Trying to Alter the Traditional Amendments Convention Voting Rule Is a Mistake

October 27, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article first appeared in The American Thinker.

Advocates of a federal balanced budget amendment are closing in on the 34 states necessary to require Congress to call a convention for proposing amendments. Other groups, such as the Convention of States project, are working assiduously toward the same goal. If they succeed, it will a constitutional milestone, and a tribute to the dedication of millions of Americans who recognize that the federal government is sorely in need of reform.

Because a convention seems increasingly likely, some state lawmakers have been engaged in advance planning, which is very wise.

Less well considered are suggestions to modify traditional voting rules with an unprecedented system that would make it very difficult for the convention to actually propose any amendments.

Since the late 17th century, American states (and before them, colonies) have met in convention at least 36 times. Meetings of this type are essentially negotiating sessions among sovereigns, and therefore among equals. At those meetings, the voting rule for approving proposals has been a simple majority of states present and voting.

Some convention planners have suggested rejecting this tradition in favor of a rule by which no amendment could be proposed unless a super-majority of states (perhaps two thirds) approve it, or unless the approving states are entitled to a certain number of presidential electors. However, altering the traditional voting rule would be impractical and politically unnecessary, and could be politically disastrous.

Why changing the rule is impractical. The history of prior conventions shows such a change to be impractical. Because there is no widely-acceptable alternative to decision by a majority of states, prior efforts to adopt a different formula have always failed.

Here’s an early example: In the 1754 Albany convention, there was apparently talk about giving some colonies more voting clout than others. The official journal shows the convention rejected the idea “to avoid all disputes about the precedency of the Colonies.” The commissioners recognized that departing from the traditional system would bog them down in endless debate.

Another example: In 1783, Massachusetts called for a regional convention where decisions would be made by “a majority of delegates” rather than a majority of states. The attempt came to naught when two of the five states refused to participate.

Still another: In 1850, the Nashville Convention was the scene of competing motions by more populous states for weighted voting. After a day wasted in fruitless debate, the convention returned to the traditional rule of decision by a majority of states.

Yet another: In 1922, a seven-state convention met in several locations (but mostly in Santa Fe, New Mexico) to hammer out an interstate compact. The convention experimented with unanimous voting. The reason behind this was that any compact would have to be approved by all states anyway. In practice, however, the system worked poorly, and eventually broke down. The convention returned to decision making by a majority of states.

All of those gatherings were much smaller than a modern convention for proposing amendments. If negotiating a rule change among a handful of states proved impractical, it almost certainly would prove impractical in a 50-state convention. Moreover, even if the assembly approved such a change, states that applied for the convention on the assumption that traditional protocols would be honored, likely would walk out.

Why changing the rule is politically unnecessary. Altering the traditional rule is sometimes is justified this way: “Because a bare majority of thinly populated states could propose an amendment opposed by a majority of the U.S. population, we need a super-majority to assure this doesn’t happen.”

Really?

Suppose a bare majority of states, all with low populations, voted to propose an unpopular amendment. So what? The proposal would be merely a proposal. There is no harm in letting a popular minority offer proposals; after all, a minority in Congress may co-sponsor a bill. But just as it takes a majority of each house of Congress to actually pass a bill, it requires three fourths of the states to ratify an amendment. Put another way, if only only 13 (out of 99) legislative chambers say “no,” the proposal is dead. And that will be the fate of any proposal that lacks broad popular support.

Nor, in the real world, will an unpopular measure even be proposed. As the representatives of their respective state legislatures, most commissioners will be seasoned politicians unlikely to waste their time and political reputations promoting obvious losers.

Also, in the real world, the chance of a convention majority consisting only of small states is virtually nil. The current political configuration of America is such that any majority will consist of both large and small states. Sparsely-populated red state Wyoming will vote with big red states like Texas and Florida, not with little blue states like Vermont. Vermont will vote with big blues like New York and California.

So any majority will include a hefty number of large-population states. You can learn more about the fruitlessness of manipulating suffrage rules from an analysis by Article V expert David Guldenschuh.

Why changing the rule could be politically disastrous. If a convention is called, the principal reason will be the dedication of innumerable state lawmakers and grass-roots activists. Almost without exception, these citizens have acted in the belief that the convention will follow traditional protocols. If insiders try to change those protocols after the fact, the convention’s popular support will vanish in an instant.

I spent many years in politics, and I learned the hard way that it pays to learn from experience. Of course, convention rules have to be modified to meet modern technological conditions, but in the essentials planners must respect the lessons of the past.

The traditional voting system has worked for 300 years. It can work for us as well.

Some of the Colorado Supreme Court’s Mistakes in the Douglas County School Choice Case

October 22, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, supreme court 

041410 Rob Natelson-2

As people who follow education reform already know, the Colorado Supreme Court recently struck down the Douglas County school board’s school choice program. It did so based on Article IX, Section 7 of the state constitution. This is sometimes called Colorado’s “Blaine Amendment,” although that phrase is technically a misnomer.

Actually, the Blaine Amendment was an 1875 proposal to amend the U.S. Constitution. The amendment was promoted by James G. Blaine (1830-1893), who served as Speaker of the U.S. House of Representatives (1869-75), Senator from Maine (1876-1881), the 1884 Republican nominee for President against Democrat Grover Cleveland, and Secretary of State (1881 and again, 1889-92).

When Blaine was politically active, there was strong anti-Catholic sentiment in America, largely due to animus against mostly-Catholic immigrants from Ireland and Italy. Blaine’s mother was Catholic, which might have rendered him politically suspect to many. So to improve his political viability, he promoted his amendment to ensure that state money never flowed to Catholic schools.

Blaine’s amendment didn’t pass, but he and others who shared his bias used their political clout in Congress to require new states to place similar measures in their own state constitutions. Technically these provisions are not amendments, but parts of their original documents.

Congress passed Colorado’s enabling act (law authorizing statehood) in 1875. Colorado entered the Union the following year. The people of Colorado knew that Blaine and his allies would review their proposed state constitution, and that if Blaine & Co. didn’t like what they saw they might block Colorado’s admission as a state.

The drafters of the Colorado constitution therefore inserted Article XI, Section 7:

Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . .

The term “sectarian” was primarily a code word for “Catholic,” although as explained below it could refer to any unpopular religious denomination. “Sectarian” did not include inter-denominational Protestantism, which then dominated American public schools.

If you read Article XI, Section 7 carefully, you realize that it cannot mean what it literally says. Literally read, it would render it unconstitutional for a city fire department to extinguish a blaze at a Catholic church. Many “anti-sectarian” provisions in other state constitutions present the same difficulty, so state courts have had to interpret them.

One way courts do so is to divide state assistance into three categories: (1) direct, (2) indirect, and (3) incidental. Direct aid is a grant program from the state to a school. An example of indirect aid is a voucher plan, such as the federal Pell Grant program for higher education. It is designed to benefit students, but the government sends money directly to the school chosen by the student or family. An illustration of incidental aid is the fire department scenario. Another example comes from a Montana case where that state’s highest court upheld a program that reimbursed expenses for a mother using a church adoption agency. The state paid the money to the mother, not to the agency.

Courts in Blaine states generally invalidate programs of direct aid to “sectarian” institutions. They sustain incidental aid. Opinions are split on indirect aid.

The Colorado decision is troubling for several reasons. Here are three that I don’t think have been sufficiently discussed:

First: The majority held that the Blaine provision did not violate the First Amendment’s Establishment Clause because the word “sectarian” was merely synonymous with “religious.” That is, the provision did not single out any particular religion or religions for discriminatory treatment. Incredibly, the majority’s sole source for treating “sectarian” as a synonym for “religious” was a law dictionary published—not in the 19th century when the Colorado constitution was adopted—but in 2014!

Nineteenth century dictionaries tell a very different story. A quick Internet search yielded three of them, and they all defined “sectarian” in a way that disparaged minority religions compared to others. Here are their definitions:

Webster (1828): “SECTARIAN, adjective. . . . Pertaining to a sect or sects; as sectarian principles or prejudices. . . . SECTARIAN, noun. One of a sect; one of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state.”

Webster & Walker (1864) “adj: “Pertaining or peculiar to a sect. n. One of a sect, or one devoted to the interest of a sect; one of a party in religion which has separated itself from the established church. See Heretic.

Webster’s Academic Dictionary (1895): “Pertaining to a sect or to sects; bigotted attachedly to the tenets of a denomination. n. One of a sect.”

Obviously, the word “sectarian” in an 1876 document doesn’t mean merely “religious.” As the definitions suggest, it has connotations of “prejudice,” “bigot,” and “heretic.”

Under modern U.S. Supreme Court doctrine, this official disparagement of some religions as compared to others is a clear violation of the Establishment Clause.

Second: The Colorado court’s majority relied heavily on an earlier decision, Americans United for Separation of Church and State v. State. That holding was based on an inquiry into how “pervasively sectarian” funding recipients were. Yet later case authority holds that the approach in Americans United—advantaging some institutions because they are less religious than others—itself violates the Establishment Clause.

Third: The court treated the Douglas County program as a voucher plan. It had some justification for doing so, because even its friends sometimes refer to it as such. But in fact, the Douglas Count program is not a voucher plan. The school district does not write the check directly to the school of choice, but to the parent. The parent then independently endorses the check to the school. One can argue about whether this difference is sufficient to render the program one of “incidental” rather than “indirect” assistance. But the majority did not even address the issue.

There were some shortcomings in the dissent, also. It failed to reference any 19th century dictionaries, for example; and it failed to distinguish incidental from indirect aid.

Keep tuned: This case is going to the U.S. Supreme Court, so we have not yet heard the last word.

“Where the Columbines Grow”—One Last Time

October 18, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Colorado state song 
Rob at the Trevi Fountain in Rome

Rob at the Trevi Fountain in Rome

Just before preparing an article on Colorado’s state song, Where the Columbines Grow, for the Colorado Springs Gazette, I noticed something I had not previously seen.

As documented in my Issue Paper on the subject, Arthur Fynn’s lyrics are filled with contrasts. The most notable is the contrast between the eagle and the dove, an opposition taken from the names and characteristics of the columbine flower. However, I also observed in that Issue Paper that the lyrics’ image of nymphs wandering in loneliness would have been evocative to a classically-trained person like Dr. Fynn—indeed, to most educated people of his generation.

Dr. Fynn’s education turns out to be a key to another aspect of the song: An allusion to the Latin epic poem called Metamorphoses, written by the Roman poet Ovid.

In the poem, the Greek god Apollo pursues a lovely nymph named Daphne, and urges her to accept his advances, calling out to her that he is chasing her in love. He does not pursue as an enemy, as the eagle chases the dove.

There is virtually no chance that Dr. Fynn would not have known this passage. During Fynn’s youth, the Metamorphoses was part of the general curriculum taught to all who wished for a thorough education. Fynn’s education had, moreover, not been a mere general one. He had attended a classical academy. He had served as a Latin teacher. And this passage is not buried deeply in the poem, but near the beginning.

Ovid’s story almost certainly affected Fynn’s lyrics, either unconsciously or (as I think) from conscious choice.

The Metamorphoses passage (Book I, lines 505-507) appears below in Latin, after which I have translated it into English.

Nympha, mane! Sic agna lupum, sic cerva leonem,
sic aquilam penna fugiunt trepidante columbae,
hostes quaeque suos: amor est mihi causa sequendi!

Nymph, stay! You flee as the lamb from the wolf, the doe from the lion,
As doves flee with trembling wing from the eagle,
As all flee from their enemies. But Love is the reason for my pursuit!

The Colorado Springs Gazette article appears here.

Still More Evidence That An Amendments Convention is a “Convention of States”

October 15, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

2009 RGN

The term “convention of states” (or “convention of the states”) dates at least from the year 1780. By 1788 it was being applied specifically to a convention for proposing amendments under the new Constitution.

Throughout the 19th century, the phrase “convention of states” was probably the most common way to denominate an Article V convention—even more common than the formal name, “convention for proposing amendments.” In 1831, the U.S. Supreme Court itself referred to an amendments convention as a convention of the states. As far as I can find, before the 20th century no one confused it with a constitutional convention.

An earlier post listed official founding-era legislative documents and resolutions that specifically designated an amendments convention as a “convention of states.” The post you are reading, on the other hand, provides evidence from the debates over the Constitution’s ratification. Unlike the official documents, this material does not use the specific phrase “convention of states,” but it does show that participants in the ratification debates acknowledged that the convention would be state-controlled.

The ratification-debate quotations arose in the following context: The Constitution’s opponents argued that if the document proved defective in practice, it would be very difficult to amend. They therefore argued that a new convention should be called to rewrite or replace the document before the necessary nine states had ratified it.

On the other hand, the Constitution’s supporters asserted that it was better to ratify the document first, and then use Article V to remedy any shortcomings. The proponents contended that if amendments become necessary and Congress refused to propose them, then a convention could do so. Comments by both sides reflect the universal assumption that the proposing convention would be an agent of the state legislatures. They also reflect a universal assumption that the states could, through their applications, designate and limit the subject of the amendments.

At the time, there were 13 states. So nine states were necessary to ratify the Constitution, nine states were needed to force an amendments convention after ratification, and ten were required to ratify proposed amendments.

Here are some relevant comments:

* The anti-Constitution writer who signed his name “A Farmer” was probably John Mercer of Maryland, who had represented his state at the Constitutional Convention. In dismissing the amendments convention idea, he wrote, “I despair of proper state amendments.” (Italics added.) Instead he recommended a new convention before the Constitution was ratified. (12 Documentary History of the Ratification of the Constitution, p. 538).

* Samuel Chase (later to serve on the U.S. Supreme Court) agreed. He pointed out that “it is now [i.e., before the Constitution was ratified] in the power of five states to obtain amendments—afterwards there must be nine.” Id. at 640.

* Samuel Jones, a New York supporter of the Constitution, was a state lawmaker who served as a delegate to his state’s ratifying convention. He stated:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much. (Italics added.) 23 id., pp. 2523-24

* Tench Coxe was among the most widely-read Federalist essayist. He took head-on the argument of the Constitution’s opponents that, once ratified, the document would be impossible to amend:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience. (Italics in original.) 18 id., pp. 283-84.

* James Madison, who had been primarily responsible for the wording of Article V, stated the same thing more mildly. He noted that the Constitution “equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” The Federalist No. 43.

Since Congress could propose amendments itself, Madison’s statement would have been inaccurate unless the states were able to propose by controlling the proposing convention.

* George Washington also understood that applying states would control the convention, since in April, 1788, he wrote to John Armstrong that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” (Letter dated Apr. 25, 1788.)

* Alexander Hamilton showed the same understanding:

But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Federalist No. 85.

Thus, those who addressed the issue during the ratification debates fully understood the state-based nature of the convention for proposing amendments—i.e., that such a gathering, like all of its predecessors, would be a “convention of states.” Their comments confirm past practice, the formal resolutions and other documents from contemporaneous state legislatures, and the U.S. Supreme Court. I have found no comments from the founding era that contradict this view.

What Did The Founders Mean by “Due Process of Law?” Hint: SCOTUS to the contrary, it had nothing to do with same-sex marriage

October 9, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article originally appeared in The American Thinker.

The Fifth and Fourteenth amendments to the Constitution each has a Due Process Clause. The Fifth Amendment Due Process Clause prohibited the federal government from depriving any person of “life, liberty, or property without due process of law.” The Fourteenth Amendment extended that prohibition to the states.

The Supreme Court has held that the Due Process Clauses ban government procedures the justices deem unfair. Thus the Court has said that the Due Process Clause of the Fourteenth Amendment requires states to allow an accused person to have a defense attorney, to allow an accused person to respond to accusations, and so forth. Legal scholars say that such cases are examples of “procedural due process.”

There is also a doctrine that goes by the oxymoronic name “substantive due process.” The Court uses this doctrine to justify voiding any state or federal law the justices think has no possible “rational basis.” When the law infringes an interest the Court deems particularly important, it strikes down the law more readily. Understandably, the Court deems most of the rights protected by the Bill of Rights to be particularly important. The justices go further, however, and also void laws that “unduly” infringe interests not listed in the Constitution, such as abortion and sexual behavior.

In United States v. Windsor, for example, the Court relied (apparently—the decision isn’t entirely clear) on the Fifth Amendment Due Process Clause to invalidate a federal law that provided that for federal (not state) purposes, “marriage” was limited to one man and one woman. In Obergefell v. Hodges, it held that the Fourteenth Amendment Due Process Clause invalidated similar state laws.

Is this what the Founders had in mind when they included “due process” in the Fifth Amendment in 1791?

No. Insofar as I am aware, there is not a shred of evidence that the Founders considered rights such as freedom of speech, legal counsel, etc. to be covered by the term “due process.” If they had, then they would not have listed them separately in the Bill of Rights. Nor, despite some claims to the contrary, did the Founders think “due process” included unenumerated rights. It is true that a few 18th century judges argued that laws that violated certain unenumerated rights were void, but those judges based their position on natural law, not on due process.

So what did the Founders’ Due Process Clause mean? It meant that in prosecuting a person criminally or civilly, the government must honor existing law. Government may not prejudice a defendant by changing the law retroactively. Government may not prejudice a defendant by making up the rules as it goes along.

The evidence for this conclusion is, in my view, simply overwhelming.

The phrase “due process of law” was a synonym for the phrase “law of the land,” which appeared in Chapter 39 of the 1215 version of Magna Carta, and was included in later versions as well. Chapter 39 read as follows:

No free person shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. (My translation).

If you read Chapter 39 carefully, you can see that it prohibited the king from punishing a person unless punishment was authorized by either (1) a judgment of that person’s equals (peers) or (2) a provision in existing law (”the law of the land”) that authorized the punishment. The latter of the two alternatives came to be called “due process of law.” Notice the disjunctive “or”—a judgment by one’s peers was an alternative to due process, not (as the modern Court seems to think) part of it.* The drafters of Magna Carta inserted this language to rectify King John’s practice of manipulating or making up legal rules to hurt people he wished to attack.

The Founders knew this history well. It was discussed at some length in legal books of the time, including two by Matthew Hale, a highly-regarded legal commentator.

The word “process” originally referred to the writ sent out by a court initiating a lawsuit (from the Latin procedere, to move foreword). We still use “process” in that way to refer to a legal summons, as in the phrase “process server.” Hale wrote that “no man shall be put to answer without presentment before justices or matter of record, or by due process and writ original according to the old law of the land.” Note the connection of “due process” with “writ original.” Note also that presentment, like the judgment of one’s peers, is an alternative to due process, not (as the modern Court seems to think) part of it.

As for the word “due:” I used to believe it was a flexible term meaning “reasonable.” However, the evidence has changed my mind. Contemporaneous dictionaries tell us the word “due” in this context meant “correct,” “right,” “proper,” or “appropriate.” In other words, due process was process “according to the old law of the land”—that is, legally correct process.

On the other hand, the scope of due process, while constricted, was not quite as constricted as the foregoing might suggest. According to Giles Jacob’s legal dictionary (the favorite work of its kind among the founding generation), by the eighteenth century the word “process” could apply to judicial procedures generally. It was no longer limited to the initial court writ. The effect of this change was that the due process guarantee protected citizens at all stages of a suit, not just at the beginning.

In addition, the due process guarantee protected against executive as well as judicial misconduct. Recall that the guarantee arose as a check upon the executive actions of King John. Hale stated: “Regularly it is not lawful for any man to take away the life of another, though a great malefactor, without evident necessity, (whereof before) or without due process of law, for the deliberate, uncompelled extrajudicial killing of a person . . . is murder.” Obviously, if due process protected against extrajudicial killings, then it was not limited to court proceedings.

In England there was a theoretical reason for not applying due process protection against the legislature, for Parliament was considered all-powerful. But there was no such reason in the United States. In fact, as I point out in my book, The Original Constitution, the Fifth Amendment Due Process Clause may have been added to the Bill of Rights specifically to protect against Congress: John Lansing of New York and James Madison of Virginia probably sought its inclusion to guard against some federal retroactive legislation not banned by the Constitution’s guarantee against ex post facto laws.

In sum, the Fifth Amendment Due Process Clause was designed only to protect against prejudicial manipulation of legal rules against citizens prosecuted by the federal government. It was an important component of the Bill of Rights, but it was only a component. It was not a balloon that judges could blow to any size they wished.

What of the Fourteenth Amendment’s Due Process Clause—the one that constricts state rather than federal power? The issue here is more difficult. Some researchers who concede that the Fifth Amendment Due Process Clause was narrow nevertheless maintain that by 1868 Americans had a broader understanding of “due process” than did the Founders. They would give the term different meanings according to where it appears in the Constitution.This is not as strange as it may seem: In a few other instances a term appearing in different parts of the document can have different meanings.

My initial review of the cases cited to show an expansion of due process between 1791 and 1868 found that all or nearly all fit within the earlier definition—they were mostly responses to unfair retroactivity. However, I have not studied the question thoroughly, and therefore cannot offer an authoritative opinion on whether Fourteenth Amendment Due Process really is broader than Fifth Amendment Due Process.

*********

* Some translations render the “or” as “and.” That is a mistranslation of the Latin conjunction vel.

Colorado’s First State Song: Worthy of Revival

October 5, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Colorado state song 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: An edited version of this article originally appeared in the Denver Post.

This year marks the centennial of the adoption of Where the Columbines Grow as Colorado’s first official state song. Surprisingly, there is little public awareness of Columbines, despite the state legislature’s directive that it be “used on all appropriate occasions.”

The neglect is unjust, and the song merits a revival.

The composer of Where the Columbines Grow was Arthur J. Fynn, a Denver citizen of wide interests and abilities. Fynn was born in upstate New York into a poor farm family, probably in 1857. Despite his poverty, he worked his way through a private classical high school and through Tufts College (now Tufts University), where he received bachelor’s and master’s degrees.

In 1889, he landed a job as a Central City school administrator and in 1891 became chief administrator of the Alamosa schools. A decade later he earned a Ph.D. at the University of Colorado, and began a 29-year career as a school principal in Denver.

Fynn apparently was a competent administrator, but he also wrote poetry, published three songs, and developed a national reputation as an amateur archaeologist. He became an expert on the Pueblo Indians of the American Southwest. His book on the Pueblos was published by a leading Boston publishing house.

Fynn participated intensively in civic life and lectured publicly on literature, history, ethnology, religion, and archaeology. For 23 years he served as an adjunct professor at the University of Denver.

Two decades after Fynn died, one of his associates claimed that Where the Columbines Grow was inspired by an incident on an archaeological expedition they undertook together. For reasons explained in my new Independence Institute paper, Reclaiming the Centennial State’s Centennial Song: The Facts About “Where the Columbines Grow,” the truth of the story is open to doubt.

Fynn composed the melody in 1911 on a ship returning from Europe, and the Colorado general assembly adopted it in 1915.

The song has attracted more than its fair share of criticism, and the state legislature has entertained several proposals for its de-certification. But whenever lawmakers actually listen to the song they re-endorse it by thumping majorities.

The legislature has been correct to reaffirm Columbines’ status, because the criticism has not been well founded.

For example, one commentator faulted Columbines for being “the state song that forgot to mention the state.” The charge is factually untrue because Fynn’s fourth verse, added in 1921, includes the word “Colorado.” Moreover, the critic apparently was unaware that several state anthems focus on state characteristics but do not mention their state names. Criticisms of the music and lyrics have been similarly uninformed because they have shown no awareness of the words’ symbolism or how those words interact with the music.

Columbine’s music “colors” its lyrics with diminished and augmented chords, accidentals, crescendos, and decrescendos. That music is unusually creative for its era and genre, and its overall effect is faintly haunting.

The lyrics form visual, auditory, and sensory images that aggregate into the colors of the columbine flower. They also contain a series of contrasts. One of these contrasts—“the scream of the bold mountain eagle responds to the notes of the dove”—is based on oppositions within the columbine flower itself, whose petals are soft in front but resolve into talon-ed spurs behind. The same contrast is reflected in the plant’s English and scientific names: columbine, from the Latin word for “dovelike,” and aquilegia, from the Latin word for “eagle.”

In addition to presenting images and contrasts, the lyrics shift time perspectives, moving from present to future to past and back to present. Like the lyrics of Colorado’s other state anthem, John Denver’s Rocky Mountain High, the second verse of Columbines contains an environmental lament.

Coloradans owe it to themselves to re-acquaint themselves with Where the Columbines Grow. The Independence Institute Issue Paper on the subject includes an original score and is available here.

Creating Constitutional Protections Against American Socialism

October 4, 2015 by Rob Natelson · Comments Off
Filed under: All Postings 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article is cross-posted on CNSNews.

If any public policy lesson stands out from the experience of the 20th century, it is that socialism doesn’t work. I use the word “socialism” in its technical sense of government ownership of the means of production—or, in lay language, government operation of business enterprises.

Socialism in this narrow sense must be distinguished from the modern welfare state, in which the government allocates a large share of economic resources but does not presume to produce them.

Nearly all of the truly horrific massacres of the 20th century—those in which people were slaughtered by the millions—were perpetrated by socialist governments. Hitler’s National Socialist Germany, Stalin’s Union of Soviet Socialist Republics, and China’s communist government were, of course, the worse offenders. (The only non-socialist state with a record anywhere comparable was Imperial Japan.) Compared with those socialist regimes, more recent perpetrators of terror, such as radical Islam, are models of gentility.

However, one does not have to resort to horrific cases to communicate the record of socialism. Socialism in its softer forms offers lessons as well. Government ownership of business enterprise almost bankrupted Great Britain, Canada, and New Zealand. It did bankrupt Greece. Everywhere it has greatly retarded economic progress. That is why so many countries have joined the global movement toward privatization.

Perhaps surprisingly, the major nation learning least from the failures of socialism has been the United States. Enterprises such as airports and passenger trains, which are now private in Great Britain, have remained thoroughly socialized in the United States. With some exceptions, the current U.S. trend actually is toward more socialism.

This trend seems to defy common sense. The lessons of the 20th century aside, the 21st century also has witnessed an almost constant stream of news about the failures of government enterprises. Social Security and other government-run insurance plans flirt with bankruptcy. State-run school systems and federally-owned veterans’ hospitals are a constant source of disaster stories. Those stories probably would be worse if not for government practices that disguise the magnitude of socialism’s costs.

Yet the storm of demand for this or that government-run project continues to blow with ever greater fury.

One example is Missoula, Montana, my former home, which benefits from a competent water company that delivers pure water at a reasonable price—but persists in demagogic efforts to “nationalize” the company. (Admittedly, Montana has a “prairie socialist” history.) Even in a state like Colorado, which historically has been oriented toward free enterprise, the pressure for more and more government-operated business continues to grow.

Thus, units of Colorado government persist in expanding their transportation holdings, despite insufficient ridership and towering deficits. Instead of privatizing its airport as sensible governments have done, the City and County of Denver has not only elected to retain it, but has gone into the land-development business. The City of Lakewood, where I live, wants to follow suit—apparently thinking that it is better placed than professional developers to create a new “neighborhood.” Talk about a triumph of hope over experience!

The utter irrationality of such efforts induces one to ask (1) why is America still engaging in socialism, when most of the world is moving away from it? and (2) how can we protect ourselves?

The short answer to the first question is that politicians and bureaucrats have strong incentives to misuse public resources by pretending that they are businessmen, and state and federal constitutions permit them to do so. The incentives are there because government-owned enterprises offer the politicians and bureaucrats who control them opportunities to reward friends and punish enemies. Politicians and bureaucrats also can win public support by depicting great potential benefits while suppressing full information about costs. Lakewood, Colorado, offers an excellent example: Officials tout the purported benefits of a light rail line through the city. But they say little about the system’s sparse ridership, the economic drain from its cost, and how the system “crowds out” more thrifty private alternatives.

Pro-socialist incentives can be changed in a number of ways. Discussing all of them is beyond the scope of this article. One example, however, is to hold politicians who promote or operate government-run enterprises personally liable for their deficits, at least in some situations.

Additionally, we need to amend state and federal constitutions to provide citizens with greater protection.

It’s been done before. In the 19th century, most states amended their constitutions to require balanced budgets and to limit state debt. They did so after several states went bankrupt because politicians refused to stop overspending on infrastructure projects.

Here are some examples of how we can respond at the state constitutional level:

* Constitutional provisions that authorize or require the state to operate certain enterprises, such as pension funds, should be repealed.

* Government pension funds should be transitioned to private ownership, subject to normal state regulation.

* School financing provisions should be amended so that state dollars follow the student rather than being funneled automatically into bureaucratic monopolies.

* Municipal ownership of businesses should be banned. Except in the most unusual situations, municipalities should be required to contract for most services rather than provide them in-house.

* State constitutions should require government accounting practices to adhere as closely as possible to their private-sector counterparts.

* Finally, politicians and government employees should receive fixed financial rewards, added to their pay, for adopting innovations that save taxpayer money.

How A Famous English Convention Clarifies the Role of a Convention of States

September 26, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

Note: This article first appeared on the American Thinker website.

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.

The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.

The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).

Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.

After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.

Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:

The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .

On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .

After describing the contents of the Declaration, Macaulay added:

But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.

****

Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.

Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to

* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and

* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.

The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.

More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.

Rob Natelson on TV: Explaining the Constitutional Issues in “Birthright Citizenship”

September 12, 2015 by Rob Natelson · Comments Off
Filed under: The Founding, supreme court 

How the Constitutional Case Against Citizenship for Children of Illegal Entrants SHOULD Be Argued

September 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

This is a corrected version of an article originally appearing at the American Thinker website. It is the third of a three-part series.

In two prior postings (here and here), I listed flaws in the constitutional arguments of opponents of birthright citizenship for children of aliens living here illegally.

For children to be American citizens by virtue of the Fourteenth Amendment, they must be born within American territory and they (or rather their parents) must be “subject to the jurisdiction” of the United States. Those opposing birthright citizenship hurt their own case by basing it principally on the claim that visiting foreigners never qualify as “subject to the jurisdiction.”

The problems with that claim are:

* The congressional debates cited to support it represent only weak evidence of meaning and are ambiguous on the subject, at best.

* Before adoption of the Fourteenth Amendment, many (probably most, perhaps all) African-Americans were legally foreigners, so the Amendment had to include foreigners to achieve its purpose of extending citizenship to them.

* The U.S. Supreme Court has decided twice that the meaning of “subject to the jurisdiction” is governed by the English common law doctrine of allegiance. The doctrine of allegiance grants local citizenship to the children of most visiting foreigners.

I do not have a dog in this hunt. But if I were legal counsel for opponents of birthright citizenship, I would take their legal argument in an entirely different direction. I would develop my case on at least two fronts.

First: I would investigate how state legislators who ratified the Fourteenth Amendment may have understood the phrase “subject to the jurisdiction.” This is potentially far more probative of meaning that what members of Congress may have thought.

When we interpret a murky congressional statute we don’t focus on the intent of those who wrote it, but on the understanding of the members of Congress who enacted it. Similarly, in constitutional interpretation, the understanding of the ratifiers is more important than the views of the drafters.

Unfortunately, there has never been an authoritative and comprehensive study of how the ratifying legislatures understood the Fourteenth Amendment. The closest thing is James E. Bond’s book, No Easy Walk to Freedom, but that work is limited to proceedings in the Southern states.

One reason for the lack of an authoritative compendium on the procedures of the ratifying legislatures is the traditional difficulty of accessing old legislative records and newspaper coverage from 37 states. But the growth of digital archives has made the task much easier. I would put researchers to work exploring the ratifiers’ understanding, if any, of the phrase “subject to the jurisdiction.”

Second: I would take advantage of Supreme Court precedents instead of trying to fight them. The two principal precedents are Elk v. Wilkins and U.S. v. Wong Kim Ark. Elk held that the Fourteenth Amendment did not turn tribal Indians into citizens. Wong held that the Fourteenth Amendment did grant citizenship to the U.S.-born son of foreigners legally living here. Elk and Wong further tell us that (1) the Fourteenth Amendment phrase “subject to the jurisdiction” means that, for a child to be a birth citizen, the parents (or more precisely the father) must be in allegiance to the United States at the time of birth, and (2) allegiance is determined according to the rules of English common law.

According to the rules of English common law, allegiance is either natural or local. Natural allegiance is what you owe to your own country. Local allegiance is what you owe any foreign country you are currently visiting. Either form of allegiance qualifies as “subject to the jurisdiction.”

The word “allegiance” ultimately comes from a Latin word meaning “to tie.” The English common law tells us that allegiance does not exist in isolation. It is part of a legal commitment by which sovereign and citizen are tied together. The citizen (or subject) expressly or impliedly promises obedience. The sovereign grants protection, and must be physically able to do so. As the Supreme Court wrote in the Wong case:

Such allegiance and protection [are] mutual,—as expressed in the maxim, “Protectio trahit subjectionem, et subjectio protectionem.” [Protection draws with it the status of the subject, and the status of the subject draws with it protection.]

The lengthy opinions in Elk and Wong offer still more guidance. For example, in Wong, the Court quoted the great judge and legal scholar Joseph Story:

“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic], of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.” “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”

Let’s look at the exceptions that “illustrate and confirm the general doctrine.” Foreign diplomats are not in allegiance to their host country because they carry with them the extraterritorial jurisdiction of their homeland; they never submit themselves to the law of the host country. Minions of an occupying power are not in allegiance to the host country because the territory they occupy is no longer under the effective protection of the host government. In accordance with same underlying principles, the congressional drafters and the Supreme Court acknowledged a third exception: Individual tribal Indians were not in allegiance to the U.S. because at the time they were not governed directly or effectively by the Congress or the federal courts. Like the foreign diplomat and the minions of an occupying power, they were governed directly and effectively only by their own governments.

The Elk decision, which addressed the status of tribal Indians, contains more helpful language:

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States [and] . . . no one can become a citizen of a nation without its consent.

In other words, the sovereign must consent both to the ties of allegiance/protection and to citizenship.

Consider this famous historical example: In the 18th century, James Somerset, a native of Africa, was captured and forced into slavery in Virginia. But when his master took him to England as part of a longer voyage, Somerset escaped and sought the protection of English law. On behalf of the Crown, the court accepted his petition and ruled that he thereby became an English subject—that is, in allegiance to the Crown. This allowed Somerset to obtain a writ of habeas corpus, which led to the judicial declaration that slavery was abolished in England.

Allegiance, then, derives from one seeking protection from a sovereign able to provide it and the sovereign’s consent to provide that protection. In the real world, the request for protection and the consent usually are implied rather than express. One seeks protection by entering the country (by travel or by birth) and the sovereign consents by allowing that person to remain within territorial boundaries.

So this leads us to the question of whether parents illegally in the country are in allegiance to that country. This case is different those recited by the precedents, but it is governed by precisely the same principles, as Justice Story doubtless would point out.

The United States has the ability to provide the protection of its law to foreigners who promise to honor it. But the person who enters in defiance of the sovereign’s law demonstrates a refusal to honor that law. The person may be seeking the protection of some of the sovereign’s laws (e.g., those securing a certain freedom or granting a benefit of some kind), but he is reserving the right to choose what laws he will obey. This is not the honest submission to the law, express or implied, required of one in allegiance.

In addition, the Elk case teaches that a sovereign cannot be forced to provide protection, and thereby accept allegiance, without its express or implied consent. Adopting a law governing entry into the country is the sovereign’s refusal to consent to those who disobey it.

Thus, the parent who enters a country illegally is not really in allegiance to that country. It follows that under the Elk and Wong cases, the parent is not “subject to [U.S.] jurisdiction” in the specialized sense that term conveys in the Fourteenth Amendment. It also follows that the parent’s child has the same sort of status held by the child of the foreign diplomat: A citizen of his own homeland, but not of the United States.

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