debated these for nearly 18 months; on 15 Nov 1777, having reached agreement on the terms thereof, a letter dated 17 Nov 1777 was sent to every state, asking those states to ratify the Articles.  The legislatures of eight states passed legislation in the next 6 months by which their delegates to Congress were authorized to approve the Articles.  The delegates from those states (New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina) formally ratified the Articles on 9 Jul 1778.  The provision is contained in Article XIII:

Article XIII.  Every State shall abide by the determinations of theUnited States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

            And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union, Know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained.  And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.  Done at Philadelphia, in the State of Pennsylvania, the ninth day of July, in the year of our Lord 1778, and in the third year of the Independence of America.

But the Articles did not contain a provision by which it would go into effect for those states that ratified it; the intent was that all 13 states were to be united in the war effort.  Therefore, the Articles did not formally go into effect until 2 Mar 1781, the day after Maryland’s legislature ratified the Articles.  This unanimous requirement for both ratification and amendment proved to be a serious defect, as already cited in parts 9 and 12 of this series.

The framers of the Constitution were only too familiar with this difficulty, and made provision in the new Constitution by which it would go into effect if a certain number (two-thirds) of the then-existing states were to agree to it:

 [Article 7]:  The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

This may seem contrary to the Preamble in the Constitution, which states:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

How can it be said that the people established it, if in fact it required ratification by the states?  The answer lies in the fact that each state that ratified it did so at a ratifying convention called for that purpose in each state, and each delegate sent to it was tasked with representing the people of the state.  The U. S.Constitution is the founding document of a compound democratic republic established by republican means, that is, when the people are represented by those they trust, and accept the results of a  vote of the specified majority.  In this way, although the representatives cast their votes directly, those votes matter only because the full weight of the people’s confidence is behind them.

James Madison, writing in The Federalist #40, discussed the objections of some who were opposed to the Constitution on the grounds that agreement of all thirteen states should be required before it should go into effect. Madison simply noted that the critics had avoided the fact that unanimity on ratification would be a form of minority rule:

It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention.  The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people — an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country.  As this objection, therefore, has been in a manner waived by those who have criticized the powers of the convention, I dismiss it without further observation.

The “example of inflexible opposition” referred to here was the refusal by the state of New Yorkto allow Congress (under the Articles) to impose an import duty in order to obtain a direct revenue source.

Madison addressed the method of ratification as called out in Article 7 directly in The Federalist No. 43:

This article speaks for itself.  The express authority of the people alone could give due validity to the Constitution.  To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member.  It would have marked a want of foresight in the convention which our own experience would have rendered inexcusable.

The provision in the Constitution was an improvement over the Articles in two ways: a) nine states could activate it without being held hostage to a minority of states; and b) it was ratified by conventions that represented the people, not just the state governments.


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