Managing the United States Evolving Constitution

Return to U.S. History and Political Economy    10/15/18         Please link to, use to educate and 

Prelude: 1215 Magna Charta    1500 Iroquois Nations Constitution   1620 Mayflower Compact

Our Founding Fathers Feared Direct Democracy

Maintaining our Republic Required Compromise

The Power Grab Begins

Recent Supreme Court Managing Efforts

Five Recurring Themes of Political Discussions.

Three Continuing Questions Developed

Court Challenges Legislature

Roe v. Wade poisoned our politics

Did You Know

In The News

The Constitution: An Enduring Document


Our Founding Fathers Feared Direct Democracy

Age of Enlightenment philosophers like. He argued that each man had natural rights of equality, liberty, property, the necessity of consent, and limited government. These beliefs began a U.S. political discussion which centered on minimal state liberalism (today's conservatism) vs. active state liberalism (today's liberalism).

The US constitution was seen as very important because republican government had not succeeded due to an inability to limit majority power. Our Founding Fathers designed the constitution to promote political stability and control majority factions. Change would not be easy.

Controls included Separation of Powers in that authority was divided among three branches of government, the legislature, the President, and the courts. Within the legislature, power was again separated such that the Senate could stop a bill passed by the House of Representatives which initiates all revenue legislature. The President could veto a Congressional bill, Congress could override said veto with a 2/3 vote, and the Supreme Court soon found it could stop the President and Congress by declaring a law unconstitutional.  See Marshals 1803 Power Grab which created a third separate power. These checks and balances among government branches were to protect minority rights from majority factions.

The Electoral College was another control over concentration of power. Some founder/delegates to the Constitutional Convention feared Direct Democracy. What became known as the Electoral College was a compromise between a true Republican election by the people and an electorate consisting of citizens that are more qualified. However, there were other reasons. Slave states with large populations but far fewer eligible voters wanted a compromise like the one used to determine state House of Reprehensive representation. This 3/5 comprise counted some slaves as population for representation purposes.  High population states such as Virginia which had many House of Representative members would also have a large number of Presidential electors. House members were not used as electors because maintaining presidential independence would be difficult if a small continuingly elected group like Congress electing the President. See Americans Are Poorly Informed About Basic Constitutional Provisions



Maintaining Our Republic Required Compromise return to top

Americas Democracy had a difficult political beginning because of the violence and anarchy of the 1789-99 French Revolution. Many Americans were uneasy about their republican democracy. This helped Federalist and their active state liberalism ruled to control national politics.

A new tax was the first of many major controversies. It came when Secretary of the Treasury Alexander Hamilton orchestrated the 1789 import  tax. Many believers in minimum state liberalism were unhappy. The tax revenue was needed to pay Revolutionary War debt of both state and federal governments. Relative to GDP, it was the largest federal debt to exist until 1933 when revenue collapsed causing D3 (deep-do-do). Thus Hamilton began the continuing practice of increasing taxes (though not enough) to pay for war. Repayment of resulting long-term debt was spread over many years allowing repayment in cheaper inflated dollars. This minimized, some would say postponed, the Nation's financial sacrifice.

A new practice of refinancing principal with new bonds to pay  maturing bonds began after WWI. Some call this passing debt to our children but it has been seventy-five years and none has been paid. In terms of today's dollars, the WW2 created debt could be considered minimal.

The practice of lowering taxes during war began when Bush II cut taxes while starting two wars. He also expanded the social safety net by creating Medicare Part D. This added to our large future liability compared to Social Security because changing demographics will solve potential SS liabilities.

Hamilton to the dismay of Jefferson, also began the practices of the federal government paying state debt. Source      

Philosophical change, which would happen often, began with Jefferson when he purchased Louisiana even though he believed in minimal state liberalism. Others, Jackson being the most notable, followed minimal state liberalism. Then Lincoln used a strong federal government to preserve the Union. This lasted until the end of reconstruction when limited government helped by the Supreme Court fostered the Jim Crow Laws and the Gilded Age. The court did so by making owner property rights more important than worker personal liberties.

The new century brought Progressivism from Teddy Roosevelt and Windrow Wilson. Both believed in active state liberalist. The First Red Scare and unionism following WW I brought back minimal state liberalism. The Great recession allowed FDR to use active state liberalism to tame our Greatest Depression. Active state liberalism ended with the Second Red Scare. We need guns not butter. The Korean War and The Cold War contributed to the feeling  we needed security more than individual liberty. The 1962 Kennedy assassination gave LBJ the support needed to pass The Great Society anti-poverty programs. Active state liberalism was back. Stagflation of the 1970's allowed Ronald Regan to reverse course. He blamed active state liberalism for creating  excess government regulation which slowed the economy.

A new century brought back Active State Liberalism. First another Scare, this time from terrorism made maximize public safety more important than. Active State Liberalism returned to solve the Great Recession which required government corporate bailouts and health care expansion. 



The Power Grab Begins

Nine Supreme Court Rulings Allocated Political Power
John Marshall Chief Justice Who Saved the Nation by H.G. Unger

Rulings Established Power Centers

  1) Sovereignty of Federal Government Over Sates Governments  
  1809 U.S v. Peters  Supreme Court (SC) voided a State Law.
1816 Martin v. Hunter Lessee
ruled supreme Law of Land SC could void state court decisions.
McCulloch v. Maryland limited state power by granting implied power to the federal government.
1834 Gibbons v. Ogden declared state sponsored monopolies involving interstate commerce illegal
1896 Plessy v. Ferguson legalized  many
state public facilities segregation laws using the "separate but equal" doctrine.

1905 Lochner v. New York court took control of worker hours from the states. Business was happy.
1937 West Coast Hotel Co. v. Parrish court allowed a state minimum wage ending the Lochner-era.
  2) Protection of Individual Rights From Arbitrary Governmental Actions  
  1810 Fletcher v. Peck affirmed inevitability of contracts between individual and between governments and individuals.
1819 Dartmouth College v. Woodward protected contractual property rights from arbitrary governmental seizure
1821 Cohens v. Virginia extends SC protection to every citizen in every court of the land
U.S._v. Cruikshank ruled for individual rights of government constitution protection. Jim Crow laws were legal.
  3) Recognizes Supreme Court as "supreme in the exposition of constitution"    
  1803 Marbury v. Madison granted Judicial Review  power to the Supreme Court
1832 Worcester v. Georgia President uses federal troops to back SC decision concerning Georgia's Cherokee laws.
  4) Protecting Business  
  1877  Munn v. Illinois 1877 upheld the power of government to regulate private industries.
1895 Pollock v. Farmer's unapportioned income taxes on interestdividends and rents as direct taxes, were unconstitutional          1895 U.S. v. E.C. Knight,  the "Sugar Trust Case," limited government's control of monopolies.
2010 Citizens United decision, which determined that election-spending regulations restrict the right of corporations to free speech.


Some Just Took Power
Presidential Power Grab
1789 Washington let Treasury Hamilton borrow without the required Congressional authority.
1991 Washington
used Federal troops to fight Indians without Congressional declaration of war.
1791 Washington's
unauthorized proclamation,  troops to stop Pennsylvania Whiskey Rebellion.

1803 Jefferson
ignored Constitution when buying Louisiana.

1828- Jackson made massive use of the presidential veto, expanded executive power at the expense of Congress and refused to enforce a Supreme ruling. See Reforms rotation and a spoils system

Congressional Power Grab   
1798 Alien and Seditions Act attacked anti-federal government activist by eliminating their Bill of Rights.
1801 Judiciary Act ignored the Constitution and removed Federal judges. Reversed by 1802 Judiciary Act.



Recent Supreme Court Managing Efforts

Justice Sandra Day O’Connor preceded Justice Anthony
Kennedy as the “swing vote” votes of the Supreme Court.

Some feel a swing-vote brings greater responsibility
because their existence come into being in close and
therefore consequential decisions.

This generation has seen Justices O’Connor and Kennedy
cast the deciding vote making said decision possible and
 in doing so kept alive the Court’s non-partisan legitimacy.
For two generations the court has  made decisions that
changed the original written document, plus its amendments,
plus the sum of all unwritten agreements and court decisions
that determine how those documents are to be interpreted.

These two controversial decisions needing a swing vote
exemplify our "managed constitution."

First the court expanded corporate personhood
by including money as political speech in a group of decisions that
led to Citizens United v. Federal Election Commission.

The second swing vote in Bush v. Gore.
awarded the 2000 election to Bush 2 and Cheney.
Some feel the courts legitimacy was hurt because
the ruling followed along partisan lines.

Source Anthony Kennedy and Our Delayed Constitutional Crisis

by Gaius Publius, a professional writer living on the West Coast of the United States
and frequent contributor to Down WithTyranny, digby, Truthout, and Naked Capitalism.
Follow him on Twitter @Gaius_PubliusTumblr and Facebook.
GP article archive  here. Originally published

See Ideological Leanings of Supreme Court Justices
shows liberal leanings through history

Right Side of History: The 7 Biggest Supreme Court Political Controversies
Controversial Supreme Court Cases

Law Cases and Controversies podcasts 

Third, The Court Challenges Legislature

Since 1806, the Senate tradition has not restricted debate time.

Was done to protect the rights of the minority?

In 1917, it required 2/3, LATER 3/5 majority to end debate ("cloture").

So today, 40% can force continued debate, i.e.
A failed cloture can lead to a "
Nuclear Option" where
a simple majority can force a final vote and resolution.

Before 1900 Court reversed
Legislation 5 times
20th Century Court reversed
Legislation about once a term.
21st Century Court reversed Legislation 4-5 time a term

Increased Legislation reversal led to more Nuclear Options.
It allows a simple majority to force process completion.

This leads to easier approval by a mere majority.
It also leads to a more contentious ratification process
and more polarized court decisions.



  Political Discussion Had Five Recurring Themes return to top

1) American Exceptionalism exists because the country
was formed at a unique time and place. This allowed
America to be special with a responsibility to provide an
appropriate government example

2) The dynamic flexibility of America Liberalism

allowed concepts concerning individual rights to
adjust as required by evolving circumstances.

3) The reconstitution of American government,
first with Jefferson, then after  the Civil War,
and following the New Deal though other less
significant  though important reconstitutions have
been beneficial  though controversial.

Think Kennedy, Reagan, and Trump

4) An expansion of "we the people"
from white men of property, to white men,
to all men, to all citizens, and recently
continued with the addition sexuality. 

5) Geographic Space
allowed for the separation of individuals from
oppressive government, religion,
and potentially tyrannical organizations.
Some feel modern America has lost some of this space.
Cycles of American Political Thought  
The Founders Constitution
for writings about the U.S. constitution.


  Three Continuing Questions Developed return to top

1) Property vs. individual rights was won by property until excesses of
the Gilded Age caused much public reaction leading to worker protection.

2) To what degree should government be involved with the protection of
protecting individual's natural rights.
Which Rights?

3) What amount of property taken through taxes should be used to foster
 individual economic and social



  Did You Know  return to top

Democracy and a Republics are often used interchangeably though they represent two different political philosophies.
Republic has "power controlled by the people."
A "Democracy begins with
Majority Rule."
Minority rights are protected against factions by a separation of powers and a constitution.

Founding father Madison ...defines a faction as "a number of citizens, whether amounting to a minority or majority of the whole,
who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community".

Federalist George Cabot of Massachusetts feared "...the terrible evils of democracy..." and felt Jefferson was unstoppable..." From p368 of Thomas Jefferson:

5 Times the Electoral College Went Against the Popular Vote video     Source

Has a U.S. Supreme Court justice ever been impeached?

A Machine That Would Go of Itself: The Constitution in American Culture.

In The News

Heritage’s preview of the cases on the Supreme Court’s 2018–2019 docket

Kavanaugh's Crusade Against Agency Abuse

These 6 Cases Show How Brett Kavanaugh's Might Rule on Religious Freedom

How Robert Bork's Failed Nomination Led to a Changed Supreme Court

How the Koch brothers built most powerful rightwing group you've never heard of






Michael Barone

New York Post

Today’s “partisan chaos” is a direct result of Roe v. Wade, said Michael Barone. The all-out war over Brett Kavanaugh’s appointment to the Supreme Court would not be so heated if people on both sides didn’t think Roe might be at stake. In 1973, 16 states with 41 percent of the nation’s population had already liberalized their abortion laws, and America would have had different laws in different regions, depending on the democratic process. But then seven justices delivered “an unusually sweeping” ruling that made abortion legal in almost all circumstances—and the country’s defining wedge issue. While public opinion on



cultural issues like same-sex marriage has shifted markedly this century, “opinion on abortion has scarcely budged.” It’s hard to win converts on such a fundamentally moral issue about “the way people live their lives”: Pro-choicers, who are largely secular, think their “personal autonomy” is at stake, whereas pro-lifers, who are mostly religious, believe abortion amounts to “extinguishing human lives.” Rather than settle the abortion debate, Roe inflamed it because neither side believes it can afford any compromise. As a direct result, every Supreme Court nominee battle has literally become a matter of life and death.


Evolution of the Supreme Court

The nation's highest court dominates our politics. But it didn't start out so powerful. Here's everything you need to know:

How did the Founders view the court?
Framers devoted relatively little energy to the judiciary, leaving its powers mostly vague and undefined. Alexander Hamilton argued that the judiciary would be the "least dangerous'' branch,with the court's power resting in its prestige.  Supreme Court heard only four cases. when John Jay, the first chief justice, resigned becausethe court lacked "energy, weight, and dignity."

When did that change?
With John Marshall the fourth chief justice appointed in 1801, he began carving out a more prominent role. Marbury v. Madison (1803 Marshall asserted the court's power to strike down laws passed by Congress as unconstitutional as the  ".duty of the judicial department to say what the law is," It established  judicial review as a keystone of constitutional law.The court repeatedly held federal laws superior to state laws. T  "The constitution," an upset Jefferson wrote, "is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

Who succeeded Marshall?
After 34 years Marshall gave way to Roger B. Taney, who came from a family of slaveholding Maryland tobacco planters. Dred Scott v. Sandford (1857), the court ruled against Dred Scott, an enslaved man from Missouri who sued for his freedom  Scott, a black  "...had no rights which the white man was bound to respect." It also ruled the federal government could not restrict slavery expansion striking down the Missouri Compromise of 1820.


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of The Week magazine.

Damon Linker


The American left is understandably angry and alarmed at the prospect of the right securing a solid majority on the Supreme Court for the next generation. That this majority is largely a product of Mitch McConnell's norm-shredding thuggishness and the counter-majoritarian vagaries of the Electoral College only makes it more galling.

But that doesn't mean it makes sense for the left to turn on the institution of the court itself, as growing numbers appear ready and eager to do.

The most self-defeating proposal making the rounds on the left advocates a return to one of the most asinine ideas in American political history — FDR's effort to "pack" the court with sympathetic justices by adding to the total number of seats and appointing liberals to them. The problem with this scheme, quite obviously, is that once one party packs the court, the other party is bound to do the same the next time it gains power, producing an institution that would quickly come to resemble a third house of Congress with dozens of justices and no legitimacy at all. In no time, red states would refuse to abide by Supreme Court rulings favored by liberals, while blue states would do the same with conservative rulings, leaving the institution in tatters.

If the ultimate goal is to eviscerate the Supreme Court, then initiating this kind of death spiral makes a kind of perverse sense. But the left would be foolish to go down that path.


eginning with Marbury v. Madison — the landmark 1803 decision that established the principle of judicial review, giving the Supreme Court the final say in constitutional disputes — the court has played a crucial second-order role in our political system. Whereas Congress and the presidency pass and execute laws and regulations, drawing their authority to do so from the results of various forms of democratic election, Supreme Court justices get to determine which rules of the political game are constitutionally acceptable, and they do so with very little democratic accountability.

Note, though, that "very little" isn't none. Supreme Court justices aren't elected, and they have lifetime terms. But which party gets to place a justice on the court is primarily a function of which party wins the presidency and control of the Senate. (Luck also plays a large role, since seats open up only when a justice dies or retires.) This immense power to overturn democratic will, combined with limited but real (if indirect) democratic say in who gets to wield it, has led to ideologically oscillating cries of frustration and fury against the court down through the decades and centuries.

From the Dred Scott decision of 1857, which helped to precipitate the Civil War, to Plessy v. Ferguson (1896), which entrenched the Jim Crow system of racial segregation in the South, and the series of decisions against the New Deal that inspired FDR's misbegotten court-packing scheme in the mid-1930s, conservatives tended to prevail on the court, angering generations of progressives, liberals, and other reformers of the left.

This began to change with FDR's appointments and reached an apex with the Warren and Burger courts during the 1950s, '60s, and '70s, when liberalism ruled the day on the Supreme Court no less than in America's political culture as a whole.

The pendulum began to swing back again once Ronald Reagan made his first nominations to the court and Warren Burger was succeeded by conservative William Rehnquist as chief justice in 1986. But on several of the most polarizing issues, the shift has been slow. So slow, in fact, that by 1996 the pro-life faction of the conservative movement had begun to talk about a possible "end of democracy" in the United States, as the democratic will of the country's Judeo-Christian majority, reflected in 12 years of Republican presidential election victories and six nominations to the high court, had failed to produce a reversal of ideological direction on social issues (especially abortion).

Nineteen years later, Justice Anthony Kennedy (a Reagan appointee) authored the 5-4 majority opinion in Obergefell v. Hodges, which declared same-sex marriage a constitutional right and overturned laws upholding traditional marriage in states across the country. For the right, this was just the latest in a long line of decisions that displayed outright contempt for social-conservative public opinion and a willingness to substitute the ideological fiat of Supreme Court justices for democratically enacted laws.

In other areas of the law — voting rights, gun rights, campaign finance — the court has moved right more quickly and fully, producing a growing chorus of outcries from the left. But only with President Trump's nomination of Brett Kavanaugh to succeed the retiring Justice Kennedy, with the constitutional basis of women's reproductive rights hanging in the balance, has it become common for analysts and activists on the left to begin echoing the right's longstanding charge of incipient judicial tyranny.

There's a very good reason why the left has so far been hesitant to go down that road. From Brown v. Board of Education on through Griswold v. ConnecticutRoe v. WadePlanned Parenthood v. CaseyLawrence v. Texas, and Obergefell, the Supreme Court has handed liberals victories that are far more sweeping and absolute than they would likely have enjoyed had they attempted to win majority support in the population at large for their preferred policies. The Supreme Court has benefitted liberals enormously.

That's what makes today's (perhaps short-lived) liberal hostility to the Supreme Court so bizarre. For decades, the left has warned about the dire consequences likely to follow from the overturning of RoeCasey, and other decisions that have constitutionalized aspects of social liberalism. Those warnings carried force because the breadth and depth of democratic support for such liberalism was (and is) far from clear. Yet in anticipation of a conservative majority on the court reversing these landmark decisions, some have decided to make a virtue of this potential catastrophe by insisting that, actually, placing bedrock constitutional rights up for a democratic vote would be a splendid idea — presumably because it would make their foundation more secure and legitimate.

That's true — but only if these policies prevail in the court of public opinion. Let's just say that in a country that just two years ago elevated Donald Trump to the White House while also handing both houses of Congress and a substantial majority of state houses to Republicans, it's highly uncertain that they will. (If a positive outcome of such a battle for women's rights was obvious, liberals would presumably have an easier time of winning elections and thereby placing unapologetic liberals on the Supreme Court — rendering the whole debate moot.)

If Roe and Casey are overturned by a newly minted socially conservative majority on the Supreme Court, liberals will need to fight a host of new battles in the democratic arena. That may ultimately lead to outcomes the left can cheer. But let's not delude ourselves into believing that it's better to be forced to fight for fundamental rights than to have them recognized by the nation's highest court as constitutionally inviolable.

Sometimes it's just better to win.


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origionalism and textualism vs flexiable i terpretitionaent the people

court mimicking president  makes court unecessaru

President = holds swoard. war

Congress the purse laws for donors

court least dangerouse more insediouse

and it is unelected

How did become most dangerouse