On the Constitutionality and Prudence of the Extension of Slavery into the Territories


The legacy of Abraham Lincoln has been mixed; there are some who believe that Lincoln was a man who adhered to the principles of the Founding Fathers and others who assert that Lincoln radically altered the meaning of the American Founding. Lincoln devoted a great deal of his political life to the subject of natural rights for America’s slaves.  While the Founders sought to establish an independent and viable United States, the issue of slavery was never far from the minds of various Founding Fathers. The issue of slavery became far more central when Congress created territories and they were able to determine if slavery would be allowed to exist in the new territories. In particular, the Founding Fathers who survived until slavery emerged on the national scene as a divisive issue contributed to the public conversation and allow modern scholars to understand not only the Founders belief concerning slavery, but also to compare Lincoln’s understanding with the Founders. Lincoln, like many of the Founders, viewed slavery as an abstract injustice; also, he was in agreement with the Founders that slavery should be put on the path to ultimate extinction. Through Lincoln’s writings and deeds he presents a preservation of the Founding’s intentions in regards to the expansion of slavery into the territories, while expanding upon their basic understanding of how to limit the institution’s expansion as is evident through a consideration of the writings of various Founding Fathers and Abraham Lincoln.

            The United States for the first few decades of the Republic existed peacefully with each other on the question of slavery and about the extension of slavery into new territories. It was viewed, and understood by many that slavery would die a natural death. In 1787 the Congress under the Articles of Confederation adopted the Northwest Ordinance, which made slavery illegal in the Northwest Territories; this law as readopted under the Philadelphia Constitution of 1787; the Northwest Ordinance declared in Article 6:

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

However, in 1804 then President Thomas Jefferson purchased the Louisiana Territory from France, a country that permitted slavery. It was under this understanding that Louisiana was allowed into the Union, that because France had permitted slavery then Louisiana would be allowed admission as a slave state. In like manner Kentucky and Tennessee were made slave states as they had originally been a part of Virginia and South Carolina, both states with slavery. Congress had precedence for both excluding slavery’s expansion and allowing for it.

Yet, in 1819 the Congress was once again addressing the slavery issue, and this time the Southern states refused to accept an absolute exclusion of slavery into new territories and the North refused to allow the admission of another slave state, this time much further North. From this crisis arose the Missouri Compromise, which allowed Missouri to enter the Union as a slave state and Maine as a free state. The Compromise also made it illegal for any new slave state to be formed north of the southern border of Missouri, latitude 36 degrees and 30 minutes. The Missouri Compromise is unique in that it allows for the creation of a slave state and a free state, while at the same time excluding slavery south of the new slave state. Unlike Louisiana, Kentucky and Tennessee the territory that became Missouri had never had slavery. The action by Congress to allow slavery to be introduced into Missouri was completely unique, as it had never to that point allowed for the institution of slavery to exist in a region where it had never existed before. The Missouri Compromise began to drive a wedge between the North and South on the issue of slavery’s expansion, and as a result in the 1840’s a heated public conversation began with the question of Texas’s annexation as yet another slave state.

            For three of America’s most distinguished political thinkers of the Founding generation, the question of the Missouri Compromise was important for the success and continuation of the Union. John Adams, Thomas Jefferson and James Madison each adhered to the basic principle that slavery was unjust. Still further, each believed that slavery would die a natural death and each presented a different view on how to bring about that death. All three believe that it is within the Constitution powers of Congress to legislate against slavery into the territories. In this, Abraham Lincoln is in line with the Founding on the issue of slavery. However, the Founder’s ultimately rejected the Missouri Compromise as a dangerous precedent, where as Lincoln believed that the Missouri Compromise in light of the Compromise of 1850 and the Kansas-Nebraska Act should be upheld. The Founders believed that preventing the extension of slavery was perfectly within the Constitutional right of Congress, but that the Missouri Compromise was an imprudent action by Congress as it allowed for slavery to extend to a region where slavery had never existed before.

            In 1789 the First Untied States Congress adopted the Northwest Ordinance, originally passed by the United States and Congress Assembled in 1787. As a provision the Northwest Ordinance made it illegal to take slaves into the new territory. This territory was ceded to the United States by Great Britain. Then in 1804 President Thomas Jefferson purchased the Louisiana Territory from the French. Immediately the question was formed as to whether or not slavery should be permitted in the new territory. When Louisiana entered the Union it entered as a slave state. Both sides agreed to this for two reasons, first the Congress determined to allow Louisiana to be governed by the existing law and second Louisiana already had slavery. The remainder of the territory was left with the question of whether slavery would be permitted still to be settled. This changed in 1819 when a compromise was proposed that would bring Missouri in to the Union as a slave state, bring Maine into the Union as a free state, and forbid the extension of slavery north of Missouri’s southern border at 36 degrees 30 minutes.

            At the time the Congress was discussing whether or not to adopt the Missouri Compromise, which it ultimately did in 1820, three of America’s most renowned Founding Fathers were providing their own opinions on the subject. What is clear about John Adams, Thomas Jefferson and James Madison is that none of them believed the Missouri Compromise to be unconstitutional; however they believed that the compromise lacked prudence and was a dangerous precedence for America. John Adams said in a letter to Thomas Jefferson, “The Missouri question, I hope, will follow the other waves under the ship, and do no harm. I know it is high treason to express a doubt of the perpetual duration of our vast American empire and our free institutions….” He believes that the same spirit that was driving the Missouri Compromise drove the spirits of Hamilton and Burr and might succeed in dividing the United States into, “as many nations in North America as there are in Europe.”[1] Adams was horrified of the prospect that the Missouri Compromise could lead to a division within the United States like that of Europe. Thomas Jefferson, in a letter to John Adams, shared his concerns, “But the Missouri question, is a breaker on which we lose the Missouri country by revolt, and what more, God only knows. From the battle of Bunker’s Hill to the treaty of Paris, we never had so ominous a question.”[2] Both Adams and Jefferson agreed that the Missouri Compromise was an imprudent act that could have the ramifications of ending the Union all together.

            In the same spirit as Adams and Jefferson’s correspondence called into question the Missouri Compromise, James Madison also feared the end results of the Missouri Compromise. To Robert Walsh in 1819 Madison stated, “On the whole, the Missouri question, as a constitutional one, amounts to the question whether the condition proposed to be annexed to the admission of Missouri would or would not be void in itself, or become void the moment the territory should enter as a State within the pale of the Constitution.” The Missouri Compromises’ constitutionality rests on whether it would be void first, in and of itself, or whether it would become void when Missouri entered the Union. Madison was well aware of the arguments made for the Northwest Ordinance during the first Congress. The question of Missouri’s constitutionality would, as it appears in Madison’s letter, fall to the treaty by which American acquired the Louisiana Territory. Should it state slavery would be protected, or banned from the French territories than the compromise would have to be unconstitutional; however Madison admits to not knowing the answer. However, Madison feared that the Missouri Compromise would ultimately lead to parties, “founded on geographical boundaries and other Physical & permanent distinctions which happen to coincide with them, what is to controul those great repulsive Masses from awful shocks against a other?”[3] The Missouri problem, he feared, might lead to such parties that would ultimately drive a wedge between geographic regions.

            Adams refined his position against the Missouri Compromise in letters to others. To William Tudor he said, “Negro Slavery is an Evil of Colossal Magnitude and I am therefore utterly averse to the admission of Slavery into the Missouri Territory.” The Missouri Compromise’s imprudence was the allowing of slavery to extend into more territories. With Louisiana the subject was mute as the territory had already been exposed to slavery. Missouri on the other hand had not and Adams believed that the Missouri Compromise was imprudent by allowing slavery to extend. Allowing for the Missouri Compromise for Adams meant nothing less than possible disunion. Further, to his daughter-in-law he said, “I think the Southern gentlemen who it [the Louisiana Purchase] constitutional ought to not think it unconstitutional for Congress to restrain the extention[sic] of Slavery in that territory.”[4]All three of the Founders expressed the same feelings about the extension of slavery into the territories. None of them believed that compromises were prudent for America as it only increased the chances of disunion. In addition, compromises also allowed for the extension of slavery into new territories, which raised the chances of a party divide along geographic lines.

            By the time Lincoln emerged on the political landscape the question of slavery’s extension had already been in the public dialogue for some time. Yet during his single term in the House of Representatives, he was able to make a great contribution to the conversation about the extension of slavery into the new territories through the question of the annexation of Texas. Texas freed itself from Mexican rule in the 1830’s and subsequently asked for admission into the Union in 1845. With Texas came slavery and once again the question of the extension of slavery was raised. Unlike Missouri before, Texas would spark a perpetual national debate about the extension of slavery that would ultimately end with South Carolina’s secession in 1860. In a letter to Williamson Durley, “I think annexation an evil. I hold it to be a paramount duty of us in the free states, due to the Union of the States, and perhaps to liberty itself (paradox though it may seem) to let the slavery of the other states alone….” Annexation is referred to as an evil because, “we should never knowingly lend ourselves directly or indirectly, to prevent that slavery from dying a natural death- to find new places for it to live in.”[5] Lincoln, like the Founders before him, believed that the territories ought to be totally off limits to slavery but that slavery should be left untouched in the states where it already existed. But unlike the Founders with regards to Louisiana, there was much more debate over whether Texas despite already having slavery should be allowed to enter the Union as a slave state. As Madison had predicted, the Missouri Compromise opened the door to parties on a geographic level. The question over Texas’s annexation was divided more along the lines of North and South, free vs. slave.

            Yet, the ensuing Mexican-American War ended with Mexico’s defeat and America acquiring all of Texas, and present-day New Mexico, Arizona and California. Before the ink was dry on the treaty of Guadalupe Hidalgo, which ended the Mexican-American War, a battle was stirred in the United States Congress. The question of slavery into these territories was far less clear cut than with Texas or Louisiana. Whigs, to which Lincoln was a member, supported the Wilmot Proviso, which would have excluded slavery into the new territories. The Wilmot Proviso failed to win enough support to be made law, and Congress went on until 1850 was a fierce battle over slavery’s extension into the territories. The Compromise of 1850 allowed popular sovereignty into Utah and New Mexico, while banning the slave trade in Washington D.C. and giving the South a much stronger Fugitive Slave Act. Yet even this could not and did not stop the struggle over slavery’s extension and as a result in 1854 Stephen Douglass proposed and pushed through Congress the Kansas-Nebraska Act. In this act, the Missouri Compromise was repealed and both Kansas and Nebraska were permitted through popular sovereignty to either accept or refuse slavery.

            Lincoln addressed Stephen Douglass and the Kansas-Nebraska Act at Peoria on October 16, 1854. In the address Lincoln called for the restoration of the Missouri Compromise, and here is where he differs from the Founders. Lincoln in the address supports the Missouri Compromise, whereas Adams, Jefferson and Madison rejected it as the source of partisanship. However, Lincoln’s view that slavery ought to be excluded from the territories is in line with the Founding. He states in the address:

I think, and shall try to show, that it is wrong; wrong in its direct effect, letting slavery into Kansas and Nebraska- and wrong in its prospective principle, allowing it to spread to every other part of the wide world, where men can be found inclined to take it. [6]

The Constitution gave Congress power to regulate the slave trade, and Lincoln believed that that power extended to Congress’s power to exclude the slave trade from the territories. He asserted the Northwest Ordinance as proof that the Congress according to the Founders had the authority of excluding slavery from the territories.[7] Lincoln did admit that he knew not how to end slavery, although he believed that the extension of slavery should be stopped. More importantly, in the Peoria address Lincoln took on a tone of abolition, however slight it might have been. He no longer simply argued for the extension of slavery to be halted, but argued against the justice of slavery. Like the Founders, Lincoln believed that by stopping the extension of slavery on the basis that slavery is unjust would ultimately lead to it’s natural death. The Kansas-Nebraska Act and Stephen Douglass dragged Lincoln out of the private life in Illinois into a national dialogue once again.

            A year later Lincoln wrote to Owen Lovejoy, “Not even you are more anxious to prevent the extension of slavery than I….”[8] Lincoln was, however, a realist and believed the extension of slavery as a peaceful end to the institution was quickly dissipating. “I think, that there is no peaceful extinction of slavery in prospect for us…..That spirit which desired the peaceful extinction of slavery, has itself become extinct, and with the occasion, and the men of the Revolution.” Lincoln at this point in 1855 was becoming quickly aware that the simple exclusion of slavery in the territories would not be the answer to ending slavery all together. To Joshua Speed  Lincoln stated, “In my humble sphere, I shall advocate the restoration of the Missouri Compromise, so long as Kansas Remains a territory; and when, by all these foul means, it seeks to come into the Union as a Slave-state, I shall oppose it.”[9] The extension of slavery south of the Missouri line could not be touched, by his willingness to restore the Missouri Compromise Lincoln assents to slavery’s extension in the southern states. As he alluded, the era of the Revolution ended and the ability to exclude slavery’s extension into all the territories ended. By 1855 Lincoln was aware that at best he could hope to restore the Missouri Compromise.

            In 1856 Lincoln campaigned for Fremont as president against Buchannan. Among his arguments in favor of Fremont, Lincoln campaigned on the fact that Fremont was against the extension of slavery. The year 1856 also stands as the year Lincoln officially joined the Republican Party, up until this point Lincoln had maintained he was an old Whig. The question of the election was not simply Democrat vs. Republican, but rather whether the Constitution allows slavery or it grants Congress the power to abolish it.  While Fremont lost the election, 1856 established Lincoln as a major contender for the Republican nomination in 1860 partly due to being from Illinois. In his speech, Lincoln attempts to appeal to the passions of his audience to support Fremont and the Republican party who sought to limit the extension of slavery:

Have we not interest in the free Territories of the United States- that they should be kept open for the homes of free white people? As our Northern States are growing more and more in wealth and population, we are continually in want of an outlet through which it may pass out to enrich our country. In this we have an interest- a deep and abiding interest. There is another thing, and that is the mature knowledge we have- the greatest interest of all. It is the doctrine, that the people are to be driven from the maxims of our free Government, that despises the spirit which for eighty years has celebrated the anniversary of our national independence. [10]

Lincoln understood that his argument against the extension of slavery on the basis that slavery was unjust to black people could not be made to most Americans, especially in 1856. Thus, Lincoln appeals to racial pride in the people to suggest that the territories should be left open to whites only for their prosperity.

            As a result of Kansas-Nebraska, the United States was quickly engulfed in the question of slavery and in particular the extension of slavery into the territories. Up until 1856 the question had been primarily resolved by Congress through a series of compromises beginning in 1819. In 1857 the United States Supreme Court entered the conversation when it decided in the Dred Scott case that not only were slaves not citizens, and thus unable to sue in Federal court, and furthermore a slave cannot be made free simply by taking it into a free state or territory and in addition Congress did not have the authority to exclude slavery from the territories. In response Lincoln delivered his address on the House Divided, a time for choosing speech in which Lincoln argued that the North needed to wake up and realize that slavery was quickly being nationalized. Lincoln charged a conspiracy to establish slavery throughout all the country by President Buchannan, Senator Douglass, and Justice Taney. In it, the three conspirators arranged to have the Kansas-Nebraska Act past allowing slavery to enter past the Missouri Compromise line, and Chief Justice Taney delayed the Dred Scott case until after the election. Dred Scott accomplished the one thing Lincoln and many of the old Whigs believed Congress had the authority to do: prevent the extension of slavery into the territories.  Furthermore, Lincoln sincerely believed that it was only a matter of time before the Supreme Court ruled that States could not forbid slavery. The Supreme Court violated the long established understanding that the legislature held the authority to end slavery, “In those days, by common consent, the spread of the blackman’s bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would.”[11] In essence, Lincoln’s fear that the age of peaceful extinction of slavery was over since both the Congress and Supreme Court ruled slavery could and must be extended into the territories. The Dred Scott Case was the fulfillment of Madison, Jefferson and Adams’s prediction that by allowing for the extension of slavery into Missouri, a levy was broken open and slavery’s proponents would push to have the institution extended into all territories.

            As 1858 came and the midterm elections drew closer, Abraham Lincoln who was a candidate for the Senate challenged incumbent Senator Judge Stephen Douglass in a series of seven debates. The Lincoln-Douglass Debates offer a view of Lincoln’s understanding of the extension of slavery as the Civil War approached. By this point Lincoln’s argument had switched tones, at the time of Texas’s Annexation he argued for preventing slavery’s extension as a means of confining slavery to bring about it’s natural death. In his debates with Judge Douglass, Lincoln’s argument became centered around preventing the extension of slavery on the simple basis of the evil of slavery. The Founder’s maintained that slavery’s ultimate end would be achieved by preventing slavery from extending into the territories, but always upheld that slavery should be stopped because of its inherent evil. At Freeport Lincoln and Douglass discussed the extension of slavery. Lincoln answered Douglass’s charges that Lincoln had pledged against allowing in any addition slave states, to abolish slavery in the District of Columbia and that Congress should exclude slavery from the territories among others. To the last point Lincoln stated, “I answer, I am impliedly, if not expressly pledge to the belief in the right and duty of congress to prohibit slavery in all the United States territories.” And yet Lincoln was not, “pledged against the admission of any more slave states into the Union.”[12] Lincoln would allow for the admission of more slave states, should Congress prohibit slavery during the territorial period and had the people chose to have slavery upon becoming a state. In opposition, Douglass supported Popular Sovereignty, which allowed each territory to decide for itself whether or not to allow slavery. Lincoln rebuked Douglass’s claim about Popular Sovereignty pointing to the failed attempt to add an amendment to the Kansas-Nebraska which would have explicitly allowed the territories to exclude slavery. Had Douglass truly believed that a territory may exclude slavery, he would have voted for the amendment according to Lincoln. In essence, as Lincoln said at Ottawa, “But I think lately that [Douglass] and those who have acted with him have placed that institution on a new basis, on that looks to the perpetuation and extension of it.”[13]Lincoln seems to have contradicted himself during the Lincoln-Douglass debates from his previous comments earlier in the 1850’s. At that time Lincoln called for the reinstitution of the Missouri Compromise, which allowed slavery’s extension south of Missouri’s southern border. Yet with Dred Scott and his debates with Douglass, Lincoln seems to have taken the opinion that slavery should be excluded completely including against the Missouri Compromise.

            Also at Freeport Lincoln made his fullest articulation against the extension of slavery and the value gained from excluding slavery in the territories:

I must add in regard to this, that if slavery shall be kept out of the territory during the territorial existence of any one given territory, and then the people should, having a fair chance and clear field when they come to adopt a constitution, if they should do the extraordinary thing of adopting a slave constitution uninfluenced by the actual presence of the institution among them, I see no alternative, if we own the country but we must admit it into the Union.[14]

Lincoln was well aware of the election, and of the possibility of running for President in 1860 that he stood by the position of allowing a territory to enter in a state with a slave constitution so long as Congress was allowed to exclude slavery from the territory before applying for statehood. Yet, one may also argue that Lincoln did believe in the sovereignty of the states to make laws governing the state and the citizens of that state. The Constitution at the time allowed for slavery in the states, and thus Lincoln (who believed that whatever was in the Constitution he was bound to uphold) could not based on his opinions of the Constitution deny the right of a territory meeting the required steps to become a state to enter the Union.

            Throughout the debates Douglass continuously returned to Lincoln’s House Divided speech. Douglass charged that Lincoln wished to see the equality between whites and blacks, while the Founding Fathers had created a house divided. But as Allen Guezlo states, “There was no sense in which his warning against a ‘house divided’ over slavery meant that it was the task of Congress to wipe out all variation and diversity across the Republic.”[15] Douglass’s argument was effective against Lincoln. However, Lincoln understood very well that a division of the country between North and South along the lines of slavery, as John Adams predicted almost forty years prior, would lead to disunion and possibly civil war. The question of equality for Lincoln was unimportant, all persons in his opinion, including slaves, were protected by natural rights of life, liberty and the pursuit of happiness. To stop the expansion of slavery or further to abolish slavery was a matter of justice and not equality for Lincoln. In his Peoria address Lincoln stated, “Free them, and make them politically and socially, our equals? My own feelings will not admit this; and if mine would, we well know that those of the great mass of white people will not.”[16] And so Lincoln understood his position of excluding the extension of slavery and the ultimate end of bring about the natural death of the institution as not a means of making blacks and whites equal in all senses politically and socially, but rather equal in their natural rights; the right to be free and independent and not subject to the rule of another.

            In the 1860 election Abraham Lincoln was elected the 16th President of the United States. As the President-elect, Lincoln was forced to deal with the promise of secession from some of the Southern states and efforts to keep them in the Union through compromise on the extension of slavery. In a letter to William Kellogg in December of 1860 Lincoln said on the issue of compromise, “Entertain no proposition for a compromise in regard to the extension of slavery. The instant you do, they have us under again; all our labor is lost, and sooner or later must be done over.”[17] At this point in his career, elected President of the United States, Lincoln gave up on compromise that he held to during the Kansas-Nebraska debates. At that point Lincoln upheld the Missouri Compromise while rejecting outright the Kansas-Nebraska Act. He came full circle in his speech from the period of the annexation of Texas, where he argued against the extension of slavery through Texas’ acquisition, to 1860 where he threw out the door any desire for compromise. Lincoln in a letter to John Defrees also from December of 1860 asserted once again his opposition to slavery and the extension of the institution through Popular Sovereignty, “I am sorry any republican inclines to dally with Pop. Sov. of any sort. It acknowledges that slavery has equal rights with liberty, and surrenders all we have contended for.”[18]Lincoln’s view on slavery and its extension did not change from the time before his election to after.

            However, Lincoln’s words in opposition to slavery would mean nothing had he not actually put them into practice. At two different points in his presidency, Abraham Lincoln helped abolish slavery. In 1861 as he took office as the sixteenth President of the United States, slavery was officially made illegal in all of the territories. Then in 1863, Lincoln freed all the slaves living in states that were in rebellion. While he did not, and could not prudently free the slaves in the Border States, he successfully ended slavery in the Deep South.  Lincoln’s understanding of Congress’s power exceeded that of most of the Founders or Lincoln’s own contemporaries. As President he encouraged the Congress to use those expansive powers to end the practice of slavery in the District of Columbia, the territories and the states in rebellion. Lincoln’s willingness to sign into law an exclusion of slavery from the territories was completely in accordance with his own views and those of the Founders.

On April 16, 1862 Lincoln signed into law a bill abolishing slavery in the District of Columbia. In a letter to Congress informing them of the act Lincoln stated, “I have never doubted the constitutional authority of Congress to abolish in this District; and I have ever desired to see the national capital freed from the institution in some satisfactory way.” That satisfactory way included provisions for compensation up until ninety days after the law became effective, and a plan for colonization of the slaves.[19] The act represented an important step as Congress took action for the first time since the Northwest Ordinance to exclude slavery and for the first time banned the practice in a region where it already existed. By signing this bill into law, Lincoln both upheld the spirit of the Founding by limiting the extension of slavery but also expanded the Founding’s understanding of Congress’s authority by eliminating slavery altogether from an area it already existed in. Although the latter could be refuted because Congress alone has authority over the District of Columbia and the Founders all believed that the States had power to exclude slavery from their borders; thus Congress would also have the power to exclude slavery from its borders in the District of Columbia.

            The Founding Fathers established in the Constitution the power for Congress to regulate the slave trade after twenty years. Prior to the adoption of the Constitution, the Congress under the Articles of Confederation voted to adopt the Northwest Ordinance, which forbad the slavery in the new territories. In 1819 three of America’s Founding Fathers voiced their concerns over the Missouri Compromise, not because it was unconstitutional but because it was not prudent to allow slavery a chance to expand. John Adams, Thomas Jefferson and James Madison represent intellectual elite among America’s founders. From their actions in Congress, it is clear that the Founding Fathers and in particular the Framers of the Constitution believed it was perfectly within Congressional authority to ban slavery in the territories, specifically those where it had never existed before. Abraham Lincoln did preserve the Founding’s understanding of Congress’s authority to legislate against slavery. Lincoln’s understanding of Congress’s authority to legislate against slavery in the territories expanded upon the Founders’ understanding by granting Congress the power to exclude slavery even in territories where it once existed such as with Texas. Abraham Lincoln did both preserve the Founding and expand upon the Founding in his quest to stop the extension of slavery into the territories.


[1] John Adams, The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Vol. 10. Chapter: 1819: TO Thomas Jefferson .Accessed from http://oll.libertyfund.org/title/2127/193629 on 2009-11-16

 

[2] Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 12. Chapter: 1819 – TO John Adams  Accessed from http://oll.libertyfund.org/title/808/88381 on 2009-11-16

[3] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9. Chapter: 1819 – TO ROBERT WALSH. mad. mss. Accessed from http://oll.libertyfund.org/title/1940/119244 on 2009-11-16

                                                                                                                               

[4] Joseph J. Ellis. Passionate Sage: The Character and Legacy of John Adams, (New York: WW Norton and Company, 2001) 140-141

[5] Abraham Lincoln. Abraham Lincoln: His Speeches and Writings, edited by Roy P. Basler (Ohio: De Capo Press, 2001) 170: October 3, 1845 To Williamson Durley.

[6] Lincoln, 291

[7] Ibid, “Congress accepted the cession, with the condition; and in the first Ordinance (which the acts of Congress were then called) for the government of the territory, provided that slavery should never be permitted therein”, 284

[8] Ibid, 328

[9] Ibid, 334

[10] Ibid , 342

[11] Ibid, 358

[12] Harold Holzer, editor. The Lincoln-Douglass Debates: The first complete, unexpurgated text, (New York: Fordham University Press, 2004) 92-93

[13] Ibid. 65

[14] Ibid, 94

[15] Allen C. Guezlo, Lincoln and Douglass: The Debates that Defined America, (New York: Simon & Schuster Paperbacks, 2008) 123

[16] Lincoln, 292

[17] Ibid, 565

[18] Ibid, 566

[19] Ibid, 640. “I am gratified that the two great principles of compensation, and colonization, are both recognized, and practically applied in the act.”

Published in: on December 9, 2013 at 23:13  Leave a Comment  

Cinco de Mayo


When we think of the fifth of May what comes to mind? Mexican food and beer?  What about the defeat of French forces at the battle of Puebla?

In 1862 as the United States was engulfed in the Civil War, Mexico was fighting for it’s independence from European powers (England and France) that sought to subject Mexico under their rule. The person of Maxamillian was installed as the new Emperor of Mexico and the fight was on. That year, Mexican forces defeated the French in the state of Puebla. North of the border Californians  took note of the events occurring south of Mexico City. The Californians couldn’t help but notice the similarities between what was occurring in Mexico and the struggle going on in the United States; they celebrated the defeat of tyranny in Mexico as a sign of the defeat of the tyranny of slavery. During the 1960′s and 70′s, during the Chicano Civil Rights Movement, the holiday of Cinco de Mayo was used as a way of promoting pride in being Mexican. Like the original intentions of the Californians a hundred years prior, the Chicano movement sought to use the events surrounding Cinco de Mayo as a way of promoting a change in the United States.

Today, unfortunately, most Americans are ignorant of the origins of “Mexico’s greatest holiday.”

Published in: on May 5, 2013 at 16:03  Leave a Comment  

Roman Historiography: Politics & Morality


 

History has the purpose of telling people who they are, where they came from and teaching lessons. It is the purpose of the historian to tell a story, whether it is cultural, political, biographical, etc. The Roman people learned the art of history from the Greeks who first began recording history. Roman historians quickly became interested in one specific area of history: politics. It was important for them to record for posterity why it was their body politic was as successful as it was. Various historians took it upon themselves to tell the story of Roman res publica through a variety of different methods include general history and biography. Roman history is divided between the Roman Republic and the Roman Empire, but both still maintain similar features. Roman historiography focuses around politics and the role of morality is maintaining the body politic.

One of the earliest Roman historians, Polybius, concerned himself with the foundation of the Roman city. His historical study would lay the foundations for future historians of Rome by describing how it was the city of Rome came into existence and how it had been maintained. There are three periods in Roman history: Kingdom, Republic and Empire. Of the former we know next to nothing aside from what later historians wrote about it. The Republic and the Empire, however, were recorded during the time they existed and we therefore know more about them than we do about the Kingdom of Rome. Polybius helped to identify Rome as a political order in his Histories.  In this work, Polybius describes the foundation of a constitution and the various forms of government identical to the Greek philosophers. He then turns his attention to the Roman Constitution and identifies three reasons as to why Rome has succeeded: the Consuls, Senate and People. The strength of the Roman Constitution is described by Polybius:

For whenever any danger from without compels them to unite and work together, the strength which is developed by the State is so extraordinary, that everything required is unfailingly carried out by the eager rivalry shown by all classes to devote their whole minds to the need of the hour, and to secure that any determination come to should not fail for want of promptitude; while each individual works, privately and publicly alike, for the accomplishment of the business in hand.[1]

The Roman Constitution is the hallmark of Rome and therefore the focal point of Roman history. Only through extreme wealth and power could Rome’s Constitution become a victim of decay.[2] Polybius demonstrated that the Roman should heed their history.  The excesses of Roman life were, according to Polybius, what would bring about the destruction of Rome itself. The balance of power needed to be maintained in order for Rome to continue. Polybius placed an emphasis on examining the qualities of individuals and constitutions in order to understand their history. Polybius established a foundation of using history none historical purposes and was uninterested in telling Roman history unless it was to tell about the greatness of the city.

 Roman history maintained a similar usefulness for future historians in later centuries. However, it transitioned to lamenting the loss of the ethic that Romans once possessed. Where Polybius would describe the greatness of the Roman Constitution because it courted Fortune, as the Romans continued to distance themselves from the moral law Fortune seemed less on the side of Rome. Sallust wrote, as many historians, in the past tense when speaking about the city of Rome. To him Rome was already lost to a bygone era and there was only hope that the Roman people could once again reestablish old Rome. Like Polybius, Sallust saw the greatness of Rome in the people. It was the people who overthrew the kingship and established the republic. Through the republic, “Good morals…were cultivated in the city and in the camp. There was the greatest possible concord, and the least possible avarice. Justice and probity prevailed among the citizens, not more from the influence of the laws than from natural inclination.”[3] The loss of morality was what ultimately brought about the destruction of the republic. Sallust, like others of his time, lamented that the people were becoming complacent in their behavior and no longer honored the past generations. Only through history, which taught the lessons of the past, could Rome begin to regain the greatness it lost.

The source of Rome’s decay was the result of Roman superiority. The defeat of so many princes and most especially Carthage led the Roman’s to deviate from morality. “At first the love of money, and then that of power, began to prevail, and these became, as it were, the sources of every evil.”[4] Money ultimately created a new class of politician, one who only needed to bribe people into supporting their career. Men like Julius Caesar were able to establish their own armies, which gave way to them gaining immense power through intimidation. The people, for their part, fell away and allowed these new oligarchs to take control over the city.[5] During the end of the Roman Republic, Roman history took a distinct tone of lamentation. Roman history was praise for a Rome once existed but because of decay in the morality of the people that Rome was lost and replaced.

Roman history became closest to moral philosophy at the time of the Roman biographer Plutarch. Rather than appeal directly to Roman history, Plutarch took the aim of appealing to individuals in both Greek and Roman history. Through the lives of these great heroes, one could learn how best to live. The imitation of persons long since dead was not a totally new concept even centuries before Plutarch. The Roman people had a history of accepting aspects of the lives of those whom they conquered. Plutarch expanded on what had come before him and brought a new level of achievement to the field of biography. Plutarch’s Lives brought the ancient heroes of Greece and Rome to a new audience living under the Roman Empire. When the Roman Empire was first created under Caesar Augustus, it was important for the new emperor to maintain the façade of the republic. The Caesars who followed were less interested in the façade and more interested in acquiring wealth for themselves. The purpose of history had changed from the study of the constitution to the study of human virtue.[6] Through human virtue one might become familiar with how best to live, which in turn might lead back to the old Rome.

Changes in Roman historiography can be attributed to the decline of the Roman Republic and the emergence of the Roman Empire. Romans began to contemplate the reasons for this change. Polybius understood that if Romans did not maintain their virtuous ways they would inevitably decline. By the time the Republic was on the way out, historians turned to imploring individuals to imitate the lives of their ancestors and to reacquire the morality that they had lost. Livy, speaking directly at this decline said:

I would then have him trace the process of our moral decline, to watch, first, the sinking of the foundations of morality as the old teaching was allowed to lapse, then the rapidly increasing disintegration, then the final collapse of the whole edifice, and the dark dawning of our modern day when we can neither endure our vices nor face the remedies needed to cure them.[7]

Roman historians began to look not at what might happen but why it happened in order to provide an answer for the men who took charge of the city.

Roman history began in an attempt to understand where Romans came from and to explain the Roman constitution. By the time the Republic fell, Rome’s historians were looking at why the constitution had failed. Rome’s historians had always been interested in the moral virtue of the citizens, believing that only through morality and virtue could Rome succeed.

 

 

Bibliography

Breisach, Ernst. Historiography: Ancient, Medieval, and Modern. Amazon Kindle. Chicago: The University of Chicago Press, 2007.

Livy. The Early History of Rome. Edited by Beatrice Radice. England: Penguin Classics, 1971.

Plutarch. Lives. https://edge.apus.edu/access/content/group/168444/Main/plutarch.html (accessed August 28, 2011).

Polybius. Histories. https://edge.apus.edu/access/content/group/168444/Main/polybius.html (accessed August 28, 2011).

Sallust. The Conspiracy of Catiline. https://edge.apus.edu/access/content/group/168444/Main/sallust.html (accessed August 28, 2011).

 

 


[1] Polybius,  Histories. 30

[2] “And as this state of things goes on more and more, the desire of office and the shame of losing reputation, as well as the ostentation and extravagance of living, will prove the beginning of a deterioration.” Ibid. 32

[3] Sallust, The Conspiracy of Catiline. 9

[4] Ibid. 10

[5] “These vices at first advanced but slowly, and were sometimes restrained by correction; but afterwards, when their infection had spread like a pestilence, the state was entirely changed, and the government, from being the most equitable and praiseworthy, became rapacious and insupportable.” Ibid.

[6]“We should not waste this good desire on trivial pursuits, but should study human virtue.  In the acts of great men, we find a proper and natural object for our attention.  The reader will inevitably grow in wisdom and eagerness to imitate their good example.” Plutarch, Lives: Pericles, the Olympian.

[7] Livy, The Early History of Rome, ed. Beatrice Radice(England: Penguin Classics, 1971) 34.

 

An American Revolution: The Election of 1912


Few elections in American history have had the lasting effects that the election of 1912 have had. Of course the elections of 1800 or 1860 are more well known, the election of 1912 has dominated the landscape of American politics for a century. Arguably one of the  most hotly contested Presidential race in history, it was also the first modern Presidential election. With popular vote more widely accepted, the people had an enormous influence on the election.  At the heart of the election of 1912 was a political revolution. The election of 1912 represents a transformation in American history the likes of which have rarely been seen before or since. In his book, The 1912 Election and the Power of Progressivism: A Brief History with Document, Brett Flehinger presents a clear understanding of what made this Presidential election among the most influential in American History.

            The election of 1912, as Flehinger presents it, began as early as 1908 when Theodore Roosevelt refused to stand for reelection after assuming the Presidency 9 months into William McKinley’s second term and winning the Presidency outright in 1904. Instead, the President chose to hand over control of the Republican Party to his friend and Secretary of War William Howard Taft. Unlike Roosevelt, Taft lacked the charisma of America’s youngest ever President. A great legal mind, Taft was unable to control a fracturing Republican Party as well as Roosevelt. And by 1912 Taft had seen the complete fracturing of the party he was hand selected to lead.[1] The Traditional members of the Republican Party continued to hold power over the party of Lincoln while Reformers slowly tried to gain control. Roosevelt was an able enough leader to play both sides off each other, while Taft quickly found himself supporting the traditional members over the reformers. From Taft’s choices for his cabinet to his support of Speaker of the House Joseph Cannon he found himself increasingly  in opposition to Reformers.[2] The final straw that doomed Taft’s young presidency was the issue of tariffs. “The tariff directly affected almost every economic constituency in one way or another, and it was the most volatile issue of late-nineteenth century U.S. politics.” And it was Taft, who in 1909, took up the issue of revising the decade old tariff laws.[3]  Unfortunately for Taft he refused to alienate the controlling faction of the Republican Party and supported the conservative agenda of higher taxes. Within a year of winning the presidency, William Howard Taft had almost all but assured himself of defeat in the next presidential election. In 1910 Taft was, “demanding that ‘disloyal’ members be cast out of the Republican party.”[4] The turmoil within the Republican Party all but signaled to Democrats and others that the White House would be available for anyone willing to challenge the embattled President. More than anything, the political lesson learned from Taft’s presidency reinforced beliefs among reformers that change was all but necessary even in the Presidency.

            The election of 1912 took on the theme of reform in multiple ways, from reforming the American political system to make it more democratic, to challenging the traditionally capitalistic American economic system. Yet, despite all the claims to the 1912 election being the most reform minded election history, “No single leader dominated Progressivism, and different reformers could make it fit their own distinctive needs…the candidates in the 1912 election differed on how best to reform America, they fundamentally agreed on the need for reform.”[5] While each presidential candidate laid claim to the title of Progressive, Roosevelt going as far as to be the candidate for the newly formed Progressive party, both Roosevelt and Wilson are most historically remembered as the Progressives on that year’s ballot. The other candidates, Taft and Eugene Debs, are often marginalized for their roles in the election. From the outset the election had a reform feel to it, for the first time, “voters in states such as North Dakota, Oregon, and Nebraska voted in direct primary elections for their party’s presidential candidate.”[6] Roosevelt benefited greatly from the direct primary elections but the majority of the delegates were chosen in caucuses, which were largely in favor of Taft. When the Republicans met in Chicago in 1912 Theodore Roosevelt was the most popular politician in the United States as he had been since the late 19th century. William Howard Taft, on the other hand, controlled most of the delegates at the Republican convention. Roosevelt and his reform minded supporters walked out of the Republican convention when Taft received the nomination, only to return later that year to elect Roosevelt the first President candidate of the new Progressive Party and all but promise a Democratic victory in the 1912 presidential election. However, Woodrow Wilson was not a foregone conclusion for winner of the Democratic ticket in 1912.

            Woodrow Wilson was an academic turned politician who turned out to be the moderate choice for a Democratic party almost as fractured as the Republicans.[7] Wilson was at best a long shot to receive the Democratic nomination in 1912, but because, “the Democrats required a two-thirds majority, which allowed Wilson to erode [Champ] Clark’s support and gain southern delegates opposed to Clark; finally, with Bryan’s tepid support, Wilson became the Democratic nominee…”[8] Not yet a sworn Progressive, Wilson struggled to win support of perennial Democratic nominee William Jennings Bryan. The only thing standing between Woodrow Wilson and the White House in 1912 was a continuing feud among Republicans and maintaining Bryan’s support.

            Socialist Party nominee Eugene Debs was the fourth candidate in the election of 1912.  Eugene Debs is not necessarily a house hold name the way Theodore Roosevelt, Woodrow Wilson or William Howard Taft are. Yet as reform and Progressivism became the main theme of the 1912 Presidential election the Socialist party threw their hat into the ring with the nomination of Debs. “Deb’s inclusion in the race did not mean that the Socialists were any more unified than their opponents…For years party members had debated whether Socialists should use violence to fight capitalism, but by 1912 this was no longer a theoretical debate.”[9] While not a serious contender in the election, Debs’ inclusion in the election demonstrated the extent to which reform dominated the tone of the election.

            After decades of political scandals it is easy to understand the political reforms each candidate campaigned for.  However, at the heart of the Progressive movement was a desire to reform America’s economic structure after decades of control by wealthy businessmen. The last century had come to a close with three major economic depressions including the worst in 1893 and few people in America could ignore the super wealthy as the average American lived in relative poverty. In many cases the Robber Barons as they became known hel more wealth than even the United States government. The question of why 1912 and not some other election, “lies not just with the candidates or even politics, but in the basic economic, social and political system in early twentieth-century America.”[10] The election focused around two major camps, Procorporatists and Anticorporatists. The beginning of the 1912 election began as early as 1880 with the struggle of farmers who were fearful they would lose their business. “The rising corporate economy, and the interdependent and organized society it created, left farmers and industrial workers feeling economically and socially powerless.”[11] What came out of these feelings concerning the rise of corporations in the latter part of the 19th century was what became known as Progressivism. In an attempt to curb the power corporate leaders held over the American political system Congress passed the interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890. Congress’s responses to the uprising among the people lead to these two important acts that symbolized Congress’s desire to help curb theses powerful corporations. For each of the Presidential candidates in 1912, these acts of Congress and Corporations in general represented the central piece of the election. Further, the role the economy played in the election of 1912 and in particular the views held by Theodore Roosevelt and Woodrow Wilson would help shape the views of their respective parties for decades to come.

            “Roosevelt stood out in 1912 because he alone believed that the rise of the new large-scale business organizations was natural, inevitable, and if properly managed, beneficial for the American people as a whole.”[12] Had the Republican party remained undivided in 1912 many speculate that Theodore Roosevelt may have in fact beat Woodrow Wilson for the Presidency. Roosevelt was not staunchly opposed to Corporations like many Democrats and even Wilson to some degree. His views of direct democracy, and later his shift on the topic of women’s suffrage, were directly related to how he viewed the control of corporations would work. Roosevelt rejected that these large corporations were inherently dangerous, but also knew that if left uncontrolled they could become very dangerous. “Roosevelt’s argument drew from and influenced a rising school of thought that emphasized national power, efficiency, production, and prosperity over other goals.”[13] Roosevelt was simply put the American Nationalist in the Presidential election. However, “He believed that changes in the political process, including the initiative, recall, popular primary, and direct election of senators, could increase individual political power, effectively check the potential power of the corporations without restricting their economic efficiency and advantages.”[14] The Sherman Antitrust Act would be a tool to help these political ends while allowing the corporations to maintain their economic power. Woodrow Wilson represented the opposing side. “Wilson was clearly against corporate power, but he was unsure about how to restrain it.” Unlike Roosevelt, though, Wilson was strictly against furthering direct democracy and absolutely against women’s suffrage as a way of controlling the effects of large corporations.

            As it would turn out Woodrow Wilson won 6.2 million votes in the Popular election in 1912 and an overwhelming 435 electoral votes. In a distant second was Theodore Roosevelt who finished with only 2.1 million votes less in the Popular vote but only 88 total electoral votes. Taft and Debs finished even further behind in the electoral count with a total of 8 between them. What resulted from the election of 1912 was the rise of Wilsonian style Progressivism. While he failed to win Theodore Roosevelt’s name would live on in pop culture as the loveable would be reformer President. William Howard Taft was nominated to serve on the Supreme Court of the United States and most Americans have forgotten the name Eugene Debs all together.  By the end of his second term Wilson was disgraced and extremely unpopular in America. Unfortunately for Wilson, his legacy as a reformer was all but forgotten and the legacy he acquired at the end of his Presidency was what has stuck with him ever since. But the importance of the election of 1912 must never be forgotten. America had a choice over its future in the form of four reformers who wanted to become President.

Bibliography

Flehinger, Brett. The 1912 Election and the Power of Progressivism: A Brief History with Documents. Boston: Bedford/St. Martins, 2003.


[1] Brett Flehinger, The 1912 Election and the Power of Progressivism: A Brief History with Document, (New York: Bedford/St. Martins: 2003) “Even as he assumed office, Taft was forced to contend with multiple divisions in his own party, further complicating the task he faced as president.”

[2]Ibid.  Pg. 7 “Taft selected more corporate lawyers….when Taft refused to support the reformers’ attempt…”

[3]Ibid.  Pg. 8

[4]Ibid.  Pg. 9

[5]Ibid.  Pg. 4

[6] Ibid. Pg. 12

[7] “although at one point it appeared that they might suffer the same kind of internal squabbling…” Ibid. pg. 16

[8]Ibid.  Pg. 17

[9]Ibid.  Pg. 18

[10] Ibid. Pg. 21

[11]Ibid.  Pg. 23

[12] Ibid. Pg. 34

[13]Ibid. Pg. 37

[14] Ibid. Pg. 38

Published in: on September 3, 2012 at 00:01  Comments (2)  
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Vindicating ObamaCare: A Constitutional Question Answered


This is intended to be part one of a two part entry dealing with the Supreme Court of the United States‘ decision regarding the health-care overhaul commonly called ObamaCare. In this, the first, I will examine the way in which the Chief Justice of the United States argued and upheld the individual mandate at the heart of the debate over this law. Let me begin by stating this: I am not an advocate for Patient Protection and Affordable Care Act of 2010 and for political reasons I believe it should be repealed. However, my affection for Judicial Supremacy is unwavering even in this instance. I disagree for political reasons with the decision, but not for constitutional reasons. Chief Justice Marshall described our country as one “emphatically termed a government of laws and not of men.”(Marbury v. Madison) And described the role of the Supreme Court as:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.(Marbury v. Madison)

 

And in order to carry out this power the Court stated in 1895, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (Hooper v. California) Therefore, if there is a means of interpreting a law that does not make it unconstitutional, then the law itself cannot be held as such. Therefore, while I cannot agree with the Opinion of the Court on political grounds as a defender and supporter of the United States Constitution I must agree with the Court that this law does not contain any construction that would render it unconstitutional. I will attempt to explain the Opinion of the Court in as simple terms as possible while explaining why their decision was in fact the correct decision.

There are three questions that the Supreme Court was asked to considered in the case NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS (hereafter simply called National Federation and cited as 567 U. S. ____ (2012)) The first is whether or not the States, Individuals and the National Federation of Independent Business had standing in light of the Anti-Injunction Act, which prohibits a court from hearing a case pertaining to a tax not yet collected. In other words, is Affordable Health Care Act a tax and if so does the Supreme Court have the authority to hear the case. The second question before the Court is whether the Congress of the United States had the authority to issue the Individual Mandate whether under the Commerce Clause, Necessary & Proper Clause or the Taxation Clause of the Constitution. Finally, the Court was asked to review the provision of the law that requires States to engage in the enhanced Medicaid program created by the new law or lose their preexisting benefits for the program. I will say nothing more about the first and third questions than this: The Anti-Injunction Act is not applicable because Congress did not define the penalty imposed on those without insurance as a tax and Congress cannot force the states to engage in the new Medicare/Medicaid program by threatening to rescind the money they receive for the previous versions of the programs.

That leaves us free to examine the Opinion of the Court on the question of whether Congress has the authority to institute the Individual Mandate based on either the Commerce Clause, the Necessary & Proper Clause or the Taxation Clause of the United States Constitution; we will take them as the Opinion does in this order. The Commerce Clause of the Constitution is Article 1 section 8 clause 3 and states, Congress has the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” As the Court indicates the Congress can only regulate, not create commerce. If it was eligible to create commerce the remainder of section 8 would not be necessary (567 U. S. ____ (2012).) Therefore, Congress can only regulate existing international or interstate commerce. If the only question was whether or not Congress has, under the Commerce Clause, the authority to issue the individual mandate then it would emphatically be answered in the negative. The Court severely limits the authority of the Commerce Clause by asserting the power extends only to activity, not inactivity. Furthermore, the Commerce Clause only applies to activities not to individuals. In other words, if an individual is not engaged in a particular activity governed under the Commerce Clause they are not subject to the regulation under the Commerce Clause. (567 U. S. ____ (2012)) Uninsured Americans can choose to be uninsured and therefore are not participating in the activity of purchasing health insurance and the laws regulating the purchasing of health insurance cannot extend to those individuals who choose not to engage in the activity. Likewise the Court rejects Congress’ argument that the purchasing of health care insurance and the participating in receiving health care are necessarily the same thing. You can purchase health care insurance without actually receiving care for any variety of circumstances. (567 U. S. ____ (2012)) And as said previously, if the ruling of the Court was predicating entirely upon the argument that Congress can do this because of the Commerce Clause, it would be unconstitutional.

This leads us to the second argument, made in sync with the first as it is often made by the government but will be treated separately to indicate the importance of the Court has done. The Necessary & Proper Clause of the Constitution is generally seen, along with the Commerce Clause, as the omnibus authority granted to Congress to regulate just about anything and everything. In the past the Court has given expansive leniency to Congress for laws adopted under the authority of both clauses. The Necessary and Proper clause states, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (Article 1 section 8 clause 18)  The Court has generally granted Congress the power to create non-enumerated powers in order to carry power those powers that are enumerated in the Constitution. Likewise, Congress has been given the benefit of the doubt on whatever it considers “necessary” in carrying out its duties. However, the Court’s Opinion states that the Necessary and Proper clause cannot be used to support a power used by Congress that is not enumerated by the Constitution nor can it be used to expand the authority of an enumerated power behind its consistently held logical means.(567 U. S. ____ (2012)) In other words, since Congress does not have the authority to create commerce the argument that the individual mandate is supported by the Necessary & Proper clause would grant to Congress a new power that is not enumerated by the Constitution. Likewise, using the Necessary & Proper clause to prop up the Individual Mandate’s constitutionality under the Commerce Clause would extend the authority of the Commerce Clause beyond its intended purpose by allowing those not engaged in international or interstate commerce to be regulated by those laws regulating those forms of commerce. (567 U. S. ____ (2012))

However, while the Court rejected the government’s argument for the individual mandate based on these two powers it did uphold the mandate based upon the government’s secondary argument: Congress has the power under the Taxation Clause to force people to pay a penalty if they do not purchase health insurance. The Taxation Clause states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States….” (Article 1 section 8 clause 1.) The Constitution restricts this power by stating, “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” (Article 1 section 9 clause 4.) Using a very complex argument, the Chief Justice argues that the penalty paid by those who refuse to purchase health insurance acts very much like a tax. This runs contrary to what is argued at the beginning of the Opinion when the Court rules that the penalty is not a tax. However, the Court explains that the penalty functions like a tax much like the penalty placed on the purchasing of tobacco, alcohol or lottery tickets. They are designed to discourage a certain behavior by individuals as is directed towards only those who choose to engage in such behavior. The penalty is to be collected by the IRS but the IRS is forbidden from punishing those who fail to pay the penalty. And in fact like the other examples, the penalty for not having insurance is not a penalty at all because not buying insurance is not a criminal act.(567 U. S. ____ (2012)) I have heard some argue that this explanation creates a new definition of what a tax is, but it in fact doesn’t. If one does not make enough money to constitute filing a tax return, the IRS and the government have no way of knowing if the person has insurance let alone the authority to collect the penalty payment. This functions in the exact same way the person who doesn’t make enough money to file a return is not penalized for not filing the return. However, the biggest argument against the rationale is that Congress can not “tax” Americans for not doing something. But it already does do this. If you fail to contribute money to charity you cannot receive the tax deduction. If you don’t purchase a new home, you don’t get the tax credit associated with the new home. In each of these situations you are being penalized for choosing not to do something that has no criminal recourse than to tax you. While this penalty is different in the way it functions (if you don’t buy a new house you don’t pay any more in taxes but if you fail to purchase insurance you do have to pay more) from other tax penalties, deductions and credits it maintains a similar though process since the individual mandate creates a tax that you can be exempt from by having insurance. It is likewise similar to the “sin” taxes placed on alcohol and tobacco products where you are not forced to pay the tax if you don’t purchase the items.

When I first heard the decision this morning I was as upset as everyone else over the Court’s decision but more so over the Chief Justice’s betrayal. As the day wore on I began to realize that he may have had sound reasoning. After reading the Opinion of the Court I am certain that Constitutionally speaking this law does pass. Does this mean that the Affordable Care Act is a good law? No, it is emphatically a bad law but that does not make it unconstitutional. If a construction of the Constitution can be found to incorporate a law, then that law cannot be unconstitutional. The Court did not accept the government’s first justification that they had the power under the Commerce and Necessary & Proper clauses to adopt this law. But the Court did find rationale in the government’s argument that the individual mandate does fall within the purview of the Constitution’s Taxation Clause. While the first part of the mandate cannot be found to have a basis in the Constitution, the second part can and since they are a part of the same instrument it holds as Constitutional.

 

 

We Two: A Biography of Queen Victoria and Prince Albert


 

Cover of "We Two: Victoria and Albert: Ru...

Cover via Amazon

We Two: Victoria and Albert: Rulers, Partners, RivalsBy Gillian Gill

I recently finished reading the biography of the Royal couple who helped shape the 19th century in their own image: Queen Victoria and Prince Albert. This biography by Gillian Gill is a decent book but overall is lacking. The book, divided into two parts, covers the lives of Victoria and Albert during their youths and then their epic marriage. However, this book is often times lacking the historical feel that one would expect out of a biography. Dr. Gill is not a trained historian as the “about the author” page tells us that she holds a PhD in French Literature from Cambridge. Her training in language is clear as Dr. Gill often uses words that prove her high education; one needs both the Oxford English Dictionary and a dictionary for just about every other language both modern and dead! Overall Dr. Gill presents a chronicle of the lives of England‘s most memorable monarch and consort. She begins each chapter with a general outline and then goes back to fill in the blanks; don’t be surprised if you need a note pad next to you just to keep track of all the names she throws out. Finally, this biography comes off more as a biography of Prince Albert than of Queen Victoria. At best this book makes clear that Victoria was never herself; her being was constantly governed by the men around her whether it was John Conroy, Lord Melbourne, Prince Albert or John Brown. The book spends too much time thinking itself a feminist by admonishing Queen Victoria and Prince Albert for their backwards thinking and then praising Prince Albert and condemning Queen Victoria for the way they lived their lives.

I am a strong advocate for the general public learning more about Queen Victoria, but this book is among the least that I would recommend. Should you choose to start learning about this woman, I encourage that you begin by reading:Queen Victoria (British History in Perspective)by Walter Arnstein.

Puritan or Pilgrim


My friend Ashok and I were at Starbucks today and along the way I mentioned to him my research I’ve begun on the Puritans. It lead to a question that he had for me about the difference between the Pilgrims and the Puritans. With it having been Thanksgiving a few weeks ago I think it is an important topic to discuss.

The Protestant Reformation had already hit England in many ways before Henry VIII formally separated from Rome. The Scottish were exposed to the Calvinist brand of Protestantism and formed the Presbyterian Church. Their beliefs and ideology spread down into mainland England in the aftermath of the English Reformation. There were pockets in England who believed that the King had not gone far enough in reforming the Church of England. Among those who believed this were a group that I will generally call English Calvinists. This group was made up of the Puritans and the Pilgrims; religious cousins if you will. Both groups subscribed to Calvin’s particular brand of Christianity and believed that the Church of England needed to be purified. The distinguishing difference between the two was what this purification meant. The Pilgrims quickly became a more radical brand of English Calvinism going so far as to flee England for the Netherlands.

The Pilgrims believed that the Church of England was beyond salvation and utterly corrupt. As an extension, because the King of England was also now the head of the Church of England the state itself was corrupt. The Puritans on the other hand held out faith that King Henry VIII, Queen Elizabeth and King James would all do their part to purify the Church more and more, eventually riding it of the Catholic influences. Puritans became integral members of their respective towns, including becoming political leaders. Puritans would even infiltrate the King’s own privy council with men like John Locke. And while members of the Puritan church did eventually leave England for the New World, their actions once they arrived separate them from the Pilgrims.

The Pilgrims received a charter to establish a colony in Northern Virginia along the Hudson Bay and immediately set sail for the New World along with others who they called “Strangers” on board the Mayflower. When they arrived the men on board decided to write a compact for the governance of their new colony. This compact was the first such document written by the people in the new world and while it was not a constitution, it was very much a proto-constitution. It also is significant because it did not come from the King nor Parliament and the men who wrote it did not have legal authority to do so. However, the Pilgrims had taken it upon themselves to govern their colony as they saw fit rather than depending upon the corrupt government in London to do so.

Unlike the Pilgrims, the Puritans did not write their own compact when they arrived in the New World in the 1630′s. Instead they had their own charter. And while they did have a government, it was not in the same manner we would recognize as in New Plymouth. Eventually such compacts would be written by Puritans in Connecticut, though. In all the Puritans were seeking religious separation but not necessarily legal or political separation from the state. Their charter was revoked in the 1690′s and the New Plymouth colony and the  Massachusetts Bay colony were merged.

New Plymouth


Making Haste from Babylon: The Mayflower Pilgrims and Their World: A New History (Vintage)

Only some parts of this book are reviewed.

Most school children in America are taught the story of the Pilgrim voyage to the New World and their subsequent Thanksgiving with the local Natives. The name Squanto resonates in the minds of Americans and those who pay a bit more attention to history know the name belongs to a Native American who helped save the New Plymouth colonists from starvation. None of this is found in Nick Bunker’s book Making Haste from  Babylon.Without actually telling his reader what happened when the Pilgrims reached Cap Cod, he instead describes what William Bradford must have meant in his book on the history of New Plymouth. This history, published in 2010, of the New Plymouth Colony is more concerned with the landscape and seas than with the actual events. The book is divided into six parts with three chapters in each.

The first part tells the tale of how the Pilgrims came to the Mayflower and then adds in stories of other ships and the landscape that the Pilgrims and there ship must have seen. Only brief mention is made of the reasons the Pilgrims are uninterested in staying in England, despite the fact each of them are English subjects. He conflates the Pilgrims with their future northern neighbors, the Puritans. In all, the reader finds the discussion more interested in describing the history of the Mayflower and it’s skipper prior to taking the Pilgrims to America. This part is largely insignificant with exception of it’s description of why the English government chose to allow the Pilgrims to migrate. But as we’ll see, the book only picks up in part two; part 1 could almost be renamed “Prologue 2.”

In the second part of the book, Bunker decides to leave us at the banks of Cap Cod and tell another tale some 40 years prior to the voyage in 1620. The story of the origins of Separatism is actually quite interesting and tells the story of John Browne, but also the other influential leaders and families of Separatism. Many readers will be interested in finding that Sir Francis Bacon’s brother was actually involved in the formation of the Pilgrim faith. Chapter 5 is very useful for students of Puritanism and Separatism. Bunk helps to shed light on the origins of both faiths and who were the most influential thinkers associated with the movements.

This historian, if we can call him that, gets side tracked too often and ends up burying the actual point of his chapter, part or even book. Making Haste from  Babylon is an excellent read for those who are interested in the deeper historical aspects of the Pilgrim voyage. However, for those who are only interested in learning about the Mayflower, the Pilgrims, Cap Cod and New Plymouth this book is absolutely useless and a waste of money.

The book does have some very useful information in it and Bunker does a decent job at analyzing the history of New Plymouth. While at times the book drags on about the landscape of England or New Plymouth, it does provide the reader with an indepth analysis of the events leading up to the colony. However, as was said above if you are not familiar with the basic storyline this isn’t worth the purchase.

Queen Victoria


Queen Victoria (British History in Perspective)Historical Biographies & Memoirs)
 

Is it too astonishing for us to think that Queen Victoria ruled the British Empire for 64 years? The young 18 year old princess became Queen Victoria in 1837 upon the death of her uncle. No other British or English monarch has served 60 years, let alone even approached the Queen’s historic mark. Henry III, George III and Elizabeth II are the only other rules of the British people to eclipse 50 years on the throne of St. James. The events of Queen Victoria’s life range from the British Industrial age to the Crimean War to the Prime Ministerships of Benjamin Disraeli and William Gladstone.

Queen Victoria by Walter Arnstein is an excellent read for those who are interested in learning more about the queen. And as Queen Elizabeth II approaches her Diamond Jubilee on the British throne, it is even more important to understand the immense changes the isles of Great Britain went through in the 64 years of Queen Victoria’s reign.

The Monroe Doctrine


As a principle in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers.

                                  -President James Monroe‘s 7th Annual Address to Congress 12.2.1823

When the United Colonies, in General Congress Assembled, declared their independence from Great Britain there were three European powers occupying North America: Spain, Russia and England. By the time the 1790′s rolled around, France was reoccupying the Louisiana Territory; a tract of land France had ceded to Spain following the end of the French & Indian War. For her own part, the new United States of America had little means of removing these powerful Europeans from American soil. It had been with the assistance of the French, and a lesser degree the Spanish, that the US had even won her independence. However, the problem of French occupation quickly found a peaceful resolution when Thomas Jefferson authorized the purchase of the Louisiana Territory. Within a decade of that purchase, the United States found herself in a second war with the English; the War of 1812. While this war is still considered by many to be a status quo war, it demonstrated the emergence of American military capabilities.

It was with this that 11 years after the Americans stood toe to toe with the English that President James Monroe promulgated his Monroe Doctrine. This doctrine warned the powers of Europe to never again attempt to colonize the Americas. Yet, our Monroe Doctrine did not take into consideration that in 1823 the United States did not have the military capabilities to enforce this doctrine. Therefore, the Monroe Doctrine relied heavily upon our good relations with the English. American military power was not at the point of enforcing such a doctrine until after the Spanish-American War, which was explicitly fought to enforce the Monroe Doctrine.

The Roosevelt Corollary to the Monroe Doctrine added the next evolution in American military involvement in the world. In addition to preventing European powers from occupying the Americas, the Roosevelt Corollary promised American intervention in Latin Countries unable to pay international debts. It also declared the right of the United States to intervene and stabilize any Latin American Country. This doctrine helped create a partnership between the United States and her Latin American counterparts to the South. It was not, however, the last evolution of the Monroe Doctrine. Rather, the Monroe Doctrine would undergo another change in the late 1940′s.

With World War II officially over, the post-World War world began to take shape. In a matter of years it was apparent that the United States and Soviet Union were settling in for a long, cold War. President Harry S. Truman, hoping to halt the spread of Communism, issued his own corollary to the Monroe Doctrine: The Truman Doctrine. This doctrine stated that the United States would send troops to anywhere in the world in order to prevent the spread of communism. It was under this doctrine that the United States became involved in the Korean War and Vietnam War. As an extension to the Truman Doctrine was the Marshall Plan. The Marshall Plan was the economic side of the Truman Doctrine. The plan called for the United States to economically prop up Western Europe to help confront the Soviet Union.

Finally, the last of the evolutions of the Monroe Doctrine came in the wake of 9/11. The Bush Doctrine called upon the United States to meet the spread Terrorism anywhere in the world it may find safe harbor. This doctrine has resulted in the United States intervening in countries such as Afghanistan and Iraq.

The Monroe Doctrine was devised to simply assert that the United States would not tolerate European intervention in the Americas. Since it was first put forth by James Monroe, the Monroe Doctrine has been transformed to assert American right to intervene in the governments of Latin America, under the threat of Communism, or supporters of Terrorism.

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