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FReeper Book Club: The Debate over the Constitution, Brutus #1
A Publius/Billthedrill Essay | 15 February 2010 | Publius & Billthedrill

Posted on 02/15/2010 7:43:28 AM PST by Publius

A Jurist Analyzes with Boldness

The identity of Brutus is only a little bit of a mystery because most historians accept the verdict that it was Robert Yates of New York. Yates’ record in the Revolution was impeccable. He had led resistance to the Stamp Act in Albany and joined the local Committee of Correspondence. He spent the war years on the state Supreme Court and aligned himself with the patroon families in the orbit of Governor George Clinton. Appointed delegate to the Constitutional Convention, he saw it heading in a direction he didn’t like, fired off a letter of protest to Clinton and went home. He was elected to the New York ratifying convention as an opponent of the Constitution. If Samuel Bryan fires off an artillery barrage and Federal Farmer deploys his sniper’s rifle, Robert Yates drives a tank.

Brutus #1

18 October 1787

1 To the Citizens of the State of New York.

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2 When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result.

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3 In this situation I trust the feeble efforts of an individual to lead the minds of the people to a wise and prudent determination cannot fail of being acceptable to the candid and dispassionate part of the community.

4 Encouraged by this consideration I have been induced to offer my thoughts upon the present important crisis of our public affairs.

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5 Perhaps this country never saw so critical a period in their political concerns.

6 We have felt the feebleness of the ties by which these United States are held together and the want of sufficient energy in our present Confederation to manage, in some instances, our general concerns.

7 Various expedients have been proposed to remedy these evils, but none have succeeded.

8 At length a Convention of the states has been assembled; they have formed a Constitution which will now probably be submitted to the people to ratify or reject, who are the fountain of all power to whom alone it of right belongs to make or unmake constitutions or forms of government at their pleasure.

9 The most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you, and you are to decide upon it by men of your own election, chosen specially for this purpose.

10 If the Constitution offered to your acceptance be a wise one calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind and promote human happiness, then if you accept it you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.

11 You may rejoice in the prospects of this vast extended continent becoming filled with freemen who will assert the dignity of human nature.

12 You may solace yourselves with the idea that society in this favored land will fast advance to the highest point of perfection, the human mind will expand in knowledge and virtue, and the golden age be in some measure realized.

13 But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty, if it tends to establish a despotism, or what is worse, a tyrannic aristocracy, then if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory.

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14 Momentous then is the question you have to determine, and you are called upon by every motive which should influence a noble and virtuous mind to examine it well and to make up a wise judgment.

15 It is insisted indeed that this Constitution must be received, be it ever so imperfect.

16 If it has its defects, it is said they can be best amended when they are experienced.

17 But remember, when the people once part with power, they can seldom or never resume it again but by force.

18 Many instances can be produced in which the people have voluntarily increased the powers of their rulers, but few if any in which rulers have willingly abridged their authority.

19 This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government.

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20 With these few introductory remarks, I shall proceed to a consideration of this Constitution.

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21 The first question that presents itself on the subject is whether a confederated government be the best for the United States or not?

22 Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics under the direction and control of a supreme federal head for certain defined national purposes only?

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23 This enquiry is important because although the government reported by the Convention does not go to a perfect and entire consolidation, yet it approaches so near to it that it must, if executed, certainly and infallibly terminate in it.

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24 This government is to possess absolute and uncontrollable power: legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of Section 8, Article 1, it is declared “that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof.”

25 And by the 6th Article it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding.”

26 It appears from these articles that there is no need of any intervention of the state governments between the Congress and the people to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void so far as they are, or shall be, inconsistent with this Constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States.

27 The government then, so far as it extends, is a complete one and not a confederation.

28 It is as much one complete government as that of New York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences and annex penalties with respect to every object to which it extends as any other in the world.

29 So far, therefore, as its powers reach, all ideas of confederation are given up and lost.

30 It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government will convince every candid man that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.

31 The powers of the general legislature extend to every case that is of the least importance — there is nothing valuable to human nature, nothing dear to freemen but what is within its power.

32 It has authority to make laws which will affect the lives, the liberty and property of every man in the United States, nor can the constitution or laws of any state in any way prevent or impede the full and complete execution of every power given.

33 The legislative power is competent to lay taxes, duties, imposts and excises; there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes and duties shall be applied may be said to be a limitation, but this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and provide for the common defense and general welfare of the United States, but the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defense, and they only are to determine what is for the general welfare; this power therefore is neither more nor less than a power to lay and collect taxes, imposts and excises at their pleasure; not only [is] the power to lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they please.

34 No state legislature or any power in the state governments have any more to do in carrying this into effect than the authority of one state has to do with that of another.

35 In the business, therefore, of laying and collecting taxes, the idea of confederation is totally lost and that of one entire republic is embraced.

36 It is proper here to remark that the authority to lay and collect taxes is the most important of any power that can be granted; it connects with it almost all other powers or at least will in process of time draw all other after it; it is the great mean of protection, security and defense in a good government, and the great engine of oppression and tyranny in a bad one.

37 This cannot fail of being the case if we consider the contracted limits which are set by this Constitution to the [state] governments on this article of raising money.

38 No state can emit paper money — lay any duties or imposts on imports or exports but by consent of the Congress, and then the net produce shall be for the benefit of the United States; the only mean, therefore, left for any state to support its government and discharge its debts is by direct taxation, and the United States have also power to lay and collect taxes in any way they please.

39 Every one who has thought on the subject must be convinced that but small sums of money can be collected in any country by direct taxes; when the federal government begins to exercise the right of taxation in all its parts, the legislatures of the several states will find it impossible to raise monies to support their governments.

40 Without money they cannot be supported, and they must dwindle away and, as before observed, their powers absorbed in that of the general government.

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41 It might be here shown that the power in the federal legislative to raise and support armies at pleasure, as well in peace as in war, and their control over the militia, tend not only to a consolidation of the government but the destruction of liberty.

42 I shall not, however, dwell upon these, as a few observations upon the judicial power of this government, in addition to the preceding, will fully evince the truth of the position.

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43 The judicial power of the United States is to be vested in a Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.

44 The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same state, and it extends to all cases in law and equity arising under the Constitution.

45 One inferior court must be established, I presume, in each state at least, with the necessary executive officers appendant thereto.

46 It is easy to see that in the common course of things these courts will eclipse the dignity and take away from the respectability of the state courts.

47 These courts will be in themselves totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries, 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.

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48 How far the clause in the 8th Section of the 1st Article may operate to do away all idea of confederated states and to effect an entire consolidation of the whole into one general government, it is impossible to say.

49 The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law.

50 A power to make all laws, which shall be necessary and proper for carrying into execution all powers vested by the Constitution in the government of the United States or any department or officer thereof, is a power very comprehensive and [indefinite], and may, for ought I know, be exercised in a such manner as entirely to abolish the state legislatures.

51 Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law because it may prevent the collection of a tax which they may think proper and necessary to lay to provide for the general welfare of the United States?

52 For all laws made in pursuance of this Constitution are the supreme [law] of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of the different states to the contrary notwithstanding.

53 By such a law, the government of a particular state might be overturned at one stroke and thereby be deprived of every means of its support.

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54 It is not meant by stating this case to insinuate that the Constitution would warrant a law of this kind, or unnecessarily to alarm the fears of the people by suggesting that the federal legislature would be more likely to pass the limits assigned them by the Constitution than that of an individual state, further than they are less responsible to the people.

55 But what is meant is that the legislature of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts and excises; of regulating trade, raising and supporting armies, organizing, arming and disciplining the militia, instituting courts and other general powers.

56 And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution, and they may so exercise this power as entirely to annihilate all the state governments and reduce this country to one single government.

57 And if they may do it, it is pretty certain they will, for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way.

58 Besides, it 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.

59 This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority, and having such advantages will most certainly succeed if the federal government succeeds at all.

60 It must be very evident then, that what this Constitution wants of being a complete consolidation of the several parts of the Union into one complete government, possessed of perfect legislative, judicial and executive powers, to all intents and purposes, it will necessarily acquire in its exercise and operation.

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61 Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic or not?

62 It is here taken for granted that all agree in this, that whatever government we adopt, it ought to be a free one, that it should be so framed as to secure the liberty of the citizens of America, and such an one as to admit of a full, fair and equal representation of the people.

63 The question then will be whether a government thus constituted and founded on such principles is practicable and can be exercised over the whole United States reduced into one state?

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64 If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, and these increasing in such rapid progression as that of the whole United States.

65 Among the many illustrious authorities which might be produced to this point, I shall content myself with quoting only two.

66 The one is the Baron de Montesquieu, Spirit of Laws, Chapter XVI, Vol. I [Book VIII].

67 “It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected.”

68 Of the same opinion is the Marquis Beccarari.

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69 History furnishes no example of a free republic anything like the extent of the United States.

70 The Grecian republics were of small extent; so also was that of the Romans.

71 Both of these, it is true, in process of time extended their conquests over large territories of country, and the consequence was that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.

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72 Not only the opinion of the greatest men and the experience of mankind are against the idea of an extensive republic, but a variety of reasons may be drawn from the reason and nature of things against it.

73 In every government the will of the sovereign is the law.

74 In despotic governments the supreme authority being lodged in one, his will is law and can be as easily expressed to a large extensive territory as to a small one.

75 In a pure democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all come together to deliberate and decide.

76 This kind of government cannot be exercised, therefore, over a country of any considerable extent; it must be confined to a single city or at least limited to such bounds as that the people can conveniently assemble, be able to debate, understand the subject submitted to them, and declare their opinion concerning it.

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77 In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their consent by themselves in person, but by representatives chosen by them who are supposed to know the minds of their constituents and to be possessed of integrity to declare this mind.

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78 In every free government the people must give their assent to the laws by which they are governed.

79 This is the true criterion between a free government and an arbitrary one.

80 The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one or a few.

81 If the people are to give their assent to the laws by persons chosen and appointed by them, the manner of the choice and the number chosen must be such as to possess, be disposed, and consequently qualified to declare the sentiments of the people; for if they do not know or are not disposed to speak the sentiments of the people, the people do not govern, but the sovereignty is in a few.

82 Now in a large extended country it is impossible to have a representation possessing the sentiments and of integrity to declare the minds of the people without having it so numerous and unwieldy as to be subject in great measure to the inconvenience of a democratic government.

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83 The territory of the United States is of vast extent; it now contains near three millions of souls and is capable of containing much more than ten times that number.

84 Is it practicable for a country so large and so numerous as they will soon become to elect a representation that will speak their sentiments without their becoming so numerous as to be incapable of transacting public business?

85 It certainly is not.

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86 In a republic, the manners, sentiments and interests of the people should be similar.

87 If this be not the case, there will be a constant clashing of opinions, and the representatives of one part will be continually striving against those of the other.

88 This will retard the operations of government and prevent such conclusions as will promote the public good.

89 If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government.

90 The United States includes a variety of climates.

91 The productions of the different parts of the Union are very variant and their interests of consequence diverse.

92 Their manners and habits differ as much as their climates and productions, and their sentiments are by no means coincident.

93 The laws and customs of the several states are in many respects very diverse, and in some opposite; each would be in favor of its own interests and customs, and of consequence a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogenous and discordant principles as would constantly be contending with each other.

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94 The laws cannot be executed in a republic of an extent equal to that of the United States with promptitude.

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95 The magistrates in every government must be supported in the execution of the laws, either by an armed force, maintained at the public expense for that purpose, or by the people turning out to aid the magistrate upon his command in case of resistance.

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96 In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate and are employed for this purpose when occasion requires, but they have always proved the destruction of liberty and [are] abhorrent to the spirit of a free republic.

97 In England, where they depend upon the Parliament for their annual support, they have always been complained of as oppressive and unconstitutional and are seldom employed in executing of the laws, never except on extraordinary occasions, and then under the direction of a civil magistrate.

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98 A free republic will never keep a standing army to execute its laws.

99 It must depend upon the support of its citizens.

100 But when a government is to receive its support from the aid of the citizens, it must be so constructed as to have the confidence, respect and affection of the people.

101 Men who, upon the call of the magistrate offer themselves to execute the laws, are influenced to do it either by affection to the government or from fear; where a standing army is at hand to punish offenders, every man is actuated by the latter principle, and therefore, when the magistrate calls, will obey, but where this is not the case the government must rest for its support upon the confidence and respect which the people have for their government and laws.

102 The body of the people being attached, the government will always be sufficient to support and execute its laws and to operate upon the fears of any faction which may be opposed to it, not only to prevent an opposition to the execution of the laws themselves, but also to compel the most of them to aid the magistrate, but the people will not be likely to have such confidence in their rulers in a republic so extensive as the United States as necessary for these purposes.

103 The confidence which the people have in their rulers, in a free republic, arises from their knowing them, from their being responsible to them for their conduct, and from the power they have of displacing them when they misbehave, but in a republic of the extent of this continent, the people in general would be acquainted with very few of their rulers; the people at large would know little of their proceedings, and it would be extremely difficult to change them.

104 The people in Georgia and New Hampshire would not know one another's mind, and therefore could not act in concert to enable them to effect a general change of representatives.

105 The different parts of so extensive a country could not possibly be made acquainted with the conduct of their representatives, nor be informed of the reasons upon which measures were founded.

106 The consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass.

107 Hence the government will be nerveless and inefficient, and no way will be left to render it otherwise but by establishing an armed force to execute the laws at the point of the bayonet — a government of all others the most to be dreaded.

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108 In a republic of such vast extent as the United States, the legislature cannot attend to the various concerns and wants of its different parts.

109 It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature that would be continually arising.

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110 In so extensive a republic, the great officers of government would soon become above the control of the people and abuse their power to the purpose of aggrandizing themselves and oppressing them.

111 The trust committed to the executive offices in a country of the extent of the United States must be various and of magnitude.

112 The command of all the troops and navy of the Republic, the appointment of officers, the power of pardoning offences, the collecting of all the public revenues, and the power of expending them, with a number of other powers, must be lodged and exercised in every state in the hands of a few.

113 When these are attended with great honor and emolument, as they always will be in large states, so as greatly to interest men to pursue them and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. 114 They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible in a very large republic to call them to account for their misconduct or to prevent their abuse of power.

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115 These are some of the reasons by which it appears that a free republic cannot long subsist over a country of the great extent of these states.

116 If then this new Constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.

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117 Though I am of opinion that it is a sufficient objection to this government to reject it, that it creates the whole Union into one government under the form of a republic, yet if this objection was obviated, there are exceptions to it which are so material and fundamental that they ought to determine every man who is a friend to the liberty and happiness of mankind not to adopt it.

118 I beg the candid and dispassionate attention of my countrymen while I state these objections; they are such as have obtruded themselves upon my mind upon a careful attention to the matter, and such as I sincerely believe are well founded.

119 There are many objections of small moment of which I shall take no notice — perfection is not to be expected in any thing that is the production of man — and if I did not in my conscience believe that this scheme was defective in the fundamental principles — in the foundation upon which a free and equal government must rest — I would hold my peace.

Yates’ Critique

Yates, as “Brutus”, finds his objections to the Constitution centered around one principal point – that it would inevitably result in a single government for the United States and the withering of the various state governments that were in his time quite a bit more sovereign than they were to become. This had three obvious manifestations: taxation, the enforcement of law and the existence of a standing army. But there was a fourth less obvious concern: the fear that such centralization would lead to the rise of government by an intolerable new aristocracy.

In support of this, he brings up two objections that modern readers recognize as typical of the political thought of the time: the practicality of the various forms of government, given the immense geographic expanse over which they would hold sway, and the difficulties that democracies or representative governments find as a result of faction within.

Yates recognizes the inadequacies of the current Articles of Confederation.

6 We have felt the feebleness of the ties by which these United States are held together and the want of sufficient energy in our present Confederation to manage, in some instances, our general concerns.

This is no states’ rights radical but an individual quite aware of the shortcomings of the present system. There is as well a sense of vision, of destiny.

11 You may rejoice in the prospects of this vast extended continent becoming filled with freemen who will assert the dignity of human nature.

It is clear he is considering the effects of this new government upon, not only what the United States was at the moment, but what it was to become.

83 The territory of the United States is of vast extent; it now contains near three millions of souls and is capable of containing much more than ten times that number.

Oh, Judge Yates, much more indeed! One suspects that its current population of some one hundred times that number might have staggered even His Honor.

One of his principal theoretical objections to the very concept of a republican form of government was a product of late Enlightenment political theory, cited in the person of the Baron de Montesquieu (Spirit of Laws, Chapter XVI): that the prospective country would be too vast to admit of such a government.

69 History furnishes no example of a free republic anything like the extent of the United States.

He notes the limitations of the Greek democracies, whose span was dictated literally by the range of the human voice, the Greek republics, and the Roman Republic as well. And yet the latter commanded a considerable territory, not yet expanded by Caesar through Gaul, but well into Africa as a result of the Punic Wars. The issue was, of course, communications, and there were time-tested expedients that served to challenge Montesquieu's assertion.

The models of the republics known to the Founders in classical times were the city-states of Renaissance Italy: Florence via the writings of Machiavelli, and Venice via Contarini. In the latter case especially, the boundaries of influence were limited not by horseback, but by galley. Clearly the United States was to be a maritime force. But the expansion foreseen by Yates was to the west, where no nascent naval force could go, and its governance was a function of the capability of enforcement, for which the various state mechanisms were far better suited than any imaginable federal system. His real fear:

71 Both of these, it is true, in process of time extended their conquests over large territories of country, and the consequence was that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.

Thus the historical model: a small government forced to grow, and in doing so, forced to become a despotism. Hence, there is his grim conclusion.

84 Is it practicable for a country so large and so numerous as they will soon become to elect a representation that will speak their sentiments without their becoming so numerous as to be incapable of transacting public business?

As observed before, the planned representation of one congressman for every 30,000 citizens would constitute a House of some 10,000 members at the present day. Yates would have rejected the notion that a body of such unwieldy size could transact anything at all, and he would almost certainly have been correct. That the issue has been addressed by holding the body itself to a more workable size, and that this has resulted in a dilution of representation, serves to prove his point. Such a dilution serves as well to trend government away from responsiveness and representation, and toward an informal aristocracy that fancies itself leading rather than representing. The modern reader can’t say that Judge Yates didn’t warn him.

The next objection to the new government is that its very size, and the country’s diversity of regional custom and behavior, will admit of a fatal degree of faction.

88 This will retard the operations of government and prevent such conclusions as will promote the public good.

This too was a theme popular in the era, expressed at length by Gibbon as a cause of the fall of the Roman Empire and a plague within the Byzantine, the overall idea being that factions tend to focus on their own advancement to the detriment of the country as a whole. It was, and remains, a valid objection.

And yet faction is not necessarily fatal – Machiavelli considered it one of the Roman Republic's strengths and a factor in its vitality (Discourses on Livy, Book 3, Chapter 3), especially with regard to the plebs' resistance against the Roman aristocracy. It is not clear that Yates and the other Founders appreciated that opinion, controversial even in their time, and yet it constitutes a broad and repeating theme within American politics.

The power of the federal government to tax is his next consideration. This, he anticipated, was so broad-based as to provide an irresistible temptation to abuse.

56 And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution, and they may so exercise this power as entirely to annihilate all the state governments and reduce this country to one single government.

Annihilate, no, but a simple comparison of a present day American taxpayer’s “donations” to the federal government, and to his respective state's, will reveal that such a tendency has slowly grown over the succeeding two centuries to such a proportion that it serves to validate Yates’ point.

Lastly, he states that a government of the size of the United States he envisions will have difficulty in the execution of its laws, forced by historical precedent to utilize its armed forces in that function, leading inexorably to a military despotism.

98 A free republic will never keep a standing army to execute its laws.

This last point answers what to contemporary Americans seems a rather larger concern with respect to standing armies than subsequent history supports, large enough to generate the Third Amendment within the yet-to-be-considered Bill of Rights. Such an army isn’t for the defense of the Republic against external enemies, but for the enforcement of its laws. That the evolution of the standing armed forces of the United States has not taken that course is no accident, and it is an exceedingly interesting feature of the development of the American government.

It did for a time, though, and Yates was correct in dreading the circumstances – during the post-Civil War Reconstruction that was, at least in part, an expression of the triumph of federal power over that of the states. The resulting corrective, the Posse Comitatus Act of 1878, remains an echo of just how right he was in that objection and a guard against its repetition.

However, the actual standing army of the present day is sworn to support, not the government, but the Constitution, a fundamental distinction that Yates and his colleagues would have found impossibly naïve to hope for. It is frankly astounding and a formidable stumbling block for any would-be despot in the United States. One cannot blame the Founders for failing to anticipate that the spirit of George Washington would so resonate two centuries after his death, and one cannot help but respect the keepers of that high and sacred honor.

To sum up his case, it is that the inception of a federal government to power will cause the fatal diminishing of that of the states and the accession to power of a new ruling class.

114 They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible in a very large republic to call them to account for their misconduct or to prevent their abuse of power.

115 These are some of the reasons by which it appears that a free republic cannot long subsist over a country of the great extent of these states.

116 If then this new Constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.

How then to form a new government that will make up for the inadequacies of the Confederation and yet safeguard against Yates’ grim forebodings? That discussion is yet to come.

The Incompetency of the Confederation

The Confederation Congress was often unable to amass a quorum to do business, and the states honored the Articles of Confederation more in the breach than in the observance. With the British enemy at the gates, the Confederation had managed to blunder along during the war, but once the enemy had gone home across the sea, the states immediately began to weasel out of their financial obligations. The center was not holding, and the states began to see themselves as separate republics.

During the Revolution, the incompetence and corruption in Congress were such that General Washington had become the de facto head of state. Following the Treaty of Paris, with Washington home at Mount Vernon, the uniting impulse was gone, and the states found time for mischief. Connecticut prepared to invade Pennsylvania to enforce old royal land claims in the Wyoming Valley. Only mutual poverty kept New York and New Hampshire from re-opening their disagreement over Vermont. States began to tax citizens of other states by imposing tariffs on imports, causing an interstate trade war.

The French and Dutch bankers did not have an army to collect their debts, but their Spanish allies could deny the United States access to the Mississippi River for navigation.

There was no coin of the realm except for the Spanish Milled Dollar, of which there were too few, and the collapsing Continental Dollar, of which there were too many.

What rankled was the incompetence of the Articles of Confederation, the inability of Congress to do anything to make the situation better, and the unwillingness of the states to give up what they perceived as their independence.

Discussion Topics

Coming Thursday, 18 February

John DeWitt #1


TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: federalistpapers; freeperbookclub

1 posted on 02/15/2010 7:43:28 AM PST by Publius
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To: 21stCenturion; A Strict Constructionist; Aggie Mama; Albertafriend; alfa6; antisocial; ...
FReeper Book Club

The Debate over the Constitution

Brutus #1

Ping! The thread has been posted.

Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2

2 posted on 02/15/2010 7:45:16 AM PST by Publius
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To: 14themunny; 300magnum; abigail2; AdvisorB; Alberta's Child; Alex Murphy; alexander_busek; ...
FReeper Book Club

The Debate over the Constitution

Brutus #1

Ping! The thread has been posted.

Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2

3 posted on 02/15/2010 7:46:04 AM PST by Publius
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To: Publius
Thanks for posting this. My most obscure book was the Introduction to the reprint of Yates' Secret Proceedings and Debates of the Convention to Form the US Constitution. After the Constitution had been ratified, Yates had become a judge and he said that it was now the duty of all citizens to preserve, protect and defend that Constitution.

Congressman Billybob

Don't Tread On Me (9/12 photo and poster"

"Sex, Lies and the State of the Union"

4 posted on 02/15/2010 8:37:24 AM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Publius
•At 17, Yates states that when the people part with power, they will never be able to take it back except by force. Was he right, and why or why not? Are there examples of people taking back their power without resorting to violence?

and also the next line -

18 Many instances can be produced in which the people have voluntarily increased the powers of their rulers, but few if any in which rulers have willingly abridged their authority.

Throughout history dynasties have fallen with the death of their leaders or their bloodlines. Death, being the great equalizer, is a weakness inherent in the rulers.

In an effort to ease the transition of powers upon death, schemes of inheritance have been established, usually following a known formula intended to reduce the chance for power struggles at such a vulnerable time.

His argument is that the power only flows in one direction without violent conflict. From the people to the rulers. I think we need to understand that the expansion can continue to non appointed rulers if they are treated as a commodity to be traded and not as a revocable trust.

5 posted on 02/15/2010 9:15:17 AM PST by whodathunkit (The fickle and ardent in any community are the proper tools for establishing despotic government.)
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To: Publius

I like the writings of Brutus. I’m printing it up and headed for a corner of a coffee shop.

Great work, Publius and Billthedrill (who is either a Dentist, a Marine DI, or Oil man?).


6 posted on 02/15/2010 10:29:52 AM PST by Loud Mime (Liberalism is a Socialist Disease)
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To: Publius
Discussion Topics At 17, Yates states that when the people part with power, they will never be able to take it back except by force. Was he right, and why or why not? Are there examples of people taking back their power without resorting to violence?

I believe he was right because the caliber of the vote has been diluted and eroded. I can't think of an instance where a people who have consented to be governed have wrested power from the hands of their governors without violence. Those in power no longer fear the caliber of the ballot.

At 103, he follows up on 71, 84, 87 and 93 by arguing that a country that is too large will be inhabited by people who don’t know their rulers. In 110, he argues that in such a situation, the officers of government will elevate themselves above the people. This has happened. What would have prevented this?

Constitutional term limits. Requirement to live in and govern from their districts. Compensation determined and paid only by their constituents. Campaigns paid for with contributions from their districts only.

7 posted on 02/15/2010 10:36:52 AM PST by DonnerT (Tyranny is easy. Just shut up and sit down!)
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To: whodathunkit
I think we need to understand that the expansion can continue to non appointed rulers if they are treated as a commodity to be traded and not as a revocable trust.

You have hit on something. Public office has not necessarily been cheapened, but perhaps made too remuneritive -- but not in the way the Framers imagined. This is the revolving door between politics and lobbying in which everything is for sale to those with the money.

8 posted on 02/15/2010 10:58:04 AM PST by Publius
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To: Congressman Billybob
After the Constitution had been ratified, Yates had become a judge and he said that it was now the duty of all citizens to preserve, protect and defend that Constitution.

Almost the exact words of Patrick Henry, who went through the same experience as Yates.

9 posted on 02/15/2010 10:59:11 AM PST by Publius
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To: DonnerT
Those in power no longer fear the caliber of the ballot.

You have written a great slogan or tagline. There is a school of thought that the end of stakeholder franchise in the 1820's marked the end of an enlightened electorate.

I'd like to explore the rest of your reply a sentence at a time.

Constitutional term limits.

Rejected at the Constitutional Convention because of a perceived need for institutional memory.

Requirement to live in and govern from their districts.

Are you suggesting a Virtual Congress conducted on the Internet? I find that idea seductive, possibly even insurance against a terrorist or enemy strike.

Compensation determined and paid only by their constituents.

This is interesting, and it's the first time I've ever seen anyone suggest it.

Campaigns paid for with contributions from their districts only.

Perhaps tricky to enforce when money is no more than bits and bytes on a computer, but it's another interesting idea.

10 posted on 02/15/2010 11:06:16 AM PST by Publius
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To: Publius

Institutional memory should be in the minds of an enlightened electorate.

I am indeed suggesting a Virtual Congress conducted on the Internet in clear view of the voters.

I think the separate states should be able to take control over the other items mentioned. (That is, if obama’s council of governors has not already destroyed any possibility.)


11 posted on 02/15/2010 1:45:22 PM PST by DonnerT (Those in power no longer fear the caliber of the ballot.)
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To: DonnerT
I am indeed suggesting a Virtual Congress conducted on the Internet in clear view of the voters.

This would mean that there could be more than 435 congresscritters. Rather than have one per every 30,000 people, a larger number could be chosen that would not be unwieldy but would be more representative.

12 posted on 02/15/2010 1:49:15 PM PST by Publius
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To: Publius
Good evening. I enjoyed much, but this caught my attention...

98 A free republic will never keep a standing army to execute its laws.

Even with the Third amendment, and the Posse Comitatus Act, this current White House demands close scrutiny.

5.56mm

13 posted on 02/15/2010 6:34:39 PM PST by M Kehoe
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To: Publius

I always get a smile when philosophical types reminisce the ancient Greek and Roman republics. Both of these had numerous faults severely attacking liberty. The most obvious was slavery; next was the fact that women in Athens were not citizens, and they fared only a little better in Rome. Senatus y Populus Que Romanus: S.P.Q.R., the Roman banner, made it clear who was intended to benefit from the republic. That is, or course, if you were a citizen of the republic. If you weren’t, too bad.

In 94, he observes that a large legislative body would be unable to pass laws quickly. If only that was the case. Knee-jerk legislative responses are the norm and Saul Alinsky wrote of exploiting the practice. Never let a crisis go to waste. Laws passed during a crisis have far reaching effects that were not considered in the heat of hte moment. In the past few years, we’ve had to force the government to retard the debates on immigration, cap and trade, and health insurance. A government with that much power should not act quickly.

The federal courts supported the people here for over a century, until they were able to revise the needs of the people from liberty to welfare. It wasn’t the power of taxation that did it. It was the commerce clause. Nobody saw that one coming.

People have certainly fought back, and won. Right to carry laws and castle doctrine laws are becoming the norm after decades of oppression. The Freedom of Information Act is often viewed as a liberal cause, but it isn’t. Government had to be forced to disclose its methods. I hope that in my lifetime, the feds will be put in their place. It’s happening very slowly, but it is happening. The inertia of such a vast country resists change. We’ll just have to push harder.


14 posted on 02/15/2010 7:45:05 PM PST by sig226 (Bring back Jimmy Carter!)
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To: sig226

btt


15 posted on 02/15/2010 8:54:52 PM PST by TASMANIANRED (Liberals are educated above their level of intelligence.. Thanks Sr. Angelica)
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To: Publius

Bttt!


16 posted on 02/16/2010 12:05:50 AM PST by JDoutrider
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To: DonnerT

“Campaigns paid for with contributions from their districts only.”

I have been advocating this for quite a while and agree that only those living in a district should be able to contribute to a campaign. I would even restrict it further to individuals.

On the issue of compensation, I hve thought about requiring the use of health and retirement plans that are used by their States employees. I like your idea of including all compensation. I personally don’t think there should be a retirement plan. It is not a job in the normal sense.

The Virtual Legislature is an interesting idea that would take the members of Congress away somewhat from each other and outside influences and more importantly make them available to their constituents. Would this virtual legislature open us up to voting fraud that even the members couldn’t control?


17 posted on 02/16/2010 4:33:45 AM PST by A Strict Constructionist (How long before we are forced to refresh the Tree of Liberty? Sic semper tryannis)
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To: Publius

“a larger number could be chosen that would not be unwieldy but would be more representative.”

Would we then begin to fear the tyranny of the masses and act with haste and not deliberation?

It would be only one small step further to direct voting by the population. James Carville would rejoice.

I like this Brutus. Where was he when I studied History?


18 posted on 02/16/2010 4:39:26 AM PST by A Strict Constructionist (How long before we are forced to refresh the Tree of Liberty? Sic semper tryannis)
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To: A Strict Constructionist

A virtual legislator’s vote would publicly cast and tabulated as it is now. Where do you see the opportunity for fraud?


19 posted on 02/16/2010 7:33:57 AM PST by DonnerT (Those in power no longer fear the caliber of the ballot.)
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To: Publius
•At 31, Yates suspects the Supremacy Clause will give Congress power over all areas controlled by the states. At 50, he sees the Necessary and Proper Clause as giving Congress a blank check. At 57 and 60, he shows by what means power accretes to the center. There is no question he was right, but did the Framers have this in mind... ...were the Framers thinking along another line? Are there gray areas in these arguments, and what are they?

Specifically referring to -

51 Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law because it may prevent the collection of a tax which they may think proper and necessary to lay to provide for the general welfare of the United States?

How long will it take the Federal Government to realize that taxation on a local level has an effect on interstate commerce? What would be the result?

Many people talk about the government taxes as if local state and federal are one and the same. Their perception is understandable given the convenience of 'payroll deduction' from their paychecks and as they see it the bottom line is, well, the bottom line. They are poorer and the government just got richer. At what point will the people say enough is enough?

20 posted on 02/16/2010 9:35:28 AM PST by whodathunkit (The fickle and ardent in any community are the proper tools for establishing despotic government.)
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To: DonnerT

“Where do you see the opportunity for fraud?”

I guess it’s my suspicious nature. With today’s politicians I can’t help it. There have been problems with votes in our legislature in the past but thinking about it if properly implemented this may be more secure. I’ll have to cogitate on it.


21 posted on 02/16/2010 1:56:18 PM PST by A Strict Constructionist (How long before we are forced to refresh the Tree of Liberty? Sic semper tryannis)
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To: Publius

“But remember, when the people once part with power, they can seldom or never resume it again but by force. “

We are here.


22 posted on 02/16/2010 2:32:23 PM PST by TASMANIANRED (Liberals are educated above their level of intelligence.. Thanks Sr. Angelica)
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To: Publius

Mark for later.


23 posted on 02/17/2010 11:58:08 AM PST by Albertafriend
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To: Publius

What fascinates me most about men such as Yates is not only their knowledge of theory, but also their great understanding of human nature.

110, The easy answer is “term limits.” The problem with that answer is the assumption all power resides with elected officials.

This is far from true. The amount of power that resides in various government agencies is phenomenal. I would go so far to say that at least one of them, BATF, is a rogue agency. The EPA is very close to being a rogue agency too.

The above listed bureaucratic monstrosities blatantly usurp power that is specifically reserved to Congress.

At least with politicians, death will finally remove even the most egregious offender. Government bureaucracies tend to live forever.

If there was one thing that should have been at least severely limited, it was governments ability to create agencies.


24 posted on 02/17/2010 12:31:20 PM PST by stylin_geek (Greed and envy is used by our political class to exploit the rich and poor.)
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To: whodathunkit
At what point will the people say enough is enough?

End the wittholding of taxes from people's paychecks, and it starts the following April 15.

25 posted on 02/17/2010 2:40:36 PM PST by Publius
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To: stylin_geek
If there was one thing that should have been at least severely limited, it was governments ability to create agencies.

Federal agencies are part of the Executive branch, created by Congress for the purpose of enforcing federal regulations. But according to the Constitution, there are only 3 federal crimes: treason, piracy and counterfeiting. All those other 10,000 federal crimes are unconstitutional.

Curtailing federal agencies would require curtailing federal crimes, which would require curtailing the purview of the federal government.

You have to go to the source.

26 posted on 02/17/2010 2:45:10 PM PST by Publius
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To: Publius
End the wittholding of taxes from people's paychecks, and it starts the following April 15.

Agreed.

Unfortunately the power to withhold income taxes from a paycheck would likely be very difficult to repeal.

17 But remember, when the people once part with power, they can seldom or never resume it again but by force.

A more likely scenario is a race between taxing authorities for that last drop of blood. As a result of such a high total tax rate, people will quite literally not be able to afford to work. If that happened I could see where the Federal Government would step in and appropriate all tax revenue for 'the good of the nation'. The states will remain but at the pleasure of the Federal Government.

If the runaway spending continues, I think this scenario is not only possible but probable.

27 posted on 02/17/2010 4:08:07 PM PST by whodathunkit (The fickle and ardent in any community are the proper tools for establishing despotic government.)
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To: Congressman Billybob

Hey Billybob,

OT but how are your ‘critters re-elect numbers?

Do you see any chance of a pick up?


28 posted on 02/18/2010 8:50:26 PM PST by CPT Clay (Pick up your weapon and follow me.)
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To: Publius
Two themes stood out for me. Your discussion references dance around my points, but do not touch upon them directly. You focused on the idea that the country will become too large to be governed, partly because the people lose touch with their representatives. I'm picking up the idea that the rulers will become elites (lose touch with their constituents) and turn a deaf ear to the people's wishes.

Beginning in 77:

77 In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their consent by themselves in person, but by representatives chosen by them who are supposed to know the minds of their constituents and to be possessed of integrity to declare this mind.

78 In every free government the people must give their assent to the laws by which they are governed.

The legitimacy of the rulers' powers come from the consent of the governed...

81 If the people are to give their assent to the laws by persons chosen and appointed by them, the manner of the choice and the number chosen must be such as to possess, be disposed, and consequently qualified to declare the sentiments of the people; for if they do not know or are not disposed to speak the sentiments of the people, the people do not govern, but the sovereignty is in a few.

...but when the chosen representatives willfully ignore the desires of the people, the people no longer govern. This is seen in the current debate over heath care reform. The public overwhelmingly rejects the current Congressional scheme, but the Congress is using every trick in the book to force this legislation anyway. One has to ask in whose interests Congress is acting? It remains to be seen whether the people can reclaim control over Congress at the ballot box.

The second theme is that of diversity.

Beginning in 86 and concluding in 93, Yates describes the diverse nature of the United States.

93 The laws and customs of the several states are in many respects very diverse, and in some opposite; each would be in favor of its own interests and customs, and of consequence a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogenous and discordant principles as would constantly be contending with each other.

In 94, Yates concludes that this diversity will slow down the ability of the federal government to pass laws promptly.

94 The laws cannot be executed in a republic of an extent equal to that of the United States with promptitude.

I see this issue differently.

From 90 to 93, Yates observes that the states formed around common value systems inherent in their geographic boundaries, climate-inducing norms, and probably, the motives of their original settlers. What has happened is that the federal government has forced homogeneity on the states.

We see this today in abortion laws, in gay marriage laws, in religion and church/state laws, etc. Where the states were governments of like-minded people, today a single individual or group can use the federal courts and/or legislative lobbying to impose their values and beliefs on the entire nation, invalidating local laws and customs that evolved over the centuries in their respective regions.

Here in California, the proposition process repeatedly results in the people voting for laws and state Constitutional amendments that are quickly overturned in a federal court by the losing side. We've seen national movements to remove bible images from courts in one state result in removing a cross symbol for the California great seal, despite the cross representing the historic nature of the Spanish missions in the forming of the state.

Yates was right that the federal system would eventually dissolve the power of state governments, but it also destroyed the local and regional diversity and identity that each state enjoyed.

I can't say that things would be better or worse if state diversity was retained over the centuries. I do wonder what North America would be like if this continent ended up balkanized into 50 antagonistic entities the way much of Europe evolved.

-PJ

29 posted on 02/20/2010 1:04:14 PM PST by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Political Junkie Too
What has happened is that the federal government has forced homogeneity on the states.

There is an element of truth in that. But natural popular migrations have had the same effect.

The old Vermont would not have considered a gay marriage law, but when the state was flooded by New Yorkers fleeing that state's problems, they took their attitudes to Vermont.

The "black plate people" who migrated from Michigan to Texas 30 years ago did much the same.

The "Californicators" who flooded Washington and Idaho had the same effect on those states.

Much of "the New South" comes form Northerners who moved to the Sunbelt and brought their attitudes with them.

It's a mixture of both.

30 posted on 02/20/2010 1:27:40 PM PST by Publius
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To: Loud Mime
...Billthedrill (who is either a Dentist, a Marine DI, or Oil man?)

LOL! No, merely a poor sap who did not reflect sufficiently on how long this place might be around when he picked a nom de FReep out of thin air. The reference in my nick is to the President of the time's sexual proclivities. Young FReepers, let this be a lesson to you...choose wisely...BtD chose...poooooorly...

A BTT on a brief check-in before carping that old diem. The anti-Federalist sentiments are beginning to coalesce around several themes - that the government to be will be too powerful and submerge those of the States, that the government cannot be powerful enough to govern all that territory without becoming a despotism, unresponsive to the people, or both, and that such innovations as a standing army will be temptations toward that same end of autocratic behavior.

It will be easy enough to see certain modern characteristics of government as validating these sentiments, which to a degree they do. It will be far less easy to imagine what improvements might have been made in the original document to avoid them. It will be easy enough to say that we need to return to the original interpretation of this remarkable plan. It will be less easy to understand that the original interpretation did, in fact, give way to its grotesquely transformed modern version due to real internal deficiencies or conflicts. Some of these were foreseen, some perhaps inevitable, and some may still be recoverable.

Coming to the fore is the necessity, and the disadvantages, of a federal Bill of Rights. These seem so integral to the Constitution now that it takes some effort to picture them truly as Amendments. Would we have been better off without them? That debate is about to rage.

31 posted on 02/20/2010 1:29:09 PM PST by Billthedrill
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To: Publius
I agree to a point. Those are all modern migrations that you cite. How much of today's interpretation of the Constitution allowed the behaviors to migrate with the people (people using the laws to force the "natives" to comply)?

How has mass migration changed regions in the 18th and 19th centuries? Didn't the unpopulated western territories form around like-minded ethnic settlers dominating different regions? Didn't foreigners emigrating from Europe in the early 20th century settle in cities and neighborhoods already dominated by their fellow nationals?

It seems to me that the second half of the 20th century was Americans relocating to other regions and changing those regions, rather than outsiders relocating and then assimilating.

-PJ

32 posted on 02/20/2010 1:53:27 PM PST by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Political Junkie Too
It seems to me that the second half of the 20th century was Americans relocating to other regions and changing those regions, rather than outsiders relocating and then assimilating.

Correct. Look at New Hampshire voting for Obama, Vermont going for gay marriage and Washington state going so "green" it's impossible to do business.

33 posted on 02/20/2010 1:55:53 PM PST by Publius
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To: Publius

Bookmark


34 posted on 02/20/2010 1:57:42 PM PST by Albertafriend
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To: Billthedrill; Publius

I am of the mind that no matter what the form of government, it will eventually move left of its foundation unless it has a continuing system of self-cleansing.

I have supported our Constitution for some time because I believe that it was the best form of government ever developed - - that the faults were more those of management than design.

Now I do have a criticism: The constitution should have stayed as it was, but within its articles should have been sunlight and sunset provisions that would be applied to all laws and proposals.

Any tax raise....sunset after 10 years. Any bureau, sunset after ten years. Any finished legal proposal would have to wait two weeks for a vote.

We still need these tools. It is never too late.


35 posted on 02/20/2010 9:43:36 PM PST by Loud Mime (Liberalism is a Socialist Disease)
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To: Loud Mime
...no matter what the form of government, it will eventually move left of its foundation unless it has a continuing system of self-cleansing.

Worthy of a tagline.

36 posted on 02/20/2010 10:29:43 PM PST by Publius
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