John Adams's Salary as Vice President

As I noted in the last post, the Constitution specifically referred to the president's receipt of a salary. But it said nothing about whether Congress should grant a salary to the Vice President. In some ways, the discussion in the House about the Vice President's salary was even more interesting than the discussion about the President's.

The committee report proposed an annual salary for the Vice President of $5,000. Alexander White of Virginia immediately attacked it. Some of his arguments implicated the very nature of the office -- was it an executive position or a legislative one? -- and resonate to this very day (witness the recent controversy over whether Dick Cheney is a member of the Executive Branch):

I do not like the principle on which this provision is made for the Vice President; there is nothing, I believe, in the constitution which gives him a right to an annual sum; it fixes no duty upon his as Vice President, requiring a constant attendance. He may be called upon to act as President, and then I would give him the salary of the President; at other times, he is to preside as President of the Senate, then I would pay him for his services in that character [on a per diem basis].

Joshua Seney of Maryland later amplified on Rep. White's remarks, making clear that he regarded the Vice President as principally a "member[] of the legislature" (emphasis added):

No argument has been adduced to convince me that the Vice President ought to receive an allowance any more than the other members of the legislature. He cannot be compelled to perform any duty.

Even the representatives who argued for a fixed salary did not go so far as to say that the vice president would be performing executive functions. Instead, the core of their arguments was that the vice president was renouncing other potential opportunities because he had to stand ready to do so. Here is James Madison:

The nature of the office will require that the Vice President shall always be in readiness to render that service which contingencies may require . . .. If we consider that the Vice President may be taken from the extremity of the continent, and be from the nature of his office obliged to reside at or within the convenient reach of the seat of the Government, to take upon him the exercise of the President's functions, in case of any accident that may deprive the Union of the services of their first officer, we must see, I think, it will often happen that he will be obliged to be constantly at the seat of Government.

Fisher Ames of Massachusetts returned to the theme that democratic principles required adequate pay for government officers:

Every man is eligible, by the constitution, to be chosen to this office; but if a competent support is not allowed, the choice will be confined to opulent characters. This is an aristocratic idea, and contravenes the spirit of the constitution.

The best line of the debate, however, went to John Page of Virginia, for his backhanded slap at the uselessness of the office. I wonder what James Madison thought when he heard Page coyly observe:

As to the utility of the office, [Mr. Page] had nothing to say. He had no hand in forming the constitution; if he had, perhaps he should never have thought of such an officer; but as we have got him, we must maintain him . . ..

In the end, the House rejected both Rep. White's motion to pay the vice president on a per diem basis, as well as Rep. Page's motion to increase his annual salary to $8,000. The bill as enacted awarded the vice president an annual salary of $5,000, payable quarterly.

George Washington's Salary as President

When George Washington took the oath of office as president on April 30, 1789, technically he had no salary. The House and Senate had not assembled sufficient members to form quorums until April 1 and April 6, respectively, and had passed no law setting the president’s salary.

In his First Inaugural Address on April 30, 1789, Washington announced his intention not to accept any salary or other remuneration for serving as president:

To the foregoing observations I have one to add, which will be most properly addressed to the House of Representatives. It concerns myself, and will therefore be as brief as possible. When I was first honored with a call into the service of my country, then on the eve of an arduous struggle for its liberties, the light in which I contemplated my duty required that I should renounce every pecuniary compensation. From this resolution I have in no instance departed; and being still under the impressions which produced it, I must decline as inapplicable to myself any share in the personal emoluments which may be indispensably included in a permanent provision for the executive department, and must accordingly pray that the pecuniary estimates for the station in which I am placed may during my continuance in it be limited to such actual expenditures as the public good may be thought to require.

Washington’s statement renewed a debate that dated back at least to ancient Athens, where Pericles introduced payment for the Council of 500 and jury service in about 450 B.C. In the American context, however, the arguments also assumed a constitutional dimension. Article II, Section 1, Clause 7 specifically addressed the issue of presidential compensation:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

When the House began debate on a salary bill, Rep. John Page of Virginia said flatly, “[T]he constitution requires that he [the president] shall receive a compensation, and it is our duty to provide it.”

This position had substantial merit. The language of the clause included the mandatory “shall.” Moreover, as the late David Currie observed, other considerations pointed in the same direction:

If the constitutional premise was that financial independence was a crucial barrier to corruption, an officer who impoverished himself by declining his wages endangered the public interest. Moreover, if Washington was right that he need not accept this money, there would always be a risk that the President’s waiver was not truly voluntary; reading the Constitution to mean what it said would obviate the need for inquiry on this unpromising score.

This position ultimately prevailed. The Act passed by Congress granted the president an annual salary, and President Washington agreed to accept it.

At the same time, there was also a debate concerned the form of the president’s compensation. The House committee appointed to consider the issue apparently proposed a fixed salary of $20,000 plus an allowance for specified expenses, such as house rent, furniture, plate, horses, carriage and salaries for secretaries and clerks.

However, when the matter came up for debate before the House, a number of members expressed constitutional concerns. Some suggested that the allowance might be a forbidden “emolument,” and/or that it would undercut the independence of the Executive, because the president would have to justify, and Congress would have to pass on, each request to draw on the allowance:

Mr. LAWRENCE [sic, John Laurance of New York] . . . [stated that] it ought to be granted as one sum, because he is to receive no other emolument whatever from the United States . . . . but I have no objection to blend these sums together, declaring the whole to be the compensation required by the constitution . . ..

Mr. [Roger] SHERMAN [of Connecticut] thought it much better to give a net sum, because the President would then have no accounts to settle with the United States.

Mr. [Theodore] SEDGWICK [of Massachusetts] considered this a constitutional question, and therefore thought it deserved serious investigation. The provision made in the report, for paying the expenses of enumerated articles, does not leave the President in the situation intended by the constitution, which was, that he should be independent of the Legislature, during his continuance in office; that he should have a compensation for his services, not to be increased or diminished during that period; but there is nothing that will prevent us from making further allowances, provided that the twenty thousand dollars is all that is given as a compensation. From these considerations, he was led to believe that the report was founded on unconstitutional principles.

Others – including James Madison – disagreed:

Mr. MADISON did not think the report interfered with either the spirit or letter of the constitution, and therefore was opposed to any alteration, especially with respect to the property of a fixed nature. He was sure, if the furniture and plate, and house rent, could be allowed, some of the other articles might also. The horses and carriages will cost money, and sell for little, after being used for four years; this will be a certain loss to the President, or his family . . ..

In the end, however, the House decided to avoid the difficult issue by eliminating the allowance provision. It then voted to increase the fixed salary from $20,000 to $25,000. The statute was finally enacted on September 24, 1789 – almost five months after Washington took office – and provided fixed salaries for both the president and vice president:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be allowed to the President of the United States, at the rate of twenty-five thousand dollars, with the use of the furniture and other effects, now in his possession, belonging to the United States; and to the Vice President, at the rate of five thousand dollars per annum, in full compensation for their respective services, to commence with the time of their entering on the duties of their offices respectively, and to continue so long as they shall remain in office, and to be paid quarterly out of the treasury of the United States.

Merry Christmas!

Historical Inevitability 2

Writing the last post reminded me of Merrill Peterson's great turn of phrase describing the unforeseen and unforseeable events that change history: "[T]here occurred . . . one of those random events which in its consequences makes a mockery of every attempt to impose some grand law on the history of nations."

Historical Inevitability

Rene Tyree at wig-wags recently published a nice post on the inevitability on the Civil War. I commented there that I thought that some of the disagreement arose because of imprecision -- some are referring to actual war, other use "war" as a shorthand for secession or war: when did it become inevitable that some southern states would secede and not return to the Union in the foreseeable future without physical coercion.

Here are a couple of other thoughts.

It strikes me that in some ways discussion of inevitability is . . . well, perhaps the right word is "sterile." Unless you believe in predestination, human activities are by definition not inevitable until they occur -- we could all be wiped out by a comet ten minutes from now. It therefore seems to me that it is more productive to think about increasing probabilities. True, secession was not "inevitable" after the failure of the Democratic convention at Charleston, or even after Lincoln's election, but it was highly, highly likely.

Proponents of non-inevitability are, in effect, suggesting alternative series of events, and it seems to me the burden is on them to construct credible alternatives. For example, after the breakup of the Charleston convention and Lincoln's nomination, what plausible scenarios might have avoided Lincoln's election? After Lincoln's election, what plausible scenarios might have avoided the secessions of the Cotton South states?

This has the advantage of allowing us, the reader, to assess the writer's hypothesis. Do we really think that there was any substantial sentiment in the North to grant the concessions necessary to bolster conditional unionist sentiment in at least some deep south states (e.g., Georgia)? And what concessions would have been required, and when? By March 4, 1860, what, if anything, could the North have done to entice the deep south states to return?

I provide these questions only by way of example. One can ask the same sorts of questions with respect to earlier events -- the Lecompton crisis is a good one. Here, I think one could construct a highly plausible alternative. Had President Buchanan not given the Republican Party traction in 1857-58 by pigheadedly insisting on the admission of Kansas under the the Lecompton Constitution, it seems entirely possible to me that the crisis would have passed, Stephen Douglas would have become president in 1860, etc., etc. Conversely, secession may not have been inevitable after Lecompton, but it is certainly much more difficult to construct plausible alternative scenarios. In that sense, perhaps the late Professor Stampp was correct after all.

Conditional Ratification VI

So how did Alexander Hamilton and his federalist allies defeat conditional ratification at the New York convention? As I noted in my previous post, Elliot’s Debates sheds no light.

The only contemporaneous primary source I have been able to find online – a July 22, 1788 letter from Hamilton to Madison – suggests that internal disagreements among New York antifederalists were weakening them:

I wrote to you by the last post [Hamilton’s July 19 letter?], since which nothing material has turned up here. We are debating on amendments without having decided what is to be done with them. There is so great a diversity in the views of our opponents that it is impossible to predict any thing. Upon the whole, however, our fears diminish.

The only secondary source I have run across that discusses the issue is Akhil Amar’s America’s Constitution: A Biography. There, Professor Amar tells a dramatic story.

Professor Amar asserts that Hamilton opposed John Lansing’s July 24 conditional ratification motion by reading James Madison’s July 19, 1788 “in toto and for ever” letter to the convention and arguing based on it that conditional ratification was no ratification at all:

In [his July 19] letter to Hamilton, Madison had emphasized that “the Constitution requires an adoption in toto and for ever . . ..” [In opposition to the Lansing conditional ratification motion,] Hamilton read the letter aloud to the Convention and then added his own words. The “terms of the constitution import a perpetual compact between the different states. . . . The [Article VI] oath to be taken stands in the way” of any subsequent right of unilateral secession. According to the contemporaneous account published in New York’s Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that “a reservation of right to withdraw . . . was inconsistent with the Constitution, and was no ratification.”

(A shortened version is available online here.)

It is frustrating that I have been unable to locate online the underlying primary sources that Professor Amar cites. For those of you who have access to a research library (or better online researching skills than I), here are the supporting references:

For Hamilton on the “perpetual compact:” “New York Ratifying Convention, First Speech of July 24,” in Hamilton, Papers, 5:193-95 (Harold C. Syrett, ed.). See also John P. Kaminsky, “New York: The Reluctant Pillar,” in Stephen L. Schechter, ed., The Reluctant Pillar: New York and the Adoption of the Federal Constitution (1985), 112; Kenneth M. Stampp, “The Concept of a Perpetual Union,” J. of Am. Hist. 65 (1978): 18 n. 51.

For Hamilton and Jay’s repudiation of a “right to withdraw:” Excerpt from The Daily Advertiser, July 28, 1788, in Hamilton, Papers, 5:194-95.

Searching around, I also see this article, which looks very interesting: Robin Brooks, “Alexander Hamilton, Melancton Smith, and the Ratification of the Constitution in New York,” The William & Mary Quarterly, 3rd Ser., Vol. 24, No. 3 (July 1967), pp. 339-58.

McClellan Accepts

Just a small footnote to Scott Johnson's post at Power Line that touches on the 1864 Democratic platform.

I'm no fan of George McClellan, but to his credit he tactfully but firmly repudiated the most offensive portions of the platform when he accepted the Democratic nomination that year. Here's the key portion of McClellan's letter of acceptance (emphasis added):

The Union was originally formed by the exercise of a spirit of conciliation and compromise. To restore and preserve it, the same spirit must prevail in our councils and in the hearts of the people. The reestablishment of the Union, in all its integrity, is and must continue to be the indispensable condition in any settlement. So soon as it is clear, or even probable, that our present adversaries are ready for peace upon the basis of the Union, we should exhaust all the resources of statesmanship practiced by civilized nations, and taught by the traditions of the American people, consistent with the honor and interests of the country, to secure such peace, reestablish the Union, and guarantee for the future the constitutional rights of every State. The Union is the one condition of peace. We ask no more.

Let me add what I doubt not was, although unexpressed, the sentiment of the convention, as it is of the people they represent, that when any one State is willing to return to the Union it should be received at once with a full guarantee of all its constitutional rights. If a frank, earnest, and persistent effort to obtain these objects should fail, the responsibility for ulterior consequences will fall upon those who remain in arms against the Union, but the Union must be preserved at all hazards. I could not look in the face my gallant comrades of the army and navy who have survived so many bloody battles, and tell them that their labors, and the sacrifices of so many of our slain and wounded brethren, had been in vain, that we had abandoned that Union for which we have so often perilled our lives. A vast majority of our people, whether in the army and navy or at home, would, as I would, hail with unbounded joy the permanent restoration of peace on the basis of the Union under the Constitution, without the effusion of another drop of blood, but no peace can be permanent without Union.

Mercifully, Sherman having already taken Atlanta, McClellan's candidacy was dead on arrival.

Conditional Ratification V

To recap, on Saturday July 19, 1788, the federalists at the New York State Ratification Convention were on the ropes. The anti-federalists that day passed a motion endorsing conditional ratification. Alexander Hamilton was so desperate that he was trying to convince himself that conditional ratification might be acceptable. In his July 20 letter to Hamilton, however, James Madison told him unequivocally that conditional ratification was no ratification. Hamilton must fight on.

Somehow, between that Saturday and Wednesday July 23, 1788, Hamilton and the federalists turned the tide – although just barely. Unfortunately, our principal source for the debates at the state Conventions, Elliot’s Debates, sheds no light on how they did so. It reports only that on July 23, “Mr. [Samuel] JONES moved, that the words on condition, in the form of the ratification, should be obliterated, and the words in full confidence should be substituted.”

Jones’s motion was carried by a margin of exactly two votes – 31 to 29. Among the affirmatives was none other than Melancton Smith, who just a week earlier had offered a motion that endorsed a species of conditional ratification.

The antifederalists did not give up, however. The next day, Thursday July 24, 1788, John Lansing moved to re-substitute conditional ratification:

Mr. LANSING moved to adopt a resolution, that there should be reserved to the state of New York a right to withdraw herself from the Union after a certain number of years, unless the amendments proposed should previously be submitted to a general convention.

The federalists managed to beat back this maneuver as well. Elliot’s Debates does not provide vote totals for this vote, but the margin was almost certainly razor thin.

Finally, on Friday and Saturday July 25 and 26, 1788, the federalists’ efforts reached fruition. Elliot laconically reports as follows:

The committee [of the whole] proceeded in the consideration of the amendments till

FRIDAY, July 25, 1788; when, the whole being gone through and amended, the question was put, whether the committee did agree to the same, which was carried in the affirmative.

The committee then rose, and reported.

The report of the committee being considered, the President put the question, whether the Convention did agree to the said report, which was carried in the affirmative.
The Convention then resolved, unanimously, that a circular letter be prepared to be laid before the different legislatures of the United States, recommending a general Convention.

SATURDAY, July 26, 1788. — The Convention having met, the bill of rights, and form of the ratification of the Constitution, with the amendments, were read, when the question being put, whether the same should pass, as agreed to and ratified by the Convention, it was carried in the affirmative.

The final vote was 30-27.

In the next post, we’ll consider how Hamilton and the federalists turned the tide and scraped by to victory.

"He Splits My Skull, Not in a Friendly Way"

At Millard Fillmore's Bathtub, Tim Paganos noted a few days ago that the poet A.E. Housman had translated the works of an extremely obscure Roman poet, Marcus Manilius.

In fact, Housman was an accomplished classical scholar. However, at least among students who have taken a Greek course or two, Housman is probably best known for his hilarious send-up of Athenian tragedy. Most sample from the beginning, but here's a taste from the end:

ERIPHYLE (within): O, I am smitten with a hatchet's jaw;
And that in deed and not in word alone.

CHORUS: I thought I heard a sound within the house
Unlike the voice of one that jumps for joy.

ERIPHYLE: He splits my skull, not in a friendly way,
Once more: he purposes to kill me dead.

CHORUS: I would not be reputed rash, but yet
I doubt if all be gay within the house.

ERIPHYLE: O! O! another stroke! that makes the third.
He stabs me to the heart against my wish.

CHORUS: If that be so, thy state of health is poor;
But thine arithmetic is quite correct.

Take my word for it: except perhaps for the over-the-top last line, Housman's ear for Athenian tragedy is uncanny.

The Calm After The Storm

Taken late last Sunday afternoon, as the snow/ice/freezing rain/whatever was departing lovely NW NJ.

Rabbits

For no particular reason . . .

Conditional Ratification IV

Alexander Hamilton, in Poughkeepsie, sent his letter to James Madison on July 19, 1788. I infer (based on Madison’s response) that Madison was then in New York City. Madison received Hamilton’s letter the next day – July 20 – and replied immediately.

Hamilton was seeking Madison’s opinion as to whether conditional ratification might be acceptable if no better result could be obtained. Madison responded immediately because he was sure that conditional ratification was no ratification at all:

To Alexander Hamilton [July 20, 1788]
N. York Sunday Evening

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

Conditional Ratification III

It was Saturday July 19, 1788. Depending on the time of day, the antifederalists at the New York Convention had just passed, or were about to pass, a resolution recommending “a conditional ratification [of the Constitution], with a bill of rights prefixed, and amendments subjoined.” The next step was to consider precisely what proposed amendments were to be “subjoined.”

In those circumstances, Alexander Hamilton drafted a hasty letter to James Madison seeking advice. Hamilton’s letter indicates that that he thought he was running out of options. He was continuing to fight for unqualified ratification, but he clearly believed that conditional ratification was a distinct possibility. Sounding like a man unconvinced by his own arguments, he suggested that conditional ratification might be acceptable and asked for Madison’s opinion on the subject:

Poughkeepsie,
Saturday, July [19], 1788.

I thank you, my dear sir, for yours by the post. Yesterday I communicated to [William] Duer our situation, which I presume he will have communicated to you. It remains exactly the same. No further question having been taken, I fear the footing I mentioned to Duer is the best upon which it can be placed, but every thing possible will yet be attempted to bring the party from that stand to an unqualified ratification. Let me know your idea upon the possibility of our being received on that plan. You will understand that the only qualification will be the reservation of a right to recede in case our amendments have not been decided upon in one of the modes pointed out by the Constitution, within a certain number of years, perhaps five or seven. If this can, in the first instance, be admitted as a ratification, I do not fear any further consequences. Congress will, I presume, recommend certain amendments to render the structure of the government more secure. This will satisfy the more considerate and honest opposers of the Constitution, and with the aid of them will break up the party.

In the next post, we'll see Madison's reply.

Conditional Ratification II

When we last visited the New York Convention, federalists were desperately trying to beat back antifederalist attempts to condition ratification of the Constitution on the passage of amendments. On Friday July 11, 1788, John Jay had introduced a resolution proposing ratification with recommended – not conditional – amendments. According to the skeletal outline of events set forth in Elliot’s Debates, battle raged for several days. Chancellor Robert R. Livingston and Chief Justice Lewis Morris provided support for Jay, while the wily Melancton Smith headed the antifederalist forces.

Then, on Tuesday July 15, 1788, Smith counterattacked by proposing an amendment to Jay’s motion. As set forth in Elliot’s debates, the wording of the amendment is ambiguous, but at the very least it seems to have provided that, although the Constitution would be ratified, New York would not concede federal supremacy until a convention was called and convened to consider specified amendments:

Mr. SMITH moved, as an amendment, to add to the first resolution proposed by Mr. JAY, so that the same, when amended, should read as follows: —

"Resolved, as the opinion of this committee, that the Constitution under consideration ought to be ratified by this Convention: upon condition, nevertheless, That until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof: That the Congress will not make or alter any regulation in this state respecting the times, places, and manner of holding elections for senators or representatives, unless the legislature of this state should neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises: That no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted: And that Congress shall not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies; nor then, until Congress shall first have made a requisition upon this state, to assess, levy, and pay the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner as the legislature of this state judge best; but in such case, if the state shall neglect or refuse to pay its proportion pursuant to such requisition, then the Congress may assess and levy this state's proportion, together with interest at the rate of six per centum, per annum, from the time at which the same was required to be paid."

Argument continued for the rest of the week, but the tide seemed to be flowing against the federalists. A motion by federalist James Duane for “a plan of ratification, with certain explanations, and with a list of amendments to be recommended” – but not as conditions – was rejected. Debate on Melancton Smith’s resolution continued until Saturday July 19.

On Saturday, the antifederalists apparently smelled victory. John Lansing moved to substitute a new proposal that clearly set forth a plan of conditional ratification:

[On] SATURDAY, July 19, 1788 . . . Mr. LANSING moved to postpone the several propositions before the house, in order to take into consideration a draft of a conditional ratification, with a bill of rights prefixed, and amendments subjoined.

Lansing’s motion prevailed, apparently that very day:

Debates arose on the motion, and it was carried. The committee then proceeded to consider separately the amendments proposed in this plan of ratification.

In short, by Saturday July 19, 1788, the federalists were on the ropes. The Convention, sitting as a Committee of the Whole, had approved a conditional ratification.

In the next post, I will look at Alexander Hamilton’s reaction and James Madison’s critical advice.

Presidential Enforcement of Judgments

Instapundit points out this interesting article by Will Baude entitled The Judgment Power. Here's the intro, which even includes a sexy reference to Ex Parte Merryman, for all you Abe Lincoln fans out there:

When an Article III court decides a case, and the President disagrees with the outcome, what can he do about it? Existing scholarship generally takes two views. Some scholars argue that the President has general authority to review these judgments on their merits and decide whether to enforce them. Others believe that the President has an unqualified duty to obey court judgments no matter what. This paper challenges both of those views. Drawing on conventional constitutional history as well as the private law of judgments, this paper defends a new view of the judiciary's "Judgment Power." Judgments are binding on the President, who must enforce them even if he disagrees with them. However, the President is entitled to ignore a judgment if the issuing court lacked jurisdiction over the case in question. This thesis also has implications for the role of the judiciary in the constitutional structure, and for evaluating President Lincoln's conduct in Ex parte Merryman.

40 Acres and A Mule

Via Metafilter, this looks interesting, although I haven't read it yet: The Righteous and Reasonable Ambition to Become a Landholder: What Would Have Happened if Former Slaves Had Received Land After the Civil War?

Here's the intro:

Although over 140 years have passed since slaves were emancipated in the United States, African-Americans continue to lag behind the general population in terms of earnings and wealth. Both Reconstruction era policy makers and modern scholars have argued that racial inequality could have been reduced or eliminated if plans to allocate each freed slave family “forty acres and a mule” had been implemented following the Civil War. In this paper, I develop an empirical strategy that exploits a plausibly exogenous variation in policies of the Cherokee Nation and the southern United States to identify the impact of free land on the economic outcomes of former slaves. The Cherokee Nation, located in what is now the northeastern corner of Oklahoma, permitted the enslavement of people of African descent. After joining the Confederacy in 1861, the Cherokee Nation was forced during post-war negotiations to allow its former slaves to claim and improve any unused land in the Nation’s public domain. To examine this unique population of former slaves, I have digitized the entirety of the 1860 Cherokee Nation Slave Schedules and a 60 percent sample of the 1880 Cherokee Census. I find the racial gap in land ownership, farm size, and investment in long-term capital projects is smaller in the Cherokee Nation than in the southern United States. The advantages Cherokee freedmen experience in these areas translate into smaller racial wealth and income gaps in the Cherokee Nation than in the South. Additionally, the Cherokee freedmen had higher absolute levels of wealth and higher levels of income than southern freedmen. These results together suggest that access to free land had a considerable and positive benefit on former slaves.

At Marginal Revolution, Tyler Cowen comments:

The abstract is vague on magnitudes, for more detail see pp.29-30, for instance:

The livestock calculations find that the difference in the wealth gaps was substantial, and ranged from 46% to 75%. For crop income measures, the difference in the gap was smaller, but still substantial. My estimates place it between 20 to 56%.

Baseball

Baseball has been taking it on the chin lately, not unreasonably. Here is a photo of happier times -- Honus Wagner and John McGraw sharing a quiet moment during Wagner's final season, 1917.

This is, in fact, my favorite baseball photo of all time. There's just something about it that evokes a lost world.

Sexual Integration of Combat Forces II

Last week I flagged a series of well-reasoned posts over at Volokh arguing that the integration of women into the military degraded the combat ability of our fighting forces.

Well, it looks like we're going to have a chance to evaluate the other side of the argument. Yesterday, Eugene Volokh announced that an apparently well-qualified guest blogger "will be joining us next week to present a view different from Prof. Browne's."

I, for one, am looking forward to it very much.

Bill of Rights Day

Jonathan Adler at the Volokh Conspiracy reminds me that December 15 is Bill of Rights Day. To commemorate it, I thought I'd present James Madison's speech to the House of Representatives on June 8, 1789, in which he proposed amendments to the Constitution. Ten of his proposals were ultimately adopted as the first ten amendments on December 15, 1791. An eleventh proposal was ultimately ratified two hundred one years later as the Twenty Seventh Amendment.

Madison is generally referred to as the father of the Constitution. But it's probably more accurate to say that he was the father of the Bill of Rights. Had he not pushed for amendments in the first Congress, it is entirely possible, and perhaps likely, that the amendments that became the Bill of Rights would not have been proposed to and ratified by the states.

Here, then, is Mr. Madison. I have added jumps to the relevant sections of the Constitution that Madison was proposing to amend, and to the amendments as they were ultimately ratified. It is certainly worth comparing the texts of the amendments that Madison proposed with the texts that ultimately became part of the document.

I am sorry to be accessary to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States, conformably to the 5th article of the constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfill the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subjects, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.

It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be engrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens show under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these:

First. That there be prefixed to the constitution a declaration —

That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 2nd. section 2, clause 3, these words be struck out, to wit, "The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made." And that in place thereof be inserted these words, to wit, "After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto."

Thirdly. That in article 2nd, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, "But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives."

Fourthly. That in article 2nd, section 9, between clauses 3 and 4, be inserted these clauses, to wit,

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2nd, section 10, between clauses 1 and 2, be inserted this clause, to wit: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That in article 3rd, section 2, be annexed to the end of clause 2nd, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to___dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3rd, section 2, the third clause be struck out (see Constitution 3.2.3), and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

The first of these amendments, relates to what may be called a bill of rights; I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the government and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great-Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find the although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people.

In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it, that no law, varying the compensation, shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, "No state shall pass any bill of attainder, ex post facto law, &c." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the supreme court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controversy amounts to a particular sum: This, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the constitution, that the powers not therein delegated, should be reserved to the several states. Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentlemen will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the constitution of the United States. By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.

Conditional Ratification I

I thought I’d devote a few posts to examining the events leading up to New York’s ratification of the Constitution. Those events – and particularly the struggle that developed over conditional ratification – shed light on whether the delegates understood that a state, having ratified the Constitution, could later secede.

Let's begin by setting the stage.

By the second week of July 1788, the New York Convention was nearing conclusion. Although the Convention had received word that New Hampshire and Virginia had become the ninth and tenth states to ratify – meaning that the new Constitution would go into effect with or without New York – the chances that New York would ratify remained in doubt. New York Anti-Federalists, headed by Governor George Clinton, continued to wage a determined campaign. The Federalist contingent, led by Alexander Hamilton, desperately sought to rebut the numerous objections raised.

The Anti-Federalists seem to have signaled early on that were planning to suggest, among other things, that ratification be made conditional on the passage of amendments proposed by the New York Convention. As early as June 21, 1788, Hamilton had written to James Madison predicting that “[t]he object of the [anti-federalist] party at present is undoubtedly conditional amendments.”

On July 8, 1788, Hamilton reported to Madison that the clause-by-clause analysis of the proposed Constitution was concluded. The anti-federalists were about to make a move. Hamilton expected that the anti-federalists might propose, among other things, “conditions subsequent, or the proposition of amendments, upon condition that if they are not adopted within a limited time, the State shall be at liberty to withdraw from the Union:”

We yesterday passed through the Constitution. To-day some definitive proposition is to be brought forward, but what, we are at a loss to judge. We have good reason to believe that our opponents are not agreed, and this affords some ground of hope. Different things are thought of—conditions precedent, or previous amendments; conditions subsequent, or the proposition of amendments, upon condition that if they are not adopted within a limited time, the State shall be at liberty to withdraw from the Union; and, lastly, recommendatory amendments. In either case, constructive declarations will be carried as far as possible. We will go as far as we can in the latter without invalidating the act, and will concur in rational recommendations.

On Thursday July 10, 1788, anti-federalist John Lansing introduced precisely such a proposal: “Mr. LANSING submitted a plan of amendments, on a new arrangement, and with material alterations. They are divided into three — 1st, explanatory; 2d, conditional; 3d, recommendatory.”

The next day, Friday July 11, 1788, the federalists countered. Hamilton’s cohort John Jay proposed that the Constitution should be ratified; if the Convention wanted to propose amendments, that was fine, but they should be proposed as recommendations only, and ratification should not be conditioned on their enactment:

Mr. JAY moved the following resolutions: —

"Resolved, as the opinion of this committee, that the Constitution under consideration ought to be ratified by this Convention.

"Resolved, further, as the opinion of this committee, that such parts of the said Constitution as may be thought doubtful ought to be explained, and that whatever amendment may be deemed useful, or expedient, ought to be recommended."

Henry Clay, President

Over at Civil War Talk some time ago, another member asked a "what if" question: how would history have changed if Henry Clay had been elected president? Could the Civil War have been avoided? What follows is a slightly modified and expanded version of my answer.

Boy, that's a tough "what if." I suppose the first issue is, when is it that Clay would have been elected? In my view, Clay's best chance of winning the presidency probably came in 1840 -- the year he wasn't nominated. This appears to be the opinion of both Michael Holt and Merrill Peterson.

The Whigs held their convention at the beginning of December 1839. Clay had a plurality of the delegates on the first ballot, but Harrison ultimately garnered the nomination. There was a brief economic recovery in late 1839, and the perception at the time was that Harrison was more electable. In 1840, the economy collapsed again. If the Whigs had held their convention in mid-1840, the Whigs' concerns about electability would have been less, Clay would likely have been nominated and would likely have won.

Here's Peterson on Clay's reaction to his loss of the nomination and his chances of winning if he had been nominated:

Hearing the news at his hotel room in Washington, Clay could not conceal his disappointment. "My friends are not worth the powder and shot it would take to kill them," he reportedly said. "I am the most unfortunate man in the history of parties: always run by my friends when sure to be defeated, and now betrayed for a nomination, when I, or any one, would be sure of election." In this latter judgment he was undoubtedly correct. Regardless of his political liabilities, the Democratic depression combined with the appeal of the Whig economic program would have assured Clay's election in 1840.

So what would have happened if Clay had taken the presidential oath in March 1841, rather than Harrison (who died within a month and was succeeded by John Tyler)? Certainly Clay as president during 1841-45 would not have pressed for the admission of Texas as Tyler did during the latter half of his presidency, but after that it's hard to say. Would Clay have been re-elected in 1844? Presumably, the Whigs would have enacted their full economic package of legislation in 1841 under Clay, but there is no particular reason to think it would have speeded economic recovery. Would voters have become disenchanted and thrown the scoundrels out in 1844? Or would they have given Clay and the Whigs a second term in the belief that things were moving in right direction, however slowly?

Clay got the nomination in 1844, but his stance on the annexation of Texas lost him the election after the Democrats dumped Van Buren (who shared Clay's views on annexation) for Polk. Would the Dems have hit upon the same magic formula in our hypothetical world? Impossible to know. Assuming that they did not, let us posit that Clay remained for two terms, through March 1849. Then you're in such a different world that it's hard to know what would have happened. The economic recovery was well underway by 1848. Would the Whigs have gone from triumph to triumph based on their economic record? And if so, with whom? (Not Zach Taylor! Millard Fillmore?) Or would the Dems, desperate for victory, and anxious to avoid economic issues, have used Texas as their springboard to victory in 1852?

Meanwhile, none of this would have necessarily derailed the approaching crisis over Kansas. Perhaps if the Texas and Kansas issues had peaked at the same time, the war would have come sooner! Or perhaps not.

My head is spinning . . . .