# data[].attributes.attachment_link.title
Interpretation: Necessary and Proper Clause | Constitution Center

# data[].attributes.attachment_link.description
Interpretations of Necessary and Proper Clause by constitutional scholars

# data[].attributes.attachment_link.readable_text
McCulloch v. Maryland

Full case name
James McCulloch v. The State of Maryland, John James[note 1]

Citations

17 U.S. 316 (more)

Prior

Judgment for John James, Baltimore County Court; affirmed, Maryland Court of Appeals

Subsequent

None

Although the Constitution does not specifically give Congress the power to establish a bank, it delegates the ability to tax and spend. Since a bank is a proper and suitable instrument to assist the operations of the government in the collection and disbursement of the revenue, and federal laws have supremacy over state laws, Maryland had no power to interfere with the bank's operation by taxing it. Maryland Court of Appeals reversed.

Chief Justice

John Marshall

Associate Justices

Bushrod Washington · William Johnson
H. Brockholst Livingston · Thomas Todd
Gabriel Duvall · Joseph Story

Majority

Marshall, joined by unanimous

U.S. Const. art. I, § 8, cl. 1, 18

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), was a landmark U.S. Supreme Court decision that defined the scope of the U.S. Congress's legislative power and how it relates to the powers of American state legislatures. The dispute in McCulloch involved the legality of the national bank and a tax that the state of Maryland imposed on it. In its ruling, the Supreme Court established firstly that the "Necessary and Proper" Clause of the U.S. Constitution gives the U.S. federal government certain implied powers that are not explicitly enumerated in the Constitution, and secondly that the American federal government is supreme over the states, and so states' ability to interfere with the federal government is limited.

The state of Maryland had attempted to impede an operation by the Second Bank of the United States through a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was thus recognized in the court's opinion as having specifically targeted the Bank of the United States. The Court invoked the Necessary and Proper Clause of the Constitution, which allows the federal government to pass laws not expressly provided for in the Constitution's list of express powers if the laws are useful to further the express powers of Congress under the Constitution.

McCulloch has been described as "the most important Supreme Court decision in American history defining the scope of Congress's powers and delineating the relationship between the federal government and the states." The case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers to implement the Constitution's express powers to create a functional national government. Prior to the Supreme Court's decision in McCulloch, the scope of the U.S. government's authority was unclear. Second, state action may not impede valid constitutional exercises of power by the federal government.

The establishment of a national bank for the United States was a source of great public controversy from the moment of the U.S. Constitution's ratification in 1788. Soon after George Washington's inauguration as the first President of the United States in 1789, his Secretary of the Treasury, Alexander Hamilton, proposed creating a national bank to regulate American currency and deal with national economic problems. However, Washington's Secretary of State, Thomas Jefferson, strongly opposed the bank's creation, fearing that it would usurp the power of the various states and concentrate it to a dangerous degree in the central federal government. Congress created the First Bank of the United States in 1791 with a 20-year charter, but the issue continued to provoke controversy. Those who supported Hamilton's vision of a stronger central government eventually formed the Federalist Party, while those who opposed him and supported Jefferson's vision of a decentralized government that focused on states' rights formed the Democratic-Republican Party.

The First Bank's charter expired in 1811 and was not renewed. However, national economic problems in the aftermath of the War of 1812 prompted Congress to pass similar legislation in 1816 to create the Second Bank of the United States. The U.S. government only owned 20 percent of the bank's equity, and many state governments resented the bank for calling in loans it had made to them. Consequently, some states passed laws designed to hinder the bank's operation, while others simply tried to tax it. In 1818, the Maryland General Assembly-Maryland's state legislature -passed a law levying a $15,000 annual tax on any bank operating in Maryland that was not chartered by the state of Maryland; the only bank fitting that description was the Second Bank of the United States.

James William McCulloch, the head of the Baltimore Branch of the Second Bank of the United States, refused to pay the tax. The Bank was represented by Daniel Webster. The lawsuit was filed by John James, an informer who sought to collect half of the fine, as provided for by the statute. The case was appealed to the Maryland Court of Appeals, where the state of Maryland argued that "the Constitution is silent on the subject of banks." It was Maryland's contention that without specific constitutional authorization for the federal government to create a bank, any such creation would be rendered unconstitutional.

The court upheld Maryland. The case was then appealed to the Supreme Court.

The Court determined that Congress had the power to create the Bank. Chief Justice Marshall supported his conclusion with four main arguments:

Firstly, he argued that historical practice established Congress's power to create the bank. Marshall invoked the creation of the First Bank of the United States in 1791 as authority for the constitutionality of the second bank. The first Congress had enacted the bank after great debate, and it was approved by an executive "with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast."

Secondly, Marshall rebutted the argument that states retain ultimate sovereignty because they ratified the constitution: "The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion." Marshall contended that it was the people who ratified the Constitution and thus the people, not the states, who are sovereign.

Thirdly, Marshall addressed the scope of congressional powers under Article I. The Court broadly described Congress's authority before it addressed the Necessary and Proper Clause. Marshall admitted that the Constitution does not enumerate a power to create a central Bank but said that is not dispositive as to Congress's power to establish such an institution: "In considering this question, then, we must never forget, that it is a constitution we are expounding."

Fourthly, Marshall supported his opinion textually by invoking the Necessary and Proper Clause, which permits Congress to seek an objective while it exercised its enumerated powers as long as that objective is not forbidden by the Constitution. In liberally interpreting the Necessary and Proper Clause, the Court rejected Maryland's narrow interpretation of the clause that the word "necessary" in the clause meant that Congress could pass only laws that were absolutely essential in the execution of its enumerated powers. The Court rejected that argument, on the grounds that many of the enumerated powers of Congress under the Constitution would be useless if only laws deemed essential to a power's execution could be passed. Marshall also noted that the Necessary and Proper Clause is listed within the powers of Congress, not its limitations.

The Court held that the word "necessary" in the Necessary and Proper Clause does not refer therefore to the only way of doing something but applies to various procedures for implementing all constitutionally-established powers: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

That principle had been established many years earlier by Alexander Hamilton:

[A] criterion of what is constitutional, and of what is not so ... is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality. ...

Chief Marshall also determined that Maryland could not tax the bank without violating the constitution since, as Marshall commented, "the power to tax involves the power to destroy". The Court thus struck down the tax as an unconstitutional attempt by a state to interfere with a federal institution, in violation of the Supremacy Clause.

The opinion stated that Congress has implied powers, which must be related to the text of the Constitution but do not need to be enumerated within the text.

The case was a seminal moment in federalism: the formation of a balance between federal powers and state powers. Marshall also explained in the case that the Necessary and Proper Clause does not require all federal laws to be necessary and proper and that federal laws that are enacted directly pursuant to one of the expressed, enumerated powers granted by the Constitution do not need to comply with the Necessary and Proper Clause, which "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."

Though Marshall rejected the Tenth Amendment's provision of states' rights arguing that it did not include the word "expressly," unlike the Articles of Confederation, which the Constitution replaced, controversy over the authority of the amendment being violated by the decision has existed. Compact theory also argues that the federal government is a creation of the states and that the states maintain superiority. Unlike Marshall, his successor, Roger B. Taney, established dual federalism by which separate-but-equal branches of government are believed to be a better option.

McCulloch v. Maryland was cited in the first substantial constitutional case presented before the High Court of Australia in D'Emden v Pedder (1904), which dealt with similar issues in the Australian Federation. While recognizing American law as not binding on them, the Australian Court nevertheless determined that the McCulloch decision provided the best guideline for the relationship between the Commonwealth federal government, and the Australian States, owing in large part to strong similarities between the American and Australian constitutions.

Works cited

Ellis, Richard (2007). Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic. New York: Oxford University Press. DOI:10.1093/acprof:oso/9780195323566.001.0001 online

Killenbeck, Mark (2006). McCulloch V. Maryland: Securing a Nation. University Press of Kansas.

Lomazoff, Eric. Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic (University of Chicago Press, 2018).

McAward, Jennifer Mason (November 2012). "McCulloch and the Thirteenth Amendment". Columbia Law Review. Columbia Law School. 112 (7): 1769-1809. JSTOR 41708164. Archived from the original on 2015-11-17. Pdf.

Ellis, Jean Edward (1996). John Marshall: Definer Of A Nation. New York: Henry Holt & Company.

Ellis, Jean Edward (1989). The Constitution American Foreign Policy. St. Paul, MN: West Publishing Company.

O'Connor, Karen; Sabato, Larry J. (2006). American Government: Continuity and Change. New York: Pearson.

Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 17-30. ISBN 9780807000366.

# data[].attributes.attachment_link.description
McCulloch v. Maryland Full case name James McCulloch v. The State of Maryland, John James[note 1] Citations 17 U.S. 316 (more ) Prior Judgment for John James, Baltimore County Court; affirmed, Maryland Court of Appeals Subsequent None Although the Constitution does not specifically give Congress the power to establish a bank, it delegates the ability to tax and spend.

# data[].attributes.attachment_link.title
Not So Sweeping After All: The Limits of the Necessary and Proper Clause

# data[].attributes.attachment_link.description
Although often commonly referred to as the “sweeping clause” or the “elastic clause,” the “necessary and proper” clause is not in fact as expansive as its nicknames suggests. After listing the 17 specific powers delegated to Congress, Article I, Section 8 of the Constitution concludes by specifying…

# data[].attributes.attachment_link.title
The Necessary and Proper Clause: Historical Background | Constitution Annotated | Congress.gov | Library of Congress

# data[].attributes.attachment_link.description
An annotation about Article I, Section 8, Clause 18 of the Constitution of the United States.

# data[].attributes.attachment_link.title
The Constitution in American Life - U2 Q3: Representation and the Federalist-Antifederalist Debate

# data[].attributes.attachment_link.title
The Constitution in American Life - U2 Q2: The Articles of Confederation

# data[].attributes.headline
Articles of Confederation and the Northwest Ordinance

# data[].attributes.subject
Articles of Confederation and the Northwest Ordinance

# data[].attributes.attachment_link.provider_name
Center for the Study of the American Constitution

# data[].attributes.attachment_link.readable_text
The Northwest Ordinance is one of the great American Founding documents. Often it is considered as the single most important accomplishment under the Articles of Confederation.

The land north and west of the Ohio River became part of the United States by the Treaty of Peace in 1783. Virginia claimed possession of the territory under its colonial charter. Sparingly inhabited mostly by a number of Native American tribes, Virginia ceded the territory to Congress in 1781 and again in 1783. Congress rejected some of the provisions of the first cession, but formally accepted the revised cession on 1 March 1784. Although nothing in the Articles of Confederation specifically gave Congress the authority to administer territories, Congress of necessity passed several measures for the surveying, sale, and administration of the Old Northwest.

The Northwest Ordinance provided for the government of the territory. Congress was to appoint a territorial governor with a three-year term, a secretary of state with a four-year term, and a three-judge court with tenure for good behavior. Once the population of the territory reached 5,000, a territorial general assembly could be appointed consisting of a legislative council with five members with five-year terms and a house of representatives to be apportioned according to the number of free male inhabitants. Representatives were to have two-year terms. The Ordinance provided that "the governor, legislative Council, and house of representatives shall have authority to make laws in all cases for the good government of the district not repugnant to the principles and articles in this Ordinance," provided that all bills passed by a majority of both the council and the assembly "be referred to the governor for his assent" The Ordinance contained an abbreviated bill of rights consisting of six articles that formed a compact between the original states and "the people and states in the said territory." Between three and five states were to be created from the territory. Once a population of 60,000 was reached, that portion of the territory could apply for statehood on an equal basis with the original states. Inhabitants of the new state could write their own constitution that had to have a republican form of government.

The sixth article of the Ordinance prohibited slavery and indentured servitude in the territory. When Congress considered the Ordinance in July 1787, Massachusetts delegate Nathan Dane, the author of the Ordinance, removed article six because a majority of the states attending Congress were from the South. Southern delegates, however, encouraged Dane to restore the prohibition because Southerners did not want a competing slave economy north of the Ohio River. It was also expected that most immigrants to the territory would come from Northern States and thus would probably oppose slavery. Furthermore, by overtly prohibiting slavery north of the Ohio, Congress tacitly would be allowing slavery in the Southwest Territory. With freedom just across the Ohio River, a fugitive slave clause was added to the sixth article. The Articles of Confederation had an extradition clause aimed at runaway criminals but no fugitive slave clause. When the delegates to the Constitutional Convention then meeting in Philadelphia saw the fugitive slave clause in the Northwest Ordinance they without much debate inserted a similar clause into the draft Constitution. The Fugitive Slave Act of 1793 proved to be somewhat inconsequential in returning runaway slaves, but the much harsher Fugitive Slave Act of 1850 was one of the important steps leading to the Civil War.

Some Southerners and some long-time residents of the Northwest Territory objected to the prohibition of slavery. Bartholomew Cardiveau expressed such concerns in a long letter to Arthur St. Clair, the first governor of the Northwest Territory. The "obnoxious resolution" was said to be an ex post facto law that would illegally "deprive a considerable number of citizens of their property, acquired and enjoyed long before they were under the dominion of the United States." Some proponents of the prohibition suggested that it would only prohibit "the future importation of slaves into the Federal country; that it was not meant to affect the rights of the ancient inhabitants." Promises were allegedly made that a clause would be inserted in a re-enacted Ordinance in 1789 "explanatory of its real meaning, sufficient to ease the apprehensions of the people, but it was not done." Consequently, slave owners in the Northwest Territory, particularly Spanish-speaking residents, swore allegiance to Spain; some even moved west of the Mississippi River taking their slaves with them. If the complete prohibition of slavery persisted, "the Western country, will infallibly remain for a long time in a state of infancy." Cardiveau also suggested that allowing slavery to exist in the Northwest Territory would provide a place to which freedmen could be transported "without violating the right of property, and without endangering the safety, peace and manners of the whites by a promiscuous intermixture of so many blacks turned loose upon society, destitute of industry, and uncontrolled by the principles of morality, or the habits of good society." Cardiveau hoped that a "gentler annihilation of servitude might be introduced in the United States" (Bartholomew Cardiveau to Arthur St. Clair, Danville, Kentucky, 30 June 1789, William B. Smith, ed., The St. Clair Papers . . . (2 vols., Cincinnati, Ohio, 1882), II, 117-19, 119n-20n.)

Although the prohibition of slavery was never changed, various subterfuges were used that, in essence, allowed slavery to exist in the territory. When the five states came into the Union (Ohio, Indiana, Michigan, Illinois, and Wisconsin), all of their constitutions prohibited slavery.

# data[].attributes.attachment_link.description
The Northwest Ordinance is one of the great American Founding documents. Often it is considered as the single most important accomplishment under the Articles of Confederation. The Ordinance prohibited slavery in the territory northwest of the Ohio River, but a fugitive slave clause provided for the return of runaway slaves.

# data[].attributes.attachment_link.readable_text
The following is a guest post by James Martin, a Collections and Outreach Specialist, in observation of Constitution Day on September 17, 2011.

The need for a united policy during the War of Independence led the thirteen states to draft and approve an organic document for a national government. In 1776, the Continental Congress created a committee to draft such a document. In 1777, the committee reported a draft that had been prepared by Delegate John Dickinson. After a period of debate and addition of amendments, the text was approved by the Congress and submitted to the states for ratification. Unlike the current Constitution, all thirteen states had to approve the Articles before it would be in effect. A number of years elapsed between the approval of the draft of the Articles of Confederation by the Continental Congress in late 1777 and the ratification by the final state in 1781.

Under the Articles of Confederation, the power of the national government was exclusively centered in the Congress. The Congress, called the "Congress of the Confederation" under the Articles, was based upon the institutions of the Second Continental Congress and, as such, was a unicameral body where each state had one vote. The Articles provided for the annual appointment of delegates to the Congress, for the recall of delegates, and for the minimum and maximum number of delegates that would make up each state's delegation. In addition, provision was made for term limits for delegates. Delegates were granted protection from arrest for activities arising from their official duties under a Speech and Debate Clause, a practice which was continued in the current Constitution. The Congress was to meet annually and provision was made for the creation of a Committee of the States to conduct business when the Congress was not in session.

The Articles provided for no permanent national judiciary, although the Congress was given sole jurisdiction in matters of boundary disputes between states, and as part of the war powers it was given the power to create courts to determine prize cases (cases related to the capture of enemy commercial vessels on the high seas). No national executive was created; instead, after the ratification of the Articles in 1781, the Congress annually elected an individual who served as the President of the Congress. The position had no broad executive powers, however.

As with the current Constitution, the Articles envisioned a level of comity between the states. The Articles provided that "the free inhabitants of each of these states, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states." In addition, citizens were allowed the right to freely move with their property between the states. Clauses governing extradition and the full faith and credit of public proceedings were also included.

In some ways the powers granted to the Congress under the current Constitution and the Articles are similar. Both provide that the Congress has the sole authority for declaring war (although the Articles allowed for the States to wage war in instances of immediate invasion when the Congress was not in session). Both provide that the national government would conduct foreign affairs, although the Articles allowed for states to send and receive embassies with the approval of Congress. Both allow the Congress to set a system of uniform weights and measurements and to set standards for uniform coinage. The Confederation Congress could also regulate interstate movement of the mails.

However, while the Articles provided that the Congress would have the power to pay the debts of the national government, it did not provide for a means for that body to directly raise revenue. Although the Congress had certain authority which could be used to regulate the economy, it lacked enforcement power. In addition, because of the perceived weakness of the national government, the diplomatic standing of the nation suffered. The new nation was unable to compel the removal of British forces from the territory north of the Ohio River as required by the Treaty of Paris. These and other shortcomings resulted in proposals to amend the Articles, which ultimately led to the Constitutional Convention of the summer of 1787.

It is worth noting that the government created by the Articles did have a lasting impact. The Congress was able to successfully resolve disputes over the division of the western lands that had been surrendered by Great Britain after Independence. The Land Ordinance of 1785 (laws passed by the Continental and Confederation Congresses are called ordinances) and the resulting North West Ordinance of 1787 are the most long lasting as they provided for the disposition of public lands and procedures for organizing territorial governments in the lands west of the Appalachian Mountains. The framework established by these Ordinances was to be used later in the history of the country. In addition, the Congress, in establishing the Federal Court of Appeals to resolve prize cases, provided a precedent for the establishment of the later Federal court system. Finally, although the Articles have not often been cited in subsequent legal opinions, the idea that the union formed by them was "perpetual," as set forth in Article XIII, was cited in dicta by Chief Justice Salmon Chase in the opinion of the Supreme Court in Texas v. White, 74 U.S. 700, 725 (1868).

# data[].attributes.attachment_link.title
The Articles of Confederation: The First Constitution of the United States

# data[].attributes.attachment_link.description
The following is a guest post by James Martin, a Collections and Outreach Specialist, in observation of Constitution Day on September 17, 2011.

# data[].attributes.attachment_link.readable_text
A mandatory vote about whether a statewide constitutional convention shall be held is a constitutional requirement in fourteen states (as of 2021) that sets forth a requirement that at preset intervals, the voters in the state shall be given the opportunity to vote on whether or not the state should hold a state constitutional convention. A state constitutional convention is a gathering of elected delegates who propose revisions and amendments to a state constitution. As of 2021, 233 constitutional conventions to deliberate on state-level constitutions have been held in the United States.

In fourteen states, the question of whether to hold a constitutional convention is automatically referred to a statewide ballot without any requirement for a vote of the state legislature to place the question on the ballot. One of the fourteen states with a mandatory requirement is Oklahoma, though state officials have declined to place the mandatory measure on the ballot since 1970.

Every 10 years

New Hampshire: The question as to whether to hold a constitutional convention is automatically placed on the statewide general election ballot every ten years. Starting in 1792, New Hampshire required that a mandatory vote on whether to hold a constitutional convention take place every seven years. This was changed in 1964 to the current ten-year requirement. The New Hampshire General Court can also place the question about having a convention on the statewide ballot by a majority vote; if it does, the timing of the automatic referrals will change to be ten years from the last time the state legislature put the question on the ballot rather than ten years from the last automatic referral of the question. Up until 1964, the New Hampshire Constitution (Part 2, Article 100) required an automatic ballot question about whether to hold a convention every seven years. In 2012, voters rejected a constitutional convention question, with 64% of voters opposed.

Rhode Island: The question as to whether to hold a constitutional convention is automatically placed on the statewide general election ballot every ten years. This requirement was placed into the Rhode Island Constitution at a convention held in 1973. The Rhode Island State Legislature can place the question about having a convention on the statewide ballot by a majority vote; if it does, the timing of the automatic referrals will change to be ten years from the last time the state legislature put the question on the ballot rather than ten years from the last automatic referral of the question. Rhode Island has a unique provision about elections on the constitutional convention question. It is, "Prior to a vote by the qualified electors on the holding of a convention, the general assembly, or the governor if the general assembly fails to act, shall provide for a bi-partisan preparatory commission to assemble information on constitutional questions for the electors." This means that before the vote is held, a preparatory commission must be created if the state's voters choose to hold one. Voters in 2014 rejected the idea of a convention with 55% of voters opposed.

Hawaii: When the original Hawaii Constitution was adopted in 1950-becoming effective when Hawaii became a state in 1959-it provided for a ten-year interval between mandatory submission to the voters of a constitutional convention question. In 1976, such a measure was on the ballot. This measure was approved and led to a constitutional convention in 1978. That convention proposed that the interval be changed to nine years.

Specifically, according to Section 2 of Article XVII of the Hawaii Constitution (emphasis added)

The legislature may submit to the electorate at any general or special election the question, "Shall there be a convention to propose a revision of or amendments to the Constitution?" If any nine-year period shall elapse during which the question shall not have been submitted, the lieutenant governor shall certify the question, to be voted on at the first general election following the expiration of such period.

Although Hawaii's constitutional language refers to "nine years", this does not mean that Hawaiians will vote on a constitutional convention question every nine years. Rather, the Hawaii constitution says that if a nine-year period passes without a con-con referendum, a referendum is required at the next general election after that nine-year period has passed. But Hawaii only holds general elections in even-numbered years. If the Hawaii State Legislature were to schedule a vote on a con-con question as its prerogative and that vote took place, at the state legislature's preference, in a special election in an odd-numbered year (or at a non-November special election date in an even-numbered year), a situation could arise where the next general election is nine years plus some number of days away from the state's last con-con referendum. Section 2 of Article XVII would in such a situation require a 9-year break between referendums. But if the past referendum is on a general election ballot in an even-numbered year, the nine-year period will always end in an odd-numbered year. This means that the mandatory vote won't be held until the following year (10 years).

One consequence of this is that, if Hawaii only ever holds mandatory con-con votes (which would mean that the state legislature never exercises its prerogative to ask for a special vote on this topic), then there will always be ten years between such votes in Hawaii.

Every 16 years

Michigan: According to Section 3 of Article XII of the Michigan Constitution, a question about whether to hold a constitutional convention is to automatically appear on the state's ballot every sixteen years starting in 1978. 1994 and 2010 were in the sixteen-year sequence. In 2010, only 33% of voters were in favor of gathering a convention. The next time Michigan voters will face this question is 2026.

Every 20 years

Illinois: Voters of the state are automatically asked every twenty years whether they want a constitutional convention to be held. This automatic vote occurred most recently in 2008.

Maryland: By the terms of Section 2 of Article 14 of the Maryland Constitution, a question as to whether to hold a constitutional convention must automatically be placed on the statewide general election ballot every twenty years. This question will next appear on the ballot in 2030. To win approval, the number of people voting "yes" needs to be more than 50% of the total number of Marylanders who vote overall; not just a simple majority of those voting on the question.

Missouri: As established in Section 3a of Article XII, a question about whether to hold a constitutional convention is to automatically appear on the state's ballot every twenty years. This practice started in 1942. Voters said "yes" to the question in 1942. From this convention, a new constitution (The Missouri Constitution of 1945) came about. Voters have said subsequently said "no" to the idea of a constitution convention in 1962, 1982 and 2002.

Ohio: Section 3 of Article XVI calls for a question about whether to have a convention to appear on the ballot in 1932 and every twenty years thereafter.

Oklahoma: Section 2 of Article XXIV of the Oklahoma Constitution says that the question of whether to hold a convention must go on the Oklahoma ballot every 20 years. However, the last time Oklahomans voted on such a question was in 1970. According to the State Constitutional Convention Clearinghouse, "Since 1970, Oklahoma's legislature has refused to follow its Constitution with regard to this provision. In 1994, it placed a referendum on the ballot to eliminate this requirement, but the people of Oklahoma defeated it. Since 1990, many bills have been introduced to implement this part of the Constitution but none has passed."

Other types of ballot measures

Types of ballot measures:

# data[].attributes.attachment_link.title
Mandatory vote about whether a statewide constitutional convention shall be held - Ballotpedia

# data[].attributes.attachment_link.description
A mandatory vote about whether a statewide constitutional convention shall be held is a constitutional requirement in fourteen states (as of 2021) that sets forth a requirement that at preset intervals, the voters in the state shall be given the opportunity to vote on whether or not the state should hold a state constitutional convention.

# data[].attributes.attachment_link.title
Alaska constitutional convention on the ballot next year with focus on the PFD

# data[].attributes.attachment_link.description
A constitutional convention is being discussed as a way to deliver a 50-50 dividend, opponents they say there are risks.

# data[].attributes.attachment_link.readable_text
The United States Constitution has become the primary text of America's civil religion. As a nation lacking a common religion, "We the People" have come to worship our Constitution as the scripture that holds us together. In virtually all of the public opinion polls conducted on the subject, Americans not only express their reverence for the Constitution, but also their strong opinions about its meaning. Indeed, many Americans-whether Tea Party members, left-wing critics of growing inequality in America, Democrats or Republicans in Congress, and (with particular impact) justices of the United States Supreme Court-feel so passionately about our founding documents that they claim that they and they alone are the true defenders of the ideas expressed in them; and that their opponents are not only mistaken and misguided, but in some cases, downright "un-American." But in fact, whatever their passion or reverence for America's Constitution, most Americans lack even a minimal historical understanding of it. (In one recent survey, for example, 71 percent of Americans believed that the phrase "all men are created equal" appeared in the Constitution, not in the Declaration of the Independence. Even more amazing, in another poll, a third of American expressed the belief that the Declaration of Independence was written after the Civil War!)

This brief, introductory essay on the "Interactive Constitution" will focus on the efforts of the fifty-five men who gathered in Philadelphia in the Assembly Room of the Pennsylvania State House (much later to be known as Independence Hall) in the summer of 1787 to draft the four parchment pages of the original Constitution. But it is impossible to begin even a brief essay on the Constitution and the Founding Fathers of 1787 without saying a few words about the document, drafted eleven years earlier, without which Americans could not be engaged in defining the character of their new nation: the Declaration of Independence.
The Beginning of an "American Identity."
America's Declaration of Independence, drafted by the young but rapidly-rising revolutionary leader Thomas Jefferson, and adopted by the revolutionary Continental Congress on July 4, 1776, marks the first attempt by the "united States" of America not only to justify their decision to separate themselves from the Empire of Great Britain, but also to define some of the "unalienable rights" on which their revolutionary action was based. Included in the opening paragraphs of the Declaration of Independence is perhaps the most important statement of American ideals ever articulated:

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-That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Those ideas of the equality of mankind; that governments are based on the consent of the governed; that it is the fundamental obligation of a government to serve the needs of the people it governs; and, indeed, that it is the right of the people to abolish a government that does not serve those ends, has formed the basis of American government and society from that time forward.

As a part of their decision for independence, the "united States" moved forward to create the first written constitutions in the world's history. Most of those state constitutions, in addition to crafting specific outlines of the way in which their new state governments should function, included "declarations of rights." These declarations articulated in specific fashion the nature of the "unalienable rights" referred to in the Declaration of Independence-rights such as freedom of speech, freedom of religion, the right of trial by jury, the right to bear arms in the context of a "citizens militia," and many, many others. These state constitutions were bold revolutionary experiments, and in many cases, because they were the first time state political leaders sought to write down the way their governments should function, they were far from perfect. But they were an important step forward in the notion that the purpose of governments was to serve the public interest while at the same time protecting individual liberty.

Shortly thereafter, the thirteen soon-to-be independent states created an "Articles of Confederation." Although some regard it as America's first "federal" constitution, in fact, it gave so few powers to the central American government that it was more like a treaty among the thirteen independent states than a constitution for a new nation. It amounted to little more than a "league of friendship," in which "each state retain[ed] its sovereignty, freedom, and independence." Although it gave to the central government substantial responsibilities-including the "common defence, the security of their liberties and their mutual and general welfare"-it denied to the government most of the powers necessary to carry out those responsibilities-including the power to tax and to regulate commerce among the independent states. Moreover, the Articles of Confederation failed to provide for a chief executive capable of giving energy and focus to the new central government.

By the fall of 1786, the combination of a financial crisis suffered by the newly-created confederation government and disorder threatened by dissatisfied farmers in western Massachusetts, led a group of "nationalist" politicians, meeting in Annapolis on September 22, 1786, to propose that the Continental Congress in New York call a "general convention" in Philadelphia. Congress delaying until February 21, 1787, reluctantly agreed to that convention, but limited any change to the mere "revising" of the existing Articles of Confederation. The fifty-five delegates who met in Philadelphia between May 25 and September 17, 1787, would not only reject the Articles of Confederation altogether, but they would produce the first written constitution for any nation in the history of the world.

Those gathered in the Assembly Room of the Pennsylvania State House during the summer of 1787 faced a formidable task. The thirteen "united States" seemed at that moment remarkably disunited. Yet somehow, in the space of slightly less than four months, they managed to pull off an extraordinary accomplishment. The Constitution they drafted has been successful for most of U.S. history in striking the difficult balance between the maintenance of public order and security, on the one hand, and the nurturing and protection of personal liberty, on the other. And it has brought remarkable stability to one of the most tumultuous forms of political activity: popular democracy. The challenge that all nations in the world have faced not only in drafting a constitution, but also creating a form of government that both provides stability to its nation and sufficient civic responsibility and liberty to its people, is enormous. Indeed, among the more than 150 constitutions presently operating in the world today, few have been as successful in creating that delicate balance between governmental power and personal liberty among the citizens ruled by their government.
The Launching of a New American Constitution
The remarkable achievement of the fifty-five men gathered in Philadelphia during the summer of 1787 was by no means inevitable. Looking back on their work that summer, we can identify a few factors that enabled them to achieve their success. Certainly among the most important was the quality of leadership among those most committed to strengthening the American government. The ringleader was the thirty-seven-year-old James Madison. Standing only a few inches over five-feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.

Madison was joined in his effort by a group of delegates from Virginia and Pennsylvania who, in a series of meetings before the Convention formally began its business on May 25, combined to concoct a plan not merely to "amend" the Articles of Confederation, but to set the proceedings of the Convention on a far more ambitious course. The first gathering of these reform-minded delegates took place on the evening of May 16, in the home of Benjamin Franklin (where dinner was served in his impressive new dining room along with a "cask of Porter," which, Franklin reported, received "the most cordial and universal approbation" of all those assembled). The Pennsylvania and Virginia delegates then met frequently during the days leading up to May 25. The presence of Ben Franklin and General George Washington gave the group both dignity and prestige, but it was James Madison, James Wilson and Gouverneur Morris of Pennsylvania who provided much of the intellectual leadership and who shared a commitment to creating a truly "national" government based on the consent of the people, not the individual states. Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of 1787.

By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention-gearing the discussion toward not whether, but how -a vastly strengthened continental government would be constructed. On May 28, 1787, the state delegations unanimously agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward. Importantly, to prevent the "licentious publication of their proceedings," the delegates agreed to observe a strict rule of secrecy, with "nothing spoken in the house to be printed or otherwise published or communicated." In our twenty-first century world, this manner of proceeding on a matter of such monumental importance would be instantly rejected as unacceptably pretentious and undemocratic. But the rule of secrecy gave to delegates the freedom to disagree, sometimes vehemently, on important issues, and to do so without the posturing and pandering to public opinion that so often marks political debate today. And it also gave delegates the freedom to change their minds; on many occasion, after an evening of convivial entertainment with one another, the delegates would return the following morning or even the following week or month, and find ways to reach agreement on issues that had previously divided them. The rule of secrecy helped make the Constitutional Convention a civil and deliberative body, rather than a partisan one. It helped make compromise an attribute of statesmanship rather than a sign of weakness.

As the details of the Virginia Plan came under discussion, it became clear that it was not a mere revision of the Articles of Confederation, but rather a bold plan for an entirely new kind of government-a government with a vastly more powerful "national" legislature and, unlike the Articles of Confederation, with a powerful chief executive. It also became immediately clear that, however bold and innovative the plan may have been, there were many delegates in the room who had grave misgivings about some aspects of it. For nearly four months, the delegates attempted to work through, and resolve, their disagreements. The most divisive of those issues-those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the institution of slavery in the new continental body politic-would change in fundamental ways the shape of the document that would eventually emerge on September 17, 1787.
The Founding Fathers and Federalism
The delegates haggled over how to apportion representation in the legislature off and on for more than six weeks between May 30 and July 16. Those from large, populous states such as Virginia and Pennsylvania-supporters of the Virginia Plan-argued that representation in both houses of the proposed new congress should be based on population, while those from smaller states such as New Jersey and Delaware-supporters of the New Jersey Plan-argued for equal representation for each state. The compromise that eventually emerged, one championed most energetically by the delegates from Connecticut, was obvious: representation in the House of Representatives would be apportioned according to population, with each state receiving equal representation in the Senate. In the final vote on the so-called Connecticut Compromise on July 16, five states supported the proposal; four opposed, including Virginia and Pennsylvania; and one state-Massachusetts-was divided. James Madison and many of his nationalist colleagues were disconsolate, convinced that the compromise would destroy the very character of the national government they hoped to create. But in the end, recognizing the folly of allowing their desire for their "perfect" plan to become the enemy of the good, they acceded to the Connecticut Compromise. And, interestingly, during the subsequent popular vote on ratification of the Constitution in the thirteen states, Madison would use his "defeat" in the controversy over representation to fashion an entirely new definition of federalism. In The Federalist No. 39 he defended the proposed new Constitution against its critics by praising the different modes of representation in the House and Senate-with the House representing the people of the nation at large and the Senate representing the residual sovereignty of the states-as one of the features that made the new government "part national" and "part federal." No one at that time knew how that new definition of federalism would work in practice, and it would remain a source of contention for the rest of the nation's history, including today. In this, as in so many areas, the so-called original meaning of the Constitution was not at all self-evident- even to the Framers of the Constitution themselves.
Creating an American President
The debate among the delegates over the nature of the American presidency was more high- toned and more protracted than that over representation in the Congress. At one extreme, nationalists like James Wilson and Gouverneur Morris argued forcefully for a strong, independent executive capable of giving "energy, dispatch, and responsibility" to the government. They urged their fellow delegates to give the president an absolute veto over congressional legislation. At the other end of the spectrum, Roger Sherman, a plainly dressed, plainspoken delegate from Connecticut who would prove to be one of the most influential members of the Convention, spoke for many delegates when he declared that the "Executive magistracy" was "nothing more than an institution for carrying the will of the Legislature into effect." This led Sherman to the conclusion that the president should be removable from office "at pleasure" any time a majority in the legislature disagreed with him on an important issue. In the end, it was compromise that once again won the day-the delegates agreed to give the President a limited veto power, but one which could be over-ridden by a vote of two-thirds of both houses of Congress.

Most of the delegates initially thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states. James Wilson was virtually the only delegate who proposed direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence. But realizing that his idea of popular election of the president was gaining no favor, Wilson proposed a compromise by which the President would be elected by a group of "electors" chosen either by the state legislatures or by the people of their individual states. The delegates didn't like that proposal any more than they liked his proposal for direct popular election, voting it down overwhelmingly at that point. They voted against some version of the proposal on numerous occasions between early June and early September of 1787, only agreeing to the version contained in our modern Constitution (modified slightly by the Twelfth Amendment) grudgingly and out of a sense of desperation, as the least problematic of the alternatives before them.

It has often been observed that the Framers' difficulty in deciding how to elect the president was the result of their misgivings about democracy-their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In fact, it was not so much that America's Founding Fathers distrusted the inherent intelligence of the people but, rather, that they had a realistic concern about the provincialism of the people of the thirteen "independent" states. America's vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate for chief executive to gain a majority of the popular vote. There was one obvious exception to this-General George Washington, sitting in the front of the Assembly Room as President of the Convention-but aside from America's hero, how could a voter in Georgia know the merits of a candidate in New York, or vice versa? The other obvious solution-election by members of a national Congress whose perspective was likely to be continental rather than provincial-was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally-selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but, in the context of the times-perhaps until today-there may well have been no better alternative.
The Founding Fathers and Slavery
The delegates' commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free white adult males, a limited one. For example, most of the delegates supported the imposition of property qualifications for voters in their individual states. But nowhere are those limitations more obvious than during the debates relating to the subject of slavery. In 1787, slavery in America was in a state of decline, but it remained a significant part of the social and economic fabric in five of the states represented in the Convention. In their quest for "compromise," the delegates exacerbated the existing contradiction in their nation regarding the core values of liberty and equality on which America had declared its independence. Indeed, they enshrined the institution of slavery within their new Constitution.

Although neither the word "slave" nor "slavery" is mentioned anywhere in the body of the Constitution, contention over slavery pervaded the Convention's debates. It was impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South-whether conceived of as residents or property-would affect the calculations for representation. The delegates argued about the proper formula for how to "count" slaves through much of the summer. The final resolution of that issue-the Three-Fifths Compromise, a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation-was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that compromise might be, outweighed all other considerations.

The debate over the future of the international slave trade was in many respects even more depressing than that which culminated in the Three-Fifths Compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade. Between 1788 and 1808 the number of African slaves imported into the United States exceeded 200,000, only about 50,000 fewer than the total number of slaves imported to America in the preceding 170 years!

Finally, the delegates adopted without dissent a provision requiring that any "Person held to Service or Labour in one State . . . [and] escaping into another, . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due." By means of that tortured language, and without mentioning either the word "slaves" or "slavery," the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates' grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that institution.
The Absence of a Bill of Rights
On September 12, just five days before the Convention was to adjourn, George Mason, the author of the Virginia Declaration of Rights, proposed that the nearly-completed draft of the Constitution be "prefaced with a Bill of Rights." It would, he said, "give great quiet to the people." But the delegates did not embrace Mason's proposal; indeed, when the matter was put to a vote, not a single state delegation supported Mason's proposal. That decision would prove to be one of the most serious mistakes made by the men who drafted the Constitution. When Thomas Jefferson-then serving as ambassador to France-received a copy of the completed Constitution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. "The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters," was, Jefferson wrote in dismay to his friend, a grievous error.

When the final draft of the Constitution was submitted to the people of the states for their approval, the absence of a bill of rights quickly emerged as one of the most serious objections to the proposed plan of union. If many of the supporters of the Constitution subsequently had not promised that they would quickly work to add a bill of rights to the Constitution once the new government commenced operation, it is likely that the document would have failed to gain the approval of the nine states necessary for its ratification. Fortunately, the First Federal Congress of the new government of the United States fulfilled that promise, and in one of its first actions added that bill of rights, making the "more perfect union" devised by the Framers still more perfect. Ironically, the person who took the lead in drafting a bill of rights in the first Congress was James Madison, who had opposed adding a bill of rights not only during the Convention, but also during the debate over ratification in his state of Virginia.

Nor was that the only occasion when the American people, acting through their representatives both in Congress and in their states, sought to further perfect the American union. "We the People" have added another seventeen amendments to the Constitution after the addition of the original bill of rights. The United States Constitution, which initially consisted of some 4,500 words on four parchments pages, is now a document with nearly 8,000 words, some of which advance the notion of equality not only for former slaves through the Reconstruction Amendments enacted after the Civil War, but also for women through the Nineteenth Amendment of 1920.
"Approaching So Near to Perfection"
As the Convention prepared to adjourn, the delegates were hardly of one mind about many of the specifics of the Constitution they had created. But whatever their differences, nearly all of the them, true to their revolutionary heritage, had tried to create a government of limited powers which nevertheless had the requisite "energy" to do all the things promised in the Constitution's preamble: "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty." This was a tall order, especially when they were pledging at the same time to create a government that divided power between the states and the nation in such a way as to allay people's fears of an overbearing central power. As the delegates made their decisions about whether to sign the Constitution on September 17, 1787, there was little certainty among them about how this balancing act would work in practice, but they had at least made a start in creating a framework within which issues of state and national power could be negotiated.

On that final day of the Constitutional Convention, it was left to the Convention's oldest delegate, eighty-one-year-old Benjamin Franklin, to sum up the nearly four months of debate, disagreement, and occasional outbursts of ill temper that had marked the proceedings of that summer. Franklin observed that whenever "you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?" The wonder of it all, Franklin asserted, was that the delegates had managed to create a system of government "approaching so near to perfection as it does."

Franklin acknowledged that there were "several parts of this Constitution which I do not at present approve," but, he added, "the older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others." Franklin concluded by asking each of his fellow delegates to "doubt a little of his own infallibility" and step forward to sign the Constitution. In that spirit of humility, thirty-nine of the forty-two delegates present on that last day would take that important step forward and, in the process, move America one step forward in achieving a "more perfect Union." If there is any one lesson that American citizens, and their political representatives, might most profitably learn from the Framers of the Constitution, it is that injunction from the sagacious Dr. Franklin: our own body politic would function more effectively, and with a greater degree of civility, if all of us could occasionally put aside our own sense of "infallibility" and engage in the political process with the same spirit of compromise that guided the Founding Fathers of 1787.

# data[].attributes.attachment_link.title
The Constitutional Convention of 1787: A Revolution in Government

# data[].attributes.attachment_link.description
The United States Constitution has become the primary text of America's civil religion. As a nation lacking a common religion, "We the People" have come to worship our Constitution as the scripture that holds us together.

# data[].attributes.attachment_link.title
Avalon Project - Articles of Confederation : March 1, 1781

# data[].attributes.attachment_link.description
Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them.

# data[].attributes.attachment_link.readable_text
The European Union is a unified trade and monetary body of 27 member countries.﻿ It eliminates all border controls between members. The open border allows the free flow of goods and people. There may be police checks, based on police information and experience, that are not equivalent to border checks.﻿﻿

Any product manufactured in one EU country can be sold to any other member without tariffs or duties.﻿﻿ Practitioners of most services, such as law, medicine, tourism, banking, and insurance, can operate a business in all member countries.﻿﻿

The EU's purpose is to be more competitive in the global marketplace. At the same time, it must balance the needs of its independent fiscal and political members.

Its 27 member countries are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.﻿﻿

How It Is Governed

Three bodies run the EU. The EU Council represents national governments. The Parliament is elected by the people. The European Commission is the EU staff. They make sure all members act consistently in regional, agricultural, and social policies. Contributions of 120 billion euros a year from member states fund the EU.

Here's how the three bodies uphold the laws governing the EU. These are spelled out in a series of treaties and supporting regulations:﻿﻿

1. The European Commission proposes new legislation. The commissioners serve a five-year term.﻿﻿

2. The European Parliament gets the first read of all laws the Commission proposes. Its members are elected every five years.﻿﻿

3. The European Council gets the second read on all laws and can accept the Parliament's position, thus adopting the law. The council is made up of the Union's 27 heads of state, plus a president.﻿﻿

The euro is the common currency for the EU area. It is the second most commonly held currency in the world, after the U.S. dollar. It replaced the Italian lira, the French franc, and the German Deutschmark, among others.﻿﻿

The value of the euro is free-floating instead of a fixed exchange rate.﻿﻿ As a result, foreign exchange traders determine its value each day. The most widely-watched value is how much the euro's value is compared to the U.S. dollar.﻿﻿ The dollar is the unofficial world currency.﻿﻿

The Difference Between the Eurozone and the EU

The eurozone consists of all countries that use the euro. All EU members pledge to convert to the euro, but only 19 have so far. They are Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovakia, Slovenia, and Spain.﻿﻿

The European Central Bank is the EU's central bank. It sets monetary policy and manages bank lending rates and foreign exchange reserves. Its target inflation rate is less than 2%.﻿﻿

The Schengen Area

The Schengen Area guarantees free movement to those legally residing within its boundaries. Residents and visitors can cross borders without getting visas or showing their passports.﻿﻿

In total, there are 26 members of the Schengen Area. They are Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

One EU country, Ireland has declined the Schengen benefits. Four non-EU countries, Iceland, Liechtenstein, Norway, and Switzerland have adopted the Schengen Agreement. Three territories are special members of the EU and part of the Schengen Area: the Azores, Madeira, and the Canary Islands. Three countries have open borders with the Schengen Area: Monaco, San Marino, and Vatican City.﻿﻿

This chart shows which countries are members of the EU, the eurozone, and the Schengen Area:

In 1950, the concept of a European trade area was first established. The European Coal and Steel Community had six founding members: Belgium, France, Germany, Italy, Luxembourg, and the Netherlands.

In 1957, the Treaty of Rome established a common market. It eliminated customs duties in 1968. It put in place standard policies, particularly in trade and agriculture. In 1973, the ECSC added Denmark, Ireland, and the United Kingdom. It created its first Parliament in 1979. Greece joined in 1981, followed by Spain and Portugal in 1986.

In 1993, the Treaty of Maastricht established the European Union common market. Two years later, the EU added Austria, Sweden, and Finland.﻿﻿ In 2004, twelve more countries joined: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia. Bulgaria and Romania joined in 2007.﻿﻿

In 2009, the Treaty of Lisbon increased the powers of the European Parliament. It gave the EU the legal authority to negotiate and sign international treaties. It increased EU powers, border control, immigration, judicial cooperation in civil and criminal matters, and police cooperation. It abandoned the idea of a European Constitution. European law is still established by international treaties.﻿﻿

The EU's trade structure has propelled it to become the world's second-largest economy after China. In 2018, its gross domestic product was $22 trillion, while China's was $25.3 trillion.

These measurements use purchasing power parity to account for the discrepancy between each country's standard of living. The United States was third, producing $20.5 trillion.﻿﻿

The EU's top three exports in 2018 were petroleum, medication, and automobiles; while its top imports are petroleum, communications equipment, and natural gas.

Its top export partner is the United States and its top import partner is China.﻿﻿

# data[].attributes.attachment_link.title
How Europe Became an Economic Powerhouse

# data[].attributes.attachment_link.description
The European Union is a unified trade and monetary body of 27 member countries.﻿ It eliminates all border controls between members. The open border allows the free flow of goods and people.

# data[].attributes.attachment_link.readable_text
Former U.S. Secretary of State Henry Kissinger famously asked: "Who do I call if I want to speak to Europe?" Kissinger's question describes the confusion and frustration of many Americans with the multitude of European nations.

After the terrorist attacks in Brussels, the media filled the airwaves with the incompetence of European security services and the problems of the open borders within the Schengen area. Particularly European elites share America's frustrations. For many European elites and Americans, the answer to this problem is simple: a federal Europe, modeled on the United States.

Many in Europe do not share the optimism of the elites. The recent rejection in the Netherlands of the European Union (EU) association treaty with Ukraine, the close race in this summer's Brexit referendum, and the rise and sustained presence of anti-EU parties all over Europe prove popular distrust and dissatisfaction with the European Union.

Challenges to its capacities and legitimacy poses a problem for the EU. As John Daniel Davidson argued, the EU must decide whether it is a state. To answer this conundrum, perhaps it is time to turn to men who already framed a union out of a loose confederation: the framers of the United States Constitution.

Ask the American Founders

Like Americans in the 1780s, European leaders today face an increasing security problem and a growing debt, but a lack of political power to solve it. The European Union has claimed in various stages to be a legitimate government, while few have taken its claims seriously. When the European Union is arbiter in a dispute or attempts to solve a problem, very few actually abide by the agreements made, if the agreements would solve the problem at all.

The larger the republic, the fewer factions exist, which thus preserves the liberty of its citizens.

The United States faced similar issues in the 1780s. In the "Federalist Papers," Alexander Hamilton argued a federal constitution is necessary, because of the "unequivocal experience of the inefficiency of the subsisting federal government." Like its contemporary European counterparts, Hamilton and many of his contemporaries thought the Articles of Confederation that held the United States together during the Revolutionary War were too weak to pay for the war debt and to provide for a strong defense against European empires.

The biggest problem the Framers faced was the issue of political factions in the federal government, comparable to "the curse of nationalism" EU officials try to cope with. Steeped in classical and Enlightenment political theory, the Framers knew factionalism eventually would destroy republics from within. Alexander Hamilton and James Madison argued in Federalist No. 9 and 10 that "a firm Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection."

Madison argued factionalism was inevitable as long as men are free, and that therefore the size of the republic must help control these erroneous effects of factionalism, both geographically and demographically. When you create a large republic, Madison stated, "you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens." In other words, the larger the republic, the fewer factions exist, which thus preserves the liberty of its citizens.

Additionally, the Framers thought rightfully that the federal government would be more capable of paying off the war debt and providing for a common defense. Particularly Hamilton argued that a country without common defense or able to pay off its debts is, to paraphrase Ronald Reagan, "no country at all."

Europe Doesn't Have a Common Cause and Culture

At the face of it, a strong central government seems an easy solution to the European Union's problems. Organize a constitutional convention of all the elected leaders of Europe, create a balanced republican constitution, and Europe will no longer have a debt problem and can fight terrorism and Russia side by side.

The European Union pretends this centralized, federal system exists and, where it does not work, that more centralization should be implemented.

Indeed, the European Union already pretends this centralized, federal system exists and, where it does not work, that more centralization should be implemented. EU parliamentarian and former prime minster of Belgium Guy Verhofstadt argues in his latest book "De ziekte van Europa" ("The Disease of Europe") that decision-making in the European Union is too slow to solve past, current, and future problems and that centralization based on a federal model is the cure for this disease.

But, unlike Verhofstadt and EU officials, the Framers of the Constitution understood the difficulty of creating a large political union. The Framers argued that the United States was suited for a strong union because it was a connected and relatively homogenous nation, geographically and in spirit. A federal government would function properly because of homogeneity of language, devotion to liberty, a common history, and because, as John Jay put it, the Americans sought a united government in the revolutionary war when "their habitations were in flames, [and] when many of their citizens were bleeding."

Probably the only commonality all Europeans share is that its peoples strongly resisted unification for centuries and still refuse to unify. Elite unification projects, such as those of Charlemagne, Napoleon, Nazi Germany, and the current European Union, all ended in failure and, more importantly, death and destruction.

The European Union likes to take credit for the decades of peace in Europe after World War II, while it was obviously the protective umbrella of the United States and the NATO alliance that kept western Europe safe. In fact, contemporary social unrest in Europe can be attributed to European Union failures, such as an inadequate protection of its borders, disastrous fiscal policies, and unnecessary expansion. Greece had a proven dysfunctional economy and financial system for decades, but only when it joined the Eurozone did this start to have significant consequences in the euro-and refugee crises. Increased ambitions and centralization of the European Union made things worse, not better.

European leaders should heed the warnings of the Framers and the failures of centralization in Europe's past. Whether European and American elites like it or not, Europe is a diverse continent with different peoples, an enormous variety of languages, cultures, and even entirely different alphabets. As the Framers realized, a country is most safe and free when it creates and maintains a political system that reflects the realities of the country's culture and history. The elitist, hopelessly idealist European Union, however, does not reflect any European reality.

# data[].attributes.attachment_link.title
What America's Founders Could Teach The European Union

# data[].attributes.attachment_link.description
Former U.S. Secretary of State Henry Kissinger famously asked: "Who do I call if I want to speak to Europe?" Kissinger's question describes the confusion and frustration of many Americans with the multitude of European nations.

# data[].attributes.body
https://time.com/4551485/hillary-clinton-james-comey-transparency/

# data[].attributes.attachment_link.description
legislation, floor speeches, and other congressional documents on government secrecy

# data[].attributes.headline
Secrecy and the Constitutional Convention

# data[].attributes.subject
Secrecy and the Constitutional Convention

# data[].attributes.body
https://archive.csac.history.wisc.edu/secrecy%20essay.pdf

# data[].attributes.headline
Great comprehensive Fed/Anti-Fed website 

# data[].attributes.subject
Great comprehensive Fed/Anti-Fed website 

# data[].attributes.attachment_link.readable_text
A More Perfect Union: The Creation of the U.S. Constitution

May 25, 1787, freshly spread dirt covered the cobblestone street in front of the Pennsylvania State House, protecting the men inside from the sound of passing carriages and carts. Guards stood at the entrances to ensure that the curious were kept at a distance. Robert Morris of Pennsylvania, the "financier" of the Revolution, opened the proceedings with a nomination--Gen. George Washington for the presidency of the Constitutional Convention. The vote was unanimous. With characteristic ceremonial modesty, the general expressed his embarrassment at his lack of qualifications to preside over such an august body and apologized for any errors into which he might fall in the course of its deliberations.

To many of those assembled, especially to the small, boyish-looking, 36-year-old delegate from Virginia, James Madison, the general's mere presence boded well for the convention, for the illustrious Washington gave to the gathering an air of importance and legitimacy But his decision to attend the convention had been an agonizing one. The Father of the Country had almost remained at home.

Suffering from rheumatism, despondent over the loss of a brother, absorbed in the management of Mount Vernon, and doubting that the convention would accomplish very much or that many men of stature would attend, Washington delayed accepting the invitation to attend for several months. Torn between the hazards of lending his reputation to a gathering perhaps doomed to failure and the chance that the public would view his reluctance to attend with a critical eye, the general finally agreed to make the trip. James Madison was pleased.

The Articles of Confederation

The determined Madison had for several years insatiably studied history and political theory searching for a solution to the political and economic dilemmas he saw plaguing America. The Virginian's labors convinced him of the futility and weakness of confederacies of independent states. America's own government under the Articles of Confederation, Madison was convinced, had to be replaced. In force since 1781, established as a "league of friendship" and a constitution for the 13 sovereign and independent states after the Revolution, the articles seemed to Madison woefully inadequate. With the states retaining considerable power, the central government, he believed, had insufficient power to regulate commerce. It could not tax and was generally impotent in setting commercial policy It could not effectively support a war effort. It had little power to settle quarrels between states. Saddled with this weak government, the states were on the brink of economic disaster. The evidence was overwhelming. Congress was attempting to function with a depleted treasury; paper money was flooding the country, creating extraordinary inflation--a pound of tea in some areas could be purchased for a tidy $100; and the depressed condition of business was taking its toll on many small farmers. Some of them were being thrown in jail for debt, and numerous farms were being confiscated and sold for taxes.

In 1786 some of the farmers had fought back. Led by Daniel Shays, a former captain in the Continental army, a group of armed men, sporting evergreen twigs in their hats, prevented the circuit court from sitting at Northampton, MA, and threatened to seize muskets stored in the arsenal at Springfield. Although the insurrection was put down by state troops, the incident confirmed the fears of many wealthy men that anarchy was just around the corner. Embellished day after day in the press, the uprising made upper-class Americans shudder as they imagined hordes of vicious outlaws descending upon innocent citizens. From his idyllic Mount Vernon setting, Washington wrote to Madison: "Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm."

Madison thought he had the answer. He wanted a strong central government to provide order and stability. "Let it be tried then," he wrote, "whether any middle ground can be taken which will at once support a due supremacy of the national authority," while maintaining state power only when "subordinately useful." The resolute Virginian looked to the Constitutional Convention to forge a new government in this mold.

The convention had its specific origins in a proposal offered by Madison and John Tyler in the Virginia assembly that the Continental Congress be given power to regulate commerce throughout the Confederation. Through their efforts in the assembly a plan was devised inviting the several states to attend a convention at Annapolis, MD, in September 1786 to discuss commercial problems. Madison and a young lawyer from New York named Alexander Hamilton issued a report on the meeting in Annapolis, calling upon Congress to summon delegates of all of the states to meet for the purpose of revising the Articles of Confederation. Although the report was widely viewed as a usurpation of congressional authority, the Congress did issue a formal call to the states for a convention. To Madison it represented the supreme chance to reverse the country's trend. And as the delegations gathered in Philadelphia, its importance was not lost to others. The squire of Gunston Hall, George Mason, wrote to his son, "The Eyes of the United States are turned upon this Assembly and their Expectations raised to a very anxious Degree. May God Grant that we may be able to gratify them, by establishing a wise and just Government."

The Delegates

Seventy-four delegates were appointed to the convention, of which 55 actually attended sessions. Rhode Island was the only state that refused to send delegates. Dominated by men wedded to paper currency, low taxes, and popular government, Rhode Island's leaders refused to participate in what they saw as a conspiracy to overthrow the established government. Other Americans also had their suspicions. Patrick Henry, of the flowing red Glasgow cloak and the magnetic oratory, refused to attend, declaring he "smelt a rat." He suspected, correctly, that Madison had in mind the creation of a powerful central government and the subversion of the authority of the state legislatures. Henry along with many other political leaders, believed that the state governments offered the chief protection for personal liberties. He was determined not to lend a hand to any proceeding that seemed to pose a threat to that protection.

With Henry absent, with such towering figures as Jefferson and Adams abroad on foreign missions, and with John Jay in New York at the Foreign Office, the convention was without some of the country's major political leaders. It was, nevertheless, an impressive assemblage. In addition to Madison and Washington, there were Benjamin Franklin of Pennsylvania--crippled by gout, the 81-year-old Franklin was a man of many dimensions printer, storekeeper, publisher, scientist, public official, philosopher, diplomat, and ladies' man; James Wilson of Pennsylvania--a distinguished lawyer with a penchant for ill-advised land-jobbing schemes, which would force him late in life to flee from state to state avoiding prosecution for debt, the Scotsman brought a profound mind steeped in constitutional theory and law; Alexander Hamilton of New York--a brilliant, ambitious former aide-de-camp and secretary to Washington during the Revolution who had, after his marriage into the Schuyler family of New York, become a powerful political figure; George Mason of Virginia--the author of the Virginia Bill of Rights whom Jefferson later called "the Cato of his country without the avarice of the Roman"; John Dickinson of Delaware--the quiet, reserved author of the "Farmers' Letters" and chairman of the congressional committee that framed the articles; and Gouverneur Morris of Pennsylvania-- well versed in French literature and language, with a flair and bravado to match his keen intellect, who had helped draft the New York State Constitution and had worked with Robert Morris in the Finance Office.

There were others who played major roles - Oliver Ellsworth of Connecticut; Edmund Randolph of Virginia; William Paterson of New Jersey; John Rutledge of South Carolina; Elbridge Gerry of Massachusetts; Roger Sherman of Connecticut; Luther Martin of Maryland; and the Pinckneys, Charles and Charles Cotesworth, of South Carolina. Franklin was the oldest member and Jonathan Dayton, the 27-year-old delegate from New Jersey was the youngest. The average age was 42. Most of the delegates had studied law, had served in colonial or state legislatures, or had been in the Congress. Well versed in philosophical theories of government advanced by such philosophers as James Harrington, John Locke, and Montesquieu, profiting from experience gained in state politics, the delegates composed an exceptional body, one that left a remarkably learned record of debate. Fortunately we have a relatively complete record of the proceedings, thanks to the indefatigable James Madison. Day after day, the Virginian sat in front of the presiding officer, compiling notes of the debates, not missing a single day or a single major speech. He later remarked that his self-confinement in the hall, which was often oppressively hot in the Philadelphia summer, almost killed him.

The sessions of the convention were held in secret--no reporters or visitors were permitted. Although many of the naturally loquacious members were prodded in the pubs and on the streets, most remained surprisingly discreet. To those suspicious of the convention, the curtain of secrecy only served to confirm their anxieties. Luther Martin of Maryland later charged that the conspiracy in Philadelphia needed a quiet breeding ground. Thomas Jefferson wrote John Adams from Paris, "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members."

The Virginia Plan

On Tuesday morning, May 29, Edmund Randolph, the tall, 34-year- old governor of Virginia, opened the debate with a long speech decrying the evils that had befallen the country under the Articles of Confederation and stressing the need for creating a strong national government. Randolph then outlined a broad plan that he and his Virginia compatriots had, through long sessions at the Indian Queen tavern, put together in the days preceding the convention. James Madison had such a plan on his mind for years. The proposed government had three branches--legislative, executive, and judicial--each branch structured to check the other. Highly centralized, the government would have veto power over laws enacted by state legislatures. The plan, Randolph confessed, "meant a strong consolidated union in which the idea of states should be nearly annihilated." This was, indeed, the rat so offensive to Patrick Henry.

The introduction of the so-called Virginia Plan at the beginning of the convention was a tactical coup. The Virginians had forced the debate into their own frame of reference and in their own terms.

For 10 days the members of the convention discussed the sweeping and, to many delegates, startling Virginia resolutions. The critical issue, described succinctly by Gouverneur Morris on May 30, was the distinction between a federation and a national government, the "former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." Morris favored the latter, a "supreme power" capable of exercising necessary authority not merely a shadow government, fragmented and hopelessly ineffective.

The New Jersey Plan

This nationalist position revolted many delegates who cringed at the vision of a central government swallowing state sovereignty. On June 13 delegates from smaller states rallied around proposals offered by New Jersey delegate William Paterson. Railing against efforts to throw the states into "hotchpot," Paterson proposed a "union of the States merely federal." The "New Jersey resolutions" called only for a revision of the articles to enable the Congress more easily to raise revenues and regulate commerce. It also provided that acts of Congress and ratified treaties be "the supreme law of the States."

For 3 days the convention debated Paterson's plan, finally voting for rejection. With the defeat of the New Jersey resolutions, the convention was moving toward creation of a new government, much to the dismay of many small-state delegates. The nationalists, led by Madison, appeared to have the proceedings in their grip. In addition, they were able to persuade the members that any new constitution should be ratified through conventions of the people and not by the Congress and the state legislatures- -another tactical coup. Madison and his allies believed that the constitution they had in mind would likely be scuttled in the legislatures, where many state political leaders stood to lose power. The nationalists wanted to bring the issue before "the people," where ratification was more likely.

Hamilton's Plan

On June 18 Alexander Hamilton presented his own ideal plan of government. Erudite and polished, the speech, nevertheless, failed to win a following. It went too far. Calling the British government "the best in the world," Hamilton proposed a model strikingly similar an executive to serve during good behavior or life with veto power over all laws; a senate with members serving during good behavior; the legislature to have power to pass "all laws whatsoever." Hamilton later wrote to Washington that the people were now willing to accept "something not very remote from that which they have lately quitted." What the people had "lately quitted," of course, was monarchy. Some members of the convention fully expected the country to turn in this direction. Hugh Williamson of North Carolina, a wealthy physician, declared that it was "pretty certain . . . that we should at some time or other have a king." Newspaper accounts appeared in the summer of 1787 alleging that a plot was under way to invite the second son of George III, Frederick, Duke of York, the secular bishop of Osnaburgh in Prussia, to become "king of the United States."

Alexander Hamilton on June 18 called the British government "the best in the world" and proposed a model strikingly similar. The erudite New Yorker, however, later became one of the most ardent spokesmen for the new Constitution.

Strongly militating against any serious attempt to establish monarchy was the enmity so prevalent in the revolutionary period toward royalty and the privileged classes. Some state constitutions had even prohibited titles of nobility. In the same year as the Philadelphia convention, Royall Tyler, a revolutionary war veteran, in his play The Contract, gave his own jaundiced view of the upper classes:
Exult each patriot heart! this night is shewn
A piece, which we may fairly call our own;
Where the proud titles of "My Lord!" "Your Grace!"
To humble Mr. and plain Sir give place.
Most delegates were well aware that there were too many Royall Tylers in the country, with too many memories of British rule and too many ties to a recent bloody war, to accept a king. As the debate moved into the specifics of the new government, Alexander Hamilton and others of his persuasion would have to accept something less.

By the end of June, debate between the large and small states over the issue of representation in the first chamber of the legislature was becoming increasingly acrimonious. Delegates from Virginia and other large states demanded that voting in Congress be according to population; representatives of smaller states insisted upon the equality they had enjoyed under the articles. With the oratory degenerating into threats and accusations, Benjamin Franklin appealed for daily prayers. Dressed in his customary gray homespun, the aged philosopher pleaded that "the Father of lights . . . illuminate our understandings." Franklin's appeal for prayers was never fulfilled; the convention, as Hugh Williamson noted, had no funds to pay a preacher.

On June 29 the delegates from the small states lost the first battle. The convention approved a resolution establishing population as the basis for representation in the House of Representatives, thus favoring the larger states. On a subsequent small-state proposal that the states have equal representation in the Senate, the vote resulted in a tie. With large-state delegates unwilling to compromise on this issue, one member thought that the convention "was on the verge of dissolution, scarce held together by the strength of an hair."

By July 10 George Washington was so frustrated over the deadlock that he bemoaned "having had any agency" in the proceedings and called the opponents of a strong central government "narrow minded politicians . . . under the influence of local views." Luther Martin of Maryland, perhaps one whom Washington saw as "narrow minded," thought otherwise. A tiger in debate, not content merely to parry an opponent's argument but determined to bludgeon it into eternal rest, Martin had become perhaps the small states' most effective, if irascible, orator. The Marylander leaped eagerly into the battle on the representation issue declaring, "The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege."

The Great Compromise

Also crowding into this complicated and divisive discussion over representation was the North-South division over the method by which slaves were to be counted for purposes of taxation and representation. On July 12 Oliver Ellsworth proposed that representation for the lower house be based on the number of free persons and three-fifths of "all other persons," a euphemism for slaves. In the following week the members finally compromised, agreeing that direct taxation be according to representation and that the representation of the lower house be based on the white inhabitants and three-fifths of the "other people." With this compromise and with the growing realization that such compromise was necessary to avoid a complete breakdown of the convention, the members then approved Senate equality. Roger Sherman had remarked that it was the wish of the delegates "that some general government should be established." With the crisis over representation now settled, it began to look again as if this wish might be fulfilled.

For the next few days the air in the City of Brotherly Love, although insufferably muggy and swarming with blue-bottle flies, had the clean scent of conciliation. In this period of welcome calm, the members decided to appoint a Committee of Detail to draw up a draft constitution. The convention would now at last have something on paper. As Nathaniel Gorham of Massachusetts, John Rutledge, Edmund Randolph, James Wilson, and Oliver Ellsworth went to work, the other delegates voted themselves a much needed 10-day vacation.

During the adjournment, Gouverneur Morris and George Washington rode out along a creek that ran through land that had been part of the Valley Forge encampment 10 years earlier. While Morris cast for trout, Washington pensively looked over the now lush ground where his freezing troops had suffered, at a time when it had seemed as if the American Revolution had reached its end. The country had come a long way.

The First Draft

On Monday August 6, 1787, the convention accepted the first draft of the Constitution. Here was the article-by-article model from which the final document would result some 5 weeks later. As the members began to consider the various sections, the willingness to compromise of the previous days quickly evaporated. The most serious controversy erupted over the question of regulation of commerce. The southern states, exporters of raw materials, rice, indigo, and tobacco, were fearful that a New England-dominated Congress might, through export taxes, severely damage the South's economic life. C. C. Pinckney declared that if Congress had the power to regulate trade, the southern states would be "nothing more than overseers for the Northern States."

On August 21 the debate over the issue of commerce became very closely linked to another explosive issue--slavery. When Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, "Interest alone is the governing principle with nations." Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason's words, "a bargain." Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders' support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.

The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out: "How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war." Hopkins considered the Constitution a document fit for the flames.

On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the "great Business now before us," bitterly exclaimed that he "would sooner chop off his right hand than put it to the Constitution as it now stands." Mason despaired that the convention was rushing to saddle the country with an ill-advised, potentially ruinous central authority He was concerned that a "bill of rights," ensuring individual liberties, had not been made part of the Constitution. Mason called for a new convention to reconsider the whole question of the formation of a new government. Although Mason's motion was overwhelmingly voted down, opponents of the Constitution did not abandon the idea of a new convention. It was futilely suggested again and again for over 2 years.

One of the last major unresolved problems was the method of electing the executive. A number of proposals, including direct election by the people, by state legislatures, by state governors, and by the national legislature, were considered. The result was the electoral college, a master stroke of compromise, quaint and curious but politically expedient. The large states got proportional strength in the number of delegates, the state legislatures got the right of selecting delegates, and the House the right to choose the president in the event no candidate received a majority of electoral votes. Mason later predicted that the House would probably choose the president 19 times out of 20.

In the early days of September, with the exhausted delegates anxious to return home, compromise came easily. On September 8 the convention was ready to turn the Constitution over to a Committee of Style and Arrangement. Gouverneur Morris was the chief architect. Years later he wrote to Timothy Pickering: "That Instrument was written by the Fingers which wrote this letter." The Constitution was presented to the convention on September 12, and the delegates methodically began to consider each section. Although close votes followed on several articles, it was clear that the grueling work of the convention in the historic summer of 1787 was reaching its end.

Before the final vote on the Constitution on September 15, Edmund Randolph proposed that amendments be made by the state conventions and then turned over to another general convention for consideration. He was joined by George Mason and Elbridge Gerry. The three lonely allies were soundly rebuffed. Late in the afternoon the roll of the states was called on the Constitution, and from every delegation the word was "Aye."

On September 17 the members met for the last time, and the venerable Franklin had written a speech that was delivered by his colleague James Wilson. Appealing for unity behind the Constitution, Franklin declared, "I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats." With Mason, Gerry, and Randolph withstanding appeals to attach their signatures, the other delegates in the hall formally signed the Constitution, and the convention adjourned at 4 o'clock in the afternoon.

Weary from weeks of intense pressure but generally satisfied with their work, the delegates shared a farewell dinner at City Tavern. Two blocks away on Market Street, printers John Dunlap and David Claypoole worked into the night on the final imprint of the six-page Constitution, copies of which would leave Philadelphia on the morning stage. The debate over the nation's form of government was now set for the larger arena.

As the members of the convention returned home in the following days, Alexander Hamilton privately assessed the chances of the Constitution for ratification. In its favor were the support of Washington, commercial interests, men of property, creditors, and the belief among many Americans that the Articles of Confederation were inadequate. Against it were the opposition of a few influential men in the convention and state politicians fearful of losing power, the general revulsion against taxation, the suspicion that a centralized government would be insensitive to local interests, and the fear among debtors that a new government would "restrain the means of cheating Creditors."

The Federalists and the Anti-Federalists

Because of its size, wealth, and influence and because it was the first state to call a ratifying convention, Pennsylvania was the focus of national attention. The positions of the Federalists, those who supported the Constitution, and the anti-Federalists, those who opposed it, were printed and reprinted by scores of newspapers across the country. And passions in the state were most warm. When the Federalist-dominated Pennsylvania assembly lacked a quorum on September 29 to call a state ratifying convention, a Philadelphia mob, in order to provide the necessary numbers, dragged two anti-Federalist members from their lodgings through the streets to the State House where the bedraggled representatives were forced to stay while the assembly voted. It was a curious example of participatory democracy.

On October 5 anti-Federalist Samuel Bryan published the first of his "Centinel" essays in Philadelphia's Independent Gazetteer. Republished in newspapers in various states, the essays assailed the sweeping power of the central government, the usurpation of state sovereignty, and the absence of a bill of rights guaranteeing individual liberties such as freedom of speech and freedom of religion. "The United States are to be melted down," Bryan declared, into a despotic empire dominated by "well-born" aristocrats. Bryan was echoing the fear of many anti-Federalists that the new government would become one controlled by the wealthy established families and the culturally refined. The common working people, Bryan believed, were in danger of being subjugated to the will of an all-powerful authority remote and inaccessible to the people. It was this kind of authority, he believed, that Americans had fought a war against only a few years earlier.

The next day James Wilson, delivering a stirring defense of the Constitution to a large crowd gathered in the yard of the State House, praised the new government as the best "which has ever been offered to the world." The Scotsman's view prevailed. Led by Wilson, Federalists dominated in the Pennsylvania convention, carrying the vote on December 12 by a healthy 46 to 23.

The vote for ratification in Pennsylvania did not end the rancor and bitterness. Franklin declared that scurrilous articles in the press were giving the impression that Pennsylvania was "peopled by a set of the most unprincipled, wicked, rascally and quarrelsome scoundrels upon the face of the globe." And in Carlisle, on December 26, anti-Federalist rioters broke up a Federalist celebration and hung Wilson and the Federalist chief justice of Pennsylvania, Thomas McKean, in effigy; put the torch to a copy of the Constitution; and busted a few Federalist heads.

In New York the Constitution was under siege in the press by a series of essays signed "Cato." Mounting a counterattack, Alexander Hamilton and John Jay enlisted help from Madison and, in late 1787, they published the first of a series of essays now known as the Federalist Papers. The 85 essays, most of which were penned by Hamilton himself, probed the weaknesses of the Articles of Confederation and the need for an energetic national government. Thomas Jefferson later called the Federalist Papers the "best commentary on the principles of government ever written."

Against this kind of Federalist leadership and determination, the opposition in most states was disorganized and generally inert. The leading spokesmen were largely state-centered men with regional and local interests and loyalties. Madison wrote of the Massachusetts anti-Federalists, "There was not a single character capable of uniting their wills or directing their measures. . . . They had no plan whatever." The anti-Federalists attacked wildly on several fronts: the lack of a bill of rights, discrimination against southern states in navigation legislation, direct taxation, the loss of state sovereignty. Many charged that the Constitution represented the work of aristocratic politicians bent on protecting their own class interests. At the Massachusetts convention one delegate declared, "These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!" Some newspaper articles, presumably written by anti-Federalists, resorted to fanciful predictions of the horrors that might emerge under the new Constitution pagans and deists could control the government; the use of Inquisition-like torture could be instituted as punishment for federal crimes; even the pope could be elected president.

One anti-Federalist argument gave opponents some genuine difficulty--the claim that the territory of the 13 states was too extensive for a representative government. In a republic embracing a large area, anti-Federalists argued, government would be impersonal, unrepresentative, dominated by men of wealth, and oppressive of the poor and working classes. Had not the illustrious Montesquieu himself ridiculed the notion that an extensive territory composed of varying climates and people, could be a single republican state? James Madison, always ready with the Federalist volley, turned the argument completely around and insisted that the vastness of the country would itself be a strong argument in favor of a republic. Claiming that a large republic would counterbalance various political interest groups vying for power, Madison wrote, "The smaller the society the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression." Extend the size of the republic, Madison argued, and the country would be less vulnerable to separate factions within it.

Ratification

By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution--Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, withFederalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168. The revolutionary leader, John Hancock, elected to preside over the Massachusetts ratifying convention but unable to make up his mind on the Constitution, took to his bed with a convenient case of gout. Later seduced by the Federalists with visions of the vice presidency and possibly the presidency, Hancock, whom Madison noted as "an idolater of popularity," suddenly experienced a miraculous cure and delivered a critical block of votes. Although Massachusetts was now safely in the Federalist column, the recommendation of a bill of rights was a significant victory for the anti-Federalists. Six of the remaining states later appended similar recommendations.

When the New Hampshire convention was adjourned by Federalists who sensed imminent defeat and when Rhode Island on March 24 turned down the Constitution in a popular referendum by an overwhelming vote of 10 to 1, Federalist leaders were apprehensive. Looking ahead to the Maryland convention, Madison wrote to Washington, "The difference between even a postponement and adoption in Maryland may . . . possibly give a fatal advantage to that which opposes the constitution." Madison had little reason to worry. The final vote on April 28 63 for, 11 against. In Baltimore, a huge parade celebrating the Federalist victory rolled. through the downtown streets, highlighted by a 15-foot float called "Ship Federalist." The symbolically seaworthy craft was later launched in the waters off Baltimore and sailed down the Potomac to Mount Vernon.

On July 2, 1788, the Confederation Congress, meeting in New York, received word that a reconvened New Hampshire ratifying convention had approved the Constitution. With South Carolina's acceptance of the Constitution in May, New Hampshire thus became the ninth state to ratify. The Congress appointed a committee "for putting the said Constitution into operation."

In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.

The Bill of Rights

The call for a bill of rights had been the anti-Federalists' most powerful weapon. Attacking the proposed Constitution for its vagueness and lack of specific protection against tyranny, Patrick Henry asked the Virginia convention, "What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances." The anti-Federalists, demanding a more concise, unequivocal Constitution, one that laid out for all to see the right of the people and limitations of the power of government, claimed that the brevity of the document only revealed its inferior nature. Richard Henry Lee despaired at the lack of provisions to protect "those essential rights of mankind without which liberty cannot exist." Trading the old government for the new without such a bill of rights, Lee argued, would be trading Scylla for Charybdis.

A bill of rights had been barely mentioned in the Philadelphia convention, most delegates holding that the fundamental rights of individuals had been secured in the state constitutions. James Wilson maintained that a bill of rights was superfluous because all power not expressly delegated to thenew government was reserved to the people. It was clear, however, that in this argument the anti-Federalists held the upper hand. Even Thomas Jefferson, generally in favor of the new government, wrote to Madison that a bill of rights was "what the people are entitled to against every government on earth."

By the fall of 1788 Madison had been convinced that not only was a bill of rights necessary to ensure acceptance of the Constitution but that it would have positive effects. He wrote, on October 17, that such "fundamental maxims of free Government" would be "a good ground for an appeal to the sense of community" against potential oppression and would "counteract the impulses of interest and passion."

Madison's support of the bill of rights was of critical significance. One of the new representatives from Virginia to the First Federal Congress, as established by the new Constitution, he worked tirelessly to persuade the House to enact amendments. Defusing the anti-Federalists' objections to the Constitution, Madison was able to shepherd through 17 amendments in the early months of the Congress, a list that was later trimmed to 12 in the Senate. On October 2, 1789, President Washington sent to each of the states a copy of the 12 amendments adopted by the Congress in September. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the "Bill of Rights."

Benjamin Franklin told a French correspondent in 1788 that the formation of the new government had been like a game of dice, with many players of diverse prejudices and interests unable to make any uncontested moves. Madison wrote to Jefferson that the welding of these clashing interests was "a task more difficult than can be well conceived by those who were not concerned in the execution of it." When the delegates left Philadelphia after the convention, few, if any, were convinced that the Constitution they had approved outlined the ideal form of government for the country. But late in his life James Madison scrawled out another letter, one never addressed. In it he declared that no government can be perfect, and "that which is the least imperfect is therefore the best government."

The Document Enshrined

The fate of the United States Constitution after its signing on September 17, 1787, can be contrasted sharply to the travels and physical abuse of America's other great parchment, the Declaration of Independence. As the Continental Congress, during the years of the revolutionary war, scurried from town to town, the rolled-up Declaration was carried along. After the formation of the new government under the Constitution, the one-page Declaration, eminently suited for display purposes, graced the walls of various government buildings in Washington, exposing it to prolonged damaging sunlight. It was also subjected to the work of early calligraphers responding to a demand for reproductions of the revered document. As any visitor to the National Archives can readily observe, the early treatment of the now barely legible Declaration took a disastrous toll. The Constitution, in excellent physical condition after more than 200 years, has enjoyed a more serene existence. By 1796 the Constitution was in the custody of the Department of State along with the Declaration and traveled with the federal government from New York to Philadelphia to Washington. Both documents were secretly moved to Leesburg, VA, before the imminent attack by the British on Washington in 1814. Following the war, the Constitution remained in the State Department while the Declaration continued its travels--to the Patent Office Building from 1841 to 1876, to Independence Hall in Philadelphia during the Centennial celebration, and back to Washington in 1877. On September 29, 1921, President Warren Harding issued an Executive order transferring the Constitution and the Declaration to the Library of Congress for preservation and exhibition. The next day Librarian of Congress Herbert Putnam, acting on authority of Secretary of State Charles Evans Hughes, carried the Constitution and the Declaration in a Model-T Ford truck to the library and placed them in his office safe until an appropriate exhibit area could be constructed. The documents were officially put on display at a ceremony in the library on February 28, 1924. On February 20, 1933, at the laying of the cornerstone of the future National Archives Building, President Herbert Hoover remarked, "There will be aggregated here the most sacred documents of our history--the originals of the Declaration of Independence and of the Constitution of the United States." The two documents however, were not immediately transferred to the Archives. During World War II both were moved from the library to Fort Knox for protection and returned to the library in 1944. It was not until successful negotiations were completed between Librarian of Congress Luther Evans and Archivist of the United States Wayne Grover that the transfer to the National Archives was finally accomplished by special direction of the Joint Congressional Committee on the Library.

On December 13, 1952, the Constitution and the Declaration were placed in helium-filled cases, enclosed in wooden crates, laid on mattresses in an armored Marine Corps personnel carrier, and escorted by ceremonial troops, two tanks, and four servicemen carrying submachine guns down Pennsylvania and Constitution avenues to the National Archives. Two days later, President Harry Truman declared at a formal ceremony in the Archives Exhibition Hall.

"We are engaged here today in a symbolic act. We are enshrining these documents for future ages. This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise. All this is an honorable effort, based upon reverence for the great past, and our generation can take just pride in it."
Back to the Bill of Rights Page

# data[].attributes.attachment_link.title
Constitution of the United States-A History

# data[].attributes.attachment_link.description
A More Perfect Union: The Creation of the U.S. Constitution

# data[].attributes.attachment_link.readable_text
-A few days ago, Oct. 10 had been circled on calendars around the country - the day the Trump administration would make its first appearance before the US Supreme Court, to argue for the full enforcement of President Trump's controversial "travel ban" executive order.

Monday afternoon, in a one-paragraph order, the justices kicked that can down the road. One of the longest, most contentious, and confusing subplots of Donald Trump's presidency is now going to have to play a little - or perhaps a lot - longer.

With the Trump administration issuing a third version of the order Sunday, the argument that the case before the high court - which concerns the second iteration of the order - is now moot just became much stronger. If the justices decide that the case is moot, they would be able to resolve it without exploring the thorny statutory and constitutional questions it raises. Today's order from the justices asks the parties involved to file briefs by Oct. 5 explaining whether, and to what extent, the case is now moot, while also removing it from their October calendar.

Whatever happens 10 days from now, this issue is far from resolved. Here are some questions looking at how we got here, and where we could go next:
Q: What is the travel ban?
The ban at issue is the second version of an executive order regarding immigration. The first order, authored with limited input from federal immigration agencies and issued weeks after Trump took office, banned for 90 days entry for citizens from Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen, and banned the admission of all refugees for 120 days (or, for refugees from Syria, indefinitely). The Trump administration has cited national security interests as the justification for the order, but critics instead see it as a veiled effort to implement a "Muslim ban" he promised during his presidential campaign.

After mass protests and successful legal challenges around the country, Trump issued a revised executive order in March. The new order removed Iraq from the list of banned countries, included refugees from Syria in the 120 day-ban, and addressed several perceived legal flaws in its predecessor, such as excluding green card holders and specifying the links to terrorist organizations in the other six countries. The 90-day ban was going to expire at midnight Sunday, prompting the Trump administration to issue its new executive action.

Effective Oct. 18, the new proclamation indefinitely restricts travel for citizens from Iran, Syria, Libya, Somalia, and Yemen, as well as North Korea, Chad, and some government officials from Venezuela. The new restrictions are "conditions-based, not time-based" an administration official told The Washington Post, and vary by country. If security conditions improve in a country, it seems, restrictions could be relaxed or removed. Sudan has been removed after agreeing to accept large numbers of Sudanese nationals deported from the US, according to news reports.

"As president, I must act to protect the security and interests of the United States and its people," Trump said in a statement.
Q: How did we get here?
Three separate federal judges blocked the implementation of the first travel ban, and a panel of three judges on the 9th Circuit US Court of Appeals upheld that injunction. Refugee advocacy and civil liberties groups sued again after Trump issued his second order. Federal judges in Hawaii and Maryland blocked the implementation of key provisions of that order. On appeal, the 4th Circuit US Court of Appeals upheld parts of the Maryland ruling on the grounds that the order unconstitutionally discriminated against Muslims. In another appeal, the 9th Circuit upheld parts of the Hawaii ruling on the grounds that the order violated the Immigration and Nationality Act (INA).

The Trump administration appealed both decisions to the Supreme Court, which in June took up the case and allowed most of the order to go into effect. Next week, on Oct. 5, the justices will receive briefs from both sides arguing whether this case is now moot.
Q: What questions are at issue?
The justices were considering three questions regarding the travel ban. Two of them relate directly to the 4th and 9th Circuit decisions - namely, whether the order violates the INA or the Establishment Clause of the Constitution.

With the justices now focusing exclusively on whether the case has become moot or "otherwise nonjusticiable" - another question the court asked back in June - those questions on the substance of the travel ban order are now on the back burner. And they may stay there for a while.

The third travel ban order "makes it more likely that the court is simply not going to hear the travel ban case, at least not this term," says Steven Schwinn, a professor at the John Marshall Law School in Chicago.

Even if they find the case moot, another significant question the Supreme Court may have to deal with - and deal with this term - is whether to uphold the lower court rulings in the case, which were all against the White House, or vacate them.
Q: Will there be more litigation?
Almost certainly. Opponents of the ban have already signaled that they could file suit over the most recent order.

"Six of President Trump's targeted countries are Muslim. The fact that Trump has added North Korea - with few visitors to the U.S. - and a few government officials from Venezuela doesn't obfuscate the real fact that the administration's order is still a Muslim ban," wrote Anthony Romero, executive director of the American Civil Liberties Union, which brought one of the challenges to the ban now before the court, in a statement.

Whether new plaintiffs will have to come forward, and where these new challenges could come from geographically, remains to be seen. But the arguments against the new proclamation are likely to be similar to the old ones.

"I don't think it'll be hard to find people willing to stand up and oppose this in court," says Professor Schwinn, "but I think they'll have to start a new case."

And given how long it would take to litigate any new case through the lower courts, it's unlikely the justices would hear a challenge to the new proclamation until next term at the earliest.
Q: How could courts view the new order?
The fact that the latest proclamation has come after the 90-day period in which the Trump administration said it was going to review the screening and security practices of the targeted countries may make the order more defensible in court.

"If this order is tailored to that review it does make the [religious discrimination] claim harder to make," says Schwinn. "Did the government's national security review kind of break the chain of causation between the earlier [anti-Muslim] animus and the third version of the order?"

Arguments that the order violates the INA - which prohibits the exclusion of individuals from entering the US on the basis of nationality - may be more relevant.

"I think that argument probably is still very much going to be in play with this third version," says Schwinn. In the new proclamation "you still have the president designating by country who can come and who cannot."

There have been hints, however, that there were enough votes on the high court to uphold the second travel ban in full.

With one preliminary judgment in July, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch wrote a separate opinion saying all travelers from the six specified countries should have been banned.

That opinion suggests that "there are certainly three, and I think maybe five votes to uphold the policy," writes Josh Blackman, an associate professor at the South Texas College of Law Houston, in an email to the Monitor.

# data[].attributes.attachment_link.title
What does third Trump travel ban mean for Supreme Court case?

# data[].attributes.attachment_link.description
A few days ago, Oct. 10 had been circled on calendars around the country - the day the Trump administration would make its first appearance before the US Supreme Court, to argue for the full enforcement of President Trump's controversial "travel ban" executive order.

# data[].attributes.attachment_link.readable_text
Mr. Sturgeon sued the United States seeking a declaration that the federal agents did not have authority to ban his hovercraft, arguing the Nation River is state-owned and that Alaska does not ban hovercrafts. The Ninth Circuit, after finding the State of Alaska lacked standing, affirmed the district court's grant of summary judgment in favor of the United States. The Ninth Circuit's reasoning turned on its interpretation of section 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), finding the statute did not bar the NPS from enforcing its nationwide ban on hovercrafts within, regardless of ownership.

Sturgeon and Alaska argued that title to navigable waters, including the Nation River, were clearly granted to Alaska at statehood and that ANILCA section 103(c) did not intend to convey ownership of navigable preserve waters. From that premise, Sturgeon argued section 103(c) prevented the NPS from regulating activities on private or state-owned lands and waters lying within the park boundaries set by ANILCA. The Ninth Circuit rejected this argument, holding that since the ban was not applied solely to public lands in Alaska, it could be enforced on both preserve public and nonpublic lands. However, in its briefing, the United States devoted a single paragraph to defending the Ninth Circuit's strained reasoning, a fact not lost on the Court. During oral arguments, Justices Alito and Sotomayor referred to the Ninth Circuit's holding as "wrong" stating "It's a ridiculous interpretation . . ."
The property interests in the U.S. preserve are "complicated"
Justice Roberts delivered the Court's unanimous decision, detailing Alaska's property history, from acquisition from Russia, to statehood, and on to the "Great Denali-McKinley Trespass" (analogous to the recent Bundy standoff in Oregon). Justice Roberts detailed the competing interests of the United States, Alaska, and Native and private stakeholders leading to the ANILCA "grand bargain," which created the Yukon-Charley Rivers Preserve together with numerous other Alaska national parks, refuges, and monuments. ANILCA set aside 105 million acres of land in conservation system units (CSUs), drawn to include 18 million acres of additional nonpublic land. The scale of land was immense, tripling land within U.S. parks, all placed under federal management. The complex interests involved led to difficult ownership and control issues, including whether the navigable waters within the preserve remained state land, and to what extent federal authority controls. While questioning counsel about the title interests raised, Justice Breyer noted "[i]t's too complicated."
Impact of an eight-member Court: Can the NPS regulate activity, even over nonpublic park areas?
Sturgeon v. Frost was notably Justice Scalia's final oral argument. He enthusiastically argued against the U.S. position stating "[i]f it's not within the unit, it's not within the basic authority of the Park Service to issue regulations, period..." and "you're telling us that the river, that the government holds title to the river. It doesn't. It has usufructuary rights in the river." Justice Scalia's statements show he was prepared to address the significant federalism issues presented, and perhaps find in Sturgeon's favor.

The NPS had already used the Ninth Circuit's broad ruling to impose additional regulations on nonfederal, nonpublic land within Alaska parks (regulating oil activities), upsetting the state, which argued "the hits are going to keep on coming unless this Court stops this interpretation . . . ." The Supreme Court's decision unambiguously rejected the Ninth Circuit's "implausible" holding, likely ceasing further NPS regulation on nonpublic ANILCA lands, but the Court did not take the additional steps Scalia hinted at taking. Instead, while questions of U.S. authority over navigable waters in federal parks were brought front and center, the Court refused to address any issues of nationwide importance, possibly as a strategic compromise by an eight-member Court lacking any majority. In rejecting the Ninth Circuit ruling, the Court stated "we do not decide whether the Nation River qualifies as 'public land' for purposes of ANILCA." Noting that the case touched "on vital issues of state sovereignty...and federal authority," the Court did not "decide whether the Park Service has authority...to regulate Sturgeon's activities on the Nation River, even if the river is not "public" land...[w]e leave those arguments to the lower courts . . ."

While the decision may initially appear a victory for Sturgeon and state's rights, the NPS has made clear that its nationwide regulations will continue to be enforced within federal ANILCA lands, recently "reminding" citizens that its ban remains in effect "until a court rules otherwise." Despite the Chief Justice's detailed rendition of how "Alaska is different," the federal government will continue to treat Alaska the same by grounding Mr. Sturgeon's hovercraft pursuant to its nationwide ban.

# data[].attributes.attachment_link.title
Grounded: Supreme Court ducks federalism questions in Alaska hovercraft ban | Section of Environment, Energy, and Resources

# data[].attributes.attachment_link.description
Mr. Sturgeon sued the United States seeking a declaration that the federal agents did not have authority to ban his hovercraft, arguing the Nation River is state-owned and that Alaska does not ban hovercrafts. The Ninth Circuit, after finding the State of Alaska lacked standing, affirmed the district court's grant of summary judgment in favor of the United States.

# data[].attributes.headline
Alaska Native people, the feds and the state fight over subsistence fishing

# data[].attributes.subject
Alaska Native people, the feds and the state fight over subsistence fishing

# data[].attributes.attachment_link.readable_text
In fact, observers say the court's denial marks the end of nearly three decades of Katie John litigation. But that doesn't mean the fight is over. Leadership with the Alaska Federation of Natives said they will continue to battle for a system that allows for a rural subsistence priority across Alaska and not just on federal lands and waters.

The Supreme Court's refusal stems from a request by Alaska Attorney General Michael Geraghty in November. He had asked the Supreme Court to review a decision by the 9th Circuit Court of Appeals that the federal government controls subsistence hunting and fishing on navigable waters owned by the state that are adjacent to and within federal land.

The lawsuit is part of a series of cases that have outlived their namesake, Katie John, the Athabascan elder who died last year and had fought for the right to fish on her traditional lands along the Copper River. She was 97.

The dispute stems from a conflict between federal law, which gives a subsistence hunting and fishing priority to rural Alaska residents, and the state constitution, which calls for equal access to fish and game for all residents.

When Geraghty requested the review last fall, the state said this latest case "involves fundamental questions of control and authority over navigable waters in the state." Alaska was given the same rights as other states, including the right to control state-owned navigable waters next to and within federal land, the state argued.

A federal regulation in 1999 had put that authority in the hands of the federal government. The lower court's ruling incorrectly supported that rule, the state argued, calling it an "unprecedented extension of the federal reserved water rights doctrine."

The Alaska Federation of Natives said the rule provides a subsistence priority during times of shortage for rural Alaskans. It argued that the state's effort to overturn the decision was an assault on Alaska Native rights.

The denial marks the end to nearly 27 years of litigation on behalf of John, according to a statement from the Native American Rights Fund, which represented John. A press release from the fund said it was unfortunate that John did not live long enough to see the litigation come to an end. "Praise the Lord, my grandma can rest in peace," said Katie John's granddaughter, Kathryn Martin, according to the release.

Martin teared up later in the day at a press conference organized by the Alaska Federation of Natives, as she began to thank those who had fought on her grandmother's behalf. "I just want to say thank you to everyone, and I thank the Lord for this day," she said, after a long pause. She added that she hopes the state Legislature passes a bill that would mark May 31 -- the day her grandmother died -- as Katie John Day.

The Supreme Court's rejection ensures that the federal government will retain management of subsistence fishing and hunting on about 60 percent of inland waters.

In an email, the Alaska Attorney General's office issued the following statement: "The State is disappointed today by the news that the Supreme Court has denied hearing the case between the State of Alaska and the Department of Interior and will not move forward to clarify the lines of management authority between the state and federal subsistence programs in Alaska. Until this ambiguity can be removed and a clear definition of jurisdiction can be drawn, the dual management program will continue to lead to litigation and further uncertainty to the detriment of the Alaskan people as a whole."

The state's filing was an "end-run" on the 1996 decision by the Supreme Court, said Heather Kendall-Miller, senior attorney for the Native American Rights Fund office in Anchorage.

As it did today, the Supreme Court at the time denied the state's request for review of a 9th Circuit Court decision. The lower court had decided the subsistence priority applies to navigable waters needed to protect the priority on federal lands.

Also, in 2001, Gov. Tony Knowles, after meeting John at her fish camp, refused to appeal the Katie John case to the Supreme Court, calling the state's position a "losing legal strategy that threatens to make a permanent divide among Alaskans."

The state has lost its ability to bring similar challenges, said Kendall-Miller. "This is the big enchilada," she said of the court's rejection.

Byron Mallott, a Democratic candidate for governor, said the state needs to stop pursuing "senseless litigation." Instead, it should "engage in meaningful dialogue with its rural residents and Native peoples to protect the subsistence way of life. I call on Governor Parnell to accept the Supreme Court's decision and direct his administration to work constructively towards a solution that is fair and lasting."

Because of the decision, Alaska will continue to have dual management of hunting and fishing - with the state managing areas on applicable state lands and the federal government managing it on federal lands, said Kendall-Miller.

That is, unless the state takes action to bring its constitution into compliance with federal law, which would allow a unified management system controlled by the state. Such efforts have failed in the past.

In a second option, Congress could preempt the state and create a subsistence priority on all state and federal lands and waters, Kendall-Miller said.

The Native American Rights Fund prefers the federal action, said Kendall-Miller. "To us, this is the equivalent of a treaty right," as the federal government has promised to protect subsistence hunting and fishing in Alaska, she said.

NARF's work in Alaska has long centered around the Katie John case and its seemingly endless litigation. Although the lawsuits are over, the fund will remain involved, said Kendall-Miller.

"We will continue to work with the AFN leadership and others to help craft legislative approaches we believe are essential to protecting subsistence," she said.

Leaders with the Alaska Federation of Natives said the organization, which was a party to the case, would continue to fight for a better system.

"We still have work to do," said Julie Kitka, president of AFN. "We still struggle under a highly complex federal-state dual management system, which needs reform."

Recent surveys show that more than two-thirds of Alaskans support the rural subsistence priority, the statement said.

"AFN and the Native leadership recommits to double our efforts to protect our peoples' rights," said Rosita Worl, co-chair of AFN's subsistence committee.

That includes calling upon "President Obama and his cabinet secretaries Sally Jewell and Tom Vilsack to utilize all their executive and administrative authority to protect the people dependent on subsistence fishing to feed their families. There will be no slowdown of our efforts," Worl said.

Kitka said the next step for AFN is moving forward on a proposal created by the Ahtna regional Native corporation. Rep. Don Young recently held a hearing on draft legislation of the idea, which would give Ahtna the ability to manage hunting on its own lands in the Copper River region, something the state now does.

Ahtna created the co-management proposal because they say residents have struggled to get enough moose and caribou to eat because of competition from hunters outside the area.

If considered successful, the program could be expanded to apply to land owned by 11 other regional Native corporations, removing hunting on some 45 million acres from state management.

Kitka said AFN is working to win support from federal officials and the Alaska delegation for that idea and others. A congressional change to federal law that preempts state law is also on the table.

"It's going to be very systematic and clear and we're going to go forward with as much support as we can," she said.

# data[].attributes.attachment_link.title
Three decades of Katie John litigation ends with Supreme Court declining to review key case

# data[].attributes.attachment_link.description
Alaska Attorney General Michael Geraghty in November had asked the U.S. Supreme Court to review a decision by the 9th Circuit Court of Appeals that the federal government has control over subsistence hunting and fishing on about 60 percent of Alaska's inland waters.

# data[].attributes.attachment_link.readable_text
News Releases from Region 10
EPA STATEMENT Tim Hamlin, Director, EPA Region 10 Office of Air and Waste:
"EPA is proposing approval of the Fairbanks air quality plan, but our work with the State of Alaska and the Borough is far from done. The Borough faces an especially difficult challenge when its fine particulate levels spike during the many cold air inversions that occur each winter. The biggest contributor of fine particulates are the woodstoves and wood heaters many Borough residents use to heat their homes. The big challenge is that the need for heat is greatest when burning wood is most likely to be harmful to public health. Switching to cleaner sources of home heating, especially during weather inversions, can greatly reduce harmful particulate emissions. For those who must burn wood, using dry wood in professionally installed certified wood stoves and using techniques to burn it hotter reduces fine particle pollution and the amount of wood burned. EPA will continue to support local and state efforts to develop and implement actions that will achieve the standard and improve air quality for Borough residents."
PROPOSED ACTION

The U.S. Environmental Protection Agency has taken a necessary step to protect air quality in Fairbanks Alaska. EPA is proposing to approve the Fairbanks North Star Borough fine particulate or PM2.5 air quality plan submitted by the Alaska Department of Environmental Conservation.

Alaska's air quality plan demonstrates that the Borough has been unable to attain the Clean Air Act PM2.5 air quality standard by the date required.

Alaska's air quality plan also identifies reasonable actions to move toward meeting the PM2.5 standard. The plan focuses on reducing emissions from residential heating sources - wood stoves and hydronic heaters - that contribute to high particulate pollution levels in the area.
BACKGROUND

Fairbanks was designated nonattainment for the 2006 24-hr PM2.5 air quality standard in December 2009. The state's Fairbanks air quality plan was due in December 2012. In January 2013, the DC Circuit Court remanded the Clean Air Act 2007 implementation rule for particulate matter. In response to this ruling, EPA revised the submission date for states to submit their moderate air quality plans to December 31, 2014.

The state's Fairbanks air quality plan included all of the required elements of an attainment plan which demonstrates that it was impracticable to attain the standard by the required deadline.

Alaska demonstrated that it implemented all reasonably available control technologies and measures available including the primary source of elevated fine particulates in the Borough, wood stoves and hydronic heaters.

In 2015 the Borough, and in 2016 the state, approved a mandatory curtailment program to restrict the use of woodstoves during periods of harmful levels of particulates in the air.

Under a curtailment program, the Borough and the state track weather conditions on a daily basis and provide restrictions on woodstove use to reduce emissions when conditions are bad for air quality and public health.

This year, Alaska and the Borough will continue to work with the local community to develop a more rigorous plan to reduce fine particle emissions in Fairbanks and North Pole and to achieve the standard.

The state has until December 31, 2017 to submit a Fairbanks serious air quality plan to the EPA.

EARTHJUSTICE filed a Complaint for Failure to Act on June 9, 2016 against the EPA. After public notice and comment the EPA committed to proposing action by January 19, 2017 and a final action by August 28, 2017 through a consent decree.

In a related action, EPA has proposed to reclassify the Borough from moderate to serious non-attainment, because the Borough did not meet the PM2.5 standard in 2015. The Borough has recorded the highest level of fine particulates in the nation.

Reclassification to serious will require that the state develop a serious air quality plan which will be more stringent than the moderate plan. In contrast with a moderate plan which requires implementation of all reasonably available emissions control technologies and measures, a serious plan will require implementation of the best available emissions control technologies and measures.

The state and the Borough are already working to develop a serious area plan.

Though EPA expects to reclassify the Borough from moderate to serious, the Clean Air Act requires EPA to act on the state's moderate area plan; EPA must take final action on the moderate plan by August 28, 2017.
PUBLIC COMMENT

EPA's proposed action will be published in the Federal Register and will include a 30-day public comment period from the date of publication.
HEALTH IMPACTS

Numerous scientific studies have linked exposure to fine particulates - approximately 1/30th the size of a human hair - with serious human health problems, including:

premature death in people with heart and lung disease

other serious events such as nonfatal heart attacks

increased hospital admissions and emergency room visits by those with respiratory ailments and cardiovascular disease.

# data[].attributes.attachment_link.title
EPA Proposes Action on Fairbanks, Alaska Air Quality Plan | US EPA

# data[].attributes.attachment_link.description
EPA STATEMENT Tim Hamlin, Director, EPA Region 10 Office of Air and Waste: "EPA is proposing approval of the Fairbanks air quality plan, but our work with the State of Alaska and the Borough is far from done. The Borough faces an especially difficult challenge when its fine particulate levels spike during the many cold air inversions that occur each winter.

# data[].attributes.headline
WILD article about the US Senate and its failure at representation

# data[].attributes.subject
WILD article about the US Senate and its failure at representation

# data[].attributes.attachment_link.readable_text
Let's briefly take stock of what's about to happen in the U.S. Senate.

A president who lost the popular vote by 2,864,974 nominated Neil Gorsuch to serve a lifetime appointment on the nation's highest Court. Although a bloc of senators representing at least 53 percent of the country oppose this nominee, Gorsuch is all but certain to be confirmed - after a bit of a showdown over the Senate's rules.

Gorsuch's confirmation will come more than a year after President Obama - a president who won the popular vote, twice - nominated Merrick Garland to the same vacant seat on the Supreme Court. At the time, Democratic senators represented over 53 percent of the nation. Yet Garland was not confirmed because, in the bizarre kind of math that exists in the U.S. Senate, 53 percent support only earned the Democratic caucus 46 percent of the Senate's seats.

This is hardly an unusual event in the Senate's history. The Senate is the product of a compromise that, while it made sense at the time, rested on assumptions that haven't been true for more than a century. It was an early bulwark for southern slaveholders and a firewall protecting Jim Crow. One of its most defining traits, the filibuster, was invented accidentally by the villain in a popular Broadway musical.

The Senate is a relic, wrapped in a mistake, wrapped in a toxic dose of sanctimony.

Sen. Joe Manchin (D-WV) is one of the few Democrats who will not vote to filibuster Gorsuch's nomination. He explained to reporters that he doesn't want to goad Senate Republicans into eliminating filibusters of Supreme Court nominees, which they are expected to do after Gorsuch is filibustered.

"People who have been here for a long time know that we're going down the wrong path here," Manchin claimed. "The most unique political body in the world, the United States Senate, will be no more than a six-year term in the House."

Manchin may be right that the Senate is the world's most unique political body, but it is unique in the same way that Guy's American Kitchen & Bar is a unique restaurant, or that Nickelback is a unique band. The Senate is the Showgirls of legislative chambers, the Miller Clear Beer of lawmaking bodies. It's past time someone put it to sleep.

How we got into this mess

"We hold these truths to be self-evident," Thomas Jefferson famously wrote in the document that set 13 British colonies on the path to independence, " that all men are created equal." Eleven years later, several of the same men who signed this Declaration of Independence joined the delegates to America's constitutional convention - where they promptly cast aside any pretense that the United States is dedicated to the notion that all people are equal.

The Founding Fathers betrayed the Declaration's promise with a Constitution that explicitly protected the institution of slavery. But they also betrayed it with the Senate, which treats residents of small states as more worthy of representation than residents of larger states.

In fairness, there's a good explanation for why delegates from larger states were willing to trade away their right to equal representation in the national legislature. The Articles of Confederation, which proceeded the Constitution, was less a charter for a single nation and more akin to NATO, or perhaps the European Union. As Yale law professor Akhil Amar explains, the Articles were " an alliance, a multilateral treaty of sovereign nation-states."

Under the Articles, Congress could neither tax individuals directly, raise troops, or provide for an army - a matter of great annoyance to General George Washington. The 13 former colonies largely functioned as their own independent nations.

The Senate is a relic, wrapped in a mistake, wrapped in a toxic dose of sanctimony.

Yet, while the United States' first experiment in unity was more treaty than Union, early American leaders were both well-versed in European history and fearful of the warfare than inevitably results when rival nations share geographic borders. The Constitution was thus an effort to solve two problems at once: to bind the 13 states together in a manner that would keep them from warring with each other, but also to ensure that this Union had real authority over its citizens.

Understood in this context, the Great Compromise that led to the Senate makes sense. Large states like Pennsylvania and New York feared war with their neighboring states more than they feared being outvoted in the Senate. Small states had a stronger claim to equal representation when they were conceived of as independent nations and not simply a collection of individual citizens. And, in any event, the malapportioned Senate would be less dysfunctional that the loose collection of separate nations joined together under the Articles of Confederation.

Yet, whatever the logic of this compromise in 1787, a lot has changed since then. The United States has a coherent national identity. Rhode Island has little to fear from the conquering armies of nearby Massachusetts. Utah is not going to fight a war with Colorado.

And yet the Senate persists, treating each resident of Wyoming as 67 times more worthy than each resident of California, despite the fact that the circumstances that birthed the Senate no longer exist.

The slaveholder's house

Not long after the Constitution was ratified, slaveholders discovered that they had a problem - most of the nation lived in free states. By the early 1820s, free states controlled 105 of the 187 seats in the House of Representatives - and that's after you account for the fact that the Three-Fifths Compromise permitted slave states to count 60 percent of their enslaved and disenfranchised population when it came time to allocate seats in the House.

If the House were the only game in town, in other words, it could conceivably have banned the slave trade - or at least taken fairly aggressive steps to hobble the South's "peculiar institution."

The South's fears came to a head in 1819, when an obscure New York congressman introduced amendments to legislation admitting Missouri as a state, which would have banned any expansion of slavery within Missouri and required that all new children born into slavery be freed at age 25. Among other things, if Missouri were admitted into the Union on these terms, free states would have gained a majority in the Senate.

The response, as Princeton historian Sean Wilentz writes, was "blistering." Southern lawmakers " virtually threatened secession were the amendments approved." Northerners united behind the amendments in the House, pushing them across the finish line to passage.

Nevertheless, the amendments were ultimately defeated in the Senate, after five northern senators crossed over to vote with a unified South. Missouri was eventually admitted to the Union as a slave state, under the terms enacted through the so-called Missouri Compromise.

The Senate, however, truly came into its own as a savior for Southern racists in the century following the Civil War.

In 1875, Reconstruction was on its last legs. Democrats, then the party most sympathetic to Southern whites, recently regained control of the House of Representatives. When Mississippi Democrats staged a violent uprising to seize control of their state, President Grant did not send troops to intervene. Within just two years, Republican Rutherford B. Hayes would sell out African Americans in the South in order to secure his own election - trading the end of Reconstruction for the presidency.

Yet, even as white supremacists tightened their grip on the old Confederacy, Congress, several senators elected under Reconstruction governments had not yet completed their terms. As racist mobs marched through the state, Mississippi still had two Republican senators in 1875 - one of whom, Sen. Blanche Bruce, was a black man.

1875 was thus the last year until midway through the next century that Congress enacted a civil rights law of any kind. The Civil Rights Act of 1875 prohibited racial discrimination by "inns, public conveyances on land or water, theaters, and other places of public amusement," though this provision was soon struck down by the Supreme Court.

The reason why no new civil rights bill emerged from Congress until 1957 was the Senate. Though five such bills cleared the House in the 12 years following World War II alone, Senate malapportionment gave the southern senators far more influence over the legislative process than their states' population could justify.

That, combined with another peculiarity of the Senate, was enough to halt civil rights in its tracks.

Talk less, smile more

This is an impolitic time for a liberal news site to discuss the history of the filibuster. A bloc of Democrats comprising a majority of the nation but a minority of the seats in the Senate hope to keep a very conservative judge off the Supreme Court through a filibuster. Republican leaders hope to block this maneuver by eliminating filibusters of Supreme Court nominees. Having endured under the filibuster for so many years, the United States would undoubtedly be better off if the filibuster survives just a little bit longer until the Gorsuch nomination is defeated.

Yet, while the senators hoping to filibuster Gorsuch represent a majority of the nation, this state of affairs is fairly unusual. The filibuster played a major role in Southern senators' efforts to halt civil rights legislation. It played a similar role in a Republican minority's efforts to shut down the only agency that can enforce much of federal labor law in 2013, and it was the centerpiece of Republican efforts to sabotage the Consumer Financial Protection Bureau before it was even operational. The last time the Senate erupted into a nuclear showdown over the filibuster, a Republican minority tried to prevent President Obama from confirming anyone to a powerful appeals court in Washington, DC.

Far more often than not, in other words, the filibuster thwarts democracy rather than reinforcing it. It cheated African Americans out of their full status as citizens. It threatened to dismantle entire agencies, despite the fact that Congress passed no law permitting this to happen. If the filibuster rules do change this week, Democrats should lament the rise of Neil Gorsuch, but they should not weep to see one of the most anti-democratic aspects of the Senate suffer another cut.

The filibuster's very existence is an historic accident arising from one of Aaron Burr's final acts as vice president. As Brookings political scientist Sarah Binder recounts the history, the lame duck vice president returned to the Senate in 1805, fresh off his indictment for killing Alexander Hamilton. There, as the Senate's presiding officer, he told the senators that their rule book was too complicated and had too many duplicative procedures. One process in particular, the "previous question motion," Burr deemed especially worthy of removal.

And the Senate believed him. They eliminated this motion the next year.

It turned out, however, that the previous question motion was not superfluous, it was a motion that enabled senators to cut off debate on a subject when a minority wanted to keep that debate going. Thus, by eliminating the motion, Burr effectively enabled dissenters to delay a vote indefinitely by forcing the Senate to "debate" it until the majority gave up.

No one actually attempted this until 1837, when "a minority block of Whig senators prolonged debate to prevent Andrew Jackson's allies from expunging a resolution of censure against him." But filibusters grew increasingly common over most of the following century and in 1917, the Senate amended its rules to permit a two-thirds supermajority to end debate. This threshold was eventually lowered to 60 senators, and later to 51 senators for confirmation votes not involving Supreme Court nominees.

In any event, one of the Senate's most distinctive features, the filibuster, is not part of some grand vision of minority rights handed down from up on high to the Founding Fathers. It is an accident, created by a lame duck vice president and a body of senators who did not understand what they were doing.

Can it be fixed?

In its inception, the Senate had two anti-democratic features. It is malapportioned, and its members were originally selected by state legislatures, not by the voters themselves. As explained above, it soon developed a third major anti-democratic feature, the filibuster.

The good news, for those of us who believe that the right to govern should flow from the will of the people, is that the Senate has gotten better over time. The Seventeenth Amendment provides for direct election of senators. The filibuster is part-way through a process that is likely to end in its demise.

Nevertheless, curing the Senate's greatest sin against democracy - the fact that it treats a person from California as 1/67th of a person from Wyoming - will be a much heavier lift.

Although the Constitution provides two processes for amendments, these processes come with two caveats. No amendment could be made prior to 1808 curtailing the slave trade, and "no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Theoretically, there are ways around this problem. The United States could ratify two amendments to the Constitution - one permitting amendments to the Senate's makeup and another actually changing that makeup or abolishing the Senate. Or, alternatively, a single amendment could leave the Senate in place as a malapportioned body, but reduce its authority so that it becomes an advisory body similar to the British House of Lords.

The problem with these solutions, however, is that any amendment requires the consent of three-fourths of the states, and it is unlikely that the states that benefit from malappointment will vote to reduce their own power.

So that leaves one last option, a constitutional revolution. And there is one very significant precedent for such radical change.

Under the Articles of Confederation, amendments were only permitted with the unanimous consent of the states. Nevertheless, a new Constitution was drafted in Philadelphia which, by its own terms, became effective upon "the ratification of the conventions of nine states." The Constitution of the United States is, in this sense, unconstitutional.

We the People could once again invoke a similar process to create a more democratic union - one that is not only free of Senate malapportionment, but also free of other anti-democratic aspects of our present system such as partisan gerrymandering and the Electoral College.

I have no illusions that this will happen any time soon, but it is likely the only way that the United States can become a truly democratic republic - one where everyone's vote counts equally, regardless of where they live.

# data[].attributes.attachment_link.title
The United States Senate is a failed institution

# data[].attributes.attachment_link.description
Let's briefly take stock of what's about to happen in the U.S. Senate. A president who lost the popular vote by 2,864,974 nominated Neil Gorsuch to serve a lifetime appointment on the nation's highest Court.

# data[].attributes.attachment_link.readable_text
Connect particular phrases and ideas set down in the Declaration of Independence with texts that preceded it.
Launch interactive
Connect particular phrases and ideas set down in the Constitution with texts that preceded it.
Launch interactive
Connect particular phrases and ideas set down in the Bill of Rights with texts that preceded it
Launch interactive

# data[].attributes.attachment_link.title
Creating the United States Interactive Presentations

# data[].attributes.attachment_link.description
Connect particular phrases and ideas set down in the Declaration of Independence with texts that preceded it. Launch interactive Connect particular phrases and ideas set down in the Constitution with texts that preceded it.

# data[].attributes.attachment_link.readable_text
RUTLAND, Vt. - In the four years after the financial crisis struck, a great wave of federal stimulus money washed over Rutland County. It helped pay for bridges, roads, preschool programs, a community health center, buses and fire trucks, water mains and tanks, even a project to make sure fish could still swim down the river while a bridge was being rebuilt.

Just down Route 4, at the New York border, the landscape abruptly turns from spiffy to scruffy. Washington County, N.Y., which is home to about 60,000 people - just as Rutland is - saw only a quarter as much money.

"We didn't receive a lot," said Peter Aust, the president of the local chamber of commerce on the New York side. "We never saw any of the positive impact of the stimulus funds."

Vermont's 625,000 residents have two United States senators, and so do New York's 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line - the biggest inequality between two adjacent states. The nation's largest gap, between Wyoming and California, is more than double that.

The difference in the fortunes of Rutland and Washington Counties reflects the growing disparity in their citizens' voting power, and it is not an anomaly. The Constitution has always given residents of states with small populations a lift, but the size and importance of the gap has grown markedly in recent decades, in ways the framers probably never anticipated. It affects the political dynamic of issues as varied as gun control, immigration and campaign finance.

In response, lawmakers, lawyers and watchdog groups have begun pushing for change. A lawsuit to curb the small-state advantage in the Senate's rules is moving through the courts. The Senate has already made modest changes to rules concerning the filibuster, which has particularly benefited senators from small states. And eight states and the District of Columbia have endorsed a proposal to reduce the chances that the small-state advantage in the Electoral College will allow a loser of the popular vote to win the presidency.

To be sure, some scholars and members of Congress view the small-state advantage as a vital part of the constitutional structure and say the growth of that advantage is no cause for worry. Others say it is an authentic but insoluble problem.

What is certain is that the power of the smaller states is large and growing. Political scientists call it a striking exception to the democratic principle of "one person, one vote." Indeed, they say, the Senate may be the least democratic legislative chamber in any developed nation.

Behind the growth of the advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.

The threat of the filibuster in the Senate, which has become far more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state senators, often in leadership positions, have amplified their power by using the filibuster more often than their large-state counterparts.

Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation's five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968.

Recent bills to overhaul the immigration system and increase disclosure of campaign spending have won the support of senators representing a majority of the population but have not yet passed. A sweeping climate bill, meant to raise the cost of carbon emissions, passed the House, where seats are allocated by population, but not the Senate.

Each of those bills is a major Democratic Party priority. Throughout his second term, President Obama is likely to be lining up with a majority of large-state Congress members on his biggest goals and against a majority of small-state lawmakers.

It is easiest to measure the small-state advantage in dollars. Over the past few years, as the federal government has spent hundreds of billions to respond to the financial crisis, it has done much more to assist the residents of small states than large ones. The top five per capita recipients of federal stimulus grants were states so small that they have only a single House member.

"From highway bills to homeland security," said Sarah A. Binder, a political scientist at George Washington University, "small states make out like bandits."

Here in Rutland, the federal government has spent $2,500 per person since early 2009, compared with $600 per person across the state border in Washington County.

As the money started arriving, Senator Bernard Sanders, the Vermont independent, took credit for having delivered a "hefty share of the national funding." Senator Kirsten Gillibrand, a New York Democrat, vowed to fight for her state's "fair share."

As a matter of constitutional design, small states have punched above their weight politically for as long as the United States has existed. The founding of the country depended in part on the Great Compromise, which created a legislative chamber - the Senate - in which every state had the same political voice, regardless of population. The advantage small states enjoy in the Senate is echoed in the Electoral College, where each state is allocated votes not only for its House members (reflecting the state's population) but also for its senators (a two-vote bonus).

No one expects the small-state advantage to disappear, given its constitutional roots. But its growing importance has caused some large-state policy makers and advocates for giving all citizens an equal voice in democracy to begin exploring ways to counteract it. Those pushing for change tend to be Democrats.

One plan, enacted into law by eight states and the District of Columbia, would effectively cancel the small states' Electoral College edge. The nine jurisdictions have pledged to allocate their 132 electoral votes to the winner of the national popular vote - if they can persuade states with 138 more votes to make the same commitment. (That would represent the bare majority of the 538 electoral votes needed for a presidential candidate to prevail.)

The states that have agreed to the arrangement range in size from Vermont to California, and they are dominated by Democrats. But support for changing the Electoral College cuts across party lines. In a recent Gallup Poll, 61 percent of Republicans, 63 percent of independents and 66 percent of Democrats said they favored abolishing the system and awarding the presidency to the winner of the popular vote.

In 2000, had electoral votes been allocated by population, without the two-vote bonuses, Al Gore would have prevailed over George W. Bush. Alexander Keyssar, a historian of democracy at Harvard, said he would not be surprised if another Republican candidate won the presidency while losing the popular vote in coming decades, given the structure of the Electoral College.

Critics of the outsize power of small states have also turned to the courts. In December, four House members and the advocacy group Common Cause filed an appeal in a lawsuit challenging the Senate's filibuster rule on the ground that it "upsets the balance in the Great Compromise" that created the Senate.

The filibuster "has significantly increased the underrepresentation of people living in the most populous states," the suit said. But for the rule, it said, the Dream Act, which would have given some immigrants who arrived illegally as children a path to legalization, and the Disclose Act, requiring greater reporting of political spending, would be law.

A federal judge in Washington dismissed the suit, saying he was "powerless to address" what he acknowledged was an "important and controversial issue." The judge instead sided with lawyers for the Senate, who said that the challengers lacked standing to sue and that the courts lacked power to rule on the internal workings of another branch of the government.

However these individual efforts fare, the basic disparity between large and small states is wired into the constitutional framework. Some scholars say that this is as it should be and that the advantages enjoyed by small states are necessary to prevent them from becoming a voiceless minority.

"Without it, wealth and power would tend to flow to the prosperous coasts and cities and away from less-populated rural areas," said Stephen Macedo, a political scientist at Princeton.

Gary L. Gregg II, a political scientist who holds the Mitch McConnell Chair in Leadership at the University of Louisville, similarly argued that urban areas already have enough power, as the home of most major government agencies, news media organizations, companies and universities. "A simple, direct democracy will centralize all power," he wrote recently, "in urban areas to the detriment of the rest of the nation."

Others say the country needs to make changes to preserve its democratic vitality. They have called for an overhaul of the Constitution, as far-fetched an idea as that may be.

"The Senate constitutes a threat to the vitality of the American political system in the 21st century," said Sanford Levinson, a law professor at the University of Texas, "and it warrants a constitutional convention to rectify it."

Frances E. Lee, a political scientist at the University of Maryland, said the problem was as real as the solution elusive, adding that she and other scholars have tried without success to find a contemporary reason to exempt the Senate from the usual rules of granting citizens an equal voice in their government. "I can't think of any way to justify it based on democratic principles," Professor Lee said.

Fresno, Calif., is a city of a half-million people with a long list of problems, including 14 percent unemployment, the aftermath of a foreclosure crisis, homeless encampments that dot the sun-blasted landscape and worries about the safety of the surrounding county's drinking water.

A thousand miles away, a roughly comparable number of people inhabit the entire state of Wyoming. Like Fresno and its environs, Wyoming is rural, with an economy largely based on agriculture. It is also in much better shape than Fresno, with an unemployment rate around 5 percent.

Even so, Wyoming receives far more assistance from the federal government than Fresno does. The half-million residents of Wyoming also have much more sway over federal policy than the half-million residents of Fresno. The vote people in Fresno remember best was taken in 2007, when an immigration overhaul bill that included a guest worker program failed in the Senate. Both agricultural businesses and leaders of Fresno's large Hispanic population supported the bill, much as polls suggested a majority of Americans did.

But the immigration bill died in the Senate after a 53-46 vote rejecting a bid to move the bill forward to final passage. Wyoming's two senators were in the majority and California's two senators on the losing side.

Had the votes been allocated by population, the result would have been lopsided in the other direction, with 57 votes in favor and 43 against.

Even 57 votes would not have been enough to overcome a filibuster, which requires 60. In the last few years, 41 senators representing as little as a third of the nation's population have frequently blocked legislation, as the filibuster (or the threat of it) has become a routine part of Senate business.

Beyond the filibuster, senators from Wyoming and other small states regularly oppose and often thwart programs popular in states with vastly bigger populations. The 38 million people who live in the nation's 22 smallest states, including Wyoming, are represented by 44 senators. The 38 million residents of California are represented by two senators.

In one of every 10 especially consequential votes in the Senate over the two decades ending in 2010, as chosen by Congressional Quarterly, the winning side would have lost had voting been allocated by population. And in 24 of the 27 such votes, the majority of the senators on the winning side were Republicans.

David Mayhew, a political scientist at Yale, cautioned that the political benefit to Republicans is "quite small as well as quite stable," adding that it is important not to lose sight of small blue states like Delaware, Hawaii, Rhode Island and Vermont. But he acknowledged that small states of both political stripes receive disproportionate federal benefits. Professor Lee, an author of " Sizing Up the Senate: The Unequal Consequences of Equal Representation," argues that the partisan impact of the small-state advantage is larger. "There is a Republican tilt in the Senate," she said.

"The way Republicans are distributed across the nation is more efficient," she added, referring to the more even allocation of Republican voters, allowing them to form majorities in small-population states. Democrats are more tightly clustered, especially in large metropolitan areas.

Jim Wilson/The New York Times

Equal representation of the states in the Senate is a consequence of the Great Compromise, the 1787 deal that resolved a seemingly intractable dispute between the smaller states and a handful of large ones like Massachusetts, Pennsylvania and Virginia. But the country was very different then. The population was about four million, and the maximum disparity in voting power between states was perhaps 11 to 1. It is now six times greater than that. Even scholars who criticize how voting power is allocated in the Senate agree that parts of its design play an important role in the constitutional structure. With its longer terms and fewer members, the Senate can, in theory, be more collegial, take the long view and be insulated from passing passions.

But those qualities do not depend on unequal representation among people who live in different states. The current allocation of power in the Senate, many legal scholars and political scientists say, does not protect minorities with distinctive characteristics, much less disadvantaged ones.

To the contrary, the disproportionate voting power of small states is a sort of happenstance that has on occasion left a stain on the nation's history.

Robert A. Dahl, the Yale political scientist, who is 97 and has been studying American government for more than 70 years, has argued that slavery survived thanks to the disproportionate influence of small-population Southern states. The House passed eight antislavery measures between 1800 and 1860; all died in the Senate. The civil rights movement of the mid-20th century, he added, was slowed by senators representing small-population states.

As the population of the United States has grown a hundredfold since the founding, to more than 310 million, the Supreme Court has swept away most instances of unequal representation beyond the Senate. In a series of seminal cases in the 1960s, the court forbade states to give small-population counties or districts a larger voice than ones with more people, in both state legislatures and the House.

"The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing - one person, one vote," Justice William O. Douglas wrote for the court in 1963, referring to the amendments that extended the franchise to blacks and women and required the popular election of the Senate.

The rulings revolutionized American politics - everywhere but in the Senate, which the Constitution protected from change and where the disparities in voting power have instead become more extreme.

In his memoirs, Chief Justice Earl Warren described the cases from the 1960s establishing the equality of each citizen's vote as the most important achievement of the court he led for 16 years. That made them more important in his view than Brown v. Board of Education, which ordered the desegregation of public schools, and Gideon v. Wainwright, which guaranteed lawyers for poor people accused of serious crimes.

"Legislators represent people, not trees or acres," Chief Justice Warren wrote for the court in 1964, rejecting the argument that state senators, like federal ones, could represent geographic areas with varying populations. "Legislators are elected by voters, not farms or cities or economic interests."

Applying that principle to the Senate would be very hard. Even an ordinary constitutional amendment would not do the trick, as the framers of the Constitution went out of their way to require states to agree before their power is diminished. Article V of the Constitution sets out the procedure for amendments and requires a two-thirds vote of both houses of Congress or action by two-thirds of state legislatures to get things started. But the article makes an exception for the Senate. "No state, without its consent, shall be deprived of its equal suffrage in the Senate," the article concludes.

The United States Senate is hardly the only legislature that does not stick strictly to the principle of equal representation. Political scientists use the term "malapportioned" to describe the phenomenon, and it is common around the world.

But the Senate is in contention for the least democratic legislative chamber. In some other countries with federal systems, in which states or provinces have independent political power, a malapportioned upper house may have only a weak or advisory role. In the United States, the Senate is at least equal in power to the House, and it possesses some distinctive responsibilities, like treaty ratification and the approval of presidential appointments. A recent appeals court decision severely limiting the president's power to make recess appointments, if it stands, will further increase the Senate's power.

Professor Dahl has calculated the difference between the local government unit with the most voting power and that with the least. The smallest ratio, 1.5, was in Austria, while in Belgium, Spain, India, Germany, Australia and Canada the ratio was never higher than 21 to 1.

In this country, the ratio between Wyoming's representation and California's is 66 to 1. By that measure, Professor Dahl found, only Brazil, Argentina and Russia had less democratic chambers. A separate analysis, by David Samuels and Richard Snyder, similarly found that geographically large countries with federal systems tend to overrepresent sparsely populated areas.

This pattern has policy consequences, notably ones concerning the environment. "Nations with malapportioned political systems have lower gasoline taxes (and lower pump prices) than nations with more equitable representation of urban constituencies," two political scientists, J. Lawrence Broz and Daniel Maliniak, wrote in a recent study. Such countries also took longer to ratify the Kyoto Protocol on climate change, if they ratified it at all. These differences were, they wrote, a consequence of the fact that "rural voters in industrialized countries rely more heavily on fossil fuels than urban voters."

In 2009, the House of Representatives narrowly approved a bill to address climate change, but only after months of horse-trading that granted concessions and money to rural states. That was an example, Mr. Broz and Mr. Maliniak said, of compensating rural residents for the burdens of reducing greenhouse-gas emissions.

But it was not enough. The bill died in the Senate.

# data[].attributes.attachment_link.title
Smaller States Find Outsize Clout Growing in Senate

# data[].attributes.attachment_link.description
RUTLAND, Vt. - In the four years after the financial crisis struck, a great wave of federal stimulus money washed over Rutland County. It helped pay for bridges, roads, preschool programs, a community health center, buses and fire trucks, water mains and tanks, even a project to make sure fish could still swim down the river while a bridge was being rebuilt.

# data[].attributes.attachment_link.readable_text
The US Senate is the only organization in the US federal government that expressly favors minority groups. It is alo is one of the only minority-biased legislatures in the world. In the US Senate, minority power is so extreme that even individual rank-and-file members have weapons not just to take on the rest of the chamber, but to tackle abuses anywhere on Earth. This extreme power given to minority members is not found in the House and certainly doesn't apply to the executive branch or the Supreme Court.

Thus, it would seem that the US Senate would be the focal point for both racial and political minorities seeking to protect their rights and establish justice. Afterall, it holds the key to the US Federal justice system (the Senate confirms all federal justices).

But it is not.

This is because the Senate (unlike the general population) is almost all white and always has been. And due to a concession made by the non-slave states during the writing of the Constitution (known as the Great Compromise), the US Senate has remained one of the whitest organizations inside or outside of government. Indeed, at 90% white, the US Senate ranks up there with vetenarians and sheet metal workers as one of the most racially elitist jobs in the US. This means that Senators like Elizabeth Warren and Bernie Sanders have accepted a post that is biased by a powerful form of affirmative action - that overwhelmingly benefits whites. Yet neither of these ultra-liberal Senators has ever discussed the issue.

Contrary to what numerous pundits claim about the quality of minority candidates (who often run better campaigns than whites) or financial inequalities, this racial disparity in the Senate has nothing to do with PACs, political skill or money. Instead it is simply a problem of math - indeed, a mistake with how we vote for Senators - that creates this overtly majority based institution.

Surprisingly, there is a well known solution (called proportional representation) that solves this problem perfectly and democratically, employing ideas that have been understood for over a hundred years. Further, proportional representation (PR) is the only known, agreed upon solution to gerrymandering. But because of its implications for favoring minorities over those of supposed states rights, the discussion on proportional representation with respect to gerrymandering continues as if without a solution. And it means therefore that the discussion of gerrymandering itself is a race-fueled discussion pitting those in small states (overwhelmingly white) with those elsewhere.

Video

Our video covers Proportional Representation and the Senate Problem in full detail

A Powerful Cure for Institutional Racism

- John Adams 1776 - The greatest care should be employed in constituting this Representative Assembly. It should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.Thoughts on Government

- Madison 1787 - Extend the sphere (increasing the diversity in Congress), and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens (corruption is less probable).Federalist Papers N. 10

- Oleszek 2007 - The practice [of holds] probably emerged from features long associated with the Senate, such as its emphasis on minority and individual interests...and a legislative culture that encourages accommodation for individual Senators' policy and personal goals.Proposal to Reform

- Smith 2005 - The filibuster, or threatened filibuster, is what provides the ultimate protection for extended debate and the preservation of individual and minority rights.Parties and Leadership in the Senate

It's hard to imagine, not just a cure for institutional racism, but a set of procedures that bend over backwards to better the conditions of minorities. But that is precisely the institutional framework of the US Senate.

What if the cause for gerrymandering and institutionalized racism is also a source for massive corruption and partisanship? More importantly what if all three problems can be fixed simply, perfectly and democratically? That is the focus of this investigation, which dives into a seemingly tiny compromise the Founding Fathers made in 1789 involving the most powerful special interest of the day - slavery.

Unlike the House of Representatives or Parliaments in Europe, the US Senate often relies on unanimous consent agreements (UCAs), a procedure that gives veto power to each individual member of the Senate. Like the name implies, a UCA means that legislation can be (and often is) derailed by the wishes of just one member. And a rogue Senator's 'hold' can create pressure on the actions and decisions not just of the Senate, but also the House and the Executive Branch.

Minorities benefit in the Senate in other ways as well. The Senate requires a super-majority (60-40 split) for the passage of many of their of their votes. This means that the minority (or a coallition of minority members) now need to muster only 40 votes (not 50) to force the majority to bargain. And, most famously, the Senate has the filibuster, which allows a single Senator to hold the floor for extended periods of time to push their agenda. Once again, this means that a lone Senator (or just a handful of members) can throw a wrench into the design and passage of any bill. Compare this to the House where single congressmen (or even large groups of minority members) are all but powerless.

Individual Senators can also conduct investigations.

This is why the most famous Senators aren't just the leaders (as in the case of the House) but also the rogues. John McCain, Bernie Sanders and Rand Paul are famous because they are mavericks, often holding unique positions, which pressures not just the Senate, but all US legislation.

Our Justice System Relies on the Senate

The US Senate doesn't just confirm the members of the Supreme Court and other important federal courts, it also has the power to assert a vast amount of its own brand of justice. Indeed, one of the central functions of the Senate is to watch the watchmen. Oversight hearings and other congressional actions are the primary and most powerful check on the abuse of police, executive power or injustice. As such, any mention of the terms 'institutional corruption,' 'police brutality,' or 'injustice' should require a review of why or why the Senate might not be is doing its job.

States Rights vs Civil Rights

The trouble is, the US Senate is one of the least diverse institutions in government, and even one of the least diverse institutions anywhere. The numbers are grim. While the nation has well over 35% minority citizens (13% black, 19% latino, 6% asian), the Senate is always well over 90% white. But, this should not be taken as a slight to minority candidates. Indeed, the Senate's racial (and political) uniformity is assured via a mistaken approach to voting which we now understand (called single-member districts). And the solution (multi-member districts) has been applied successfully in other countries, and provides a significantly more representative institution immediately. Shockingly, the data suggests that minorities, given equal treatment via voting, prove to be more successful candidates than whites.

Indeed in a time with so much racial turmoil, it is mystifying how the Senate receives a free pass from the media. The Senate (unlike the House) has the keys to not just to the Supreme Court but dozens of other courts and justices throughout the nation. In shorty, they determine what type of justice exists in the USA. But because of a simple mathematical mistake the founders unwittingly made 250 years ago, the Senate has perpetuated inequality, illegitimacy and likely even racism. It is a mistake that needs to be fixed.

Those who support efforts at limiting gerrymandering are often white-machine liberals. And this is for good reason. Despite all the talk about gerrymandering, the US Senate (and not the House) is the government's least representative (diverse) body by a wide margin. This is especially peculiar because the Senate cannot be gerrymandered. The electoral borders between the USA's 50 individual states are not up for simple negotiation. Still, the US Senate is significantly less diverse, not just compared to the House, but also to nearly any other institution or private industry in the US.

Other Notes

"Proportional representation is the principle that a legislature should reflect all of the voters who elect them. Like-minded voters should be able to elect representatives in proportion to their number. In contrast, most elections in the United States are winner-take-all: instead of reflecting all voters, our legislators reflect only the biggest or strongest group of voters that elected them, leaving all others unrepresented. The use of winner-take-all voting methods in our elections for state legislatures and Congress is a central reason for major problems with our politics: gerrymandering, partisan gridlock, no-choice elections and distortions in fair representation all have roots in the inherent problems of winner-take-all methods." - FairVote

Multi-member districts (MMDs) are electoral districts that send two or more members to a legislative chamber. Ten U.S. states have at least one legislative chamber with MMDs - A multi-member electoral district (MMD) is an electoral district electing more than one representative to office. All proportional representation systems use MMDs, simply because it is impossible to distribute anything proportionally if there is only one seat. In proportional systems, the simple rule is that the larger the district size the more proportional the system. Other systems using MMDs are Block Vote, Party Block Vote, Mixed Member Proportional systems and Parallel systems.

Multi-member Super District Voting in the House of Representatives would eliminate gerrymandering entirely.

UPDATE (September 18, 2020)

The lone reason we don't pursue this line of work further is because of how difficult it would be to accomplish change. It would require a Constitutional amendment. This is why we focus on our work on the pitfalls of transparency which is not only supported by the constitution, but one where a reversal of the 1970 legislation that opened up the system can be reversed by a simple congressional rules change. Like the Senate problem we forsee that a reversal of the 1970s transaprency laws would overwhelmingly benefit the poor and lead to improvement on climate, incarceration and other issues.

UPDATE (2017)

Since posting this video James has partnered with Harvard Professor of Congress David King and author Brent Ranalli to further investigate these ideas. The results are even more striking and powerful than initially proposed in this video.

EDIT May 21, 2016: Since I posted this video this problem becomes even more salient. This is because the US Senate is actually better equipped to serve minorities than most institutions on Earth. While the House has NO protections for minorities, the Senate has many (UCAs, filibuster, 60-40 splits, etc). These are powerful tools that dramatically serve minorities (of all types both political and racial). We also select a number of our presidents from the ranks of the Senate, so the lack of minority representation effects everything else as well (Presidency and the Supreme Court).

More Details about PR

More Rough Notes

A Couple More Notes

# data[].attributes.attachment_link.description
CRI - August 1, 2020 - The US Senate is not just one of the least representative institutions in government, it is also one of the least representative of any office or job in the public or private sector.

# data[].attributes.attachment_link.readable_text
ESSAY: You may know that the U.S. Senate is deeply divided and entrenched. Less obvious: the chamber is the least representative elected political body in the nation.
This month, the U.S. Senate will, for the second time, try former President Donald J. Trump for high crimes and misdemeanors. It will also play a pivotal role in President Joe Biden forming his government, pandemic relief, economic and foreign policy, and everything else that the federal government does. You know that this important body, like much of American politics these days, is deeply divided and entrenched. But what you likely don't know is that the U.S. Senate is the most unrepresentative elected political institution is the country. Recent demographic trends and the January 6 insurrection have brought this bias into high relief.

In a representative democracy, we establish institutions to organize and empower the government to do what voters want it to do. We set up governmental positions and organizations, define the powers and limits of officials, write rules about who can vote and when, and so forth. And these institutions have consequences, both for politics and policy. These institutional consequences are most pervasive-and most subtle-for the rules that define our legislative bodies.

In a series of decisions in the early 1960s, the U.S .Supreme Court held that American legislatures should reflect the principle of "one person, one vote," so that the population of each district of a given chamber should be about the same. For example, all of the Illinois state House districts have approximately 108,000 residents (as of the 2010 census), giving every resident the same proportion of representation in Springfield. Based on the Equal Protection clause of the 14 th Amendment, the basis of sovereignty in our system of government is the voter, not the geographical area. As Chief Justice Earl Warren argued in one of these cases, "legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests."

However, today, more than 50 years after those commonsensical Supreme Court decisions, there is one American legislative body to which the one person, one vote principle does not apply-the U.S. Senate. The fact that the U.S. Constitution itself provides that each state will have two senators makes this arrangement, by definition, constitutional. Thus, even as the court threw out U.S. House, state, and local legislative districting plans because some districts were two, three, or four times as large as some others, it could not apply this principle to the U.S. Senate.

The Senate violates the one person, one vote principle in the extreme. For example, California has 68 times the population of Wyoming-and, yes, they each have two U.S. senators. Lightly populated states are overrepresented in the Senate. Consider Alaska, Vermont, North Dakota, South Dakota, Wyoming, and Delaware, states that boast beautiful vistas and seascapes-and the fewest residents. They also can claim exceptional U.S. Senate representation. In fact, substantially fewer people live in these six states combined than live in Cook County, Illinois. You could even throw another Wyoming into the mix, and Cook County would still have more residents. In total, these lightly populated states have 12 U.S. Senators, or 12 percent of the entire Senate. Cook County, on the other hand, is represented by only about 40 percent each of two senators. Clearly, the average Wyomingite has far better representation in the US Senate than the average resident of south suburban Markham. As the figure at the top of the page shows, the smallest 10 states typically make up only about 3 percent of the U.S. population, while their senators constitute 20 percent of the U.S. Senate.

Importantly, this small-state bias is not politically neutral. Small states have many policy interests in common that are distinct from those of larger states. For example, these states have less urbanization than larger states, leading to policy differences on transportation (highways vs. mass transportation), gun control, agriculture, energy, criminal justice, and so on. For instance, this Senate tilt likely biases national policy toward building more new highways and having less gun control than if that body provided fair representation.

Perhaps the most obvious political difference between small states and the rest of the country is party affiliation. While Democrats typically control a few small states (e.g., Delaware and Rhode Island), most are firmly Republican. The current 50-50 Senate provides us with very clear evidence of this bias. With this even partisan split, you might expect that the parties in the Senate would represent about equal numbers of Americans. But this is not so. Aside from the six states that have a senator from each party, 57 percent of the country live in states with two Democratic senators, while only 43 percent live in states with two GOP senators. In other words, with 43 percent of the population, the Senate GOP has 50 percent of the representation. This is a clear violation of the one person, one vote principle.

Credit Christopher Z. Mooney / University of Illinois Chicago/IGPA

Another factor central to American politics distinguishes the smallest states-- race. In these days of social justice activism and the resurgence of terrorist white supremacy groups, it is important to note that, on average, small states have far fewer minorities and immigrants than does the nation as a whole. For example, the five smallest solidly GOP states (AK, ID, ND, SD, and WY) have an average non-Hispanic white population of 79 percent, while that figure is about 60 percent for the entire country. Consider, for example, that in 1970, the national non-Hispanic white population was about 88 percent. In other words, these states reflect the racial makeup of the US in the 1980s, not the 2020s. The figure in the body of the story also shows that while the smallest 10 states have long been whiter than the nation as a whole, this gap increased in the 21 st century. And note that the highly diverse states of Hawaii and Alaska are typically among the smallest 10 states. Without these, the differences from the nation as a whole would be much greater.

At this point, one might ask, why was this two-per-state Senate rule was established in the first place? To answer that, we have to look to the Constitutional Convention of 1787, where small states (e.g., Rhode Island) were concerned that large states (e.g., Virginia) would dominate national politics if majorities always controlled the new American government. The central question was (and is), do states have some special sovereignty or are they just geographical areas? Of course, 1787 was just shortly after the then-colonies were largely independent of one another (even if subject to the will of the British crown). In this period, giving the states special protections (such as two Senate seats) made political sense. Over 234 years later, and after the Supreme Court held that voters were sovereign, this protection seems anachronistic.

The Senate's small-state bias is likely to get worse with time. With the continued migration from small town and rural America to our urban centers, and with the American population steadily diversifying, the small, white, and solidly Republican states will become less and less relevant to the political life of the nation in a variety of ways. Their representation in the US House will shrink, as will their influence on presidential elections. But their influence in the Senate will grow increasingly disproportionate to their population.

Any solution to this small-state bias in the U.S. Senate would require constitutional amendment-and the small states could have veto power over this. Thus, the future of the Senate may involve an entrenched reactionary rump of 10-20 GOP senators from small states, especially in the rural west, trying to drag modern American society back into an earlier era. This does not bode well for a civil politics-or majority rule.

Christopher Z. Mooney is a political science professor at the University of Illinois Chicago and an expert at the Institute of Government and Public Affairs..

# data[].attributes.attachment_link.title
The U.S. Senate: The Most Unrepresentative Body

# data[].attributes.attachment_link.description
ESSAY: You may know that the U.S. Senate is deeply divided and entrenched. Less obvious: the chamber is the least representative elected political body in the nation. This month, the U.S. Senate will, for the second time, try former President Donald J. Trump for high crimes and misdemeanors.

# data[].attributes.attachment_link.readable_text
Constitutional Design of the Senate, 1787

The framers of the Constitution created the United States Senate to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government. They modeled the Senate on governors' councils of the colonial era and on the state senates that had evolved since independence. The framers intended the Senate to be an independent body of responsible citizens who would share power with the president and the House of Representatives. James Madison, paraphrasing Edmund Randolph, explained in his notes that the Senate's role was "first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they themselves might be led."

To balance power between the large and small states, the Constitution's framers agreed that states would be represented equally in the Senate and in proportion to their populations in the House. Further preserving the authority of individual states, they provided that state legislatures would elect senators. To guarantee senators' independence from short-term political pressures, the framers designed a six-year Senate term, three times as long as that of popularly elected members of the House of Representatives. Madison reasoned that longer terms would provide stability. "If it not be a firm body," he concluded, "the other branch being more numerous, and coming immediately from the people, will overwhelm it." Responding to fears that a six-year Senate term would produce an unreachable aristocracy in the Senate, the framers specified that one-third of the members' terms would expire every two years, leaving two-thirds of the members in office. This combined the principles of continuity and rotation in office.

In the early weeks of the Constitutional Convention, the participants had tentatively decided to give the Senate sole power to make treaties and to appoint federal judges and ambassadors. As the convention drew to a close, however, they moved to divide these powers between the Senate and the president, following Gouverneur Morris' reasoning that "As the president was to nominate, there would be responsibility, and as the Senate was to concur, there would be security." Due to the concern of individual states that other states might combine against them, by a simple majority vote, for commercial or economic gain, approval of a treaty would require a two-thirds vote. In dealing with nominations, the framers believed that senators-as statewide officials-would be uniquely qualified to identify suitable candidates for federal judicial posts and would confirm them along with cabinet secretaries and other key federal officials, by a simple majority vote.

Organizing the New Government, 1789-1794

The United States Senate convened for the first time on March 4, 1789, in an elegant second-floor chamber of New York City's newly remodeled Federal Hall. Only eight of the 22 eligible members (from the 11 states that had already ratified the Constitution) were present on that day. On April 6, 12 members were present to establish a quorum and the Senate got down to work. As its first item of business, the Senate elected New Hampshire's John Langdon president pro tempore and invited the House of Representatives to its Chamber to count the electoral ballots for president and vice president. On April 21 John Adams took his oath as vice president, thereby assuming his responsibility under the Constitution to serve as the Senate's president and presiding officer. Nine days later, House members again crowded into the Senate Chamber to witness George Washington's inauguration.

In its early weeks, the Senate turned to various organizational matters. Members appointed a six-member staff, including a doorkeeper, a secretary, a chaplain, and two clerks. Temporary committees were established to formulate a code of rules that would guide the Senate's proceedings, and to draft legislation to give shape to the government's judicial branch. The Senate divided its members into three equal and sectionally balanced classes, with the terms to expire at two, four, and six-year intervals. As new states entered the Union, their senators would be assigned to two of the three classes.

In its first session the Senate cautiously engaged its constitutional responsibilities, mindful of the precedent-setting nature of its every interaction with the House of Representatives and the president. Senators gave serious attention to their duty to provide advice and consent to the president's nominations and treaties. A Georgia senator's objection to an appointment of a naval officer in his state resulted in the first Senate rejection of a presidential nominee, reflecting the understanding that senators were the best judges of appointees from their states to which other members would defer as a matter of "senatorial courtesy." When President Washington visited the Senate in August 1789 to consult about a recently negotiated Indian treaty, he expected an immediate response. To his great frustration, the Senate decided to refer the issue to committee for further study. After Washington finally received Senate approval of that treaty, he vowed he would never again seek that body's advice and consent in person.

The Senate's workload increased greatly during the final weeks of the first session in 1789. This reinforced the framers' notion that the House of Representatives would serve as the principal workshop for crafting legislation, while the Senate would polish and rework that legislation in consideration of what were presumably the nation's broader and longer-term interests.

The second session of the first Congress convened in January 1790 and lasted seven months. During this period the Senate turned to legislation that would place the nation on a firm financial footing, and provided for a permanent seat of government in a special federal district along the Potomac River. While that site was being prepared, Congress agreed to move the government to Philadelphia, where the final session of the First Congress met between December 1790 and March 1791.

During its 10-year residence in Philadelphia, the Senate conducted its proceedings in the second-floor chamber of that city's recently reconstructed "Congress Hall." During the 10 years the Senate met in that chamber, political parties became the principal determinant of legislative debate and accomplishment.

Like the Continental Congress and the Constitutional Convention, but in contrast to the House of Representatives, the Senate in 1789 had decided to conduct its sessions behind closed doors. A clash in 1794 between Federalists and Anti-federalists over the seating of newly elected Pennsylvania Senator Albert Gallatin brought a partial abandonment of the Senate's closed-door policy. Members of the Federalist majority feared that their planned rejection of Gallatin, an Anti-federalist, would trigger charges of improper behavior if done in secret. Calls for an open-door policy were not new. Demands for open sessions came principally from the state legislatures, whose members argued that secret sessions did not allow them to effectively assess the conduct of the senators they had elected. Also, press coverage of open sessions in the House of Representatives helped popularize its legislative role in the new government, but the Senate's less visible action put it in danger of becoming the forgotten chamber. Consequently, the Senate took the opportunity of Gallatin's contested election to open its doors for all legislative business. (Doors generally remained closed, however, for executive business related to presidential nominations and treaties until 1929.)

The 19th Century

On November 21, 1800, the Senate took up residence in basement quarters in the unfinished Capitol in Washington, D.C. Ten years later, it moved to a grander chamber on the Capitol's second floor (now known as the "Old Senate Chamber") where it remained until 1859. This large, semi-circular room, with its plain walls and low-vaulted domed ceiling, provided an ideal setting, both acoustically and dramatically, for the Senate as it moved into an era of great prominence. Although the Senate had operated in the shadow of the larger and more boisterous House of Representatives during its earliest years, by the 1820s it dominated the House and the presidency, with the exception of the Civil War years, for the remainder of the 19th century. In its elegant second-floor chamber, the Senate became the agent of compromise that helped avoid civil war for four decades.

In 1833 the Senate's membership had risen to only 48, compared with 242 in the House of Representatives. With fewer numbers and an equal balance between slave and free states, the Senate offered a forum better suited to lively and discursive debate. In the face of growing national tensions associated with federal authority versus states' rights, and the extension of slavery into the nation's territories, the Senate served as a workshop for fashioning major compromise agreements. In this era Daniel Webster of Massachusetts most dramatically articulated northern interests, John C. Calhoun of South Carolina those of the South, and Henry Clay of Kentucky, Thomas Hart Benton of Missouri, and Stephen Douglas of Illinois spoke for the West. The sectional accords they vigorously debated bought time for a maturing nation. By the time the Civil War began in 1861, four decades of compromises had allowed the national government time to gain the experience, balance, and strength it needed to survive the ordeal.

The nation's territorial expansion throughout the 1800s resulted in new states that required additional quarters in the Capitol to accommodate the arriving senators and representatives from these states. Consequently, on January 4, 1859, just two years before the Civil War began, the Senate's 64 members moved to a large chamber in the Capitol's newly completed north wing. This room, where the Senate continues to meet today, witnessed the crisis of the Civil War. In 1868, amidst the turmoil of postwar reconstruction, it provided the setting for President Andrew Johnson's impeachment trial. It also witnessed the evolution of the Senate from agent of compromise to an elite club of powerful committee chairmen. While most members viewed the Senate as a temporary way station in a political or business career and served a single term, a few long-serving senators capitalized on their seniority to control the Senate's legislative agenda. The 19th century ended with the Senate effectively controlled by a handful of these powerful leaders, such as Nelson Aldrich of Rhode Island, William B. Allison of Iowa, Orville Platt of Connecticut, and John Spooner of Wisconsin-collectively known as "The Senate Four."

The 20th Century

A major change in the Senate's institutional structure occurred in 1913 with the ratification of the Constitution's Seventeenth Amendment, providing for direct popular election of senators. Selection of senators by state legislatures had worked reasonably well for the Senate's first half-century. Eventually, however, deadlocks began to occur between the upper and lower houses of those bodies. This problem delayed state legislative business and deprived states of their full Senate representation. By the start of the 20th century, direct popular election of senators had become a major objective for progressive reformers who sought to remove control of government from the influence of special interests and corrupt state legislators. Although this amendment did not significantly affect the quality of persons subsequently elected to the Senate, its passage marked the only structural modification of the framers' original design of the institution.

During the 19th century Senate leadership came mostly from committee chairs and other senior members, but in the early 20th century the position of party leaders-majority and minority leader-developed. Democrat John Worth Kern of Indiana and Republican Henry Cabot Lodge of Massachusetts unofficially assumed such leadership roles by 1915, and in 1921 the Democrats designated their first official "floor leader"-Oscar W. Underwood of Alabama. In 1925 the Republicans chose Charles Curtis of Kansas as their first "majority leader." In the years that followed, the positions of majority and minority leader gained respect and power. Today, leaders are elected by their fellow senators at the beginning of each Congress. Senate precedent requires that the presiding officer recognize the leaders before other senators present in the Chamber, giving them first chance to propose legislation, offer amendments, and control the legislative agenda of the day.

Senate Committees & Powers

In its earliest years, the Senate relied on temporary committees to draft specific legislative language after the entire body had reached a consensus regarding a measure's general objectives. The War of 1812 demonstrated the need for consistently available expertise based in permanent, or standing, committees. In 1816, the Senate established permanent committees organized according to the broad categories of the president's annual message. Throughout the late 19th and early 20th centuries, Senate committees proliferated. By the turn of the 20th century, when the Senate awarded staff and office space only to its committee chairmen, the number of committees nearly equaled the number of members. In 1920 and again following the Second World War, the Senate eliminated many committees and reorganized others. Since the 1950s the Senate has employed professional staff on committees and has established reforms to minimize the autocratic control by committee chairs that had existed earlier. Today, there are 16 standing committees, each with its own set of subcommittees to address the vast array of legislation considered by the Senate each year.

In the 20th century Senate committees have also taken on a greater investigative role. Among the more notable special investigations conducted by Senate committees have been oil leasing in the 1920s, securities regulation in the 1930s, war profiteering in the 1940s, organized crime in the 1950s, the Vietnam war in the 1960s, Watergate in the 1970s, covert intelligence operations in the 1980s, campaign finance in the 1990s, and the energy industry in the early twenty-first century.

Although much has changed in the Senate in the past two centuries, the Constitution's framers would likely recognize several of the modern Senate's roles, particularly its unique constitutional responsibility to provide advice and consent to nominations and treaties. During the years the Senate has rejected very few cabinet nominees, reflecting an attitude that presidents were entitled to choose their own advisers, unless those officials clearly demonstrated unfitness to serve. The Senate gave greater scrutiny, however, to judicial nominees with lifetime tenure. Directing particular attention to the Supreme Court, the Senate has rejected approximately twenty percent of those nominated to the nation's highest tribunal. Of the thousands of treaties submitted, the Senate has turned down fewer than two dozen, but it routinely influenced treaty negotiations with threats of modification through the addition of various amendments, reservations, or understandings.

The framers would also find much in the Senate, as in modern America, that would surprise them. They would surely be amazed that the Senate has grown to 100 members, with 7,000 staff members housed in three large office buildings, and that senators now view service in the body as a long-term career. They would also be surprised at the importance the Senate accords to its committee system.

Conclusion

Looking back on more than two centuries of Senate history, the Constitution's framers would appreciate the Senate's passion for deliberation, its untidiness, its aloofness from the House of Representatives and its suspicion of the presidency. Neither they nor most of the more than 1,800 persons who served as senators during that time would be greatly surprised at the continuing calls for reform. Viewed over the broad sweep of its history, the Senate has balanced faithfulness to the Constitution's principles with requirements for measured change in response to the complex demands of a diverse society.

Further Reading: U.S. Congress. Senate. The Senate, 1789-1989, by Robert C. Byrd. S. Doc. 100-20, 100th Congress, 1st session, Washington: GPO. Volumes I and II, Addresses on the History of the United States Senate, 1989, 1991; Volume III, Classic Speeches, 1830-1993, 1994; Volume IV, Historical Statistics, 1789-1992, 1993.

# data[].attributes.attachment_link.description
Constitutional Design of the Senate, 1787 The framers of the Constitution created the United States Senate to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government.

# data[].attributes.attachment_link.title
Explaining Federalist Paper #10: US Government Review

# data[].attributes.attachment_link.title
How to Fix the House of Representatives in One Easy, Radical Step

# data[].attributes.attachment_link.description
It is high time that the size of the House increased dramatically. By my calculations, there ought to be 930 seats. Here's why.

# data[].attributes.attachment_link.readable_text
Introduction to the Federalist-Antifederalist Debates

After the signing of the Constitution on September 17th, 1787, a robust debate grew among supporters of the document and those, for various reasons, who were opposed to its ratification as written, or at all. This "out of doors," to use the language of the times, debate took place in the newspapers, taverns, parlors, and homes of Americans across the 13 states, and served as the public backdrop to the considerations, debates, and eventual decisions of the ratification conventions that would determine the fate of the Constitution and the republic it proposed.

The "out of doors" literature is rich, varied, and immense. On the pro- Constitution side, of course, are the eighty-five essays collectively known as The Federalist. They have acquired an authoritative status virtually equal to the Constitution itself.

But these essays were not the only, or even the most influential, of the pro-Constitution essays. The "Other Federalists" include such heavyweights as James Wilson, Rufus King, Oliver Ellsworth, Roger Sherman, Timothy Pickering, John Marshall, and John Dickinson. The opponents—variously described as Anti-Federalists, antifederalists, and our preferred usage, Antifederalists — also wrote a vast and varied literature. Accordingly, this website must be selective in its coverage lest in its efforts to be comprehensive it turns people away because of the enormity of the writing.

There are four main component parts to the "out of doors" coverage on the website. 1) A complete reproduction of the 85 essays of The Federalist in defense of the Constitution. 2) An Essay-by-Essay Summary of The Federalist including a paragraph by paragraph summary of the leading essays. 3) A reproduction of the original works of the Leading Antifederalists who criticized the proposed plan under consideration. 4) An Essay-by-Essay Summary of the Leading Antifederalists.

The Antifederalist literature is particularly difficult to collect under one accessible roof. For example, no three Antifederalist authors sat down and produced the Antifederalist Papers. And while it is tempting to try to match up individual Antifederalist writings with numbers in The Federalist, this ultimately proves to be a daunting and unproductive exercise. It is far more rewarding to match up major themes than it is to match up individual essays. Thus, Brutus is excellent when it comes to the theme of the Judiciary, as is Cato when the Executive is under consideration. One certainly gets the feel that Hamilton has these two authors in mind when writing the Executive and Judiciary essays. Probably The Federal Farmer writes the best opposition essays on representation in the House and Senate. Again, one gets the impression that Madison was keenly aware of the Federal Farmer essays as he wrote Federalist 55, 56, and 57.

The New York Journal published the sixteen Brutus essays between 18 October 1787 and 10 April 1788. He is presumed to be a New York Antifederalist since, among other things, three quarters of the essays were addressed to the citizens or the people of New York. Robert Yates is the possible author, although Abraham Yates, Thomas Tredwell, and Melancton Smith have also been suggested.

The first five essays are among the best representations of the general Antifederalist critique of the Constitution. Essays six through ten, published in late December and January, cover the legislative branch. The New York Journal also published essays 23-26 by Hamilton during this period thus encouraging scholars to see a direct Brutus-Publius confrontation. Five of the last six essays are a critique of the Judiciary and it is probable that Hamilton's defense of the independent judiciary in Federalist 78 is a response to Brutus.

The eight letters of Cato were published in The New York Journal between September 1787 and January 1788. The first letter appeared in the 27 September 1787 issue. This issue produced another first: this marked the first time the full text of the Constitution was published in the paper. The presumed author is Governor George Clinton of New York although scholars have disputed his authorship. In the first essay, Cato urges that his readers attach importance to "measures not to men." Essay three reiterates a familiar Antifederalist critique of Federalist 10: a large and extensive territory is ripe for consolidation and the collapse of republicanism. Cato's essays are most often associated with his warnings on the Presidency and this is the subject matter of Essay 4. The remaining essays deal with a critique of the House and the Senate.

A third major Antifederalist out-of-doors writer alluded to above was The Federal Farmer. He is presumed to be Richard Henry Lee, although this authorship has been challenged. He wrote five original letters in October 1787 in which he argued 1) that the proposed plan would lead to consolidation of the States under one government and that 2) the powers of the general government were ill defined. He devoted a number of additional letters to representation in the legislative branch and the need for a Bill of Rights.

# data[].attributes.attachment_link.title
Introduction to the Federalist-Antifederalist Debates | Teaching American History

# data[].attributes.attachment_link.description
After the signing of the Constitution on September 17th, 1787, a robust debate grew among supporters of the document and those, for various reasons, who were opposed to its ratification as written, or at all.

# data[].attributes.headline
Federalist 54-- Madison's justification for the 3/5th compromise

# data[].attributes.subject
Federalist 54-- Madison's justification for the 3/5th compromise

# data[].attributes.attachment_link.readable_text
On this date in 1788, Federalist No. 54 was published, defending the portion of the Constitution that counted slaves as three-fifths of a person.

During the Constitutional Convention in 1787, as the delegates were considering how to allot representation for each state, the question arose: How to count the slave population?

The Southern states were fearful that they would be overwhelmed in the House by the "large" states-Massachusetts, Pennsylvania, and Virginia. To increase their representation, the Southern states wanted their large number of slaves to be included in the population count. Of course, the large states did not want to relinquish their numerical advantage in the House. Many delegates argued slaves should not be counted at all-after all, they said, slaves are property, not persons.

The result of the debate set forth in Article 1, Section 2 of the Constitution was a compromise, incorporating ideas of both property and person: Population would be calculated by adding "the whole Number of free persons, including those bound to Service for a Term of Years, and excluding Indians not taxed," plus "three fifths of all other Persons."

Those "other Persons," of course, were slaves.

Federalist No. 54, which was likely authored by James Madison (it may also have been Alexander Hamilton), offers a sense of how mightily Madison struggled to justify the irrationality of the three-fifths rule and the Constitution's approach to enslaved persons.

In truth, it was a political deal that many delegates felt was essential to preserving the Union.

Though Madison was a slaveholder, he felt deeply conflicted about slavery, as shown in much of his writings. But he was a strong advocate of the Constitution, so he felt obligated to defend even the three-fifths rule.

Because he wanted the other slaveholders to appreciate this dilemma, he wrote that his "Southern brethren" might say that "representation relates more to persons and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves."

He then lists some aspects of slaves that support the argument that they should be considered property: Their labor was compelled for a master, they were sellable from one master to another, and their liberty was restrained, much like animals, which under the law were considered property.

At the same time, Madison recognized that, under the law, slaves' lives were protected against bodily harm, they could be punished for doing harm to others, they were not an irrational creature (such as a domesticated animal), and they were seen by the law as a member of society. Hence, slaves were also persons.

Madison concludes that because of these "mixed" characteristics, the Constitution should treat slaves as both persons and property. And since the proposed Constitution did so, the people should support the Constitution, or so he reasoned. Madison next sets forth the arguments that underpin the Constitution's approach.

Madison opined that the approach involving both representation and taxation would support accurate census results. If a state were to attempt to "overcount" its population in order to increase its number of representatives, its taxes would also go up. On the other hand, if a state were to "undercount" its population in order to reduce its taxes, its number of representatives would also be reduced. As a result, the Constitution's "balanced" approach, states would be an incentive to report accurate census counts.

Madison then turned to how the states have treated suffrage. He noted that in all states, it was accepted that some portions of the population had been denied the right to vote. Further, in none of the states having slaves did they have the right to vote. Given that, it was not novel, nor should it be objectionable, for slaves to be denied the right to vote under the federal Constitution.

Yet slaves would be included in the census upon which apportionment and taxes would be based-just as other segments of society have been denied voting privileges yet were counted in censuses (e.g. women). But because slaves are "debased by servitude below the level of free inhabitants," their count as a person should be reduced. They settled on counting three-fifths, a figure that had been proposed earlier as an amendment to the Articles of Confederation in 1783.

Madison also noted that the structure of the federal government would protect both persons and property, so it is appropriate for Constitution to consider census counts for both representation and taxation. He argued that since one state did not have the ability to impact another state's wealth, it should be acceptable to fix a state's taxation based on a state's wealth, or property. In his mind, this should address the Southern states' concerns about being overwhelmed by the largely populated states.

Finally, Madison concludes that while the proposed system is not without fault, it is a balanced solution to the dilemma surrounding how slaves were to be counted.

However, he avoids the essential question: Was this solution fair to slaves, to the states, and to the country? It may not have been fair (which Madison suggested), but it was necessary-in order to obtain the support of the Southern states to make the Constitution a reality. Through the eyes of the 18th-century delegates it was both: necessary and fair.
Donald Applestein is a retired attorney and an experience guide in the National Constitution Center's Public Programs Department. Recent Constitution Daily Stories 10 little-known factoids about Abraham Lincoln A few weighty lessons for Chris Christie from President Taft Two body snatching tales with presidential connections

Filed Under: Founding Fathers, Article I, Section 2

# data[].attributes.attachment_link.title
The three-fifths compromise: Rationalizing the irrational

# data[].attributes.attachment_link.description
On this date in 1788, Federalist No. 54 was published, defending the portion of the Constitution that counted slaves as three-fifths of a person. During the Constitutional Convention in 1787, as the delegates were considering how to allot representation for each state, the question arose: How to count the slave population?

# data[].attributes.headline
Video-- history and necessity of independent judiciary

# data[].attributes.subject
Video-- history and necessity of independent judiciary

# data[].attributes.attachment_link.title
An Independent Judiciary: Cherokee Nation v. Georgia and Cooper v. Aaron

# data[].attributes.headline
AWESOME Constitution Resource... interactive and full of other resources

# data[].attributes.subject
AWESOME Constitution Resource... interactive and full of other resources

# data[].attributes.attachment_link.description
On this site, constitutional experts interact with each other to explore the Constitution's history and what it means today. For each provision of the Constitution, scholars of different perspectives discuss what they agree upon, and what they disagree about. These experts were selected with the guidance of leaders of two prominent constitutional law organizations-The American Constitution Society and The Federalist Society.

# data[].attributes.attachment_link.description
The Federalist Papers get all the love! An overview of the Anti-Fed Papers and their arguments for opposing the US Constitution. Check out the Federalist Papers here https://www.youtube.com/playlist?list=PLi3U-nPPrbS4hbU0vJ6RVZkoeJpzadZ7X And of course the entire US Constitution series https://www.youtube.com/playlist?list=PLi3U-nPPrbS5d-juhFwo3hTBso0gq2sUZ

# data[].attributes.attachment_link.title
Federalist Paper #51 Explained: American Government Review

# data[].attributes.attachment_link.description
I quick look at Federalist Paper #51, a must for anyone studying the foundations of American Government.

# data[].attributes.attachment_link.readable_text
SIX weeks ago, when judges in Hawaii and Maryland blocked Donald Trump's second attempt to limit travel from a handful of Muslim-majority countries, the 45th president said the rulings were made "for political reasons" and promised to appeal them "all the way to the Supreme Court". Mr Trump's refugee and travel ban may indeed wind up in the justices' hands, including those of his newly installed jurist, Neil Gorsuch. But there are stops along the way at the United States Circuit Courts of Appeals. On May 8th, the entire 15-member Fourth Circuit court in Virginia will hear arguments in International Refugee Assistance Project v Trump; and on May 15th, a three-judge panel of the Ninth Circuit court in California will hear an appeal in State of Hawaii v Trump. If the plaintiffs challenging the ban win either case, Mr Trump's travel restrictions will remain stymied nationwide.

It seems the president faces an uphill battle in both tribunals: the Ninth Circuit is commonly described as the most liberal in America; and with six recent Barack Obama appointees, the Fourth Circuit is no longer a bastion of conservatism. But as the courts prepare for these hearings, a group of constitutional scholars opposed to Mr Trump's travel restrictions from Iran, Libya, Somalia, Sudan, Syria and Yemen are urging judges to consider the order in a somewhat different light. The new spin is designed to put the challenge on sounder footing at the circuit courts-and to ready it for a potential trip to the Supreme Court.

On April 19th, 50 legal scholars filed an amicus brief with the Fourth Circuit arguing that Mr Trump's executive order is precluded by "the long-settled prohibition on governmental acts based on animus toward a particular religious group". The premise that the travel restrictions are rooted in the president's hostile attitude toward Muslims is nothing new: both rulings on appeal catalogued a host of public statements in which Mr Trump promised, for example, a "total and complete shutdown of Muslims entering the United States" as evidence that the executive order-far from advancing a legitimate national security interest-primarily targets Muslims and thus violates the First Amendment rule barring the "establishment of religion".

But the Hawaii and Maryland restraining orders were grounded in Lemon v Kurtzman and McCreary v ACLU, Supreme Court precedents the scholars acknowledge "remain controversial". That may be an understatement. Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas have all expressed doubts about Lemon; in 1993, the late Antonin Scalia likened the 1971 decision to a "ghoul in a late-night horror movie". As a judge on the Tenth Circuit court in 2009, Mr Gorsuch noted that lower courts had "jettison[ed]" Lemon and the Supreme Court "seemed to eschew it". So it would appear to be a strategic necessity, as the legal challenge to Mr Trump's travel ban is tuned for the higher courts, to sketch an alternative case for its unconstitutionality.

The amicus brief argues that the lower courts' view of the executive order is "independently supported" by precedents interpreting the First Amendment's establishment and free-exercise clauses and the Fourteenth Amendment's guarantee of equal protection that have nothing to do with Lemon or McCreary. In Town of Greece v Galloway, a 2014 case involving public prayer at town-board meetings, Justice Kennedy drew the line at supplications that "signal disfavour toward nonparticipants or suggest that their stature in the community was in any way diminished". Likewise, in the same case, Justice Alito noted that "discriminatory intent" may turn an otherwise acceptable prayer into a violation of the establishment clause. In light of writings from George Washington (speaking out against religious "bigotry"), Thomas Jefferson (saying the constitution protects "the Jew and the Gentile, the Christian and Mahometan, the Hindoo and infidel") and James Madison (decrying a law that "degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the legislative authority"), the Supreme Court's rejection of official acts expressing religious animus is "of ancient lineage".

But does Mr Trump's travel ban represent animus toward Muslims? On the face of it, the executive order is not hostile to any particular religion: it suspends travel for 90 days from six countries (Iraq was taken off the list when Mr Trump released his revised order in March) and imposes a 120-day pause on the entry of new refugees. The plaintiffs' portrayal of the executive order as an exercise in Muslim-hatred is futile, the administration insists. Statements made during a campaign do not "impugn the motive of subsequent government action". This attempt to sever the link between Mr Trump's words and his actions got a boost on March 17th in the form of an extraordinary opinion from Judge Alex Kozinski of the Ninth Circuit, lamenting that his colleagues did not vote to reconsider his court's three-judge panel decision against the president's first executive order. Mr Kozinski mocked the approach as an "evidentiary snark hunt". A candidate for office says "many things on the campaign trail" that are often "contradictory or inflammatory", but "the poor shlub's only intention is to get elected". To read a candidate's rhetoric into policies he adopts once in office is "folly" and "strewn with danger", Mr Kozinski warned.

Perhaps in deference to this line of attack, the brief from the constitutional scholars claims that the travel ban's anti-Muslim animus is apparent in "a review of only post-election and post-inauguration statements by the president and his senior advisors". When he signed the first executive order in January, Mr Trump read its title ("Protecting The Nation From Foreign Terrorist Entry Into The United States") and remarked, "we all know what that means." And after his second order was halted by Judge Derrick Watson in Hawaii, Mr Trump called it "a watered-down version of the first order" and said, "I think we ought to go back to the first one". Even if part of the motivation behind the ban is valid, mixing that interest "with forbidden animus", the brief explains, "corrupt[s] and distort[s] it".

Leah Litman, one of the signatories and a professor of law at the University of California, Irvine, thinks the brief may "bear fruit" if the justices "fairly read and apply precedent according to its best reading". Joshua Matz-the attorney who wrote the brief in cooperation with scholars Corey Brettschneider, Micah Schwartzman and Nelson Tebbe-has crafted a persuasive and skillfully targeted argument. In steering clear of Lemon, citing conservative justices and scholars and prominently quoting the likely swing justice, Anthony Kennedy (for whom he clerked), Mr Matz says that the rebranding of the case is no mere tactic to attract a Supreme Court majority. "Justices and jurists of all methodological and ideological views agree that the government cannot act on the basis of animus toward any particular religion", Mr Matz says. "This policy squarely offends that rule". If the Supreme Court abides by its own long-standing principles, he adds, "Trump's order cannot stand".

# data[].attributes.attachment_link.title
A new spin on why the travel ban is unconstitutional

# data[].attributes.attachment_link.description
SIX weeks ago, when judges in Hawaii and Maryland blocked Donald Trump's second attempt to limit travel from a handful of Muslim-majority countries, the 45th president said the rulings were made "for political reasons" and promised to appeal them "all the way to the Supreme Court".

# data[].attributes.attachment_link.readable_text
The Supreme court has once again stepped into the fire of hot-button political issues. The court said Tuesday it would rule by summer on the legality of President Obama's executive action granting temporary legal status to as many as 4.5 million people who entered the U.S. illegally.

Fourteen months ago, Obama, frustrated by Congress' inability to act on immigration reform, issued an order expanding temporary legal status for some adults who entered the U.S. illegally.

The new order granted temporary legal status and work permits to illegal adult immigrants who had been in the U.S. for five years and who have children who are American citizens or lawful permanent residents. In addition, applicants had to register, pass a criminal background check, and prove they had paid their taxes. If they met all these criteria, they would be granted legal status and temporary work permits for three years.

The president said this change in immigration regulations would allow people to "come out of the shadows and get right with the law."

The president's action followed a similar temporary reprieve from deportation that he issued in 2012 for children age 15 and under brought to the U.S. illegally. Court challenges to that order failed.

Although many Republicans objected to the 2012 action for children, opposition was relatively muted. The most recent temporary reprieve for adults, however, infuriated the GOP.

Republicans blasted the president's action as "lawless," and a coalition of 26 states led by Texas challenged the executive action in court, contending that the president had exceeded his authority.

A year ago a federal judge blocked implementation of the new regime and a federal appeals court panel, by a 2-1 vote subsequently upheld the injunction on broader grounds. The Obama administration then asked the Supreme Court to review the case, and on Tuesday the justices said they would hear arguments in April, with a decision expected by late June.

If the court had refused to hear the case, the appeals court ruling would have stood, and the president's program would have been dead in the water.

But there is no assurance of how the court will rule. Indeed, the justices broadened the scope of the case, asking the two sides to address an additional, and fundamental question: whether the president's action violates the Constitution's requirement that the president "shall take care that the laws be faithfully executed."

The addition of that question is seen as "a good omen" by many conservatives, like Jay Sekulow of the American Center for Law and Justice. "I think the adding of that question ... helps those of us that are concerned that the president overreached here," Sekulow said.

He is filing a brief opposing the president's action on behalf of 88 congressmen and 25 senators, including the two Texas senators, Ted Cruz and John Cornyn. Dozens of other groups, on both sides, are expected to weigh in.

Marielena Hincapié, of the National Immigration Law Center notes, for instance, that President Obama's immigration action is similar to those "used by every administration, both Republican and Democrat, since President Eisenhower.

Duquesne Law School Dean Kenneth Gormley, author of a new history of presidential power, observes that "There have been battles over these issues dating back to George Washington." In this case, he views the states' case as "particularly weak" because in general the Constitution leaves questions of immigration and naturalization to the federal government so that the nation has a uniform system.

Gormley sees "the real battle lines" in the case as "between President Obama and Congress" and the critical question as whether the President exceeded his power under congressional enacted statutes.

For those charged with carrying out immigration laws - many of which are in fact presidential actions - the critical question may be the first one presented in the case: whether Texas has the legal standing to sue in the first place.

In order to have such standing, a state has to show that it would be injured in a concrete way if the president's action were to be carried out. Texas asserts, and the appeals court agreed, that it would be injured because it would have to spend millions of dollars to provide drivers' licenses for immigrants with temporary legal status as a result of the federal program.

The Obama administration counters that there is no requirement that Texas provide licenses at a financial loss and that the state is free to charge the full cost of the license.

It may seem like nitpicking to some, but Stephen Legomsky, a former top immigration official, says that if any state can challenge an executive action on immigration, "the result would be that practically any favorable decision by the federal government on an immigration matter would give rise to lengthy lawsuits." That, he said, would be "a recipe for a government paralysis."

The addition of the U.S. v. Texas case to the Supreme Court docket this term means that just as the two political parties are about to choose their presidential nominees, the High Court will be deciding cases involving race and affirmative action, abortion, birth control, and now, immigration.

# data[].attributes.attachment_link.title
Supreme Court To Review If Obama Immigration Actions Were 'Faithfully Executed'

# data[].attributes.attachment_link.description
The Supreme court has once again stepped into the fire of hot-button political issues. The court said Tuesday it would rule by summer on the legality of President Obama's executive action granting temporary legal status to as many as 4.5 million people who entered the U.S. illegally.

# data[].attributes.attachment_link.readable_text
"Today's decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system," he said before heading to the West Coast for a two-day trip. "It is heartbreaking for the millions of immigrants who have made their lives here."

The decision was one of two determined by tie votes Thursday - the other concerned Indian tribal courts - and one of four so far this term. The court is scheduled to issue its final three decisions of the term, including one on a restrictive Texas abortion law, on Monday.

Mr. Obama said the court's immigration ruling was a stark reminder of the consequences of Republicans' refusal to consider Judge Merrick B. Garland, the president's nominee to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia.

"If you keep on blocking judges from getting on the bench, then courts can't issue decisions," Mr. Obama said. "And what that means is then you are going to have the status quo frozen, and we are not able to make progress on some very important issues."

The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Mr. Obama has said he took the action after years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. A coalition of 26 states, led by Texas, promptly challenged the plan, accusing the president of ignoring administrative procedures for changing rules and of abusing the power of his office by circumventing Congress.

"Today's decision keeps in place what we have maintained from the very start: One person, even a president, cannot unilaterally change the law," Ken Paxton, the Texas attorney general, said in a statement after the ruling. "This is a major setback to President Obama's attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law."

The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court's four-member liberal wing to save the program.

The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver's licenses to immigrants affected by the federal policy.

Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.

Mr. Obama said the White House did not believe the terse ruling from the court had any effect on the president's authority to act unilaterally. But he said the practical effect would be to freeze his efforts on behalf of immigrants until after the November election.

He also predicted that lawmakers would eventually act to overhaul the nation's immigration system.

"Congress is not going to be able to ignore America forever," he said. "It's not a matter of if; it's a matter of when. We get these spasms of politics around immigration and fear-mongering, and then our traditions and our history and our better impulses kick in."

White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation's immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.

But the court's ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation's immigration laws. And it left immigration activists deeply disappointed.

"This is personal," Rocio Saenz, the executive vice president of the Service Employees International Union, said in a statement. "We will remain at the front lines, committed to defending the immigration initiatives and paving the path to lasting immigration reform."

The lower court rulings in the case were provisional, and the litigation will now continue and may again reach the Supreme Court when it is back at full strength. In the meantime, it seems unlikely that the program will be revived.

In February 2015, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program while the legal case proceeded. The government appealed, and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans affirmed the injunction.

In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that "the executive does have enforcement discretion to forbear from removing aliens on an individual basis." Their quarrel, they said, was with what they called a blanket grant of "lawful presence" to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that this "lawful presence" was merely what had always followed from the executive branch's decision not to deport someone for a given period of time.

"Deferred action does not provide these individuals with any lawful status under the immigration laws," he said. "But it provides some measure of dignity and decent treatment."

"It recognizes the damage that would be wreaked by tearing apart families," Mr. Verrilli added, "and it allows individuals to leave the shadow economy and work on the books to provide for their families, thereby reducing exploitation and distortion in our labor markets."

The states said they had suffered the sort of direct and concrete injury that gave them standing to sue.

Judge Jerry E. Smith, writing for the majority in the appeals court, focused on an injury said to have been suffered by Texas, which he said would have to spend millions of dollars to provide driver's licenses to immigrants as a consequence of the federal program.

Mr. Verrilli told the justices that Texas' injury was self-inflicted, a product of its decision to offer driver's licenses for less than they cost to produce and to tie eligibility for them to federal standards.

Texas responded that being required to change its laws was itself the sort of harm that conferred standing. "Such a forced change in Texas law would impair Texas' sovereign interest in 'the power to create and enforce a legal code,'" the state's lawyers wrote in a brief.

Judge Hanen grounded his injunction on the Obama administration's failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program gave blanket relief to entire categories of people, notwithstanding the administration's assertion that it required case-by-case determinations about who was eligible for the program.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama's statutory authority.

# data[].attributes.attachment_link.title
Supreme Court Tie Blocks Obama Immigration Plan

# data[].attributes.attachment_link.description
"Today's decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system," he said before heading to the West Coast for a two-day trip. "It is heartbreaking for the millions of immigrants who have made their lives here."

# data[].attributes.attachment_link.readable_text
To understand the antidemocratic history and unsatisfactory logic that gave rise to American senates (both federal and state), one must start with the century preceding that of the American Revolution, when the people of England rose up in a fit of regicide, civil war, and tumult to end the absolutism of their Stuart kings ("accountable to none but God only") and to shift sovereignty from the king to "the king-in-parliament," meaning to a king whose actions depended on the approval of two branches of parliament. This new arrangement was basically a recognition of property classes in Britain, balancing the king (Britain's largest property owner), the hereditary House of Lords (Anglican bishops and titled aristocrats, "Lords Spiritual and Temporal," also representing vast land holdings), and a House of Commons (which represented a rising mercantile class of property owners whose demands for representation gave rise to this "Glorious Revolution"). Yet the British also came to see this balance as a protection of liberty, finding justification in the writings of the Greek and Roman philosophers, most notably in those of Polybius, who divided the forms of government into rule by one (monarchy), by the few (aristocracy), and by the many (democracy) but insisted that each of these forms, unless balanced by the other two, would degenerate into tyranny, oligarchy, or mob rule, respectively. Thus it was, in the minds of most Britons, a protection against tyranny that their constitution embraced the one (the king), the few (the aristocratic House of Lords), and the many (the more representative House of Commons). As Britain's most famous jurist, William Blackstone, argued in his Commentaries on the Laws of England, "If ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution." As Britain's leading political philosopher, John Locke, summarized at the end of the century, the purpose of government was to secure everyone's "lives, liberties, and estates."

In the century that followed England's "Glorious Revolution," philosophers in France, politicians in America, and Whig critics within England itself had much to say about the British constitution and whether its balances secured or threatened liberty. Chief among them was the French philosopher Charles Montesquieu, who, in his Spirit of the Laws, accepted the balance among the one, the few, and the many but found a more important protection of liberty in the separation of executive, legislative, and judicial functions. As France and America approached the time of their own revolutions, most democrats accepted Montesquieu's theory of separation, but many totally rejected the British balance among monarchy, aristocracy, and democracy. These critics argued, as many Whigs in England did, that the monarch's power of appointment and expenditure could (and did) corrupt the British Parliament and prevented Parliament from representing the people it was supposed to represent. Looking despondently at these developments, English Whig James Burgh wrote, in his Political Disquisitions, that William Blackstone had "placed the sovereignty wrong, viz. in the government; whereas it should have been in the people." Suffering "intolerable" and "coercive" acts of the British government, many in America agreed.

America fired its opening shot at the British constitution in January of 1776, when Thomas Paine came out with his revolutionary pamphlet Common Sense, urging Americans to declare their independence from Britain and to distance themselves from the British constitution (under which they had lived for generations). "I know it is difficult," he wrote, "to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new republican materials."[2] Paine condemned Britain's three-way balance as, "First. - The remains of monarchical tyranny in the person of the king. Secondly. - The remains of aristocratical tyranny in the persons of the peers [the House of Lords]. Thirdly. - The new republican materials, in the persons of the commons, on whose virtue depends the freedom of England." He urged that any American government consist of only one democratically elected legislative chamber, with no aristocratic or kingly branch to veto its decisions (the executive branch would be appointed by and answer to the legislature). Quoting Burgh, Paine urged "a large and equal representation," meaning a large number of representatives (so that each will answer to a small constituency) and a large number of voters (meaning that neither property nor any other special interest should limit the right to vote and thus limit equal representation). "A small number of electors, or a small number of representatives," Paine warned, "are equally dangerous. But if the number of the representatives be not only small, but unequal, the danger is increased."

[2] Paine made similar comments about America's new federal Constitution, observing, "As the Federal Constitution is a copy, though not quite so base as the original, of the form of the British Government, an imitation of its vices was naturally to be expected."

The most virulent response to Paine's Common Sense came from New Englander John Adams, who introduced the phrase "checks and balances" into the American language and condemned Paine's plan of government as "so democratical, without any restraints or even an Attempt at any Equilibrium or Counterpoise." Adams countered Common Sense in April with his own pamphlet, Thoughts on Government, which argued that any American government should have its own three-way balance-specifically, two separate legislative chambers and a separate chief executive, each with the power to veto the other two. In such a government, he wrote, "equal interests among the people should have equal interests in it." Adams enumerated his arguments against a single-chamber legislature as follows:

1. A single assembly is... subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments.... 2. A single assembly is apt to be avaricious, and in time will not scruple to exempt itself from burdens, which it will lay, without compunction, on its constituents. 3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual....4. A representative assembly... is unfit to exercise the executive power, for want of two essential properties, secrecy and dispatch. 5. A representative assembly is still less qualified for the judicial power, because it is too numerous, too slow, and too little skilled in the laws. 6.... [A] single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.

If these were the only arguments in favor of two chambers in the legislature, one could easily dismiss them, if only by questioning why having two chambers wouldn't simply double the problems of one chamber. If representatives of the people couldn't resolve their passions, discard their prejudices, control their greed, etc., in one deliberative body, why would a second group of representatives, arguing over the same matters, do any better? And if that second chamber were to reach a different conclusion from the first chamber, why would we believe that this second slice of humanity had reached a better conclusion than the first? Or, if we knew that the second chamber were better or would reach a better conclusion than the first, why would we not make the second chamber the only chamber and avoid the risks of the first chamber's mistakes?[3]

[3] As Benjamin Franklin put it: "If one Part of the Legislature may control the Operations of the other, may not the Impulses of Passion, the Combinations of Interest, the Intrigues of Faction, the Haste of Folly, or the Spirit of Encroachment in the one of those Bodies obstruct the Good proposed by the other and frustrate its Advantages to the Public?"

Paine's democratic message of January found its echo in July, when Thomas Jefferson drafted the Declaration of Independence, shifting American sovereignty from Britain's king-in-parliament to the American people. Proclaiming that "all men are created equal," Jefferson declared that government rested on "the consent of the governed" and that its purpose was to secure inalienable rights, among them "Life, Liberty and the pursuit of Happiness." Jefferson did not use John Locke's phrase "lives, liberties and estates," which would have tied America's political rights to property ownership, as in Britain's three-way balance. Jefferson opposed property qualifications for office-holding or voting. "I have not observed men's honesty to increase with their riches," he wrote.

After the Declaration of Independence, America's former British colonies began to draft new state constitutions, choosing between Paine's model of government and John Adams's. In September, Paine joined Franklin in propagating the nation's most democratic state constitution-that of Pennsylvania-which called for a single-chamber legislature without wealth or property qualifications for voters or representatives and with a weak plural executive that had no power to initiate or veto legislation. Franklin opposed the idea of a three-way balance, observing, "The Division of the Legislature into two or three Branches in England, was it the product of Wisdom, or the Effect of Necessity, arising from the preexisting Prevalence of an odious Feudal System?" He spoke openly at the Pennsylvania Constitutional Convention against a two-chamber legislature, which he likened to "putting one horse before a cart and the other behind it, and whipping them both. If the horses are of equal strength, the wheels of the cart, like the wheels of government, will stand still." For Paine and Franklin, two legislative chambers were a prescription for deadlock, and, with the advantage of hindsight, who among us would disagree?
More from Richard N. Rosenfeld:

# data[].attributes.attachment_link.description
To understand the antidemocratic history and unsatisfactory logic that gave rise to American senates (both federal and state), one must start with the century preceding that of the American Revolution, when the people of England rose up in a fit of regicide, civil war, and tumult to end the absolutism of their Stuart kings ("accountable to none but God only") and to shift sovereignty from the king to "the king-in-parliament," meaning to a king whose actions depended on the approval of two branches of parliament.

# data[].attributes.headline
Annotated Constitution with links to relevant primary sources

# data[].attributes.subject
Annotated Constitution with links to relevant primary sources

# data[].attributes.attachment_link.title
The President Has Usurped the Constitutional Power of Congress

# data[].attributes.attachment_link.description
The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers.

# data[].attributes.headline
Intelligence2 Debate-- AMAZING website with salient debates and great resources

# data[].attributes.subject
Intelligence2 Debate-- AMAZING website with salient debates and great resources

# data[].attributes.attachment_link.title
Call a Convention to Amend the Constitution

# data[].attributes.attachment_link.description
Almost everyone can think of something they would like to change in the U.S. Constitution. It is always tempting to invoke Article V to "fix" it, or "restore" it, or "improve" it. But there is a substantial risk to tinkering: many amendments seem to have unintended consequences.

# data[].attributes.attachment_link.title
Federalist Paper #78 Explained: Government Review

# data[].attributes.attachment_link.title
Give Undocumented Immigrants a Path to Citizenship

# data[].attributes.attachment_link.description
There are an estimated 11 million undocumented immigrants in the United States, and the question of what to do with them has sparked years of fierce debate, but no significant action. Should we give undocumented immigrants a path to citizenship?