How a Republic Dies

ROME (Vorenus)

by Diane Rufino, December 30, 2013

One of my all-time favorite HBO series is ROME, starring Kevin McKidd and Ray Stevenson.  Borrowing on a theme similar to Forrest Gump, the series follows the journey of two men in Julius Caesar’s Roman legion who seem to find themselves making history wherever they go. The soldiers are Lucius Vorenus (McKidd) and Titus Pullo (Stevenson).  Although Vorenus and Pullo are real centurions who displayed outstanding bravery and valor in battle and were included in Caesar’s war journals, their journeys and experiences in the series are the creation of the writers. ROME chronicles the period in Roman history when the people lost their republic. Aside from the entertainment provided by Vorenus and Pullo, who are often violent and crude, the story showed how the Senate tried to stand up to the ambitions of men like Julius Caesar and Octavian (who renamed himself Augustus Caesar) to protect the people’s hand and voice in government.

Perhaps I am drawn to the series because of my Italian heritage or perhaps it is because of Rome’s history as a republic and its impact on our Founding Fathers when they sat down to fashion a government to serve the people and protect their inalienable sovereign rights.

Rome was established as a republic in 509 B.C. when it was a mere city-state.  It was easy to manage and government was responsive to the people. Originally established as an advisory board composed of the heads of patrician families (wealthy landowners), the Senate soon became the most powerful organ of republican government and the only body of state that could develop consistent long-term policy. It was involved in virtually all public matters, but its most important responsibilities were in foreign policy and financial administration.  Roman citizens had a voice in government by electing Senators who represented them and were accountable to them.

After the second Punic War (218 – 201 B.C.), when Rome defeated Carthage, Rome’s economy soared and trade grew.  Rich landowners and merchants were able to buy up most of the land in the county.  Eventually, they would begin to have more and more political power.  Under Roman law, only landowners could serve in the military, but as it happened, the rich wouldn’t serve in the army. The number of soldiers dwindled and this caused instability in the Roman military.

In 133 B.C., Tiberius Gracchus, who was elected to the position of tribune, proposed several laws to reshape Rome into the republic that it had been intended and that it had once been. The proposed laws included giving an equal share of land to all citizens, limiting the amount of land one person could have, and allowing every free Roman citizen to vote (at the time, only residents of Rome could vote).  Gracchus’ ideas were very controversial for the time and when Romans began to riot, he was killed. His brother Gaius took the position of tribune in 123 B.C. and he attempted to pass the same laws.  He too was murdered.

General Marius ushered in more reforms in 104 B.C.  He established a new law which stated that people did not have to own land to be a soldier. This served to benefit the military.  However, in return for their service, soldiers began to demand that they be given land.  This required Marius to use his influence on the Senate, for at the time, there was no provision to grant soldiers land.  It was General Marius versus the Senate.  The result was that soldiers became very loyal to Marius; they trusted him.  In fact, they were more loyal to him than to the Senate. It was from this point on that generals began to gain significant political power in Rome. Generals who commanded the legions and who were popular with them could become quite powerful.

By about 79-78 B.C., Rome was temporarily back to being ruled by the Senate. Meanwhile, Pompey, the most distinguished general of the time, was gaining public favor from his many military victories. At the same time, Crassus, the wealthiest man in Rome, also gained much popularity from the common people, for defeating a large slave uprising. Both Pompey and Crassus were ambitious and had designs on ruling Rome.  But still another prominent general was also gaining much popularity.  That was Julius Caesar.  Pompey, Crassus, and Caesar would make a secret alliance to work together to gain control over the Senate. This alliance would become known as the First Triumvirate.

But soon ambition, politics, and battle would destroy that union. Caesar was elected consul in 60 B.C.  He proposed laws that would gain the triumvirate even more power.  When the Senate tried to oppose these laws, Crassus and Caesar resorted to intimidation and violence in order to get them passed.  When Crassus was killed in battle in 53 B.C., the triumvirate was destroyed and only two were left – Caesar and Pompey, who were good friends. (Caesar even betrothed his beautiful daughter Julia to Pompey in order to strengthen the political alliance between them).  Julius Caesar left Rome after his term as consul ended to take up a governorship he demanded in southern France.  Ignoring the orders of the Senate, he raised his own army, and led a path of conquest throughout all of Gaul. Marc Antony, another brilliant general, was with Caesar at this time in Gaul and was making a name for himself.

After eight years, word grew that Julius Caesar was returning home. The Senate was afraid that he would bring his army and march on Rome and pleaded with Pompey to organize resistance. But Pompey was torn.  Caesar was his friend.  His wife was Caesar’s daughter and he loved her deeply.  But Pompey did as asked and began to build an army. Unfortunately he could not do so in time and when Caesar marched into Rome, Pompey was forced to flee.  Caesar eventually bought off, threatened, or intimidated members of the Senate, and at his command, they crowned him Emperor and gave him concentrated powers for a period of ten years.  The people began to call him a tyrant.  Senators called him a tyrant.  Caesar countered by assuring them that he needed the power “to save the republic” and that after the ten years was up he would turn control back to the Senate.  He didn’t trust the Senate to rule; instead, he thought he knew what was best for the people… and for Rome.

Julius Caesar was assassinated on March 15 – the “Ides of March” – by senators Brutus and Cassius, among many others, who plotted among each other to rid Rome of the tyrant.  They descended upon him in the Senate, stabbing him twenty-three times.  Second-in-command, Marc Antony, was also supposed to be assassinated, from what I read.  As the ROME series was able to convey, the conspirators believed that the assassination was a noble act because they were rescuing the empire from the designs of a dictator and delivering power back to the people. The Senate would once again regain control of Rome. The People would once again have their government back.

Well, what followed was not much better.

Immediately, civil war broke out between two factions – the assassins (republicans), including Brutus and Cassius, and the Caesarians, led by Marc Antony and Octavian. Antony and another strong general, Marcus Lepidus, unofficially established their power by intimidation through their armies. Octavian, the son of a noble Roman family, and nephew to Julius Caesar, was named as Caesar’s sole heir in his will. The ROME series spent considerable time portraying the mindset and ambitions of Octavian after Caesar’s demise.  Young Octavian (a mere teen) approached the Senate leader Marcus Tullius Cicero, the foremost lawyer of the day and the greatest defender of the republic (and the man whose writings taught our Founders about “Natural Law”) and struck up a deal.  Unknown to Cicero, the deal would have disastrous consequences.  An astute Octavian told Cicero that the people loved Caesar and harbored great anger over his death. As Caesar’s appointed heir, he could easily manipulate the people against the treacherous murderous Senate.  Furthermore, Caesar who was a good friend of Cicero’s, had appointed him and others in their leadership roles in the Senate. If the Senate was to officially declare Caesar a tyrant, as they planned to do, in order to justify the assassination and to undo his commands, then that would mean their appointments would be undone as well.  So, Cicero made a deal and appointed Octavian consul of the Senate in return for Cicero and the others keeping their positions.  Octavian then began to hatch plans for revenge against those who assassinated his uncle (now adoptive ‘father’).  Brutus and Cassius and a few of the other conspirators had already fled Rome; they left when they found out that Marc Antony survived.

In the two years that followed, Antony and Octavian each amassed great armies and consolidated power in various parts of the empire – Antony in the east and Octavian in the west.  Each would have plans to consolidate power and take over Rome.  Antony understood that the conspirators, many from powerful and noble Roman families, would have to be killed so they could not return to Rome, reclaim their power, and try to turn the people again him and Octavian just wanted them killed out of revenge. And so both Antony and Octavian joined together to go after them. Some of the conspirators committed suicide but the last ones to remain were defeated at Philippi in 42 B.C.  Brutus and Cassius, the last to survive, watched this defeat and then killed themselves as well.

The victors returned to Rome and the Second Triumvirate was formed, consisting of Mark Antony, Lepidus, and Octavian. This triumvirate was formally constituted. In effect, it sidelined the consuls and the Senate and effectively signaled the death of the Republic. The three men, Antony, Lepidus, and Octavian used the force of the army and swept the Senate with terror, killing Cicero and others.  They chopped off the great Cicero’s hands and nailed them to the Senate door.  In fact, they used a Roman law known as “proscription” as an incentive to kill Cicero and the others.  “Proscription” was a Roman policy that was revived by the Second Triumvirate to label political enemies as “enemies of the state” which would then allow them to confiscate their money and property to pay the soldiers.

[NOTE:  Proscription was developed by Sulla (a general who ruled from about 82-79 B.C.)  as a way to dispose of the property of those who were ‘condemned.’  By “condemned,” they meant marked for assassination (as “enemies of the state”). The proscribed individuals were called proscripti. The law the Romans passed to grant Sulla this extraordinary power was called lex Cornelia de proscriptione et proscriptis and was known as the lex Cornelia. In 82 B.C. Sulla created proscription as a means of disposing of his enemies — the supporters of Marius. He posted a list of those he wanted killed (like the “Wanted Dead or Alive” posters of the Old West) and upon their death, their property was confiscated and sold. Proscription was adopted again under the second triumvirate in 43 B.C. Again, Cicero was a victim of this second proscription.  Supposedly, Octavian said: “We should concentrate on the rich, especially some of the fabulously rich. If enough men are proscribed, the amount of cash will add up quickly.”]

Initially, Marc Antony took Caesar’s place, but Octavian, who somehow held the upper hand (perhaps because he was hand-picked by Julius Caesar as his heir), was suspicious of him and wanted him out of Rome.  There is one account that Octavian forced Antony to marry his sister, Octavia, and Antony did not honor her properly.  There is also another account that Octavian was resentful that Antony was so completely adored and beloved by the people of Rome and fearful of the intense loyalty that Antony’s men had for him. They thought of him as a god.  And so, Octavian forced him to accept an appointment to govern eastern Rome, which included Egypt (conquered by Julius Caesar).  This is where the famous story of Antony and Cleopatra comes from.  Antony quickly became the lover of Cleopatra, the exotic Ptolemeic queen of Egypt (meaning that she is a descendent of General Ptolemy, who served under Alexander the Great of Macedonia, and then became the ruler of Egypt – 323-283 B.C.), even though he was still married to Octavia.  Antony and Cleopatra had children together. He also supposedly promised her roman land (an act of treason at the time).  Octavian used all that information to make the case to the Roman people and to the Senate that Antony had switched his allegiance and dishonored Rome.  Octavian would declare battle against him to assume sole power over Rome, which he did.  He defeated Antony at the naval Battle of Actium in 31 B.C. and when he and Cleopatra were trapped and besieged at Alexandria, they both committed suicide.  (Who can forget Elizabeth Taylor and Richard Burton as Cleopatra and Antony in the epic MGM production).

Also around this time, Octavian accused of Lepidus of attempted rebellion, stripped him of his title, and forced him into exile. With Antony and Lepidus aside and removed from power, Octavian assumed sole power and became Emperor. Rome’s republic was officially dead.  Octavian insisted on being called Caesar – Augustus Caesar – and would go on to rule for 40 years. [“Augustus” was a new title to be given to him, meaning “supreme ruler; holy, dignified or majestic]. The reign of the “Caesars” and those leaders that followed would continue to keep power concentrated in a single ruler.  The power was never returned to the people.  While the intentions of the leaders in the beginning for usurping power may have been to serve the “general welfare” of Rome, for example, by giving needy families sums of money from the national treasury or giving farm land to “deserving” people or giving grain to the people who could not find jobs or providing Gladiator games and other spectacular games for entertainment, the fact is that it was never returned properly to the people.  The people seeing that they had no say in what their leaders were doing – that the Emperors were going to do what they wanted anyway – lost interest in keeping their government honest and decent and effective.  And so the republic died.  It died from within.  Because of apathy.

As the power of the emperors grew stronger and stronger, the Roman republic became but a distant memory. The once proud Senate that had witnessed the splendid orations of Cato and Cicero became dominated and weakened year after year by the succession of dictators. It atrophied into a mere figurehead of an institution. And the people themselves became disengaged. They took the duties of citizenship far more seriously during the days of the Republic than in the dictatorships of the Caesars.  In the waning years of the republic and then into the reign of the Caesars, the populace no longer respected civic virtues and virtue in public life. Civic duty was treated as a triviality.

In these final days of the Roman republic, the empire was faced with a changing social structure and culture. There once was a time when Rome enjoyed a very ordered society. But in those final days, at the height of its conquests, its social order began to break down.

It was at this time that the mighty Roman Empire began to reach its geographical limits. It was a massive empire. As a result of its vast conquests, Rome acquired many slaves, who were then used to build most of its bridges, roads, and aqueducts.  Then they went on to take jobs in farming, mining and construction. As this cheaper labor replaced Roman citizens, unemployment grew.  Idle, unemployed, hungry people filled the capital. They were called “plebs” (or plebeians), a term originally referring to free land-owning Roman citizens, who historically had representative power in government (called Tribunes, which had the power to veto the laws of the Senate).  Later the term was used to refer to the lower, poor, common class of Roman citizens. They were apathetic and cared nothing for the governing of the empire.  As the number of plebs grew, they became a more problematic class and the dynamics in the empire changed dramatically. In the eyes of the elite, this lower class lacked morality and were typified by “their stupidity, laziness, and time-wasting.”  They were characterized as being motivated by pleasure, excess, loss of control, and a closing of the gap between genders.  The Roman satirist and poet, Juvenal, referred to them as the mob.  He said they consisted of “idlers, the dregs of every nation.”

To appease and distract the plebs, Roman emperors handed out free distributions of corn and amused them with violent gladiatorial and other contests that were held in the Coliseum and chariot races at the Circus Maximus (stadium).  The more Romans became addicted to the corn distributions and the mindless self-gratification, the more they lost the capacity to govern themselves.

Juvanal wrote: “What of the plebs?  They follow fortune, as always. Nowadays, with no vote to sell, their motto is ‘Couldn’t care less.’  There was a time when they elected generals, heads of state, commanders of legions. But now there’s only two things that concern them: bread and circuses.”  E.G. Hardy put it more bluntly: “The distribution of corn and the attractions of the games had long been drawing to Rome a host of idlers and loungers, ready for any distribution and willing to do anything but work for their own support.”  (Sound familiar?)  The Emperor, in an attempt to please and pamper the plebs, was forced to extend corn distribution and to increase the number of “festivals, holidays, and shows, which were already too numerous.”

The Roman theatre was another popular activity associated with the lower classes (unlike in Greece, where it was the center of intellectual thinking and politics).  In Rome, the theatre was counter-productive of social order, self-control, values, and morality.  It taught “the wrong things, including idleness, inactivity, corruption, and all sorts of indecency.”  Its main objective was to mock personal responsibility and productive family and social values.  (Sounds like American TV !!)

The threat posed by the plebs – that is, the decayed values and resulting social tensions – led to societal structural decline.  This is how the late Roman republic came to be characterized. Social order began to quickly erode. Roman culture was forced to accommodate a new social order.  “The decayed values of the plebs acted as the lowest common denominator in that they began to attract people of all statuses.”  In fact, that’s when the threat to social order and morality became its greatest. The people became so distracted with entertainment and personal pleasures that they no longer valued civic virtues and bowed to civil authority with unquestioned obedience.

It is this moral decay – this civic decay – that Juvenal was referring to when he sarcastically wrote that “the people that once bestowed commands, consulships, legions, and all else, now meddle no more and longs eagerly for just two things — bread and circuses.”

Those scornful words “bread and circuses,” panem et circenses in Latin, were used to describe what would become the Roman formula for the happiness and well-being of its population. In fact, it would become a political strategy unto itself.  As we can see here in the United States, it is a policy that seeks to create public approval, not through exemplary or excellent public service or public policy, but rather, through diversion, distraction, hand-outs, and/or the mere satisfaction of the immediate, shallow requirements of a populace.

In the end, Rome collapsed because the people were morally corrupted and civically unfit and irresponsible. They were simply no longer fit to guard over their government, their liberties, and their own destinies.

I wanted to tell this tale of Rome’s republic because our Founding Fathers were great students of history.  Maybe this is what our Founder’s understood all along – that republics can wither and die from apathy, willful neglect, and most importantly from human decay.  Maybe they understood that while power must always remain in the people’s hands and government must be limited, the people themselves, as the rightful guardians of that sovereign power, must be worthy of that challenge. And so, we see their frequent warnings to remain “moral and religious.”  It was not to require that government be entangled with religion, but rather to help the American people to remain fit and of proper character to be faithful stewards of the republic they’ve been entrusted with.

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Two Ways of Educating

Education - Indoctrination Center        by  Diane Rufino, December 24, 2013

At some schools, usually independent (not accepting federal dollars) and religious, students read old books, including Plato’s Republic.  In the Republic, they read the story of Gyges’ ring that makes the wearer of it invisible.  One of Socrates’ conversants in the Republic, a young man named Glaucon (who happened to be Plato’s older brother; both were students of Socrates), raises the question: ‘Why would a man in possession of such a ring not use it to do and obtain whatever he wishes?  Why would he not use the ring’s powers, for instance, to become a tyrant?’  In response, Socrates turns the discussion to another question: ‘What is the right way for a man to live?  What is just by nature and what is unjust?’

In parochial schools, such as John Paul II Catholic High School (where I teach), students are also regularly guided by the teachings of the Bible. With respect to the teachings of Jesus, it was Jesus himself who boiled the lessons down to two commandments. When asked by a teacher of law which of God’s laws are most important (Mark 12:28-31), Jesus replied: “Love the Lord your God with all your heart, all your soul, all your mind and all your strength” and “Love your neighbor as yourself.”  As with books like the Republic, the teachings of the Bible emphasize the proper way for a man to live.  They establish a value system of love, compassion, and charity.  They teach that individuals should use their talents, their abilities, their powers to do good, and not just for themselves but for others as well.

These Socratic questions were once at the center or core of education. But in American education as a whole, and thanks in great part to policies directed by the federal government, these questions have been abandoned. Teaching ‘morality,’ as it turns out, is too offensive.  Even sadder is the tacit denial that such a focus in education serves no sound social purpose.  Thankfully, these Socratic and Socratic-type questions remain at the center or core of education at many institutions that believe that a proper education includes an emphasis on morality and ethics.

At John Paul II Catholic High School, St. Peter’s, and other parochial schools, and perhaps some charter schools as well, there is often a core group of course that all students, regardless of their path, are required to take. This core has a unifying principle, as explained above, such as the idea that there is a right way to live.

Compare this to the “core” that defines the latest bright idea of the education establishment – Common Core.  At its core is the imposition of national one-size-fits-all, copyrighted and licensed educational standards on American public schools all across the country for top-down universal control over the teaching of our children. When one looks into Common Core, it becomes clear that it has no unifying principle, such as I have described above.

Absent the kind of questions posed by Socrates in the Republic or the lessons of community found in the Bible, or in the plays of Shakespeare that pit good versus evil/right versus wrong, modern educators treat students chiefly as factors of production, as moldable young adults to be trained for productive jobs, as dictated by the economy at the time.  And although we all wish productive jobs for our children, as parents we know that they are not chiefly job-seekers or factors of production. “After all, how many of us, if we were given the choice between having our children earn a lot of money and being bad, or struggling economically and being good, would choose the former?”

Another example of the turn taken by modern education is exemplified by a passage from the Teacher’s Guide for Advanced Placement English Literature and Composition, published in 1991 by the College Board – the influential organization that, among other things, administers the SAT exam. It was written by an English professor from Agnes Scott College in Georgia:

“AP teachers are implementing the best of the new pedagogies that have influenced leading institutions of higher learning. Perhaps most importantly, as Arthur Applebee explains, ‘objectivity’ and ‘factuality’ have lost preeminence.  Instruction has become ‘less a matter of transmittal of an objective and culturally sanctioned body of knowledge,’ and more a matter of helping individuals learn to construct their own realities.  This moves English courses away from the concept of subject matter to be memorized and toward ‘a body of knowledge, skills, and strategies that must be constructed by the learner out of experiences and interactions within the social context of the classroom.’  Emphasis is on the processes of language and thought, ‘processes that are shaped by a given cultural community and which also help students become part of the cultural community.’  Contemporary educators no doubt hope students will shape values and ethical systems as they engage in these interactions, acquiring principles that will help them live in a mad, mad world.”

Thomas Jefferson, perhaps one of our more prolific Founding Fathers, wrote or had his hand directly in at least four of the five organic laws that provide the ideological and legal foundation of our country. He wrote the Declaration of Independence, the Northwest Ordinance, gave direction to James Madison in his drafting of the US Constitution, and provided the voice of reason and conscience to Madison again when it came time to add a Bill of Rights.  The Northwest Ordinance, adopted in 1787, and passed again in 1789, contains the following beautiful sentence: “Religion, morality, and knowledge, being necessary for good government and the happiness of mankind, the means of education shall forever be encouraged.”  Accordingly, Congress proceeded to give 1/36th of the land in the vast Northwest Territory – including Michigan and four other states – as an endowment, controlled by the states, to support education in each township.

Consider the current text of the North Carolina state constitution (the constitution of 1971; see below), which sets forth government’s obligations in the state. Article I, Sec. 15 (Education”) provides:  “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”  Article IX, Sec. 1 deals specifically with Education in the state.  That section (“Education encouraged”) reads: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.”

Could the difference be more stark between the older and newer goals of education?  Between leading students toward an understanding of the right way to live in a comprehensible world, and telling them they must shape their own values and make their own reality in a world gone mad?  And why aren’t more states, like my state of North Carolina which has vowed to guard and maintain its right to provide education to its citizens (and to promote morality), rejecting Common Core?

So, what is the right way for a man and a woman to live?

Do we trust that question to a government that has vowed to remain neutral on religion and on morality (tipping clearly towards immorality) and conducts itself in every instance without ethics?  Or do we reflect on that question in our own states and ask ourselves what we would like to expect from our own citizens?  Ultimately, parents want to be proud of their children.

 

[Note: The NC state constitution has been amended several times. The original constitution, adopted in 1776 by the general assembly (no input from the people) created the government for the new state; the constitution of 1868 was adopted and submitted to the US Congress for approval as required for re-admission to the Union after the Civil War (later amended to end discrimination against African Americans); and the constitution of 1971, which reorganized the entire state government in light of the requirements of the modern economy and society (more of a reorganization rather than adding anything new)].

 

**  [This short article is based on an article by Larry P. Arnn, Hillsdale College, Dec. 2013, Vol. 42, No. 12.]

 

A Review of Federalism: The Significance of James Madison’s Report of 1800

States Rights - States Have Rights Too

A Review of Federalism:  The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism 
by Diane Rufino, December 8, 2013

**  This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report

In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to.  Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed.  The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate.  In that speech, Madison argued:

The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)

     The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.

     And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments).  The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.

     With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern. 

     If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.     

      In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”

A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution.  This Bill, like the Constitution itself, begins with a preamble: 

THE Conventions of a number of the States, having at the time of their adopting the Constitution, and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institutions.

As suggested by the Preamble, some amendments are declaratory clauses while others are restrictive clauses. A restrictive modifying clause is an adjective clause that is essential to the meaning of a sentence because it limits the thing it refers to.  A declaratory clause, on the other hand, merely re-states or re-emphasizes a particular principle.  With that in mind, the Ninth Amendment acts as a restrictive clause while the Tenth stands as a declaration of principle.  The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Specifically, as Madison wrote and as he articulated in his speech opposing the chartering of a National Bank, the Ninth Amendment was submitted by the States to “guard against a latitude of construction,” while the Tenth would “exclude every power not within the Constitution itself.”  As a restrictive clause, the Ninth preserves the principle enshrined in the Tenth.  Without such a rule preventing “misconstruction,” of the Constitution, the declaratory Tenth Amendment risks becoming an empty promise.  Together, however, the two amendments prevent the “misconstruction or abuse” of federal power. This was the express intent of the States in adopting the Constitution. Nothing could be clearer. And again, if this message wasn’t clear, the preamble to the Bill of Rights provided a bold, unambiguous, statement of the like.

The proper construction of federal power soon became an issue during the debate over the first Bank of the United States.  In his opinion opposing the creation of the Bank, Thomas Jefferson argued that the “latitude of construction” adopted by the Bank’s proponents would destroy the principle of enumerated powers declared in the Tenth Amendment.  “I consider the foundation of the Constitution as laid on this ground:  that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

Echoing Jefferson’s concerns, Attorney General Edmund Randolph concluded:  “A similar construction on every specified federal power, will stretch the arm of Congress into the whole circle of state legislation. . . . Let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction which they arrogate will not terminate in an unlimited power in Congress?”

Both Jefferson and Randolph read the Tenth Amendment as confirming the establishment of a federal government of enumerated powers, with all nondelegated powers reserved to the states. Unduly broad constructions of enumerated federal power threatened to undermine this arrangement by creating, in essence, a government of unlimited power.  Accordingly, Randolph and Jefferson advocated a rule of strict construction in order to preserve the principle announced by the Tenth Amendment.  The rule preserved the principle.

Madison, of course, read the Ninth Amendment to express just such a rule, and early constitutional commentators agreed.  In the very first Supreme Court opinion discussing the Ninth Amendment, Justice Joseph Story followed the Madisonian reading of the Ninth and used it to support a limited construction of federal power.  In the 1820 case Houston v. Moore, Justice Story wrote that federal power to discipline the militia should not be read as exclusive of the concurrent power of individual states to establish their own rules of militia discipline, so long as those rules did not conflict with any federal statute.  Story declared that, “In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.”

Madison and Story were not alone in their reading of the Ninth as a federalist rule of interpretation.  In his 1803 View of the Constitution, St. George Tucker likewise presented the Ninth Amendment as supporting a federalist rule of strict construction of federal power, as did constitutional commentator John Taylor. [Tucker wrote: “As a federal compact, it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question (citing the Tenth Amendment).  As a social compact, it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government (citing the Ninth and Tenth Amendments).”  John Taylor wrote, with respect to the Ninth and Tenth Amendments: “The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”]

Unlike Madison, Jefferson and Randolph, who believed that preserving the Tenth required the addition of a rule of construction, St. George Tucker believed that the Tenth Amendment itself expressed a rule of strict construction. According to Tucker, under the Tenth Amendment, the Constitution “is to be construed strictly, in all cases where the antecedent rights of state may be drawn in question.”  This reading of the Tenth Amendment seems somewhat awkward.  The text of the Tenth simply declares that Congress is granted only those powers enumerated in the Constitution.  The text says nothing about how broadly those delegated powers are to be construed.  Nevertheless, after 1800 and for the next one hundred and fifty years, courts and commentators cited both the Ninth and Tenth Amendments as expressing rules of strict construction of federal power.

This fact may surprise readers used to reading the Ninth and Tenth Amendments in opposition to one another or in reading them as having no real force of constitutional construction.  Since Griswold v. Connecticut, the Court has often read the Ninth Amendment as support for its judicial invalidation of state laws, while the Tenth is most commonly associated with “states’ rights.”  Historically, however, the two amendments were read in pari materia, meaning “acting on the same matter.”  They both represented a limitation on the power of the federal government to interfere with the states. As late as 1948, the Supreme Court continued to apply both amendments as twin guardians of federalism. In Bute v. Illinois, the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself, without inquiring into whether he desired or could afford an attorney, violated his rights under the Fourteenth Amendment.  Because the Sixth Amendment required such an inquiry in federal court, the issue was whether this rule was incorporated against the states.  In a 5-4 decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their roles in interpreting the scope of the Fourteenth Amendment’s Due Process Clause. According to Justice Burton:

One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788.  It was emphasized in the “Bill of Rights,” ratified in 1791.  In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts.  None were placed upon the states.  On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments.  This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.”

In Bute, Justice Burton linked the Ninth and Tenth Amendments to the need to preserve “Home Rule,” or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.”  Preserving that right required a rule of construction.  The Court in Bute applied such a rule, noting that the principles underlying the Ninth and Tenth Amendments are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.”

In limiting the scope of the Fourteenth Amendment, the Court’s decision in Bute echoes similar reasoning in the 2000 United States v. Morrison decision, which narrowly interpreted the reach of Congress’s Section 5 powers under the Fourteenth Amendment in order to preserve state autonomy. Specifically, the Court cited the Tenth Amendment in support of its limited reading of federal power.  By the time the Court decided Morrison, however, the Ninth Amendment had already disappeared from the judicial debate (and perhaps civil debate) on federal powers.  In the majority decision authored by Chief Justice William Rehnquist, it was the Tenth Amendment alone that provided the basis for the Court’s rule of strict construction.

This disappearance of the Ninth presents us with a mystery and should give us cause for concern.  Given that it is the Ninth, not the Tenth, which literally expresses a rule of construction, how did the Tenth Amendment come to share an equal role with the Ninth as a rule of limited construction of federal power?

More directly, how did the Tenth come to replace the Ninth Amendment as a limiting rule of construction?  Madison’s public description of the Ninth and Tenth Amendments compounds this mystery.  As Madison drafted both amendments, participated in the Congressional debates, and is considered the “Father of the Constitution, one would think Madison’s description of the Ninth as the relevant rule of construction would carry particular weight.

Ironically, it appears that Madison himself may have played a key, if unintentional, role in refocusing attention away from the Ninth and onto the Tenth Amendment as the textual basis for a rule of strict construction.  In one of the most influential documents Madison ever produced, The Report on the Alien and Sedition Acts, (also known asMadison’s “Report of 1800”), Madison presented the Tenth Amendment as the central constitutional text for constraining the interpretation of federal power.  Although Madison’s reliance on the Tenth Amendment in his Report corresponds to his interpretation of the Ninth and Tenth Amendments in his speech on the Bank of the United States, his “Report of 1800” took on a life of its own – as would the Tenth Amendment.

The Tenth Amendment would undergo this transformation in light of the passage of the Alien and Sedition Acts.  This transformation would also serve to remind states of their obligation when faced with unconstitutional federal legislation. (The terms “Nullification” and “Interposition” would be coined at this time to define that obligation).

In the aftermath of the so-called XYZ Affair, in which French officials demanded bribes from an American peace delegation, and in the midst of heightening tensions with France, Congress enacted the Alien and Sedition Acts (which were actually a series of four statutes: the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act).  The Sedition Act made the common law offense of seditious libel a federal crime, and inflaming an already politically charged atmosphere, Federalist judges enforced the Act against critics of the Adams Administration. Defenders of the Sedition Act came dangerously close to claiming that Congress had an unenumerated power to enforce the common law. The author of the “Report of the Minority on the Virginia Resolutions,” commonly believed to be John Marshall, argued that there was a “common or unwritten law which pervades all America, and which declares libels against government to be a punishable offence.”  According to the Report, “to contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace.”

As far as seditious libel and free speech were concerned, according to John Marshall, the Federalists, and even President John Adams himself, the freedom guaranteed by the First Amendment did not extend to such “licentious” acts as libeling the government.

By appearing to embrace the unwritten power to enforce the common law, the defenders of the Sedition Act seemed to reject the principle of enumerated federal power.  Although the Ninth Amendment guarded against explansive constructions of delegated powers, it was the Tenth Amendment which declared that all non-enumerated powers are reserved to the States. Accordingly, James Madison and Thomas Jefferson raised the hue and cry that Congress had transgressed the boundaries of federal power established by the Tenth Amendment. They communicated aggressively during this time and contemplated what the proper response would be when the federal government exceeds its constitutional limitations and imposes a palpable violation on the people.  In his Kentucky Resolutions of 1798 (Nov. 10, 1798), Thomas Jefferson wrote:

That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”; and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people.”

In his Virginia Resolutions of 1798, Madison called on the states to join with Virginia and Kentucky in declaring, “That the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.”  He would go on to explain that the proper measure would be Interposition, which is the right of the states to “interpose” – or intervene – between the federal government and the people of the state to protect their rights and liberties and preserve the proper balance of government.

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

A year later, Thomas Jefferson authored another set of resolutions so that Kentucky could re-affirm its position.  In the Kentucky Resolutions of 1799, Jefferson wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said Alien and Sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal…

Madison defended the positions taken in the Virginia Resolutions in his Report on the Alien and Sedition Acts (aka, “Madison’s Report of 1800”)  In his Report, Madison further explained that Congress’s attempt to exercise unenumerated common law powers violated the constitutional principle that “powers not given to the government, were withheld from it,” and that “if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it, by the 12th amendment, now a part of the Constitution (as the Tenth Amendment), which expressly declares, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Ultimately, the Democratic-Republican Party of Thomas Jefferson and James Madison defeated the Federalists in the election of 1800, due in no small part to popular reaction against the Alien and Sedition Acts.  Madison’s celebrated “Report of 1800,” which Spencer Roane referred to as the Magna Charta of the Republicans, became a foundational document for 19th century advocates of states’ rights.  The Report was so influential that Madison’s Tenth Amendment-based argument against the Acts had the effect of eclipsing the Ninth as the core constitutional provision requiring the strict construction of federal power.

It is difficult to overstate the influence of Madison’s Report of 1800 among states’ rights theorists in the decades between Jefferson’s election and the Civil War.  St. George Tucker referred to Madison’s Report numerous times in his 1803 constitutional treatise, A View of the Constitution of the United States, repeating in particular Madison’s claim that Congress had exceeded the bounds established by the Tenth Amendment. When Jonathan Elliot compiled the materials for his great compilation (1836), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, among the few post-adoption sources that he added was “The Report on the Virginia Resolutions, by Mr. Madison.”  It was not unusual for nineteenth century courts to refer to what was known as Madison’s “Celebrated Report” in discussing the scope of federal law.

In fact, courts in later decades viewed the struggle over the Alien and Sedition Acts and the election of 1800 as a referendum on the proper interpretation of the Constitution.  Writing in the 1860’s, Judge Bell of the Texas Supreme Court described the event as a titanic struggle over an unduly expansive interpretation of federal power:

I take it for granted that we will not . . . go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. . . . and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions.”

States’ rights advocates in particular relied on Madison’s Report of 1800 as a critical guide to state autonomy and proper interpretation of the Constitution.  Virginia Chief Judge Spencer Roane cited Madison’s Report in support of his contention that the Supreme Court had no authority to reverse the decision of Virginia’s highest court.  When Chief Justice John Marshall upheld the Second Bank of the United States in McCulloch v. Maryland(1819), Roane published a series of essays critical of the McCulloch decision in the Richmond Enquirer under the pseudonym “Hampden.” Repeatedly referring to the odious precedent of the Alien and Sedition Acts and Madison’s “celebrated Report” of 1800, Roane argued that Congress and the Supreme Court had once again invaded the reserved powers of the States:

It has been our happiness to believe, that in the partition of powers between the general and state governments, the former possessed only such as were expressly granted . . . while all residuary powers were retained by the latter. . . . This, it is believed, was done by the constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all important subject, that it was deemed necessary to quiet those fears, by the 10th amendment to the Constitution.”

Tying the hated Sedition Acts to Marshall’s opinion in McCulloch, Roane argued that “the latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable Sedition Act into our code.”  In a famous paragraph, Roane declared, “that man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power, and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.”

Consider this question:  Has the Supreme Court’s application of the Tenth Amendment rendered it particularly vulnerable to criticism?   In 1941, in a case defining the boundaries of the federal Commerce Clause, United States v. Darby, the Supreme Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably concluded that the activity in question affected interstate commerce.  In doing so, the Court gave the federal government great latitude in defining the scope of its powers.  The Court rejected the idea that the Tenth Amendment required strict construction of federal power. According to Justice Harlan Stone, who authored the majority opinion:

Our conclusion is unaffected by the Tenth Amendment . . . . The amendment states but a truism that all is retained which has not been surrendered.  There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.  From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

Indeed, even at the moment of its adoption, Madison acknowledged that the Tenth Amendment was unnecessary and the Clause was criticized in the State Ratification Conventions as having no “real effect.”  As one can imagine, this disclosure is quite popular with those most interested in an energetic and concentrated federal government and those interested in restricting federal power.

Despite these criticisms, however, current federal jurisprudence (current rule of constitutional construction), holds that the Tenth Amendment has both a textual basis and historic application.  The accidents of history that led to the rise of the Tenth Amendment and the fall of the Ninth have resulted in the invocation of the right principles in the wrong context.  Originally, the Ninth and Tenth Amendments were meant to work together: The Tenth declaring the principle of reserved non-enumerated power, and the Ninth ensuring that the powers reserved to the states would not become a null set through the overly broad construction of enumerated federal authority.  Both principles were thought necessary in order to guarantee the people’s retained right to local self-government.  In other words, without the Ninth Amendment, the Tenth Amendment does indeed become a mere truism.

Understanding the proper source of this rule of construction and how it became associated with the Tenth Amendment vindicates the jurisprudence of the Tenth even as it refocuses attention back to the Ninth Amendment.  Absent this refocusing, the Tenth Amendment and its attendant federalist jurisprudence remains vulnerable to criticism and, ultimately, reversal.

In other words, understanding the history of the Ninth and Tenth Amendments is necessary, if only to save the Tenth Amendment from itself.  A renewed appreciation of the textual (contextual) roots of federalism seems particularly relevant as both sides of the political spectrum now have come to embrace the value of state autonomy and as the doctrine of Nullification becomes more popular.

Refocusing the rule of construction back to the Ninth Amendment does not reduce the Tenth to a mere truism. The Tenth Amendment not only denies unenumerated powers to the federal government, it also forbids placing any unenumerated restrictions on the states.  According to the text, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Just as the first portion of the Tenth Amendment limits the powers of the federal government to no more than those enumerated in the text, the second portion limits restrictions on the states to no more than those enumerated in the text; all other powers are reserved to the states or to the people.

The Tenth Amendment, just as the Ninth Amendment, establishes “further declaratory and restrictive clauses, in order to prevent misconstruction or abuse of its (federal government) powers.”  (Preamble to the Bill of Rights).  Not only is the federal government further limited in its powers under Constitution, but it is expressly limited from stepping into the sphere of reserved rights held by the People and the States.  

Restoring the Tenth Amendment to its proper place in the arena of constitutional interpretation does nothing to endanger federalism.  Rather, it places federalism – as well as liberty, and the guarantees in the Declaration of Independence – on firmer ground.

The key, clearly, to restoring the proper balance of government power and restoring power to the parties from which it rightfully originated and to which it rightfully belongs is to return to the critical jurisprudence of original intent and strict construction. Unfortunately, big government proponents and liberal law school professors like to demonize judges who adopt this approach and indoctrinate both law school students and low-information and uneducated Americans. They like to declare that the US Constitution is outdated and incapable of addressing the issues of today’s America and in direct contradiction and willful disregard of the men who wrote and defined the document and the duly-assembled institutions that debated and ratified it, they classify it incorrectly as “a living breathing document.”  The longer we allow the indoctrination to take place, the more firmly the notion will become entrenched with a people who no longer knows what their rights are or how, procedurally and ideologically, they are secured and protected.

The task we face is EDUCATION, EDUCATION, and more EDUCATION.  We need to take on the liberals and progressives at every turn and debate them on the merits, with the ultimate goal being the preservation of a government system so properly divided among sovereigns and so richly pitted with reliable checks and balances that the rights and liberties of mankind, so forcibly asserted and fiercely defended throughout the ages, will be secured for the ages and will not begin that dark descent into oppression that robs them of that divine spark and that exercise in freedom that moves civilization forward and makes us a more successful and exemplary nation.

Reference:  The article above is almost exclusively comprised of Professor Kurt Lash’s 2005 Loyola Law School article on James Madison’s Report of 1800:

Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” Loyola School of Law, Legal Studies Paper No. 2005-30, November 2005.  [Kurt T. Lash is a professor at the University of Illinois School of Law]