Modern history

NOTES

Chapter 1: Eternal, Yet New

1. For an excellent study of the result that the principles set forth within the Declaration and the Constitution had on American architecture, see Allan Greenberg, Architecture of Democracy (New York: Rizzoli, 2006).

Chapter 2: Divide and Conquer

1. Matt Cover, “When Asked Where the Constitution Authorizes Congress to Order Americans to Buy Health Insurance, Pelosi Says: ‘Are You Serious?’” CNSNews.com, October 22, 2009, http://www.cnsnews.com/node/55971. There is an audio recording of the question and answer at the Web site. One detects a note of impatience in Speaker Pelosi’s voice.

2. Congressional Record, vol. 156, no. 43, March 21, 2010, H1896.

3. Evidence about this is ubiquitous in the Founding. See, for example, Jefferson’s First Inaugural Address, given immediately upon his taking the oath to uphold the Constitution as president: “[A] wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.” Thomas Jefferson, “First Inaugural Address,” March 4, 1801, in Inaugural Addresses of the Presidents of the United States (Washington, DC: GPO, 1989), viii, 350.

4. John C. Calhoun, “Speech on the Oregon Bill,” June 27, 1848, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 421.

5. Woodrow Wilson, “What Is Progress?” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 640–1.

6. Edward M. House, Philip Dru, Administrator: A Story of Tomorrow (New York: B. W. Huebsch, 1912), 222.

7. John Dewey, “Liberalism and Social Action,” in The Papers of John Dewey: The Later Works, 1925–1953, vol. 11, ed. Jo Ann Boydston (Carbondale: Southern Illinois University, 1987), 35.

8. Frank Goodnow, “The American Conception of Liberty,” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 630.

9. Franklin D. Roosevelt, “Commonwealth Club Address,” September 23, 1932, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 727.

10. Michael Lind, “Let’s Stop Pretending the Constitution Is Sacred,” Salon, January 4, 2011, http://www.salon.com/news/politics/war_room/2011/01/04/lind_tea_party_constitution.

11. E. J. Dionne Jr. “What a GOP Congress Might Bring,”Washington Post, January 3, 2011,http://www.washingtonpost.com/wp-dyn/content/article/2011/01/02/AR2011010202380.html.

12. Michael Klarman, “A Skeptical View of Constitution Worship,”Balkinization (blog), September 27, 2010, http://balkin.blogspot.com/2010/09/skeptical-view-of-constitution-worship.html.

13. Patriotic and National Observances, Ceremonies, and Organizations, 36 U.S.C. §108 (1998).

14. Robert Bolt, A Man for All Seasons (New York: Vintage International, 1990), 66.

15. Sunstein stated,

I do mean to say that at a minimum, what seems to government regulation of speech might, in some circumstances, promote free speech as understood through the democratic conception associated with both Madison and Brandeis. If so, such regulation should not be treated as a constitutionally impermissible abridgment at all. . . . [C]onsider campaign finance laws, which may well improve democratic processes by reducing the distorting effects of wealth. (Cass Sunstein, Democracy and the Problem of Free Speech [New York: Free Press, 1993], 35)

16. Abraham Lincoln, Fragment on the Constitution, January 1862 in Hillsdale College Constitution Reader, 67–68.

Chapter 3: Divorce: The Declaration and the Constitution Estranged?

1. Joseph J. Ellis, American Creation: Triumphs and Tragedies at the Founding of the Republic (New York: Alfred A. Knopf, 2007), 9.

2. Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (New York: Alfred A. Knopf, 2000), 9.

3. John Lind, An Answer to the Declaration of the American Congress (London, 1776).

4. The Declaration is a deductive syllogism after the classic form repeated in logic books for generations (at least until the study of that subject was abandoned with the rest of the core curriculum in most places). The major premise of such a syllogism is that all men are mortal. The minor premise: Socrates is a man. The conclusion: Socrates is mortal. The premises being true in such a syllogism, the conclusion is inescapable.

5. James Madison, “No. 63: The Senate Continued,” in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003), 385.

6. See James Madison, “No. 10: The Same Subject Continued”: “[Pure] democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” The Federalist Papers, ed. Rossiter, 76. Thomas Jefferson to John Taylor, Monticello, May 28, 1816: “Such a government is evidently restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township. . . . [T]his pure element . . . like that of pure vital air, cannot sustain life of itself.” The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, DC: Thomas Jefferson Memorial Association, 1907), 15: 19.

7. See, for example, the first anti-Federalist essay, probably written by Robert Yates of New York under the alias Brutus, in opposition to the Constitution: “No. 1: To the Citizens of the State of New York,” October 18, 1787, in The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York: Signet Classic, 2003), 270–80. Brutus argues strongly that the concentration of powers in the federal government will violate the rules of Montesquieu, who wrote that republics may cover only a small extent of territory. Favoring these small republics, which he conceives the American states to be, still Brutus writes of “pure democracy”:

In a pure democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all come together to deliberate and decide. This kind of government cannot be exercised, therefore, over a country of any considerable extent; it must be confined to a single city, or at least limited to such bounds as that the people can conveniently assemble, be able to debate, understand the subject submitted to them, and declare their opinion concerning it.

8. Austen Chamberlain letter to Winston S. Churchill, December 15, 1924, in Martin Gilbert, ed, The Churchill Documents, Volume 11, The Exchequer Years (Hillsdale: Hillsdale College Press, 2009), 302.

9. See Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge: Cambridge University Press, 2009), especially chapters 4 and 5. This work is the sign of a career now matured into one of the finest contributions to our understanding of the Founding.

10. During the fifth year of the Peloponnesian War, the Athenians voted “in the fury of the moment . . . to put to death not only the prisoners at Athens, but the whole adult male population of Mytilene, and to make slaves of the women and children,” but “[t]he morrow brought repentance with it and reflection on the horrid cruelty of a decree which condemned a whole city to the fate merited only by the guilty. . . . [M]ost of the citizens wished someone to give them an opportunity for reconsidering the matter” (3.36). Thucydides, The Landmark Thucydides, ed. Robert B. Strassler (New York: Free Press, 1996), 175–76. Also consider “The People’s” actions toward Alcibiades at 6.28–29 and 6.53, 61. Ibid., 376–77, 390, 395.

11. So far as I know, this was first noted by George Anastaplo in his book Abraham Lincoln: A Constitutional Biography (Lanham, MD: Rowman & Littlefield, 1999), 25.

12. Thomas Jefferson, “Draft of Instructions to the Virginia Delegates in the Continental Congress (MS Text of A Summary View, &c.),” July 1774, in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950–92), 1:134.

Chapter 4: The Laws of Nature and of Nature’s God

1. Jeremy Black, George III: America’s Last King (New Haven: Yale University Press, 2006), 128.

2. Ibid., 137, 148. Also see ibid., illustration 13, Affability by James Gillray (1795).

3. John Brooke, King George III (New York: McGraw-Hill, 1972), 90.

4. Manfred S. Guttmacher, America’s Last King: An Interpretation of the Madness of George III (New York: Charles Scribner’s Sons, 1941), 186–87.

5. See, for example, the Townshend duties. A good source for information on this topic is John C. Miller, Origins of the American Revolution (Stanford: Stanford University Press, 1943), 242–58.

6. Daniel Dulany, Considerations on the Propriety of Imposing Taxes in the British Colonies for the Purpose of Raising a Revenue by Act of Parliament (Annapolis, 1765), 15.

7. Olive Branch Petititon, Worthington C. Ford, et al, ed, Journals of the Continental Congress, 1774-1789 (Washington, DC: 1904-37), 2:158–62.

8. Thomas Aquinas, Summa Theologica,II–I q. 91, a. 2.

9. Thomas Aquinas, Summa Theologica,I–I, q. 16, a. 8.

10. Jane Austen, Pride and Prejudice (New York: Alfred A. Knopf, 1991), 51.

11. I owe this example and much of my understanding of the thing it illustrates to a great teacher, Harry Jaffa, who has always been rightly proud of his literary education and more proud of the philosophic pursuits that have elevated and informed it.

12. Cicero, “On the Commonwealth,” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 29.

13. Alexander Hamilton, “The Farmer Refuted,” February 23, 1775, in The Papers of Alexander Hamilton: Volume 1, 1768–1778, ed. Harold Coffin Syrett (New York: Columbia University Press, 1961–87), 122.

Chapter 5: That All Men Are Created Equal

1. These examples are accurate descriptions of two recent graduates of Hillsdale College, where I work.

2. The writings of Harry Jaffa, including those mentioned at the end of this book, are insightful in ways that few can attain on this and all related points. See especially his “Equality as a Conservative Principle,” in How to Think About the American Revolution: A Bicentennial Celebration (Durham, NC: Carolina Academic Press, 1978), 13ff.

3. Ibid.

4. This event was well covered in the press. An Associated Press story, “Pig Flies First Class Across U.S.,” appeared in the Washington Post, October 27, 2000, and is available at this writing on the Internet.

5. Abraham Lincoln, “Speech at Peoria, Illinois,” October 16, 1854, in The Collected Works of Abraham Lincoln: Volume II, 1848–1858, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 264.

6. Winston S. Churchill, The Second World War: Volume IV, The Hinge of Fate (Boston: Houghton Mifflin, 1950), 498–99.

7. Thomas Jefferson, “Letter to Roger C. Weightman,” June 24, 1826, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 109–10.

8. James Madison, “No. 10: The Same Subject Continued,” in The Federalist Papers, ed. Rossiter, 78.

9. Abraham Lincoln, “Address before the Wisconsin State Agricultural Society, Milwaukee, Wisconsin,” September 30, 1859, in The Collected Works of Abraham Lincoln: Volume III, 1858–1860, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 479–80.

10. James Madison, “No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments,” in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003), 319.

11. Franklin D. Roosevelt, “Democratic Convention Address.” June 27, 1936, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 734.

12. Franklin D. Roosevelt, “Commonwealth Club Address,” September 23, 1932, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2011), 724. For an interpretation of the speech and how it came to be written, see Robert Eden, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,”Studies in American Political Development 7 (Spring 1993): 74–150. Also see Ronald J. Pestritto, “Founding Liberalism, Progressive Liberalism, and the Rights of Property,” Social Philosophy and Policy 28, no. 2 (2011): 56–73.

13. Franklin D. Roosevelt, “Annual Message to Congress,” January 11, 1944, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 745.

14. Roosevelt, “Democratic Convention Address,” 733-4.

15. Roosevelt, “Annual Message to Congress,” 745.

16. These arguments are documented and summarized in Ronald J. Pestritto, “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24 (2007): 16–54

17. James Madison, “No. 10: The Same Subject Continued,” in The Federalist Papers, ed. Rossiter, 73.

18. James Madison, “On Property,” March 29, 1792, in Hillsdale Constitution Reader, 155.

19. “I do mean to say that at a minimum, what seems to be government regulation of speech might, in some circumstances, promote free speech as understood through the democratic conception associated with both Madison and Brandeis. If so, such regulation should not be treated as a constitutionally impermissible abridgment at all.” Cass Sunstein, Democracy and the Problem of Free Speech(New York: Free Press, 1995), 35.

20. For more information on this topic, see Thomas G. West, “The Economic Principles of America’s Founders, Property Rights, Free Markets, and Sound Money,” August 30, 2010, The Heritage Foundation First Principles Series Report #32; and Thomas G. West, “Poverty and the Welfare State,” in Moral Ideas for America, ed. Larry Arnn and Douglas Jeffrey (Claremont, CA: Claremont Institute, 1993), 51–72.

21. Abraham Lincoln, “Speech to One Hundred Sixty-Sixth Ohio Regiment,” in The Collected Works of Abraham Lincoln: Volume VII, 1863–1864, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 512.

Chapter 6: Hypocrisy

1. The terms slave and slavery do not occur in the Constitution, but there are three references that refer to the institution. Article I, section 2, provides that “three fifths of all other Persons” will be counted in representation and taxation. This means that the representation and taxation of slave states were increased by three-fifths of a person for each slave.

Article I, section 9, provides that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” This has to do with the importation of slaves, with the notorious slave trade. Under the Articles of Confederation, this importation was permitted indefinitely. Under the Constitution, it was guaranteed to continue for twenty years and was in fact abolished at the end of those twenty years.

Article IV, section 2, provides that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This, one of the most troubling features of the Constitution, involved the free states in returning escaped slaves to their masters. This produced friction for a generation and was a bone of contention right up to the outbreak of the Civil War.

2. David Armitage, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007), 75. There is also an intriguing section of the reply written by Jeremy Bentham, the ancestor of modern utilitarians, critical of the theory of the Declaration. Text of Bentham’s response can be found in ibid., 173–86.

3. John Lind, An Answer to the Declaration of the American Congress (London, 1776), 107.

4. A compromise in the Constitution provided that it would not be abolished for twenty years after the ratification of the Constitution, and it was abolished in the twentieth year, when Thomas Jefferson signed the bill to make it law.

5. Jim Powell, Greatest Emancipations: How the West Abolished Slavery (New York: Palgrave MacMillian, 2008), 19. For the fine story of British abolition of the slave trade in the 19th century, see William Hague, William Wilberforce: The Life of the Great Anti-Slave Trade Campaigner (London: Harcourt, Inc, 2007), 355–6.

6. It read:

He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed again the Liberties of one people, with crimes which he urges them to commit against the lives of another. (Thomas Jefferson, “Draft of the Declaration of Independence,” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 397.)

7. For the relevant evidence and a knowledgeable interpretation of it, see R. B. Bernstein, Thomas Jefferson (Oxford: Oxford University Press, 2003), 194–98, and Paul A. Rahe, “Final Report of the Scholars Commission on the Jefferson-Hemings Matter,” Thomas Jefferson Heritage Society,http://www.tjheritage.org/newscomfiles/SCReport1.pdf,35–37.

8. Along with the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States. For a history and analysis of “The Organic Laws of the United States of America,” see Richard H. Cox, introduction to Four Pillars of Constitutionalism: The Organic Laws of the United States (Amherst, NY: Prometheus Books, 1998), 9–71.

9. The Northwest Ordinance, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 127.

10. Abraham Lincoln, “Speech at Peoria, Illinois,” October 16, 1854, in The Collected Works of Abraham Lincoln: Volume II, 1848–1858, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 249–50.

11. Thomas Jefferson, “Notes on the State of Virginia,” in Thomas Jefferson: Writings, 288.

12. Abraham Lincoln, “Second Inaugural Address,” March 4, 1865, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 614.

13. See the letter from George Washington to Robert Morris, dated April 12, 1786: “I can only say that there is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it [slavery]—but there is only one proper and effectual mode by which it can be accomplished, & that is by Legislative authority: and this, as far as my suffrage will go, shall never be wanting.”The Writings of George Washington, vol. 28, ed. John C. Fitzpatrick (Washington, DC: United States Government Printing Office, 1938), 408. John C. Hamilton, History of the Republic of the United States of America as traced in the Writings of Alexander Hamilton and of hisContemporaries, vol. 4 (New York: D. Appleton & Co., 1859), 439–42, for a compilation of quotations from Alexander Hamilton’s works on the evils of slavery, including, “I consider civil liberty, in a genuine unadulterated sense, as the greatest of terrestrial blessings. I am convinced that the whole HUMAN RACE, is entitled to it; and, that it can be wrested from no part of them, without the blackest and most aggravated guilt” (440). Ralph Ketcham, James Madison: A Biography (New York: Macmillan, 1971), 148–49, and Robert Allan Rutland, James Madison: The Founding Father (New York: Macmillan, 1987), 70–71, 239–42, for Madison’s thoughts on the institution and emancipation; and David McCullough, John Adams (New York: Simon & Schuster, 2001), 132–34 for John Adams’s denunciation of slavery as “an evil of colossal magnitude,” as well as strong statements by Benjamin Rush and James Otis. Both Hamilton and Madison suggested enlisting slaves as soldiers during the Revolutionary War in exchange for their freedom. In 1781 New York passed an act by which slaves could earn their freedom with three years of military service. Hamilton, History of the Republic, 441. Many of these statements and others are reprinted in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 401–2.

14. Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, MD: Rowman and Littlefield, 1997), 14.

15. John Jay, “Letter to the English Anti-Slavery Society for the Manumission of Slaves,” June 1788, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 410.

16. Abraham Lincoln, “Seventh Lincoln-Douglas Debate,” Alton, Illinois, October 15, 1858, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 528–9.

17. John C. Calhoun, Disquisition on Government, in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 66.

18. For Calhoun, this is a not a fact of nature; there do not seem to be any facts of nature of this kind. He holds rather that “in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding States between the two, is, instead of an evil, a good—a positive good.” Calhoun, “Speech on the Reception of Abolition Petitions,” February 6, 1837, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 417. He leaves open the possibility that the “present state of civilization” will be succeeded by another state.

19. Alexander Stephens, “Cornerstones Speech,” March 12, 1861, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 579.

20. Abraham Lincoln, “Second Inaugural Address,” March 4, 1865, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 614.

21. Abraham Lincoln, “Speech on the Dred Scott Decision,” June 26, 1857, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2011), 508.

Chapter 7: The Marriage of Many Causes

1. Alexander Hamilton, “No. 1: General Introduction,” in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003), 27.

2. James Madison, “No. 39: The Conformity of the Plan to Republican Principles,” in The Federalist Papers, ed. Rossiter, 236.

3. Winston S. Churchill, Marlborough: His Life and Times (London: George G. Harrap & Co., 1933), 1:169. Here Churchill describes the extraordinary ability of the greatest generals. In other works he associates that ability with that of the greatest artists, philosophers, and orators. See his “Painting as a Pastime,” in Thoughts and Adventures: Churchill Reflects on Spies, Cartoons, Flying, and the Future, ed. James W. Muller (Wilmington, DE: ISI Books, 2009), beginning p. 323.

4. Of his work on the ceiling of the Sistine Chapel, Michelangelo said, “After four tortured years, more than 400 over life-sized figures, I felt as old and as weary as Jeremiah. I was only 37, yet friends did not recognize the old man I had become.” Quoted in John Barbour, The Road from Eden: Studies in Christianity and Culture (Palo Alto: Academica Press, 2008), 221.

5. George Washington wrote,

This army, the main American Army, will certainly not suffer itself to be out done by their northern Brethren [General Gates’s army]; they will never endure such disgrace; but with an ambition becoming freemen, contending in the most righteous cause rival the heroic spirit which swelled their bosoms, and which, so nobly exerted has procured them deathless renown. Covet! my Countrymen, and fellow soldiers! Covet! a share of the glory due to heroic deeds! Let it never be said, that in a day of action, you turned your backs on the foe; let the enemy no longer triumph. (George Washington’s General Orders, October 3, 1777, in Robert Middlekauff, The Glorious Cause: The American Revolution 1763–1789 [Oxford: Oxford University Press, 2005], 397)

6. John Marshall, Life of Washington (Philadelphia, 1804–7), 2:57.

7. James Madison, “No. 40: The Powers of the Convention to Form a Mixed Government Examined and Sustained,” in The Federalist Papers, ed. Rossiter, 253.

8. Madison, “No. 39,” Federalist Papers, 236.

9. James Madison, “No. 10: The Same Subject Continued,” in The Federalist Papers, ed. Rossiter, 76.

10. Madison, “No. 39,” Federalist Papers, 236.

11. Ibid.

12. Ibid.

13. George Mason, “The Virginia Declaration of Rights,” June 12, 1776, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 115.

14. Ibid., 116.

15. Ibid., 117.

16. Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 138–41.

17. John Adams, “Massachusetts Bill of Rights, 1780,” in Documents of American History, ed. Henry S. Commager (New York: Appleton-Century-Crofts, 1963), 107.

18. Ibid.

19. Ibid.

20. “For Forms of Government let fools contest; / Whate’er is best administer’d is best.” Alexander Pope, “An Essay on Man in Four Epistles,” Epistle III, ll. 303–4, in Pope Poetical Works, ed. Herbert Davis (Oxford: Oxford University Press, 1983), 267. Alexander Hamilton also quotes these lines in “No. 68: The Mode of Electing the President,” in The Federalist Papers, ed. Rossiter, 413. There he calls them a heresy and then reverses the point. A government of good form, he says, will have an “aptitude and tendency to produce good administration.”

21. John Adams, “Thoughts on Government, Applicable to the Present State of the American Colonies,” in John Adams: Revolutionary Writings, 1775– 1783, ed. Gordon Wood (New York: Literary Classics of the United States, 2011), 49.

22. Ibid.

23. Ibid., 50.

24. Hamilton, “No. 1,” Federalist Papers, 27.

Chapter 8: The Soul Writ Large

1. James Madison, “Vices of the Political System of the United States,” in The Papers of James Madison, ed. Robert A. Rutland (Chicago: University of Chicago Press, 1975), 9:348–58.

2. Ibid., 354–55.

3. Ibid., 355.

4. James Madison, “No. 10: The Same Subject Continued,” in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003), 79.

5. James Madison, “No. 63: The Senate Continued,” in The Federalist Papers, ed. Rossiter, 385.

6. My attention was first called to this phrase, its meaning and importance, by Charles Kesler many years ago, in my relative youth and his greater youth. He discovered it and much more about the Federalist to the great excitement of his friends. He is now the editor of the standard edition of The Federalist Papers (New York: Signet Classic, 2003) and of several other works listed in the bibliography.

7. Madison, “No. 10,” Federalist Papers, 73.

8. Ibid., 74.

9. James Madison, “No. 55: The Total Number of the House of Representatives,” in The Federalist Papers, ed. Rossiter, 343.

10. Madison, “No. 10,” Federalist Papers, 73.

11. Of the necessity of republican government (representative government deriving its powers from the “great body” of the people), Madison writes, “[O]therwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.” “No. 39,” Federalist Papers, 237. Again, in Federalist 51:

[C]reating a will in the community independent of the majority . . . prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties. (“No. 51,” Federalist Papers, 320–21).

12. James Madison, “No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments,” in The Federalist Papers, ed. Rossiter, 317–18.

13. Madison, “No. 10,” Federalist Papers, 76.

14. Ibid., 75. Here we have an indirect reference to a famous passage in Plato. There will be a direct one, made in reference not to statesmen but to citizens, soon enough. Plato, The Republic, trans. Allan Bloom (New York: Basic Books, 1968), 488a-e.

15. Thomas Jefferson, letter to George Rogers Clark, Richmond, December 25, 1780, in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton University Press, 1951), 4:237.

16. Alexander Hamilton, “No. 1: General Introduction,” in The Federalist Papers, ed. Rossiter, 27.

17. For an exploration of representation and how it makes all the other devices of constitutional rule possible, see Charles Kesler, introduction and notes to The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003).

18. Madison, “No. 10,” Federalist Papers, 78.

19. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Washington, DC: Regnery, 1998), 513. In another place in the book Smith writes the famous passage: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest” (14).

20. Madison, “No. 10,” Federalist Papers, 78. Also see Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge: Cambridge University Press, 2009), 88.

21. Madison, “No. 10,” Federalist Papers, 77–8.

22. Madison, “No. 51,” Federalist Papers, 320.

23. Article 5 concerns the amendment process; Article 6, the transition from the articles of Confederation to the Constitution; Article 7, ratification.

24. Madison, “No. 51,” Federalist Papers, 317–18.

25. James Madison, “No. 48: These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other,” in The Federalist Papers, ed. Rossiter, 306.

26. Publius is concerned that the branch of the government closest to the sovereign people will tend to dominate the other branches. That is why Hamilton thinks the judiciary is the “least dangerous” branch. “No. 78: The Judiciary Department,” The Federalist Papers, ed. Rossiter, 463–71. That is also why it is necessary to divide the legislature into two houses. Madison, “No. 51,” Federalist Papers, 317–22; and John Adams, “Thoughts on Government, Applicable to the Present State of the American Colonies,” in John Adams: Revolutionary Writings, 1775–1783, ed. Gordon Wood (New York: Literary Classics of the United States, 2011), 49–56.

27. Madison, “No. 48,” Federalist Papers, 305.

28. Thomas Jefferson, “Notes on the State of Virginia,” in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 245.

29. Madison, “No. 48,” Federalist Papers, 305.

30. Madison, “No. 51,” Federalist Papers, 319.

31. Ibid.

32. James Madison, “No. 49: Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention,” in The Federalist Papers, ed. Rossiter, 310.

33. Ibid., 311.

34. Ibid.

35. Ibid., 311–12.

36. Plato, The Republic, 488 a-e.

37. Madison, “No. 49,” Federalist Papers, 312.

38. Ibid., 314.

39. Aristotle, Nicomachean Ethics, trans. Joe Sachs (Newbury, MA: Focus Publishing, 2002), 1098 a12.

40. George Washington, “The First Inaugural Address,” in The Writings of Washington, ed. John. C. Fitzpatrick (Washington, DC: United States Printing Office, 1939), 30:294.

41. Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge: Cambridge University Press, 2009), xv.

42. Winston S. Churchill, Marlborough: His Life and Times (London: George G. Harrap & Co., 1933), 1:169.

Conclusion

1. Woodrow Wilson, “The Study of Administration,” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 664.

2. John Dewey, “The Crisis of Liberalism,” in Liberalism and Social Action (New York: Capricorn Books, 1935), 48.

3. Frank Goodnow, “The American Conception of Liberty,” in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 632.

4. Ibid., 633–4.

5. For a documented discussion of these points, see Ronald J. Pestritto, “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24 (2007), 16–54.

6. Ibid.

7. “New Low: 17% Say U.S. Government Has Consent of the Governed,” Rasmussen Reports, August 7, 2011, http://www.rasmussenreports.com.

8. Abraham Lincoln, “Speech on the Dred Scott Decision,” June 26, 1857, in The U.S. Constitution: A Reader (Hillsdale, MI: Hillsdale College Press, 2012), 508.

9. For an excellent discussion of these points about local government and the American constitutional system, see Paul A. Rahe, Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville & the Modern Project (New Haven: Yale University Press, 2009).

10. Alexis de Tocqueville, Democracy in America, trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 1992), 87. Of private associations, he writes,

The political associations that exist in the United States form only a detail in the midst of the immense picture that sum of associations presents there. Americans of all ages, all conditions, all minds constantly unite. Not only do they have also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools. Finally, if it is a question of bringing to light a truth or developing a sentiment with the support of a great example, they associate. Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States. Democracy in America, 489.

11. Ibid., 90.

12. Ibid.

13. See Thomas G. West, “Poverty and the Welfare State” (paper, Claremont Institute, February 1993).

14. See Richard Epstein, Supreme Neglect: How to Revive Constitutional Protection for Private Property (New York: Oxford University Press, 2008).

15. James Madison, “No. 62: The Senate,” in The Federalist Papers, ed. Rossiter, 379.

16. Now the states of Ohio, Indiana, Michigan, Illinois, Wisconsin, and the northeastern part of Minnesota.

Appendix I

1. The Declaration of Independence, http://www.archives.gov/exhibits/charters/declaration_transcript.html

Appendix II

1. The Constitution of the United States, http://www.archives.gov/exhibits/charters/constitution.html

Appendixes III–VII

1. The Federalist Papers, http://thomas.loc.gov/home/histdox/fedpapers.html

Appendix VIII

1. James Madison, “Property,” The Writings of James Madison: 1790-1802, Volume VI, 1790-1802 (Putnam: NY, 1906), 101–103.

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