Growing the Constitution of
Prelude: Magna Charta in 1215
Iroquois Nations Constitution in 1500
Mayflower Compact in 1620
Conservatism vs. Progressivism
17th-century Liberalism came from John Lock and other Age of Enlightenment philosophers. 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 onminimal 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 initiated all revenue legislation. 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 1) 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) An examination of the Framers’ arguments as to how the US Supreme Court would function: The Federalist Papers No’s. 78, 79, and 81
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 bythe people and an
electorate consisting of
citizens that are
2. Maintaining A Republic
Americas Democracy had a difficult political beginning because ofthe 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 stateliberalism 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
Rulings Established Power Centers-partial list
Sovereignty of Federal Government Over Sates Governments
Protection Individual Rights From Arbitrary Governmental Actions
1810 Fletcher v. Peck affirmed inevitability of contracts between individual and between governments.
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
1876 U.S. v. Cruikshank ruled protection of rights were protected from state law infringement not from individuals.
1928 Olmstead v. United States allowed wiretapped without judicial approval reversed 12/18/67
Supreme Court as "Supreme Constitutional Authority"
Some Just Took Power
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.
Post WW 2 Power Grab
A. Conservatives are Winning the Battle
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.
1945 Foundation for Economic Education began the push for Laissez Fair Capitalism. Business Interest decided to unite after Conservative L. Johnson accomplished J. Kennedy Liberal Agenda.
1971 Powell Manifesto, a memo from soon to be Supreme Court Justice in which Louis Powell advised the Chamber of Commerce that it had to organize businesses into a political force because, he claimed, corporations and the free market system were “under broad attack, ..."
1972 Business Round Table created to encourages business political activity.
The Chicago Boys represented another consortium fostering neoliberal/conservative economics.
982 "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 the Republican Party Took Over the Supreme Court
Supreme Court Confirmation Fights
A brief history of the Judiciary under
B. The Liberal Response
Democrats answered with the 1969 McGovern Commission which reformed the rules that would govern the 1972 Democratic convention. It attempted to give greater influence to those in the past that had a marginal voice, mainly women, blacks and young people (defined as those under 30). The choice of McGovern indicated a new direction for the party's primary constituency, affluent, very well educated suburban liberals.
The history of this new direction is explored by Thomas Frank Listen Liberals. Success is earned with merit, the ability to win in a globalized world. These highly educated technocrats were also described by George Friedman in his 2020 book, The Storm Before the Calm: America's Discord, the Coming Crisis of the 2020s, and then Triumph Source Source 1 Source 2
C. Swing Votes exemplify our "managed constitution."
Current swing voteis Justice Sandra Day O’Connor was 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 agreementsand court decisions that determine how those documents were to be interpreted.
Controversial decisions needing a swing vote exemplify our "managed constitution."
Court expanded corporate personhood by including money as political speech in a group of decisions that led to citizens United v. Federal Election Commission.
Bush v. Gore decided the 2000 electionby 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. Barre Seid, an electronics manufacturing mogul, donated $1.6 billion to a new conservative nonprofit group for 2021 campaigns. The cash infusion was arranged through an unusual series of transactions that appear to have avoided tax liabilities.
D. Many Legislative Challenges
Increased Legislation reversal led
to more Nuclear Options.
This leads to easier approval by
a mere majority.
E. Judicial supremacy began with
Marbury v. Madison.
Political Discussion Had
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
allowed for the separation of individuals from oppressive
In Everson v. Board of Education (1947), Justice Hugo Black clearly proclaimed that the “First Amendment has erected a wall between church and state. In hopes of bringing some clarity to its Establishment Clause jurisprudence, justices created an analytical test in Lemon v. Kurtzman (1971). The Lemon Test permits laws and policies that benefit religion if they have (1) a secular purpose; (2) do not have a “principal or primary effect” of advancing or inhibiting religion; and (3) do not foster “an excessive entanglement between government and religion.” Supreme Court Justices have used it to strike down and uphold a variety of very similar practices,
Since the mid-1980s, largely
at the urging of Justice
Sandra Day O’Connor, some
jurists have held that the
Establishment Clause is best
understood as prohibiting
governments from doing
things that a reasonable
observer might understand to
be endorsing religion.
is sometimes merged with the
Lemon Test, as it was by the
U.S. Fourth Circuit Court of
The American Legion v.
In spite of, or because of,
all of these tests, many
observers agree with
Justice Clarence Thomas’s
remark last year
that “this Court’s
jurisprudence is in
E. Trump’s SC nominee battles continue
6. Appointing New Justices Always a Battle
See Controversial Supreme Court Nominations Through History
7. Continuing Questions Developed return to top
1) Property vs. individual rights went to property
until Gilded Age
2) Which Rights? To what degree should government be involved
with protection of individual natural rights.
economic and social equality
8. Did You Know
Democracy and a Republicsare often used interchangeably though they represent two different
political philosophies. A 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".
Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state.