Tom Burrell

Liberty and Common Consent

Recent Works

Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at http://ssrn.com/abstract=2374985
May 2015
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  • In 2015, the English-speaking world will celebrate the Magna Carta’s 800th anniversary.

    The Magna Carta is a pillar of the English Constitution. In 1215, a group of powerful barons secured a great charter of liberties from King John. The barons believed that King John ruled arbitrarily and violated the customs and laws of the realm. A long-brewing struggle between the barons and the king erupted. The result, under the threat of civil war, was a promise of liberties from John to the barons.

    The Magna Carta’s anniversary, as anniversaries have in the past, will likely produce an abundance of literature.

    From the English side, we will read of the history of Parliament and the House of Commons: famous English institutions such as taxation only with representation, parliamentary privileges, the Petition of Right, the Habeas Corpus Act, and the English Bill of Rights. The English will celebrate the growth of Parliament’s representative government, which grew alongside the constriction of monarchical government.

    From the American side, we will see similar academic productions noting the history of our Constitution and tracing its connection to the English Constitution and the Magna Carta. Without much difficulty, American constitutionalism will trace “due process” back to Chapter 39 of the Magna Carta. Chapter 39:

    “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

    The two cornerstones of Chapter 39 and the era of the Magna Carta are (1) the concept of judgment and process before enforcement (2) common counsel or assent, e.g., participation in extraordinary taxation and government.

    But the conversation in America will quickly turn away from participatory government to the American notion of “Due Process of Law.”

    In America, “due process of law” means differnt things to different people. Most attribute a body of procedure to the phrase. For them, “due process of law” in the Fifth Amendment and Fourteenth Amendment entitles citizens to judicial customs and processes like fair notice, a hearing, and perhaps trial by jury.

    Others go much further and champion substantive “due process of law.” For substantive-due-process advocates, the Constitution’s use of “due process of law” incorporates not only a body of judicial processes but also generic concepts of reasonableness and social justice. Public actions or even enacted law that violates particular notions of right and wrong, privacy, happiness, dignity, equality, or some other social principle is a violation of the Constitution’s “Due Process of law.” The problem with this subjective constitutional standard is self-evident.

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  • William Pierce provided a biographical sketch of the delegates to the Constitutional Convention of 1787.  I found it amazing how young many of the delegates were.  Or maybe I am just getting old.  Here is a partial list (Pierce used approximate ages, I have corrected the ages via Wikipedia).
    Rufus King, 32
    Nathaniel Gorham, 39
    Elbridge Gerry, 42
    Roger Sherman, 66
    Oliver Ellsworth, 42
    Alexander Hamilton, apprx. 31
    Robert Yates, 39
    John Lansing, Jr., 33
    Dr. Franklin, 81
    Robert Morris, 53
    James Wilson, 45
    Gouverneur Morris, 35
    John Dickinson, 54
    Luther Martin, 39
    General Washington, 55
    George Mason, 61
    James Madison, 36
    Governor Edmund Randolph, 33
    Charles Cotesworth Pinckney, 41
    Charles Pinckney, 29

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  • In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established.

    Letters of Brutus, II, 1787

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  • How we take e-mails and texting for granted… Express Riders and Ratification

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    Jonas Phillips to the President and Members of the Convention

     Sires,

     With leave and submission I address myself To those in whome there is wisdom understanding and knowledge.  they are the honouable personages appointed and Made overseers of a part of the terrestrial globe of the Earth, Namely the 13 united states of america in Convention Assembled, the Lord preserve the amen—

     I the subscriber being one of the people called Jews of the City of Philadelphia, a people scattered and despersed among all nations do behold with Concern that among the laws in the Constitution of Pennsylvania [there] is a Clause Sect. 10 to viz—

     I do believe in one God the Creature and governour of the universe the Rewarder of the good and the punisher of the wicked — and I do acknowledge the scriptures of the old and New testement to be given by a devine inspiration—

     [T]o swear and believe that the new testament was given by devine inspiration is absolutely against the Religious principle of a Jew.  and is against his Conscience to take any such oath — By the above law a Jew is deprived of holding any publick office or place of Government which is Contridectory to the bill of Right Sect 2. viz

     That all men have a natural and unalienable Right To worship almighty God according to the dectates of their own Conscience and understanding, and that no man aught or of Right can be Compelled to attend any Relegious Worship or Erect or support any place of worship or Maintain any minster contrary to or against his own free will and Consent nor Can any man who acknowledges the being of a God be Justly deprived or abridged of any Civil Right as a Citizen on account of  his Religious sentiments or peculiar mode of Religious worship, and that no authority can or aught to be vested in or assumed by any power what ever that shall in any Case interfere or in any manner Controul the Right of Conscience in the free Exercise or Religious Worship—

     It is well known among the Citizens of the 13 united States that the Jews have been true and faithful whigs, and during the late Contest with England they have been foremost in aiding and assisting the States with their lifes and fortunes, they have supported the Cause, have bravely faught and bleed for liberty which they Can not Enjoy —

     Therefore if the honourable Convention shall in ther Wisdom think fit and alter the said oath and leave out the words to viz— [“]and I do acknoweledge the scripture of the new testement to be given by devine inspiration[”] then the Israeletes will think them self happy to live under a government where all  Relegious societys are on a Eaquel footing — I solecet this favour for my self my Childreen and posterity and for the benefit of all the Israeletes through the 13 united States of america. 

     My prayers is unto the Lord.  May the people  of this States Rise up as a great and young lion, May they prevail against their Enemies, May the degrees of honour of his Excellencey the president of the Convention George Washington, be Extollet and Raise up. May Every one speak of his glorious Exploits.  May God prolong his days among us in this land of Liberty – May he lead the armies against his Enemeys as he has done hereuntofore—May God Extend peace unto the united states – May they get up to the highest Prosperetys— May God Extend peace to them and their seed after them so long as the Sun and moon Endureth — and may the almighty God of our father Abraham Isaac and Jacob endure this Noble Assembly with wisdom Judgement and unamity in their councells, and may they have the Satisfaction to see that their present toil and labour for the wellfair of the united States may be approved of, Through all the world and perticular by the united States of america is the ardent prayer of Sires

                 Your Most devoted obed Servant,

                            Jonas Phillips, September 7, 1787 

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  • While the Anti-Federalists may have been alarmists with respect to congressional overreaching under the proposed constitution, there is little room for doubt that the Anti-Federalists nailed the Supreme Court problem directly on its head.  Regarding the judicial branch, Brutus commented in 1787 that it is easy to see that “these courts will eclipse the dignity, and take away from the respectability, of the state courts[,] . . . and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.”

    Under the expansive central authority, argued Brutus, the national government will reduce the country to one single government as any power reserved to the states will appear to be a clog in the wheel of national government.  “[I]t is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.”

    Throughout American history, the concept of self-aggrandizement has been repeatedly applied to the unelected judiciary.  Following the enactment of the Fourteenth Amendment, the judiciary became the self-appointed depositary for the protection of life, liberty, and property—a concept rejected by the 39th Congress and by the Framers of the Constitution.  In a republican form of government, the people are always the depository and safeguard of liberty.  Over time, the tension between the Court and the rest of the nation has increased.  Brutus foresaw this problem as a consequence of having no check against the judiciary:

    [Those who are vested with the judicial power] are to be placed in a situation altogether unprecedented in a free country.  They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries.  No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

    Brutus predicted that the national judiciary would completely subvert the state judiciaries and even the state legislatures.  Brutus argued that under the proposed constitutional system, the judiciary is empowered to explain the Constitution according to the reasoning and spirit without being confined to the words or letters.

    With such freedom, courts will rule against acts of the legislature without any constraint as nothing in the Constitution provides a check against the courts.  “This power in the judicial, will enable them to mould the government, into almost any shape they please.”  “[T]he judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.”

    Brutus argued that with the Court’s liberal constructions of the Constitution, the states will become trifle and unimportant and perhaps not even worth having.

    The formation of the judicial powers in this new system will abolish the state governments and melt the states into one national government.

    Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial.  They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.  These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them.  In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion.  The people will be told, that their state officers, and state legislatures are a burden and expence without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature.

    Brutus argued that a proper republican form of government puts construction of the Constitution with the legislature so that if the legislature exceeds its power in constructing the Constitution, the people, from whom they derive their power, could correct their errors

    A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people [choose] at stated periods, should have the power in the last resort to determine the sense of the compact:  if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.

    Letters, 1, 11, 14, and 15  1787-1788

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  • “Every statute is presumed to be constitutional.  The courts ought not to declare one to be unconstitutional, unless it is clearly so.  If there is doubt, the expressed will of the Legislature should be sustained.”

    “We know that this is a power which may be abused; but that is no argument against its existence.  For protection against abuses by Legislatures the people must resort to the polls, not to the courts.”

    Chief Justice Waite, Munn v. Illinois, 94 U.S. 113 (1877).

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  • However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens and that portion must be determined by the legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom, and justice of the representative body and its relations with its constituents furnish the only security, where there is no express contract, against unjust and excessive taxation as well as against unwise legislation generally.

    Providence Bank v. Billings, 29 U.S (4 Pet.) 514, 563 (1830).

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  • [The principle that all persons by age or sex, birth or color, origin or condition, are equal before the law,] as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government.  But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security.  What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions….

    The proper province of a declaration of rights and constitution of government, after directing its form, regulating its organization and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit and control them, by directing what precise laws they shall make.

    Justice Shaw, Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849).

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    We are all familiar with the final draft of the Constitution.  But not so many are aware of the fragile state of the union going into the Constitutional Convention.  The Articles of Confederation were ineffective and were being violated by the states.  The union had no effective means of enforcing its provisions.  States were violating federal treaties and disregarding Confederation legislation.  Moreover, the internal strife between North and South and small and large states made reaching compromise extremely difficult.  Eventually, the Framers were able to navigate the complexities by compromising on the manner in which the two branches of Congress voted.  The first branch would be by apportionment, with a number of representatives roughly based on the number of  inhabitants in each state.  The second branch would have two senators per state appointed by the states.  This equality of the states provided a means for the small states to defend themselves and their interests against the majorities of the larger states.  (The method of appointing senators was changed, however, by the Seventeenth Amendment.)  Benjamin Franklin, 81 years old, played a large part in the compromise.  Franklin was universally appreciated for his wisdom.  Here is a quote from him just after the signatures were applied to the final draft:

     The members then proceeded to sign the instrument.  Whilst the last members were signing it[,] Doctr. Franklin[,] looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun.  [“]I have,[”] said he, [“]often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting:  But now at length I have the happiness to know that it is a rising and not a setting Sun.[”]

     2 Max Farrand, The Records of the Federal Convention of 1787, at 648 (3d ed. 1966).

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