How Democratic is the U.S.?

Stock Photo of the Consitution of the United States and Feather QuillThe original intent of the framers, contained in the words and clauses of the Constitution are hotly debated in order to ascertain what they meant to the states at the time of ratification in order to better understand the intent, purpose and functionality of the American polity. Among them, is whether the framers intended to create republic or a democracy. A cogent definition of either is needed in order to refute one or the other however; democracies have existed and exist today in varying degrees, making a concise definition nearly impossible. The distinction falls somewhere between a direct democracy and a republic that safeguards axiomatic rights, and respects the rule of law, above purely democratic processes.

Few rational people would argue the framers intended to create, what James Madison calls a “pure democracy,” and what Robert Dahl defined as a “direct democracy” (Hamilton, 2006 p. 55; Dahl, 2003 p. 180). Madison sets a distinction between two, and explains the purpose of elected representatives rather than direct involvement of the people as a means to maintain justice, “…to refine and enlarge the public views, by passing them through a medium of a chosen body of citizens,” rather than to popular whim, because they “…will be least likely to sacrifice it to temporary or partial considerations” (The Federalist N. 10 p.56). Madison wanted to insulate the body politic from the temporary passions of the majority (themselves). Robert Dahl explains the framers mindset towards popular rule in this context, “A substantial number of the framers believed that they must erect constitutional barriers to popular rule because the people would become and unruly mob…” (Dahl, 2003, p. 24).

Nowhere in the federal constitution, nor any of the state constitutions, is the word democracy used. This does not preclude the notion that some forms of the federal government are democratic, nor that the majority in some circumstances must rule. However, all the power cannot be placed in a majority insofar as it can be placed in a minority. The framers understood that the rights of the individual are not at the behest of a majority, and there are times when the individual is free from majority rule. They also understood, that tyranny is not exclusive to majorities, but that the minority can also become tyrannical. It was to this idea that the framers limited the powers of the federal government by creating a system whereby the President, the senators and representatives would be elected by different constituencies at different times, as well as including the Bill of Rights (Bork, 1990, p. 139). In my view, this is how the United States Constitution differs from a direct democracy by recognizing the authority of self-government while at the same time acknowledging its limits and vice versa. In short, the freedom of the majority to rule, and the freedom of the individual from majority rule are at constant odds.

In Robert Dahl’s argument on the undemocratic aspects of government, he incorporates state legislatures choosing senators so that “Members of the Senate would serve as a check on the Representatives, who were all subject to popular elections every two years” (Dahl, 2003, p. 17). Dahl is in fact correct, as Hamilton points out in Federalist No. 9, that the purpose of the legislatures appointing senators was not solely to check the House of Representatives, but to incorporate the states into the “ constituent parts of the national sovereignty, by allowing them direct representation in the senate…” (Hamilton, 2006, p. 51). James Madison in Federalist No. 59 elaborates on Dahl’s position, that “In republican government, the legislative authority predominates. The remedy…is to divide the legislature into different branches, and to render them, by different modes of elections…as little connected with each other” (Hamilton, 2006, p. 289). The framers, rather than intending to maximize popular sovereignty, were far more concerned with protecting individual liberty.

Not only would power be diffused by the tripartite federal government, whose powers were separate and distinct, but also amongst the state governments as “they may be regarded as constituent and essential parts of the federal government; whilst the latter is no wise essential to the operation or organization of the former” (Hamilton, 2006, p. 258). The states created the federal government not to consolidate democratic principles, but to ensure more harmony amongst the several states by transferring specific, enumerated powers to the federal government. Therefore, the Constitution is more of a restrictive document that protects minority rights over that of the majority. Dahl’s folly in his argument in favor of democratic principles in the Constitution is invoking the Bill of Rights as bolstering said position. Dahl writes, “They [Bill of Rights] resulted instead from demands…by delegates who generally favored a more democratic system than their colleagues could then accept… the amendments have proved to be a veritable cornucopia of rights necessary to a democratic order” (Dahl, 2003. P. 27). Dahl fails to recognize that the Bill of Rights delineated the specific liberties minorities are to have, and are not subject to democratic processes or influences. They also restricted action by Congress over the states and the people as well as outline more appropriately the purposes of a republic at the expense of democracy.

A majority of Dahl’s arguments seem to be mired in personal predilections that favor consolidating democratic principles into the federal government, Dahl writes, “undemocratic aspects that were more or less deliberately built into the constitution overestimated the dangers of popular majorities…” (Dahl, 2003, p. 39). Dahl gives no explanation thereafter as to how they overestimated the dangers of popular majorities, or if that was the sole purpose of the Constitution alone. He explains further that the “legitimacy of the Constitution ought to derive solely from its utility as an instrument of democratic government—nothing more, nothing less” (Dahl, 2003, p. 39). The Federalist Papers alone provide as solid refutation to the purpose of the Constitution as furthering a purely democratic cause. The convention was not called in 1787 because the framers and founders felt as though the confederacy was not democratic enough. Does this mean that in Dahl’s view the Constitution is illegitimate?

There are most definitely democratic principles in the Constitution—direct elections of members of the House of Representatives and Madison’s repeated assertions that the legislature is the most powerful body in the federal government—gives far more creed to the assertion that the framers intended to create a representative democracy. Archon Fung in his “Democratic Theory and Political Science” essay seeks to define and differentiate between disparate forms of democracy. He separates them into four categories: minimal, aggregative, deliberative, and participatory. The United States incorporates an amalgam of all four of Fung’s conceptions of democracy, but does not favor one over the other, nor the idea of direct democracy as explained earlier. The two most prominent of the democratic principles that are incorporated into our Constitution per Fung’s definition are minimal democracy and deliberative democracy. Minimal democracy inasmuch as it “renders political leaders accountable to its citizens and because it protects private liberties “ (Fung p. 448). All three elected representatives at the federal level are in some way accountable to the people, either directly or indirectly. The Bill or Rights protects private liberties, to which Dahl attributes entire to democratic principles over republican principles, which I think is misguided. Secondly, components of deliberative democracy are included in our Constitution, both houses of the bicameral legislature must be deliberated and “based on reasons that all citizens should accept” (Fung, p. 449).

The Constitution, as the framers intended, includes aspects of democratic principles including self-government. However, these principles only go so far as they reach the unalienable rights of the individual. The Constitution was not drafted and ratified to make the confederacy more democratic, but to better facilitate commerce and bolster national security. This does not preclude the document from incorporating some democratic features, but the same time, it includes measures that mitigates and ameliorates the negative aspects of those same democratic ideals therein. The argument of democracy v. republic is a red herring of sorts. The reconciliation of self-government and individual rights undergirds the entirety of the debate, yet is seldom directly addressed.


– Will Ricciardella


Works Cited

Bork, R. (1990). The tempting of America: The political seduction of the law (Frist ed.). New York: Free Press.


Hamilton, A. (2006). The federalist. New York: Barnes & Noble Books.


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Filed under Jurisprudence, Political Philosophy

Marbury V. Madison – Against Judicial Review

Stock Photo of the Consitution of the United States and Feather QuillA Constitution in the breach: the most egregiously poor SCOTUS decisions of all time. There are several I will cover in chronological order. I will try to make them as concise, incisive and succinct as humanly possible.


WHY: Established the extra-constitutional power of judicial review from which all other activist decisions originate.

BRIEF BACKGROUND: (The background here is thick and involved and I want to spare you from as much of it as possible, it can get awfully boring. I want to, however, give you enough information that you will better understand the motivations behind such a judicial power grab.)

The idea of Judicial Review was nothing new in the nascent republic. Samuel Chase in Calder v. Bull (1798), made the case for the Supreme Court to strike down laws that in no way violated any provision of any constitution, federal or state.

His argument thereof was devoid of any logical basis and his opinion was mired in verbal gymnastics masked with a prolixity found in many of the SCOTUS activist decisions we see today. However, contemporary Courts tend to be far less candid in powers that don’t belong to them than Justice Chase was.

Chase was an extremely partisan judge (he was later impeached because of it, but escaped conviction in the Senate), and his likely federalist leanings may have been the impetus for his activist proclivities. This is precisely the reason John Marshall (a federalist, Thomas Jefferson’s cousin and political rival, never got along) created the power out of thin air dealing with a case that should have never been in the Supreme Court in the first place. In short, judicial review was born out of political motives and expediency.

John Adams (a federalist), before the subsequent election of Thomas Jefferson (a Republican), did as much as he could to maintain the federal judiciary as a federalist stronghold. Federalists favored a much stronger federal government than did the Republicans and a political struggle and rivalry ensued.

When Adams realized he was not going to be re-elected he helped create and pass the Judiciary Act of 1801, creating 16 new federal judgeships of which Adams would appoint federalist judges. Adams’ term ran out, however, before his Secretary of State, John Marshall, could deliver all the new commissions. Marshall’s successor, James Madison, refused to deliver them, William Marbury (one of the appointed judges) filed suit in federal court seeking a writ of mandamus directing Madison to deliver said commissions (Madison was so flustered by the suit he didn’t show up). John Marshall assumed the position of Chief Justice precisely one month after Adams left office. With a newly elected Republican Congress in 1800 Marshall understood the tenuous nature of his position on the Court and the very real possibility of Jefferson and Congress to denude the Judiciary of power. Marshall knew he had to do something.

DID SCOTUS HAVE JURISDICTION: It was a very odd suit to begin with and what is even more odd is that Marbury brought this case to the wrong court. Article III of the Constitution places certain cases within the jurisdiction of the appellate courts. These are cases that appear in the lower courts and come to the SCOTUS for review. This case did not fall under the criteria of original jurisdiction whatsoever and should have been dismissed.

THE DECISION: Marshall, in stroke of political genius (in favor of the federalists), asserted that Marbury had something similar to a property right to hold an office (precedent at the time), which he had been appointed to and confirmed. He went on to assert that the Court has the power to strike down statutes that were inconsistent with the Constitution. Not only did he ignore the fact that the Court has absolutely no jurisdiction in this matter, he invented a doctrine that had absolutely no constitutional basis. Judicial Review was born, upsetting the delicate balance between the federal government and the states along with all fidelity to the document over time.


– Will Ricciardella


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Beer and Bastards

Beer and BastardsStarting Wednesday at 8:30pm EST. Yours truly and the admins of some of my favorite pages will begin a weekly live webcast called Beer and Bastards. It’s an offshoot of Libertarian Girl’s Bitches and Bourbon.

It will feature:
Matt Palumbo of Being Classically Liberal
Corey Iacono of Being Classically Liberal
Michael Lee of Being Liberal Logic
Jason Hubbard of We Are Capitalists
David Lee of We Are Capitalists
Kevin Ryan of Unbiased America
and me, Will Ricciardella of The Analytical Conservative.

We will be discussing current events and debating some of the most heated topics amongst libertarians, conservatives, ancaps, and socialists all while gently sipping a Chimay, pinkies extended and all (because we’re all bourgeoisie capitalists, you see).

The show is produced by and broadcast at as well as the spreecast app that you can download on your numerous devices. A link will be provided on any of the above pages on the day of the broadcast and below is a link to our facebook page for the show. Viewers can submit questions live during the show as well, so it’s completely interactive. I hope you find this interesting and I look forward to seeing you all Wednesday!

(Admins note: I’m a lightweight, so two beers and I’ll be toasted. This could get interesting)


– Will Ricciardella


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Free Community College or Pandering to the Base?

President Obama has recently stated he would like to make community college “free” for those who maintain a GPA of 2.5 or higher and are making progress towards a degree. Liberals love it because it is providing “free” education and young kids hear free college and think it is great as well.

So, does President Obama really want to make college more affordable, or simply appeal to certain voting groups?

Due to his proposed new tax on 529 college savings plans, I believe he is simply trying to appeal to voting groups. A 529 is a college saving plan usually set up by a parent to help pay for their child’s college tuition. If you have a 529 you can contribute money to the account federal income tax free, the account is allowed to build up federal income tax free, and you can withdraw tax-free. Pretty great deal, right?

Well, President Obama has proposed a new plan that will remove the federal income-tax exemption for the earnings part. According to the investment Company Institute, there are roughly 12 million 529 savings accounts with a about $245 million in assets. This averages to 21,000 per account.

Now ask yourself, whom do these accounts benefit? The richest in America have no use for these types of accounts, but the middle class benefits from them greatly.

Why would someone who is trying to make college more affordable make it harder for middle class Americans to pay for college? The truth is he does not care. He only wants to expand the size of the government, which is what both of these policies will do.

– JW

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Understanding the Emancipation Proclamation

Team of RivalsTHE EMANCIPATION PROCLAMATION revisited, denuded and within historical context.

I often hear that Lincoln is a tyrant and his goal was to centralize power in the federal government to satiate his own ambitions. His Emancipation Proclamation is used as evidence. It’s often portrayed by revisionist historical ideologues–more wedded to a vision than to truth–as a baseless usurpation of power by the executive, and theft of private property. In fact, it was neither, and one would have to PURPOSELY ignore Lincoln’s arguments for his emancipation proclamation and many in Congress who implored him to do it sooner than he actually did. Lincoln did not roll out of bed one day and blithely decide to take “property” from sovereign American citizens (let’s suppose, for argument sake, another human being can be considered property). It’s far more nuanced than that. This narrative elides nuance and context, I will do my best to fill the holes and tell the whole story of the Constitutional rationale behind the Proclamation.

First, it’s important to understand exactly what the Emancipation Proclamation actually did. It’s also important–especially those that decry Lincoln’s suspension of habeas corpus without the consent of Congress–to point out The First Confiscation Act in 1861, authorizing the confiscation of ANY property used in the REBELLION of the against the U.S. government. It wasn’t until September of 22, 1863, after the battle of Antietam, a union victory, that he issued his proclamation. It declared that “all persons held as slaves … shall be then, thenceforward, and forever free.” NOTE: this applied only to the states that were in REBELLION, as the Constitution itself makes a distinction between a nation at peace and one in rebellion. It did not free the slaves in the slaveholding border states such as Delaware, Kentucky, Maryland or Missouri and other slaveholding areas of the south that were already under union control. Lincoln was careful in his timing, ensuring that the proclamation would have as large of an positive impact as it possibly could in helping to preserve the union.

Now, for Lincoln’s actual position on emancipation, slavery and preserving the union.

1. Lincoln knew that his desire to end slavery was Constitutionally untenable. The Constitution provided the executive with absolutely zero power to prohibit it in the southern states. At the ratification, no southern delegate would have voted in favor of the document had this been the case. Lincoln states in his first inaugural address, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists, I believe I have no lawful right to do so, and I have no inclination to do so.” But Lincoln didn’t stop there…

1a. In the same inaugural he went on to quote the Fugitive Slave Clause of the Constitution explaining, “It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear there support to the whole Constitution–to this provision as much as any other.” It’s important to note Lincoln’s fidelity to the Constitution.

2a. Lincoln goes so far as to propose a Constitutional amendment that would proscribe the federal government from ever interfering with the domestic institutions of a state. He explains, “holding such a provision to now be implied constitutional law, I have no objection to it’s being made express and irrevocable.”

Here, Lincoln validates two of the most important constitutional claims of the southern slaveholders, a constitutional prohibition against federal interference in the affairs of the states, particularly in regards to slavery. And, the constitutional right of slaveholders to recover their slaves.

In 1854, writing on this very issue, when southerners “remind us of their constitutional rights, I acknowledge them, not begrudgingly, but fully and fairly…”

So where was the disagreement?

Lincoln differed from the south in two prominent areas, the federal government’s ability to limit the expansion of slavery in the territories (The activist decision in the Dred Scott case unlawfully invalidated the federal government’s power to do so), and a perceived right of secession. It is extremely hard for one to rationalize those who have claimed to leave the union and the Constitution, while still seeking constitutional protection of slavery.

Though, Lincoln understood he had no power in times of peace to limit or abolish slavery. If he were to do so, the South could threaten the union. Moreover, the framers had capitulated on the issue of slavery and made explicit concessions to slavery in the Constitution, and in Lincoln’s opinion, those must be honored. Lincoln was then consigned to the very same necessity of the institution of slavery as our framers.

It wasn’t until the Southern states seceded, rescinding one of the main arguments for restraint in the North. The act of rebellion itself (secession) eliminated the threat of said rebellion as a reason for the North to accept the status quo. As Professor David Nichols so eloquently states, “Lincoln believed that the rebellion had turned the Constitutional tables on slavery.” The issue of slavery was going to die a slow, arduous and costly death, not at the hands of Lincoln, but at the behest of an insecure and lawless south, that was threatened by the growing industrial power and discontent with slavery itself in the North. Despite the act of rebellion, Congress’ First Confiscation Act, the Second Confiscation Act (which he would later point to as justification), and efforts by his generals to emancipate the slaves, Lincoln remained steadfast in his OPPOSITION to emancipation (as the timing was incorrect). As Lincoln states in a letter to Horace Greely (in response to Greely’s editorial. A few years after Lincoln’s death, Greely noted it was not a response at all, but Lincoln used it as a platform for his “altered position” on emancipation):

“…paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.”

Lincoln argued, in my opinion rightly, that his commander-in-chief powers, and the status of rebellion in the southern states, The First Confiscation Act and The Second Confiscation Act, afforded him the power to emancipate the slaves in order further the union cause and preserve the Constitution. What better way than to deprive the South of a large part of its labor force while simultaneously bolstering the size of the union army (estimated at 130,000 soldiers) with the recruitment of the newly freed slaves.

Once the North recognized southern slaves to be free, and as they were fleeing to Union camps or by union soldiers, made the political reality of slavery ever being restored in jeopardy. Also, the fact that 130,000 freed slaves had fought side-by-side with whites in the union army, invalidated any notion that slaves were not persons.

The border states, in which the Emancipation Proclamation did not apply to, and with much urging from Lincoln, understood this reality and began plans of their own for emancipation. Lincoln then wanted a constitutional amendment approved as soon as possible so that slavery as a constitutional issue will no longer remain in doubt (13th Amendment).

Lincoln bided his time until he knew it would help the union succeed. This is where he derived his just powers from, not solely from a desire to free the slaves. In their misguided and unconstitutional attempts to secede THEY opened the door for the emancipation of the slaves. In this sense, the South was their own worst enemy, and their perverted interpretation of the Constitution was their ultimate downfall. How ironic.

I’ll leave you with this quote by Lincoln:

By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, the the preservation of the nation.”


– Will Ricciardella


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Filed under Conservatism, History, Jurisprudence, Natural Law, Political Economy, Political Philosophy

Do Patents Help or Hurt Investment and Innovation?

PatentOne of the most controversial topics amongst libertarians/conservatives is whether patents increase or decrease innovation. As is common in economics, it is not an easy answer and has different solutions based on different industries.

The argument everyone has heard in favor of patents is that it protects the inventors/firms profits and therefore increases incentive to invest in R&D. This argument makes intuitive sense. If a firm/inventor spends a lot of time and money working on an invention only to have it imitated the day it hits the market, they are less likely to spend the same amount of time and effort working on another invention.

The argument made against patents is that they decrease innovation because they decrease competition. The argument says that acquiring patents incurs additional costs and promotes wasteful attempts to invent around patents. Moreover, patents could delay spillover effects in sequential innovation. This also makes intuitive sense. So, which argument is correct?

In general, it depends on the industry.

Some of the most innovative industries happen to also have some of the weakest patenting laws. The software, computer and semiconductor industries have all had weak patent protection and relatively fast imitation of products. Of course, one could argue that if they had stronger patent laws the innovation would have been even more rapid. However, the data doesn’t agree with this claim. James Bessen and Eric Maskin find that when there has been an increase in patenting laws in these industries, R&D investment decreases [1]. This is not totally surprising. If there is no risk for imitation, there is less incentive to make a new innovation as quickly as possible. They do not argue for an optimal level of patenting laws, as we will see the authors of the next paper do.

The typical example for the necessity of patenting laws is the pharmaceutical industry. This is because the costs of putting a new drug in the market are staggering. Not only that, it takes many years for the FDA to approve the drug (If the FDA was eliminated this might be an entirely different discussion). In this industry, the first argument I presented is more useful, to an extent. In his paper, Yi Quan finds that in the pharmaceutical industry there is evidence for patenting laws increasing innovation, and that there is an optimal level [2]. However, he also finds that this is only true for certain countries. In countries with lower education levels and national income there is no positive relationship between patenting laws and innovation. This is because these counties largely rely on more developed countries for certain innovations. The most important result (at least for me), is that he finds a positive relationship in the U.S. After a certain level, however, strengthening patent laws will decrease innovation.

The last result has been more common in my research, that there is an optimal level of patenting laws. Too strong of laws decreases incentive to imitate or make sequential innovations because it increases the odds of a lawsuit and other costs that reduce R&D spending. So my personal opinion is that in most industries, weak patenting laws are beneficial. However, I would not make this claim for all industries.

Thus, the discussion about patents should not be a carte blanche generalization for all industries. If someone asks you what your opinion on patents are, the most appropriate response should be “Patents for what industry?”

– JW



[1] Bessen, Maskin “Sequential Innovation, Patents and Imitation”, The Rand Journal of Economics Vol. 40, No. 4 (Winter 2009)

[2] Quan “Do National Patent Laws Stimulate Domestic Innovation in a Global Patenting Environment? A Cross Country Analysis of Pharmaceutical Patent Protection , 1978-2002” The Review of Economics and Statistics Vol. 89 No. 83 (Aug. 2007)

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Filed under Chicago School of Economics, Economic Methodology, General Philosophy, Political Economy, Political Philosophy

Constitutional Law, Slavery, and Jurisprudence

Stock Photo of the Consitution of the United States and Feather QuillPerhaps no two issues have been more filtered throughout history than that of slavery and the violations of our rule of law in order to preserve it, and eventually unlawfully retaliate against the freed slaves. Many claim the founders themselves were racists while ignoring altogether the actual mindsets of the framers, the early abolition movement, and their utter disdain for slavery (though nothing to do with race, but rather the enslavement of another human being period). It is true, however, that not all were against slavery, particularly those delegates from the South. Compromises/concessions were made in drafting the Constitution, particularly to those with pro-slavery interests. Without doing so, there would be little hope of ratification. This did not preclude our framers from taking meticulous care in wording our Declaration of Independence and Constitution, when originally understood, were the basis for the abolition of slavery. It was only through judicial review/jurisprudence—in particular Dred Scott v. Sanford and Plessy v. Ferguson—not original intent that slavery was read into our Constitution in order justify the lawless Jim Crow laws of the South from the early to mid 20th century.

Slavery is not just a blemish on American history, but the history of mankind. Racism was never a precondition of slavery throughout human history. Most slaves were not racially different from those they enslaved. As Thomas Sowell points out, “Europeans enslaved Europeans, Africans enslaved other Africans, Polynesians enslaved other Polynesians and the indigenous peoples of the Western Hemisphere enslaved other indigenous peoples of the Western Hemisphere” (Sowell, p. 480, Intellectuals). Race wasn’t the primary factor until it became technologically and economically possible to transport peoples of other races from one continent to another. In fact, Pirates transported more than a million Europeans as slaves to the Barbary Coast of North Africa. This is nearly twice the amount of African slaves that were transported to the British colonies. European slaves were also common in the Ottoman Empire as well. Furthermore, whites were still being sold as slaves in the Islamic world long after blacks had been freed in the United States (Sowell, p. 480, Intellectuals).

Two demonstrable facts can be concluded from the aforementioned historical accounts. The first, that the institution of slavery was not based on race. And secondly, whites as well as blacks were enslaved. It is the idea and image alone of racial slavery, and the racism born therein by the antebellum South, that led to egregious misrepresentations of the law that were never intended to preserve slavery, but slowly eradicate it. Many among the intelligentsia will wrongly point to provisions in the Constitution as proof of the framers intent to validate slavery. These voices seldom back up their claims with facts, for doing so will topple their contemporary vision like a house of cards. From the Three-Fifths Clause to the Fugitive Slave Clause, one can find the seeds of the framers discontent with the pro-slavery delegation at our founding.

The Three-Fifths clause of the Constitution is most often mischaracterized as a provision allowing slavery and only counting slaves as “three-fifths” of a person. At first glance, this would seem incredibly demeaning, that is, if one were to look no further in critical analysis. Article I, Section 2, Clause 3 of the Constitution states that the apportionment for Representatives and taxation purposes would be determined by the number of free persons and “three-fifths of “all other persons” (slaves). The southern delegates to the convention, keeping in mind their best interests, supported the idea of counting their slaves as full persons. This would have bolstered their representation in the House. Moreover, counting slaves as full persons would have provided the incentive to import more slaves and further bolster said power and the aggregate amount of slaves in the US (Jenson, p.55). It was the northern delegates that did not want to count the slaves at all to dispel the amount of power given to the southern states. It is significant to point out that the framers never once used the words “slave,” “slavery,” or “property” when referencing the institution or the people, instead opting for the term “persons.” As Dr. Mathew Spalding points out, “Madison recorded in his notes that the delegates ‘thought it wrong to admit in the Constitution the idea that there could be property in men” (Spalding). This will be extremely important later when discussing the jurisprudence associated with slavery.

A more complete account of the framers sentiments can be found in Article I, Section 9, Clause 1 in dealing with slavery. This clause prohibited Congress until 1808 from blocking the importation of slaves into the states. This is a major concession to the pro-slavery delegates, though; it was only temporary exemption from the federal government’s power to limit the slave trade. It also did not proscribe the states from outlawing slavery on their own. Upon the expiration of the prohibition of Congress’ power to limit the slave trade in 1808, Congress did exactly that. Thomas Jefferson signed it into law on January 1, 1808. Speaking of the concession and Congress’ eventual lawful action, abolitionist founder James Wilson noted, “…yet the lapse of a few years and Congress will have the power to exterminate slavery within our borders” (Spalding). Hardly spoken like someone who wanted to preserve slavery. One need not look very deep into Constitutional history and original intent to find the seeds of abolition within our founding documents. This evidence, however, doesn’t stop those from eliding all evidence to the contrary in order to perpetuate a narrative with myth and mantras.

In the Fugitive Slave Clause, the exact wording used was carefully articulated in order to prevent, in the words of James Madison, “the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view” (Spalding, p. 275) The provision initially read “Person legally held to Service or Labour in one state,” before it was changed in the last minute to “Person held to Service or Labour in one state, under the laws thereof” (Spalding, p. 275). This revision made clear that the sates were sanctifying, and made legal, the holding of another as property, and nowhere promulgated in the Constitution. In short, it made clear that slaveholding and the ownership as a human being as property was not based upon either natural law or common law.

It is clear that these concessions made by our most prominent founders to appease those most interested in the institution of slavery and the slave trade. Without doing so, the newly formed government would have little chance at ratification and a successful implementation (Spalding). The Constitution was written not to endorse, condone or perpetuate slavery, but to tolerate it and in some cases do the exact opposite (Congress’ power to block migration and importation of slaves). Frederick Douglass, a former slave and great abolitionist leader elucidates what many people misunderstand today – he said in 1864:

“Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered, it was purposely so framed as to give no claim, no sanction to the claim of property in man. If in its origin slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed” (Spalding).

With the advent of judicial review as a result of the majority opinion in Marbury v. Madison, a power never explicitly given to the Supreme Court, reinterpretations of the Constitution commenced. It wasn’t until 1857 and the case of Dred Scott v. Sanford that the repercussions of Marbury were felt. From the founding onward slavery was defended and attacked on the principles of morality and the South became increasingly concerned that with a vibrant and prosperous North it could become powerful enough to abolish slavery, the very lifeblood of the South (Bork, p. 29). These simmering tensions rose to the surface when Missouri sought statehood. Congress, with the intention of limiting slave states “ultimately admitted Missouri as a state where slavery was permitted, but balanced that by admitting Maine as a free state…” (Bork, p. 29). Congress also prohibited slavery into the rest of the territory acquired by the Louisiana Purchase north of Missouri’s border. This became known as the Missouri Compromise (Bork, p. 29).

Dred Scott was a slave taken by his owner into the free state of Illinois as well as federal land, which was also considered free soil per the Missouri Compromise. Scott escaped in Illinois but was eventually returned to Missouri as property and later sued for his freedom. His case was predicated on the idea that he became free as soon as stepped foot on free soil. He first sued and won in the Missouri courts where precedent was on his side, only to be later over turned by the Missouri Supreme Court (Bork. p. 29). Scott appealed the decision all the way to United States Supreme Court headed by Chief Justice Roger Taney of Maryland, and comprised of southern sympathizers (Bork, p. 29). The court produced 241 pages containing a string of arguments that were unhinged from any recognizable constitutional basis. What Taney did accomplish, and so intended, was to read into the Constitution the legality of slavery forever. Taney wanted to settle the question and the debate in one fell swoop of his pen (Bork, p.29).

Taney’s decision “denied the power of the federal government to prevent slavery in any state or territory and the power of the federal government to permit a state to bar slavery within its territory” (Bork, p. 30). What this had done was declare the Missouri compromise unconstitutional. Taney went further as he was determined to write into the Constitution a right to own another human being as property. He did so by rewriting the meaning of the Due Process clause of the Fifth Amendment (Bork, p.31). He took a purely procedural clause and gave it substance; ironic considering it clearly contains the word “process” within it. This very decision gave rise to the “substantive due process clause,” which is still used to justify overturning or revising federal and state laws today (Bork p.31). This became an explosive national issue, which ultimately added to the impetus for the Civil war. As Robert Bork so rightly points out, “There is something wrong… with a judicial power that can produce a decision it takes a civil war to overturn” (Bork, p.34). Clearly, there is no way, democratically, a majority of people willing to go to war would’ve supported such an idea.

Unfortunately, this wasn’t the only case where the plain meaning of the Constitution was used against former slaves and blacks. Moreover, it wasn’t the only perversion of the law with serious repercussions. In 1896, the Supreme Court examined the Constitutionality of a Louisiana law requiring railway companies to provide separate coaches for white and black people known as Plessy v. Ferguson (Levin, p. 16). The majority held that “We cannot find that a law which requires the separation of the two races in public conveyances as unreasonable, or obnoxious to the 14th amendment” (Levin, p. 16). The Supreme Court upheld a law that forced private industry to separate individuals on the account of race. This is in direct violation of the plain language used in the 14th amendment guaranteeing equal protection under the law. “Separate but equal” became the law of the land for fifty-eight years, though it was never voted on, nor intended by the framers of the Constitution or the 14th amendment (Levin, p. 16). This doctrine validated and made Constitutional in direct violation of our rule of law (Declaration of Independence/Constitution), the racist and vile Jim Crows of the South. It wasn’t until Brown v. Board of Education in 1954 that it was rightfully overturned (Levin, p. 16). Justice Marshall Harlan’s dissent in Plessy perfectly delineates the Constitutional proviso on law and race:

“But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….”

De jure discrimination has always been a violation of the natural law principles delineated in our founding documents. De facto discrimination and self-interest that run counter to the rule of law, provided the basis for many of the usurpations of said natural law principles this nation was founded on. It was, is, and always has been a perversion of the law. The state played a huge role in perpetrating and condoning civil rights abuses through jurisprudence and a willful ignorance of our founding documents. These abuses didn’t just begin and end with black Americans. In 1944’s Korematsu v. United States, the state (an activist court) once again upheld executive orders issued by President Franklin Roosevelt “establishing military authority for the forced internment of American’s during World War II” (Levin, p. 14). Over 110,000 mostly Japanese-Americans were rounded up from the coast and relocated to the interior of the Country, all without due process (Levin, p.14). The Supreme Court’s majority opinion was “devoid” of any constitutional basis for such a lawless order (Levin, p.14).

There is little doubt that slavery remains as one of the worst atrocities in American history. There is also little doubt that our founding documents have never condoned it, but have laid the seeds for its demise. Therefore, It is not surprising that Frederick Douglass and Abraham Lincoln turned to the founding documents as a remedy to slavery. As Lincoln so eloquently states, “In the way our Fathers originally left the slavery question, the institution was in the course of ultimate extinction…” (Spalding). Lincoln assumes through federalism that slavery would eventually die out on it’s own. He drastically underestimated the vociferous advocacy and institutional take over by pro-slavery southerners (Bork, p.19). He went on to conclude in 1858, a year after the Dred Scott decision that, “all I have asked or desired anywhere, is that it should be placed back again upon the basis that the Fathers of our government originally placed it upon” (Spalding). Through a subversion and subjective sense of the rule of law, slavery became institutionalized along with the accompanying racism, changing what the founders had originally intended.

The Constitution of the United States did not, and never did condone racism, Jim Crow laws, interment or the ownership of another human being. It’s precisely the opposite, the perversion and reading into the law personal predilections of men with too much power, rather than the objective natural law verities so eloquently and lucidly delineated in our founding documents. Within our polity, only extreme lawlessness and expediency can perpetuate the atrocities that were condoned by some of our most powerful democratic institutions. Ironically, they were all done so in the most undemocratic means, largely insulated from the body politic. At no point did our framers intend for the polity they created to work in such a lawless manner, nor unjustly violate the unalienable rights of man.


– Will Ricciardella


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