Prelude 1215 Magna Charta   1500 Iroquois Nations Constitution     1620 Mayflower Compact

Return to American History 4/7/19


1. Founders Feared Direct Democracy   2. Compromise Required

3. The Power Grab Begins   4. Recent Managing Efforts

5. Recurring Political Themes   6. Continuing Questions

7. Roe v. Wade Poisoned Politics   8. Did You Know

9. In The News    10. The Constitution: An Enduring Document


1. Founders Feared Direct  


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

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.

2. Compromise Required

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 began the practices of the federal government paying state debt.
This dismayed Jefferson since Virginia had paid state debt.


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. 

See Concise Evolution of the Supreme Court

Magna Carta Influence in the U.S. Constitution


You have to teach gratitude
which is not natural to the Human Brain.
It is young, often ruled by the Mammalian Brain
and the Reptile Brain. This leads to dissatisfaction.

Important Items need special attention.
Everything is special to someone but
gender attitudes have changed
abortion attitudes have not changed.
Abortion is thus, by definition, an Important Item.
The Supreme Court should allow more time for a
consensus to build and leave the Row/Wade battle
between individual and relegiouse rights to each state.


3. 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
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 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 protection of rights were protected from state law
         infringement not individuals. Discrimination by others coming from Jim Crow Laws were legal.

  3) Supreme Court as "Supreme Constitutional Authority"    
  1803 Marbury v. Madison granted Judicial Review  power to the Supreme Court
1832 Worcester v. Georgia President uses federal troops to back S.C. 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.


  Citizens Power Grab
How Conservatives Took Control of the Courts

"The right has demonstrated that winning this kind of institutional fight takes years,
even decades, and requires a ruthless disposition."

Conservatives invested heavily in organizations that would nurture and support lawyers and justices who stuck to an “originalist” interpretation of the Constitution. This means their understanding is theoretically derived from the original meaning of the Constitution at the time it was written.

"A consortium of students and professors based at Yale Law School founded the Federalist Society in 1982" to helped recruit and provide career support for bright legal minds.  It provided social-professional networks to connect law students with influential senior mentors. Reagan's Attorney General Edwin Meese helped with the administration’s selection of 400 federal judges using ideological profiling that made a conservative criteria important. Meese succeeded in the selection process and convinced many they were fulfilling founding father intentions. The Institute for Justice, the Center for Individual Rights and rightward philanthropists/organizations Joseph Coors, Charles, David Koch, and the Olin Foundation contributed much money to law schools like George Mason University. Schools with supportive of conservative professor whose research and ideas would educate students.

How Conservatives Won the Battle Over Government

Prelude: Conservative President L. Johnson accomplished J. Kennedy Liberal Agenda changed the game.

Uniting Business Interest

1971 Powell Manifesto from soon to be Supreme Court Justice Louis Powell

"Though Powell’s memo was not the sole influence, the Chamber and corporate activists took his advice to heart and began building a powerful array of institutions designed to shift public attitudes and beliefs over the course of years and decades. The memo influenced or inspired the creation of the Heritage Foundation (1972)... Cato Institute(1974) ...." There success was enhanced by the Reagan Administration’s “hands-off business” philosophy.

1972 Business Round Table created to encourages business political activity.

The Chicago Boys represented a similar consortium fostering neoliberal (conservative in US) economics.

  Senate Majority Leader Mitch McConnell (R-Ky.) on Wednesday used the so-called "nuclear option" to bypass a 60-vote threshold to advance lower-level executive branch nominations, allowing the nominations to be moved along with a simple 51-vote majority. He then used Senate procedural tactics to limit debate and push through President Trump's non-Cabinet-level executive and district judgeship nominations.  McConnell used the tactics on Supreme Court confirmations to get Neil Gorsuch and Brett Kavanaugh confirmed. Politicians long avoided going nuclear, until 2013 when Senate Majority Leader Harry Reid (D-Nev.) invoked it to confirm then-President Barack Obama's Cabinet and district judge nominees. [NBC News] 4/4/19 Video see gop-deploys-nuclear-option  

4. Recent 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, its amendments,
all unwritten agreements and court decisions that determine
how those documents were to be interpreted.

The following controversial decisions that needed
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.

Second Bush v. Gore decided the 2000 election
by awarding it to the second place finishers 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 With Tyranny, 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, Many Legislative Challenges

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.

Marbury v. Madison created Judicial Review
by using an implied power to ruled a federal
law unconstitutional. Thus began a continuing
march toward  Judicial supremacy.

Two decades later a legislative limit to the spread
of slavery legislated by the Missouri Comprise
was declared unconstitutional because it denied
slave holders a constructional property right without
due process.


5. Recurring Political 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  

See  The Founders Constitution 
for writings about the U.S. constitution.




The Constitution was intended to:

Limit the power of political/financial elites over the government and the citizenry

Lower the intrinsic risks of an all-powerful state

Decrease dominance by one branch of government

Lower the Risks of a financial elite corrupting the state.


The Constitution failed to place limits on



Federal Agencies

Financial elites


The Constitution has failed in three ways:


Corporate/elite interpreted/filtered what is in the public interest.

The Federal Reserve has the power to debauch the currency rewarding

people of their choice via issuing new currency and buying Treasury bonds.

The National Security State consisting of the FBI, CIA, NSA et al.

answer to themselves, not to the public or their representatives.


How can citizens protest their loss of representation?

Elections provide the bread-and-circuses staged drama that is

passed off as democracy as the corporate/state media coverage,

of course, is to foster the illusion that elections really matter.


The National Security State grinds on, the Federal Reserve

grinds on and the dominance of corporate-wealth elites grinds on

regardless of who's in office.


Every emergency is met by the ceding of more power to unelected elites

in positions to serve their own interests.


The Cold War, financial panics, Cold War Redux--every crisis is an excuse

to expand the powers of the unaccountable, opaque states-within-a-state.

Summary Let's Face It: The U.S. Constitution Has Failed  24 February 2019 by Charles Hugh Smith, Of Two Minds

It does not contain much of the inflammatory language.

Editor's Note:
This brief Supreme Court Study is intended to demonstrate
how there is little new about the author's complaints.


6. Continuing Questions 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

See Justice a free internet course



In The News

The Supreme Court could face a ‘legitimacy deficit’

Four out of five conservative Supreme Court justices were appointed by presidents who lost the popular vote.

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

Before Trump v. Roberts: 3 Biggest Clashes Between a President and a Chief Justice


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 circumstancesand 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.




  California and a coalition of 20 states on Monday separately announced lawsuits seeking to block the Trump administration from changing the Title X family planning program. The lawsuits ask courts for an injunction against a rule, set to take effect in 60 days, that would shift millions of dollars from Planned Parenthood toward faith-based clinics and prohibit federally funded family planning clinics from operating in the same space as an abortion provider.  
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.



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 because the 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. Sanford (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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