Please read before taking assignment!!!! Need done by tomorrow!!!

The founders of our nation shared Hobbes’ fairly pessimistic outlook regarding human nature. James Madison famously wrote in Federalist #51:

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

John Locke (a political philosopher that the founders of our nation held in very high regard) similarly argued:

“To understand political power, we must consider the condition in which nature puts all men. It is a state of perfect freedom to do as they wish and dispose of themselves and their possessions as they think fit, within the bounds of the laws of nature. They need not ask permission or the consent of any other man.”

John Locke also assessed “equality and justice” as being impossible to achieve in this state of nature:

“If a man in the state of nature is free, if he is absolute lord of his own person and possessions, why will he give up his freedom? Why will he put himself under the control of any person or institution? The obvious answer is that the rights in the state of nature are constantly exposed to the attacks of others. Since every man is equal and since most men do not concern themselves with equity and justice, the enjoyment of rights in the state of nature is unsafe and insecure. Hence each man joins in society with others to preserve life, liberty, and property.”

Simply put, life without government is very bad.

Social Contract

The social contract is the idea that individuals would voluntarily give up some of their rights - specifically the right to absolute freedom (freedom to whatever, whenever) - to a governing authority that would provide at least a partial escape from the horrors of the state of nature. The idea of the social contract developed from the ideas of several political philosophers. Thomas Hobbes famously called this governing authority created by the people to escape the horrors of the state of nature, the Leviathan.

For Hobbes, this escape from the state of nature was liberty. For our founders this was just the beginning of liberty. For both, liberty could only occur when the people of a society gave up their right to absolute and unchecked freedom. Liberty and freedom were not the same thing.

“THE final cause, end, or design of men (who naturally love liberty, and dominion over others) in the introduction of that restraint upon themselves, in which we see them live in Commonwealths, is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of war which is necessarily consequent, as hath been shown, to the natural passions of men when there is no visible power to keep them in awe, and tie them by fear of punishment to the performance of their covenants, and observation of those laws of nature set down [above]….”

Despite his more optimistic view on human nature, philosopher Jean-Jacques Rousseau also captures this difference between freedom (which Rousseau calls “natural liberty” or the “unlimited right to everything”) and liberty (which Rousseau calls “civil liberty”):

“What man loses by the social contract is his natural liberty and an unlimited right to everything that tempts him and to everything he can take; what he gains is civil liberty and ownership of everything he possesses”

Much of the genius of our founders was that they understood the terrible things that humans do to each other (as evidenced by human history) and created as system of government that did not overlook our inclination toward evil.

This idea of the social contract, or that we would voluntarily give up our freedom to gain the liberty of living in society is how our founders arrived at the idea of a government that governs by the “Consent of the Governed.”

As Alexander Hamilton resolutely concludes Federalist #22:

“The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

Terms of the Contract: Equality

According to philosophers Locke, Hobbes, and Rousseau the state of nature and social contract also produced a certain level of equality between individuals in a society.

According to John Locke:

“The state of nature is also a state of equality. No one has more power or authority than another. Since all human beings have the same advantages and the use of the same skills, they should be equal to each other. The state of nature has a law of nature to govern it. Reason is the law. It teaches that all men are equal and independent, and that no one ought to harm another in his life, liberty, or possessions. All men are made by one all-powerful and wise Maker. They are all servants of one Master who sent them into the world to do His business. He has put men naturally into a state of independence, and they remain in it until they choose to become members of a political society.”

For Thomas Hobbes:

“NATURE hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination or by confederacy with others that are in the same danger with himself.”

Jean-Jacques Rousseau highlights the equality of individuals being further bolstered by the Social Contract:

“I shall end this chapter and this book by remarking on a fact on which the whole social system should rest: i.e., that, instead of destroying natural inequality, the fundamental compact substitutes, for such physical inequality as nature may have set up between men, an equality that is moral and legitimate, and that men, who may be unequal in strength or intelligence, become every one equal by convention and legal right” (SC I: 9).

From these ideas, our founders conceive our liberty as equality for each individual before the law. That each individual has “inalienable rights” from “nature or nature’s God.” Simply your rights exist because you exist. They are not based on any sort of collective identity. Your rights are not from the government. Your rights are not from your country of citizenship. They are not from your bloodline or based on your last name. They are not based upon any condition other than that you exist.

Those were the ideas captured by our founders in the Declaration of Independence and captured by Lincoln in the Gettysburg address. In each instance, the idea of liberty as individual equality before the law was a revolution.

Terms of the Contract: Right of Revolution

The right of revolution essentially is the right to challenge, overthrow, or absolve the government and is a critical component of the Social Contract.

For Hobbes, the state of nature was so bleak that an individual only had a right of revolution if the “Leviathan” threatened an individual’s life. For in that instance, life under the Leviathan was no better than being under the state of nature.

However, for Locke, the right to revolution rested at a much lower threshold. Locke argued:

“But if a long train of abuses, lies, and tricks make a government's bad intentions visible to the people, they cannot help seeing where they are going. It is no wonder that they will then rouse themselves, and try to put the rule into hands, which will secure to them the purpose for which government was originally organized.”

Locke’s language may sound quite familiar. Here’s the text of our own Declaration of Independence:

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

Sources

Hamilton, A., & Rossiter, C. (1961). The Federalist papers; Alexander Hamilton, James Madison, John Jay. New York: New American Library.

Hobbes, T., & Tuck, R. (1991). Leviathan. Cambridge: Cambridge University Press.

Locke, J. (1986). The Second Treatise on Civil Government. Amherst, NY: Prometheus Books.

Rousseau, J. (1968). The Social Contract. Harmondsworth: Penguin.

Week 1,Lecture C: "What Should that Government Look Like?

On July 4, 1776 America made official its independence from England and forever changed the course of human history. As the war of independence raged on, the thirteen colonies attempted to remain united against England. In 1781 the Articles of Confederation went into effect and the situation went from bad to worse. Once the war was settled with England with a treaty signed in 1783, there was no longer any shared threat to keep the colonies united.

It was hard enough keeping the thirteen colonies cooperating during the war. No one wanted to pay for the war if the other colonies hadn’t. Once the war was resolved, there was certainly no higher cause for the states to remain united on.

Under the Articles of Confederation, the national government, via the national congress, had no power to enforce any law or national policy. Very quickly thirteen states all began acting as thirteen separate nations. There was no common military (and certainly no way to pay for it). Some states were slave while others were free. States started fighting over unclaimed western lands and their shared boundaries. Many of these squabbles were infused with religious rivalries as the colonies featured long histories of competing Christians of one denomination persecuting those of other Christian denominations. Pennsylvania, for example, despite being the most democratic of the states, persecuted Quakers. Despite being predominantly Christian (many states required political leaders to swear being Christians to hold office) the Christians of early America simply couldn’t get along with each other.

With all these sources of faction, there was the looming threat that France, England, Spain or even Russia could undermine and reconquer the new nation by playing each regional and religious faction against the other.

In 1787 a group of leaders met in Philadelphia under a fair amount of secrecy. The nation with her thirteen sovereign states was failing. The question these founders had was how to apply the principles of the Declaration of Independence. The Declaration had the right principles for our new nation, but it didn’t prescribe any means for the practical, real world, day to day operations of a government carrying out those principles.

The mechanism the founders created to apply the principles of our national independence was a new Constitution.

Constitution Democracy: Government limited to powers given it in Constitution in order to protect individual liberty. It is the social contract codified in written form.

As we embark on our journey examining what this new nation looked like under the Constitution, we will begin to see several key themes captured in our Constitution. These are: Federalism; Separation of Powers; the tension between democracy and republicanism; and finally the tension between individual rights and our tragic history with slavery.

An Important Note:

Throughout this course we will be reading “primary sources.” Primary sources are original or historical texts. They are not the words of another (for example, what you would read in a text book), therefore they are more reliable than secondary sources.

Have you ever played the game telephone? Someone starts a message and tries to relay it to you through several other people before it hits your ears. When you finally do hear the message it often is very different from the original. Instead of getting our information via intermediaries, using primary sources is like getting the message straight from the origin in our telephone game.

Federalism

A main idea of our founders was that anytime some element of our political society had power it had to be balanced and checked by another source of power. Power in our political system was split between the states and the national federal government. The new federal government had to be sufficiently strong enough to avoid the problems of the Articles of Confederation, whilst being able to protect individual rights, whilst preserving as many powers of the states (and local governments) as possible.

Consider all of the overlapping layers of governance that have jurisdiction over you at this moment. There is the federal government, the government of the state that you hold residence in, the government of the county that you hold residence in, your city or municipality, your school district, your homeowners association, voluntary groups that you are a part of such as churches, and that is not all! Maybe you’re like me; I live in Missouri, but my work at Grantham University is in the City of Lenexa, in Johnson County, in the State of Kansas! If I run a business from within the City of Kansas City but have to consider the laws and tax codes of other jurisdictions I might be doing business in. If you are serving our country, even overseas, you have the additional requirements of the military and UCMJ. Within each of these jurisdictions we have legislative, executive (including bureaucratic), and judicial offices – some are elected, others are appointed or hired.

The division of powers through federalism certainly is complicated. In fact there are over 10,000 separate and overlapping tax jurisdictions in our country alone! This reality has a huge impact on all matters of politics and commerce in our nation. For example, recently Congress has considered allowing states to collect sales taxes on purchases made online.

Here’s why this gets complicated: If I purchase a product at a store in Missouri, I pay Missouri sales tax. If I go to Kansas to make a purchase, I pay Kansas sales tax despite being a resident of the state of Missouri. Missouri only taxes tangible goods, while Kansas taxes tangible goods and some services – for example, I always have my car washed in Missouri because it would be taxed in Kansas but not in Missouri! I also purchase my gas in Missouri because, Missouri has a smaller gas tax and thus the price of gas is less expensive. I have the convenience of living a few blocks from a state line, while others do not.

But what if I purchase or sell an item online? Who do I pay taxes to? Technically, I am physically located in Missouri, so that creates what is called a “Nexus” in Missouri. But, if I am buying a pair of shoes on Amazon from a seller in Florida, should they be responsible for figuring out my tax code and sending it to the appropriate city, county, and state governments in Missouri? Should they have to do this for each of the over 10,000 separate tax jurisdictions? Should I as the consumer? What if I am at work in Kansas, but a resident of Missouri, while buying shoes online from a seller located in Florida? Can a state, county, or city that I don’t reside it hold me responsible for paying taxes in their jurisdiction? If they do, isn’t this inconsistent with “no taxation without representation”? The point is that federalism gets really complicated very quickly! However, these are important issues that you will regularly deal with if you want to start a business, work in health care, or work in criminal justice!

What happens when the rules of one jurisdiction contradict the rules of another?

Article 6, Clause 2 of the U.S. Constitution attempts to resolve this:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

This clause is referred to as the Supremacy Clause. It essentially creates a hierarchy of law in which Federal Law (and Federal Court rulings including the Supreme Court) always supersedes state law – always! Since counties and cities are created by states, state law supersedes county and municipal law; and so on and so forth.

Consider recent attempts by “Pro-Life” organizations and officials to restrict access to abortion in several states such as Texas. Many of these laws have been rejected by the Federal Courts on the grounds that they violate the Supremacy Clause. Over 20 U.S. Supreme Court decisions (not just Roe v. Wade) have contributed to determining that a Woman has a constitutionally protected right to access an abortion. In the 1992 decision of Planned Parenthood vs. Casey, the Supreme Court ruled that with regard to a woman’s constitutionally protected right to access an abortion, “… the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability” (505 U.S. 833 at 837).

Since the U.S. Supreme Court is a federal court, in addition to being the highest federal court, these rulings override any state laws or even changes to individual state constitutions that place an “undue burden” on a woman accessing an abortion. (Did you know your state has a constitution as well? However, this state constitution, per the Supremacy Clause is inferior to all federal laws, federal court rulings, and the U.S. Constitution.)

Ronald Reagan is famously cited for saying, “The federal government did not create the states; the states created the federal government.” But is this actually true? Was the federal government created by the states or were the states created by the federal government?

Recall, the circumstances under the Articles of Confederation, in which each state was sovereign and voluntarily supported the union, were so terrible that country nearly failed!

In the case of McCulloch v. Maryland, the U.S. Supreme Court established the precedent that the states (in particular the state legislatures) are merely the voice or delegates of the people, but that the people made the Union. The U.S. Constitution begins with the proclamation, “We the People,” and not “We the States.” Think of it this way: the state of Virginia under the Articles of Confederation, though occupying a similar geographic boundary, is not the same as the state of Virginia under the U.S. Constitution. If they were the same, logically, only those states that ratified the U.S. Constitution would be subject to it.

Ronald Reagan’s argument does not have history or legal precedent on its side. Ultimately the U.S. Supreme Court has ruled that the states did not create the federal government, and under the supremacy clause, only a clear change to the U.S. Constitution itself could alter that understanding.

Separation of Powers

Our founders were afraid of power being concentrated in the hands of too few people. Therefore, the power of governing in our nation was split between the legislative, executive, and judicial branches of government. In this course, we will learn how each of these branches function and what powers they have.

The idea of the “separation of powers” was first codified by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, whom most simply refer to as Montesquieu. (Pronounced Mon-ta-skew, so when you want to impress your party guests just ask them what they think of Montesquieu’s ideas.)

When we speak of the “separation of powers” we are often referring to the division of authority between the legislative, executive, and judicial branches of power. As a matter of pure personal opinion (and with all due respect to Montesquieu), I actually prefer using the phrase of “competition of powers” rather than “separation of powers.” In our political culture there is a myth that in American government that each of the branches of government have nicely delineated powers that are clearly delineated from the powers of the other, and that the other branches, or layers, of government should not infringe upon the powers of the other. However, as we will see when we read the Constitution over the next few weeks, this is not the case. The separation of powers, based on the text of the Constitution is quite messy and, at times, very unclear. In American politics, we should expect the branches of government to compete over what powers they each have. We should expect a fierce competition over powers between the various layers and branches of government. It is this competition and conflict over powers that our founders wanted as they believed in fierce political conflict the powers of each branch would be held in check.

Democracy versus Republicanism

Democracy is a tyrannical form of government, at least according to Plato whose view was shared by our founders.

Plato argues in The Republic, Book VI that the general mass of people are not well informed or even smart enough to make correct decisions about public policy. Think about some of the stuff you see on your social media feeds, do you really want those folks making foreign policy decisions - especially with nuclear weapons involved?

Plato was also basing his assessment of democracy on the observation that democracy is merely mob rule, and mobs of humans tend to do really terrible things to other humans. And herein lies the brilliance of our founders. They conceived of a society based on the idea that rights were vested in the individual and that the laws of this society would deal primarily with individuals and not groups of people. However, if rights existed at the individual level, that also meant that in order to protect liberty, individual rights must be protected against the whims of the majority. In a Democracy, or majority rule system, the wish of the majority always wins out. But what if the majority wants to do something evil (which we have seen repeatedly done in human history)?

As we will see in this course, our constitutional republic has several very undemocratic features including: the Electoral College, Senators selected by the state legislatures (which was undone by the 17th amendment), a two party system, lifetime judicial appointments, and a whole host of other institutions to make sure we are not a democracy.

Individual Rights & Slavery

As we have already discussed, a key principle of liberty is that your individual rights exist because you exist. As the Declaration of Independence states, your rights are from “nature or nature’s God.” Your rights are not based on any corporate or group identity that you hold. As the Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This means that your individual rights are not even dependent on a government grant or a condition of national citizenship. Your rights exist because you exist - regardless of any other condition or circumstance.

This idea was captured in the 9th Amendment of the Constitution which states:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

This means that your rights do not even have to be written down in law or in the Constitution to exist and be protected by the government!

As our founders attempted to capture and codify the rights of man in relation to the power of the nation-state in our founding documents and through the early years of the union, Southern slave owners actually argued that they had a right to keep slaves. These slave states wanted to enjoy the benefits of the union, yet their claim to a natural right to enslave directly clashed with the principles outlined in the Declaration, which declares that, “All men are created equal.” To account for this inconsistency with the principles of the Declaration, southern political thought developed to argue that slaves, logically, could not actually be people. Since, to southern slaveholders, the slaves were therefore not humans, they did not have to be afforded the esteem of the Declaration and the protections of the Constitution. This produced one of the vilest forms of chattel slavery in human history and left an insidious legacy of racism that we still face in America.

It is important to remember that the U.S. Constitution was not a perfect document. For all the good that has come of our Independence and Constitution, we also cannot forget the horrors of slavery, the vile treatment of racial minorities, the genocide of Native Americans, and the oppression of women that has occurred. We must appreciate the good while being sobered by the atrocities. Only then will we be able to be vigilant enough to avoid perpetrating similar evils in our future.

Sources