Saturday, February 24, 2018

What did the Constitution say about slavery?

The original Constitution never used the words "slave" or slavery," but it sure did talk about them ...

In the Constitutional Convention, the Northern and Southern states agreed to a number of compromises about slavery. But in the Constitution itself, you will not find the words "slave" or "slavery" anywhere (at least, not until the Thirteenth and Fourteenth Amendments of the 1860's).

Constitutional Convention, 1787

For example, it used euphemisms like "service or labour," or the "importation of such persons"

Instead, you will find a number of diplomatically-worded euphemisms that were meant to ease the consciences of Northerners on this issue, such as the ones that follow. Instead of "slavery," they say "service or labour." Instead of the "slave trade," they say the "importation of such persons." And instead of just saying "slaves," they say "three-fifths of all other persons" (which I will elaborate on later here.)

Slave dance to banjo, 1780's

Tuesday, January 23, 2018

Who can vote in the United States?: The voting rights amendments

" ... that government of the people, by the people, for the people, shall not perish from the earth."

- Closing lines of Abraham Lincoln's "Gettysburg Address" (November 19, 1863)

Many Americans have historically been denied the vote in this country ...

Voting rights are one of the most important rights that anyone can have in a free country. They are a right by which many others can be defended, and the essence of popular government in democracies and republics. But voting rights were long restricted in this country to white male citizens who had private property, and who were 21 years of age or older. They could be denied for failure to pay poll taxes, for having ancestors that had been enslaved, or for any number of other things that were used as restrictions on the right to vote.

Frederick Douglass, a notable advocate of African American voting rights

... and the changes in these policies were made somewhat gradually over a period of decades

It took a long time for this situation to be rectified, and the changes brought herein were made somewhat gradually over a period of some decades. Thus, it would seem appropriate to review them now, and show what categories are forbidden to be used as legal grounds for denying people the right to vote. (I should acknowledge that some would classify the Twenty-Third Amendment as a voting rights amendment as well; but since this amendment is more relevant to the electoral college than it is to individual suffrage, I'll save that discussion for another post. I will focus this post instead on the four amendments about voting rights at the individual level.)

Martin Luther King, another notable advocate of African American voting rights

Saturday, January 20, 2018

Why people will always find the executive branch more interesting than the other two branches

"If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?"

- Thomas Jefferson

In every society that I know of, people are fascinated by power - whether their own power, or someone else's. Even in democratic societies, people fear the power of governments; and those who have to live under totalitarian regimes live in still greater fear. People in these countries usually take great care not to offend their governments, of course, because retribution from these governments can be so terrible and swift. Obviously, the governments of more democratic countries don't possess anything like this degree of internal power, of course, but they do possess a great deal of external power that makes them a force to be reckoned with. Nowhere is this more true than the United States, I think, where the resources at the government's disposal (military and otherwise) make it more powerful than any other.

The Pentagon, the headquarters of the United States Department of Defense

People do find the executive branch (including the police and military) more interesting

All three branches of our government have power, of course, but I think people are more fascinated by the executive branch than either of the other two. There have been movies about the legislative branch (such as "Mr. Smith Goes To Washington"), and there have been movies about the judicial branch (such as the John Grisham movies). But for every movie about one of these two branches, there is another movie about the federal police force or the United States military (parts of the executive branch), and some movies even focus on the White House itself.

Headquarters of the United States Department of Justice, or "DOJ"

Thursday, January 18, 2018

How to prevent tyranny: Separation of powers and checks & balances

"The political liberty of the [citizen] is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another."

- Baron de Montesquieu's "De l'esprit des lois" ("The Spirit of Laws") [published 1748], Book XI, Chapter 6

Montesquieu had some important ideas about how to prevent tyranny (and they're still relevant today)

The U. S. Declaration of Independence owed much to the work of John Locke, the English political philosopher; but the political scientist Donald Lutz said that "If there was one man read and reacted to by American political writers of all factions during all the stages of the founding era, it was probably not Locke but Montesquieu." (Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 190) This is not to deny the importance of Locke, I should be clear here; as he was also an enormous influence on the Founding Fathers as well (see my blog post for evidence of this). Nonetheless, Montesquieu is definitely the author that had the greatest influence on both sides of the ratification debates, and perhaps even on the finished product of the United States Constitution itself. He's almost like a Founding Grandfather of the United States, his influence is so strong; which is why I recently finished reading his most famous work "De l'esprit des lois" ("The Spirit of Laws") in the original French. (He was a Frenchman, you see, who wrote his most famous work in 1748 - a book written over a quarter of a century before the American Revolution; which was one of the most important influences on the Founding Fathers.)

Baron de Montesquieu

How to prevent bad government: Keep any one group from getting too much power

Montesquieu is probably best known today for his important theory of a separation of powers in government. Put briefly, this theory is the idea that bad government is best prevented by keeping any one group from getting too much power over the others. James Madison referenced this danger in the Federalist Papers by saying that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (Source: Federalist No. 47) Hence, the need for a system of government that divides up these powers as much as possible - something the United States Constitution does by dividing up this power into three branches of government (the legislative, executive, and judiciary). The legislative branch makes the laws, the executive branch enforces the laws, and the judiciary branch judges and interprets the laws; with as little overlap between these three kinds of power as possible. (More on that in a separate post - for now, I will confine myself to talking about the specifics of the theory, at least in basic form.)

Tuesday, January 2, 2018

5 limits on presidential power that you never heard of

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

- Thomas Paine's "Common Sense" (1776), Chapter III

Impeachment is not the only limit on the president's power

"What's the difference between a president and a king?" This is a question that Americans sometimes ask themselves, and we usually conclude that there are major differences between the two (or at least ought to be). But if you had asked this question at the time of the Constitutional Convention, many Americans would have feared that there wouldn't be much difference between the two under the new Constitution. They might have said that it was too much power to give to one man (like the president), and that powers might be best confined to a larger body like the Congress. They eventually came around to see the presidency as a necessary institution despite these potential hazards, but they still worried greatly about executive power, and were wondering how the Congress could check (or stop) the power of the presidency. The most obvious example of a legislative check on the president is the Congress's power to impeach the members of the executive branch - and, most importantly, the president himself (or herself, depending). But this is far from their only check on the president's power, since there are a number of others to be found in the Constitution, if you know where to look for them. I will be spending this post discussing just five of them.

King George the Third, the monarch that the American Revolution was (partially) fought against

Friday, December 15, 2017

The tyrannical police state: The worst nightmare of the Founding Fathers

"A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

Article 4, Section 2, Paragraph 2 of the Constitution

Headquarters of the United States Department of Justice, or "DOJ"

Although the president enforces the laws, they can't punish people without the courts ...

In our Constitution, it says that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States" (Source: Article 2, Section 3). This includes prosecutors and police officers, I should note here. Many of these laws to be "faithfully executed" authorize particular punishments for various actions, I should further note, from fines to imprisonment to being executed (depending on the seriousness of the offense, as perceived by the Congress). If the president had carte blanche to enforce these laws passed by Congress, with no limits to this power, he could carry out these punishments anytime he said these laws were violated - or even at times when they were not. (If, that is, there were no judicial branch to check this power, and require him to prove that these violations actually happened as he claimed they did.) Thus the Constitution created a judicial branch that was as independent as possible from the President and the Congress, so that no one group would possess the power to enforce these laws at their own whim or fancy. This is one of the real bulwarks of our Constitution, and is one of the true guarantees of our liberties. Thus, I wish to spend some time on it in this post, and educate us all about our constitutional rights as American citizens - particularly those found in the Bill of Rights.

Supreme Court of the United States

... so the very existence of the court system is itself a check on the presidency

Specifically, the Constitution said that "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." (Source: Article 3, Section 1) The courts have a certain power to strike down laws passed by the Congress, I should note here, which is another important power that I should note (at least in passing) before moving on to my main topic, which is judicial restraints on the president and the police force. (I discuss striking down laws in some detail in one of my other blog posts, if you're interested in that subject. This post, by contrast, will be more focused on the Bill of Rights, and on the judicial checks on the executive branch.)

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

Actually, the death penalty IS constitutional (as the Fifth Amendment makes clear)

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

Coffin et al v. United States (1895), the Supreme Court case which codified the presumption of innocence for people accused of crimes

People are innocent until proven guilty, and do not have to "prove" their innocence

There's a saying in America that is often quoted in these contexts, which is that people are "innocent until proven guilty." This saying is so familiar to Americans that we often take it for granted, I think, and we may not always realize how rare it is in the world to have this kind of default assumption. In this country, the burden of proof is on the prosecution - or in civil cases, the "plaintiff" - rather than the defendant, and the defendant is not even required to open his or her mouth to "prove" his or her own innocence. This is not written explicitly into our Constitution, I should note here, but it is implied by a number of amendments, and was codified by the Supreme Court case quoted above. When a person really is guilty of a crime (as sometimes happens), this can make it somewhat difficult to bring criminals to justice; and the police force and prosecutors have to possess a high degree of skill to provide the necessary proof of these actions. But if these protections are not in place (and many countries don't have them), then innocent people are vulnerable to an arbitrary tyranny that can punish them at will; and there are few things Americans fear more than an absolute government with unlimited power. Thus, there must be a balancing act in any free country between individual protections and criminal justice, where the people are protected against both unlimited government and violent criminals; and it might be helpful to go over some of these constitutional protections from our Bill of Rights.

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