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The Post Constitutional Era! Part XXXIII

Amendment 8 - Cruel and Unusual Punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Notes for this amendment: Proposed 9/25/1789 - Ratified 12/15/1791

“This amendment prohibits excessive fines and bail, as well as cruel and unusual punishments. The phrase “cruel and unusual punishments” first appeared in the English Bill of Rights. In colonial America, the British often employed branding, whipping, public humiliation and extremely long prison sentences for minor offenses. The Founders believed that justice requires that even those people found guilty of crimes be protected from this kind of treatment.

James Wilson lectured on justice and punishments, saying in 1791, “A nation [that tolerates] cruel punishments becomes dastardly and contemptible. For in nations, as well as individuals, cruelty is always attended by cowardice.” He argued that punishments should be swift, certain, and moderate in order to be effective and prevent further crime. Landmark Supreme Court cases concerning the Eighth Amendment include Gregg v. Georgia (1976)”.

The Gregg case decided that the death penalty  was not cruel and unusual punishment under the Eight Amendment of the Constitution as long as it was used “judiciously and carefully” and met “contemporary standards of society, served as a deterrent, and was not randomly applied.”  However SCOTUS has ruled that certain crimes should not be crimes the death penalty can be applied such as rape.  They base their views on what is known as a modern approach of  “Evolving Standards of Decency”, which the court has developed based on the laws in the fifty states.

The meaning of “cruel and unusual punishment” today is far different than in Colonial times. But pinning down the modern interpretation is very difficult.  The whole idea behind this was to avoid barbaric or severe punishments that were out of line with the severity of the crime committed.

“When the Declaration was issued, however, fairly gruesome punishment was meted out as a matter of course. For example, dozens of offenses, including those as minor as grand theft, were punishable by death. America's adoption of the ban on cruel and unusual punishment took place within a similar context—the men who wrote the Constitution were aware of harsh colonial practices such as repeatedly plunging low-level offenders under water.”

“While the English framers’ purpose was to outlaw savage and torturous forms of punishment, modern readers may wonder how the punishments of the day escaped censure under the lofty ban. In America, many punishments survived under the cruel and unusual punishment clause simply because they had long been permissible. Courts upheld punishments such as disenfranchisement for dueling, whipping for illegal gambling, and banishment for larceny because these were acceptable English (and hence American) practices.”

Prisoners and their supporters continue to make claims that no matter how they’re treated that treatment is “cruel and unusual”.  There’s more here.

Democracy in America: Chapter XVIII: Future Condition Of Three Races—Part VII

The inhabitants of the United States talk a great deal of their attachment to their country; but I confess that I do not rely upon that calculating patriotism which is founded upon interest, and which a change in the interests at stake may obliterate. Nor do I attach much importance to the language of the Americans, when they manifest, in their daily conversations, the intention of maintaining the federal system adopted by their forefathers. A government retains its sway over a great number of citizens, far less by the voluntary and rational consent of the multitude, than by that instinctive, and to a certain extent involuntary agreement, which results from similarity of feelings and resemblances of opinion. I will never admit that men constitute a social body, simply because they obey the same head and the same laws. Society can only exist when a great number of men consider a great number of things in the same point of view; when they hold the same opinions upon many subjects, and when the same occurrences suggest the same thoughts and impressions to their minds.

The observer who examines the present condition of the United States upon this principle, will readily discover, that although the citizens are divided into twenty-four distinct sovereignties, they nevertheless constitute a single people; and he may perhaps be led to think that the state of the Anglo-American Union is more truly a state of society than that of certain nations of Europe which live under the same legislation and the same prince.

Although the Anglo-Americans have several religious sects, they all regard religion in the same manner. They are not always agreed upon the measures which are most conducive to good government, and they vary upon some of the forms of government which it is expedient to adopt; but they are unanimous upon the general principles which ought to rule human society. From Maine to the Floridas, and from the Missouri to the Atlantic Ocean, the people is held to be the legitimate source of all power. The same notions are entertained respecting liberty and equality, the liberty of the press, the right of association, the jury, and the responsibility of the agents of Government.

If we turn from their political and religious opinions to the moral and philosophical principles which regulate the daily actions of life and govern their conduct, we shall still find the same uniformity. The Anglo-Americans *d acknowledge the absolute moral authority of the reason of the community, as they acknowledge the political authority of the mass of citizens; and they hold that public opinion is the surest arbiter of what is lawful or forbidden, true or false. The majority of them believe that a man will be led to do what is just and good by following his own interest rightly understood. They hold that every man is born in possession of the right of self-government, and that no one has the right of constraining his fellow-creatures to be happy. They have all a lively faith in the perfectibility of man; they are of opinion that the effects of the diffusion of knowledge must necessarily be advantageous, and the consequences of ignorance fatal; they all consider society as a body in a state of improvement, humanity as a changing scene, in which nothing is, or ought to be, permanent; and they admit that what appears to them to be good to-day may be superseded by something better-to-morrow. I do not give all these opinions as true, but I quote them as characteristic of the Americans.

d [ It is scarcely necessary for me to observe that by the expression Anglo-Americans, I only mean to designate the great majority of the nation; for a certain number of isolated individuals are of course to be met with holding very different opinions.]

The Anglo-Americans are not only united together by these common opinions, but they are separated from all other nations by a common feeling of pride. For the last fifty years no pains have been spared to convince the inhabitants of the United States that they constitute the only religious, enlightened, and free people. They perceive that, for the present, their own democratic institutions succeed, whilst those of other countries fail; hence they conceive an overweening opinion of their superiority, and they are not very remote from believing themselves to belong to a distinct race of mankind.

The dangers which threaten the American Union do not originate in the diversity of interests or of opinions, but in the various characters and passions of the Americans. The men who inhabit the vast territory of the United States are almost all the issue of a common stock; but the effects of the climate, and more especially of slavery, have gradually introduced very striking differences between the British settler of the Southern States and the British settler of the North. In Europe it is generally believed that slavery has rendered the interests of one part of the Union contrary to those of another part; but I by no means remarked this to be the case: slavery has not created interests in the South contrary to those of the North, but it has modified the character and changed the habits of the natives of the South.

I have already explained the influence which slavery has exercised upon the commercial ability of the Americans in the South; and this same influence equally extends to their manners. The slave is a servant who never remonstrates, and who submits to everything without complaint. He may sometimes assassinate, but he never withstands, his master. In the South there are no families so poor as not to have slaves. The citizen of the Southern States of the Union is invested with a sort of domestic dictatorship, from his earliest years; the first notion he acquires in life is that he is born to command, and the first habit which he contracts is that of being obeyed without resistance. His education tends, then, to give him the character of a supercilious and a hasty man; irascible, violent, and ardent in his desires, impatient of obstacles, but easily discouraged if he cannot succeed upon his first attempt.

The American of the Northern States is surrounded by no slaves in his childhood; he is even unattended by free servants, and is usually obliged to provide for his own wants. No sooner does he enter the world than the idea of necessity assails him on every side: he soon learns to know exactly the natural limit of his authority; he never expects to subdue those who withstand him, by force; and he knows that the surest means of obtaining the support of his fellow-creatures, is to win their favor. He therefore becomes patient, reflecting, tolerant, slow to act, and persevering in his designs.

In the Southern States the more immediate wants of life are always supplied; the inhabitants of those parts are not busied in the material cares of life, which are always provided for by others; and their imagination is diverted to more captivating and less definite objects. The American of the South is fond of grandeur, luxury, and renown, of gayety, of pleasure, and above all of idleness; nothing obliges him to exert himself in order to subsist; and as he has no necessary occupations, he gives way to indolence, and does not even attempt what would be useful.

But the equality of fortunes, and the absence of slavery in the North, plunge the inhabitants in those same cares of daily life which are disdained by the white population of the South. They are taught from infancy to combat want, and to place comfort above all the pleasures of the intellect or the heart. The imagination is extinguished by the trivial details of life, and the ideas become less numerous and less general, but far more practical and more precise. As prosperity is the sole aim of exertion, it is excellently well attained; nature and mankind are turned to the best pecuniary advantage, and society is dexterously made to contribute to the welfare of each of its members, whilst individual egotism is the source of general happiness.

The citizen of the North has not only experience, but knowledge: nevertheless he sets but little value upon the pleasures of knowledge; he esteems it as the means of attaining a certain end, and he is only anxious to seize its more lucrative applications. The citizen of the South is more given to act upon impulse; he is more clever, more frank, more generous, more intellectual, and more brilliant. The former, with a greater degree of activity, of common-sense, of information, and of general aptitude, has the characteristic good and evil qualities of the middle classes. The latter has the tastes, the prejudices, the weaknesses, and the magnanimity of all aristocracies. If two men are united in society, who have the same interests, and to a certain extent the same opinions, but different characters, different acquirements, and a different style of civilization, it is probable that these men will not agree. The same remark is applicable to a society of nations. Slavery, then, does not attack the American Union directly in its interests, but indirectly in its manners.

e [ Census of 1790, 3,929,328; 1830, 12,856,165; 1860, 31,443,321; 1870, 38,555,983; 1890, 62,831,900.]

The States which gave their assent to the federal contract in 1790 were thirteen in number; the Union now consists of thirty-four members. The population, which amounted to nearly 4,000,000 in 1790, had more than tripled in the space of forty years; and in 1830 it amounted to nearly 13,000,000. *e Changes of such magnitude cannot take place without some danger.

A society of nations, as well as a society of individuals, derives its principal chances of duration from the wisdom of its members, their individual weakness, and their limited number. The Americans who quit the coasts of the Atlantic Ocean to plunge into the western wilderness, are adventurers impatient of restraint, greedy of wealth, and frequently men expelled from the States in which they were born. When they arrive in the deserts they are unknown to each other, and they have neither traditions, family feeling, nor the force of example to check their excesses. The empire of the laws is feeble amongst them; that of morality is still more powerless. The settlers who are constantly peopling the valley of the Mississippi are, then, in every respect very inferior to the Americans who inhabit the older parts of the Union. Nevertheless, they already exercise a great influence in its councils; and they arrive at the government of the commonwealth before they have learnt to govern themselves. *f

f [ This indeed is only a temporary danger. I have no doubt that in time society will assume as much stability and regularity in the West as it has already done upon the coast of the Atlantic Ocean.]

The greater the individual weakness of each of the contracting parties, the greater are the chances of the duration of the contract; for their safety is then dependent upon their union. When, in 1790, the most populous of the American republics did not contain 500,000 inhabitants, *g each of them felt its own insignificance as an independent people, and this feeling rendered compliance with the federal authority more easy. But when one of the confederate States reckons, like the State of New York, 2,000,000 of inhabitants, and covers an extent of territory equal in surface to a quarter of France, *h it feels its own strength; and although it may continue to support the Union as advantageous to its prosperity, it no longer regards that body as necessary to its existence, and as it continues to belong to the federal compact, it soon aims at preponderance in the federal assemblies. The probable unanimity of the States is diminished as their number increases. At present the interests of the different parts of the Union are not at variance; but who is able to foresee the multifarious changes of the future, in a country in which towns are founded from day to day, and States almost from year to year?

g [ Pennsylvania contained 431,373 inhabitants in 1790 [and 5,258,014 in 1890.]]

h [ The area of the State of New York is 49,170 square miles. [See U. S. census report of 1890.]]

Since the first settlement of the British colonies, the number of inhabitants has about doubled every twenty-two years. I perceive no causes which are likely to check this progressive increase of the Anglo-American population for the next hundred years; and before that space of time has elapsed, I believe that the territories and dependencies of the United States will be covered by more than 100,000,000 of inhabitants, and divided into forty States. *i I admit that these 100,000,000 of men have no hostile interests. I suppose, on the contrary, that they are all equally interested in the maintenance of the Union; but I am still of opinion that where there are 100,000,000 of men, and forty distinct nations, unequally strong, the continuance of the Federal Government can only be a fortunate accident.

i [ If the population continues to double every twenty-two years, as it has done for the last two hundred years, the number of inhabitants in the United States in 1852 will be twenty millions; in 1874, forty-eight millions; and in 1896, ninety-six millions. This may still be the case even if the lands on the western slope of the Rocky Mountains should be found to be unfit for cultivation. The territory which is already occupied can easily contain this number of inhabitants. One hundred millions of men disseminated over the surface of the twenty-four States, and the three dependencies, which constitute the Union, would only give 762 inhabitants to the square league; this would be far below the mean population of France, which is 1,063 to the square league; or of England, which is 1,457; and it would even be below the population of Switzerland, for that country, notwithstanding its lakes and mountains, contains 783 inhabitants to the square league. See "Malte Brun," vol. vi. p. 92.

[The actual result has fallen somewhat short of these calculations, in spite of the vast territorial acquisitions of the United States: but in 1899 the population is probably about eighty-seven millions, including the population of the Philippines, Hawaii, and Porto Rico.]]

Whatever faith I may have in the perfectibility of man, until human nature is altered, and men wholly transformed, I shall refuse to believe in the duration of a government which is called upon to hold together forty different peoples, disseminated over a territory equal to one-half of Europe in extent; to avoid all rivalry, ambition, and struggles between them, and to direct their independent activity to the accomplishment of the same designs.

But the greatest peril to which the Union is exposed by its increase arises from the continual changes which take place in the position of its internal strength. The distance from Lake Superior to the Gulf of Mexico extends from the 47th to the 30th degree of latitude, a distance of more than 1,200 miles as the bird flies. The frontier of the United States winds along the whole of this immense line, sometimes falling within its limits, but more frequently extending far beyond it, into the waste. It has been calculated that the whites advance every year a mean distance of seventeen miles along the whole of his vast boundary. *j Obstacles, such as an unproductive district, a lake or an Indian nation unexpectedly encountered, are sometimes met with. The advancing column then halts for a while; its two extremities fall back upon themselves, and as soon as they are reunited they proceed onwards. This gradual and continuous progress of the European race towards the Rocky Mountains has the solemnity of a providential event; it is like a deluge of men rising unabatedly, and daily driven onwards by the hand of God.

j [ See Legislative Documents, 20th Congress, No. 117, p. 105.]

Within this first line of conquering settlers towns are built, and vast States founded. In 1790 there were only a few thousand pioneers sprinkled along the valleys of the Mississippi; and at the present day these valleys contain as many inhabitants as were to be found in the whole Union in 1790. Their population amounts to nearly 4,000,000. *k The city of Washington was founded in 1800, in the very centre of the Union; but such are the changes which have taken place, that it now stands at one of the extremities; and the delegates of the most remote Western States are already obliged to perform a journey as long as that from Vienna to Paris. *l

k [ 3,672,317—Census of 1830.]

l [ The distance from Jefferson, the capital of the State of Missouri, to Washington is 1,019 miles. ("American Almanac," 1831, p. 48.)]

All the States are borne onwards at the same time in the path of fortune, but of course they do not all increase and prosper in the same proportion. To the North of the Union the detached branches of the Alleghany chain, which extend as far as the Atlantic Ocean, form spacious roads and ports, which are constantly accessible to vessels of the greatest burden. But from the Potomac to the mouth of the Mississippi the coast is sandy and flat. In this part of the Union the mouths of almost all the rivers are obstructed; and the few harbors which exist amongst these lagoons afford much shallower water to vessels, and much fewer commercial advantages than those of the North.

This first natural cause of inferiority is united to another cause proceeding from the laws. We have already seen that slavery, which is abolished in the North, still exists in the South; and I have pointed out its fatal consequences upon the prosperity of the planter himself.

The North is therefore superior to the South both in commerce *m and manufacture; the natural consequence of which is the more rapid increase of population and of wealth within its borders. The States situate upon the shores of the Atlantic Ocean are already half-peopled. Most of the land is held by an owner; and these districts cannot therefore receive so many emigrants as the Western States, where a boundless field is still open to their exertions. The valley of the Mississippi is far more fertile than the coast of the Atlantic Ocean. This reason, added to all the others, contributes to drive the Europeans westward—a fact which may be rigorously demonstrated by figures. It is found that the sum total of the population of all the United States has about tripled in the course of forty years. But in the recent States adjacent to the Mississippi, the population has increased thirty-one-fold, within the same space of time. *n

m [ The following statements will suffice to show the difference which exists between the commerce of the South and that of the North:—

In 1829 the tonnage of all the merchant vessels belonging to Virginia, the two Carolinas, and Georgia (the four great Southern States), amounted to only 5,243 tons. In the same year the tonnage of the vessels of the State of Massachusetts alone amounted to 17,322 tons. (See Legislative Documents, 21st Congress, 2d session, No. 140, p. 244.) Thus the State of Massachusetts had three times as much shipping as the four above-mentioned States. Nevertheless the area of the State of Massachusetts is only 7,335 square miles, and its population amounts to 610,014 inhabitants [2,238,943 in 1890]; whilst the area of the four other States I have quoted is 210,000 square miles, and their population 3,047,767. Thus the area of the State of Massachusetts forms only one-thirtieth part of the area of the four States; and its population is five times smaller than theirs. (See "Darby's View of the United States.") Slavery is prejudicial to the commercial prosperity of the South in several different ways; by diminishing the spirit of enterprise amongst the whites, and by preventing them from meeting with as numerous a class of sailors as they require. Sailors are usually taken from the lowest ranks of the population. But in the Southern States these lowest ranks are composed of slaves, and it is very difficult to employ them at sea. They are unable to serve as well as a white crew, and apprehensions would always be entertained of their mutinying in the middle of the ocean, or of their escaping in the foreign countries at which they might touch.]

n [ "Darby's View of the United States," p. 444.]

The relative position of the central federal power is continually displaced. Forty years ago the majority of the citizens of the Union was established upon the coast of the Atlantic, in the environs of the spot upon which Washington now stands; but the great body of the people is now advancing inland and to the north, so that in twenty years the majority will unquestionably be on the western side of the Alleghanies. If the Union goes on to subsist, the basin of the Mississippi is evidently marked out, by its fertility and its extent, as the future centre of the Federal Government. In thirty or forty years, that tract of country will have assumed the rank which naturally belongs to it. It is easy to calculate that its population, compared to that of the coast of the Atlantic, will be, in round numbers, as 40 to 11. In a few years the States which founded the Union will lose the direction of its policy, and the population of the valley of the Mississippi will preponderate in the federal assemblies.

This constant gravitation of the federal power and influence towards the northwest is shown every ten years, when a general census of the population is made, and the number of delegates which each State sends to Congress is settled afresh. *o In 1790 Virginia had nineteen representatives in Congress. This number continued to increase until the year 1813, when it reached to twenty-three; from that time it began to decrease, and in 1833 Virginia elected only twenty-one representatives. *p During the same period the State of New York progressed in the contrary direction: in 1790 it had ten representatives in Congress; in 1813, twenty-seven; in 1823, thirty-four; and in 1833, forty. The State of Ohio had only one representative in 1803, and in 1833 it had already nineteen.

o [ It may be seen that in the course of the last ten years (1820-1830) the population of one district, as, for instance, the State of Delaware, has increased in the proportion of five per cent.; whilst that of another, as the territory of Michigan, has increased 250 per cent. Thus the population of Virginia had augmented thirteen per cent., and that of the border State of Ohio sixty-one per cent., in the same space of time. The general table of these changes, which is given in the "National Calendar," displays a striking picture of the unequal fortunes of the different States.]

p [ It has just been said that in the course of the last term the population of Virginia has increased thirteen per cent.; and it is necessary to explain how the number of representatives for a State may decrease, when the population of that State, far from diminishing, is actually upon the increase. I take the State of Virginia, to which I have already alluded, as my term of comparison. The number of representatives of Virginia in 1823 was proportionate to the total number of the representatives of the Union, and to the relation which the population bore to that of the whole Union: in 1833 the number of representatives of Virginia was likewise proportionate to the total number of the representatives of the Union, and to the relation which its population, augmented in the course of ten years, bore to the augmented population of the Union in the same space of time. The new number of Virginian representatives will then be to the old numver, on the one hand, as the new numver of all the representatives is to the old number; and, on the other hand, as the augmentation of the population of Virginia is to that of the whole population of the country. Thus, if the increase of the population of the lesser country be to that of the greater in an exact inverse ratio of the proportion between the new and the old numbers of all the representatives, the number of the representatives of Virginia will remain stationary; and if the increase of the Virginian population be to that of the whole Union in a feeblerratio than the new number of the representatives of the Union to the old number, the number of the representatives of Virginia must decrease. [Thus, to the 56th Congress in 1899, Virginia and West Virginia send only fourteen representatives.]]

Cartoon of the Day! - or - Thought for the Day!

The Post Constitutional Era! Part XXXII

Amendment 7 - Trial by Jury in Civil Cases

 In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 Notes for this amendment: Proposed 9/25/1789 - Ratified 12/15/1791

Democracy in America: Chapter XVIII: Future Condition Of Three Races—Part VI

What Are The Chances In Favor Of The Duration Of The American Union, And What Dangers Threaten It *y

y [ [This chapter is one of the most curious and interesting portions of the work, because it embraces almost all the constitutional and social questions which were raised by the great secession of the South and decided by the results of the Civil War. But it must be confessed that the sagacity of the author is sometimes at fault in these speculations, and did not save him from considerable errors, which the course of events has since made apparent. He held that "the legislators of the Constitution of 1789 were not appointed to constitute the government of a single people, but to regulate the association of several States; that the Union was formed by the voluntary agreement of the States, and in uniting together they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people." Whence he inferred that "if one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so; and that the Federal Government would have no means of maintaining its claims directly, either by force or by right." This is the Southern theory of the Constitution, and the whole case of the South in favor of secession. To many Europeans, and to some American (Northern) jurists, this view appeared to be sound; but it was vigorously resisted by the North, and crushed by force of arms.

The author of this book was mistaken in supposing that the "Union was a vast body which presents no definite object to patriotic feeling." When the day of trial came, millions of men were ready to lay down their lives for it. He was also mistaken in supposing that the Federal Executive is so weak that it requires the free consent of the governed to enable it to subsist, and that it would be defeated in a struggle to maintain the Union against one or more separate States. In 1861 nine States, with a population of 8,753,000, seceded, and maintained for four years a resolute but unequal contest for independence, but they were defeated.

Lastly, the author was mistaken in supposing that a community of interests would always prevail between North and South sufficiently powerful to bind them together. He overlooked the influence which the question of slavery must have on the Union the moment that the majority of the people of the North declared against it. In 1831, when the author visited America, the anti-slavery agitation had scarcely begun; and the fact of Southern slavery was accepted by men of all parties, even in the States where there were no slaves: and that was unquestionably the view taken by all the States and by all American statesmen at the time of the adoption of the Constitution, in 1789. But in the course of thirty years a great change took place, and the North refused to perpetuate what had become the "peculiar institution" of the South, especially as it gave the South a species of aristocratic preponderance. The result was the ratification, in December, 1865, of the celebrated 13th article or amendment of the Constitution, which declared that "neither slavery nor involuntary servitude—except as a punishment for crime—shall exist within the United States." To which was soon afterwards added the 15th article, "The right of citizens to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous servitude." The emancipation of several millions of negro slaves without compensation, and the transfer to them of political preponderance in the States in which they outnumber the white population, were acts of the North totally opposed to the interests of the South, and which could only have been carried into effect by conquest.—Translator's Note.]]

Reason for which the preponderating force lies in the States rather than in the Union—The Union will only last as long as all the States choose to belong to it—Causes which tend to keep them united—Utility of the Union to resist foreign enemies, and to prevent the existence of foreigners in America—No natural barriers between the several States—No conflicting interests to divide them—Reciprocal interests of the Northern, Southern, and Western States—Intellectual ties of union—Uniformity of opinions—Dangers of the Union resulting from the different characters and the passions of its citizens—Character of the citizens in the South and in the North—The rapid growth of the Union one of its greatest dangers—Progress of the population to the Northwest—Power gravitates in the same direction—Passions originating from sudden turns of fortune—Whether the existing Government of the Union tends to gain strength, or to lose it—Various signs of its decrease—Internal improvements—Waste lands—Indians—The Bank—The Tariff—General Jackson.

The maintenance of the existing institutions of the several States depends in some measure upon the maintenance of the Union itself. It is therefore important in the first instance to inquire into the probable fate of the Union. One point may indeed be assumed at once: if the present confederation were dissolved, it appears to me to be incontestable that the States of which it is now composed would not return to their original isolated condition, but that several unions would then be formed in the place of one. It is not my intention to inquire into the principles upon which these new unions would probably be established, but merely to show what the causes are which may effect the dismemberment of the existing confederation.

With this object I shall be obliged to retrace some of the steps which I have already taken, and to revert to topics which I have before discussed. I am aware that the reader may accuse me of repetition, but the importance of the matter which still remains to be treated is my excuse; I had rather say too much, than say too little to be thoroughly understood, and I prefer injuring the author to slighting the subject.

The legislators who formed the Constitution of 1789 endeavored to confer a distinct and preponderating authority upon the federal power. But they were confined by the conditions of the task which they had undertaken to perform. They were not appointed to constitute the government of a single people, but to regulate the association of several States; and, whatever their inclinations might be, they could not but divide the exercise of sovereignty in the end.

In order to understand the consequences of this division, it is necessary to make a short distinction between the affairs of the Government. There are some objects which are national by their very nature, that is to say, which affect the nation as a body, and can only be intrusted to the man or the assembly of men who most completely represent the entire nation. Amongst these may be reckoned war and diplomacy. There are other objects which are provincial by their very nature, that is to say, which only affect certain localities, and which can only be properly treated in that locality. Such, for instance, is the budget of a municipality. Lastly, there are certain objects of a mixed nature, which are national inasmuch as they affect all the citizens who compose the nation, and which are provincial inasmuch as it is not necessary that the nation itself should provide for them all. Such are the rights which regulate the civil and political condition of the citizens. No society can exist without civil and political rights. These rights therefore interest all the citizens alike; but it is not always necessary to the existence and the prosperity of the nation that these rights should be uniform, nor, consequently, that they should be regulated by the central authority.

There are, then, two distinct categories of objects which are submitted to the direction of the sovereign power; and these categories occur in all well-constituted communities, whatever the basis of the political constitution may otherwise be. Between these two extremes the objects which I have termed mixed may be considered to lie. As these objects are neither exclusively national nor entirely provincial, they may be obtained by a national or by a provincial government, according to the agreement of the contracting parties, without in any way impairing the contract of association.

The sovereign power is usually formed by the union of separate individuals, who compose a people; and individual powers or collective forces, each representing a very small portion of the sovereign authority, are the sole elements which are subjected to the general Government of their choice. In this case the general Government is more naturally called upon to regulate, not only those affairs which are of essential national importance, but those which are of a more local interest; and the local governments are reduced to that small share of sovereign authority which is indispensable to their prosperity.

But sometimes the sovereign authority is composed of preorganized political bodies, by virtue of circumstances anterior to their union; and in this case the provincial governments assume the control, not only of those affairs which more peculiarly belong to their province, but of all, or of a part of the mixed affairs to which allusion has been made. For the confederate nations which were independent sovereign States before their union, and which still represent a very considerable share of the sovereign power, have only consented to cede to the general Government the exercise of those rights which are indispensable to the Union.

When the national Government, independently of the prerogatives inherent in its nature, is invested with the right of regulating the affairs which relate partly to the general and partly to the local interests, it possesses a preponderating influence. Not only are its own rights extensive, but all the rights which it does not possess exist by its sufferance, and it may be apprehended that the provincial governments may be deprived of their natural and necessary prerogatives by its influence.

When, on the other hand, the provincial governments are invested with the power of regulating those same affairs of mixed interest, an opposite tendency prevails in society. The preponderating force resides in the province, not in the nation; and it may be apprehended that the national Government may in the end be stripped of the privileges which are necessary to its existence.

Independent nations have therefore a natural tendency to centralization, and confederations to dismemberment.

It now only remains for us to apply these general principles to the American Union. The several States were necessarily possessed of the right of regulating all exclusively provincial affairs. Moreover these same States retained the rights of determining the civil and political competency of the citizens, or regulating the reciprocal relations of the members of the community, and of dispensing justice; rights which are of a general nature, but which do not necessarily appertain to the national Government. We have shown that the Government of the Union is invested with the power of acting in the name of the whole nation in those cases in which the nation has to appear as a single and undivided power; as, for instance, in foreign relations, and in offering a common resistance to a common enemy; in short, in conducting those affairs which I have styled exclusively national.

In this division of the rights of sovereignty, the share of the Union seems at first sight to be more considerable than that of the States; but a more attentive investigation shows it to be less so. The undertakings of the Government of the Union are more vast, but their influence is more rarely felt. Those of the provincial governments are comparatively small, but they are incessant, and they serve to keep alive the authority which they represent. The Government of the Union watches the general interests of the country; but the general interests of a people have a very questionable influence upon individual happiness, whilst provincial interests produce a most immediate effect upon the welfare of the inhabitants. The Union secures the independence and the greatness of the nation, which do not immediately affect private citizens; but the several States maintain the liberty, regulate the rights, protect the fortune, and secure the life and the whole future prosperity of every citizen.

The Federal Government is very far removed from its subjects, whilst the provincial governments are within the reach of them all, and are ready to attend to the smallest appeal. The central Government has upon its side the passions of a few superior men who aspire to conduct it; but upon the side of the provincial governments are the interests of all those second-rate individuals who can only hope to obtain power within their own State, and who nevertheless exercise the largest share of authority over the people because they are placed nearest to its level. The Americans have therefore much more to hope and to fear from the States than from the Union; and, in conformity with the natural tendency of the human mind, they are more likely to attach themselves to the former than to the latter. In this respect their habits and feelings harmonize with their interests.

When a compact nation divides its sovereignty, and adopts a confederate form of government, the traditions, the customs, and the manners of the people are for a long time at variance with their legislation; and the former tend to give a degree of influence to the central government which the latter forbids. When a number of confederate states unite to form a single nation, the same causes operate in an opposite direction. I have no doubt that if France were to become a confederate republic like that of the United States, the government would at first display more energy than that of the Union; and if the Union were to alter its constitution to a monarchy like that of France, I think that the American Government would be a long time in acquiring the force which now rules the latter nation. When the national existence of the Anglo-Americans began, their provincial existence was already of long standing; necessary relations were established between the townships and the individual citizens of the same States; and they were accustomed to consider some objects as common to them all, and to conduct other affairs as exclusively relating to their own special interests.

The Union is a vast body which presents no definite object to patriotic feeling. The forms and limits of the State are distinct and circumscribed; since it represents a certain number of objects which are familiar to the citizens and beloved by all. It is identified with the very soil, with the right of property and the domestic affections, with the recollections of the past, the labors of the present, and the hopes of the future. Patriotism, then, which is frequently a mere extension of individual egotism, is still directed to the State, and is not excited by the Union. Thus the tendency of the interests, the habits, and the feelings of the people is to centre political activity in the States, in preference to the Union.

It is easy to estimate the different forces of the two governments, by remarking the manner in which they fulfil their respective functions. Whenever the government of a State has occasion to address an individual or an assembly of individuals, its language is clear and imperative; and such is also the tone of the Federal Government in its intercourse with individuals, but no sooner has it anything to do with a State than it begins to parley, to explain its motives and to justify its conduct, to argue, to advise, and, in short, anything but to command. If doubts are raised as to the limits of the constitutional powers of each government, the provincial government prefers its claim with boldness, and takes prompt and energetic steps to support it. In the mean while the Government of the Union reasons; it appeals to the interests, to the good sense, to the glory of the nation; it temporizes, it negotiates, and does not consent to act until it is reduced to the last extremity. At first sight it might readily be imagined that it is the provincial government which is armed with the authority of the nation, and that Congress represents a single State.

The Federal Government is, therefore, notwithstanding the precautions of those who founded it, naturally so weak that it more peculiarly requires the free consent of the governed to enable it to subsist. It is easy to perceive that its object is to enable the States to realize with facility their determination of remaining united; and, as long as this preliminary condition exists, its authority is great, temperate, and effective. The Constitution fits the Government to control individuals, and easily to surmount such obstacles as they may be inclined to offer; but it was by no means established with a view to the possible separation of one or more of the States from the Union.

If the sovereignty of the Union were to engage in a struggle with that of the States at the present day, its defeat may be confidently predicted; and it is not probable that such a struggle would be seriously undertaken. As often as a steady resistance is offered to the Federal Government it will be found to yield. Experience has hitherto shown that whenever a State has demanded anything with perseverance and resolution, it has invariably succeeded; and that if a separate government has distinctly refused to act, it was left to do as it thought fit. *z

z [ See the conduct of the Northern States in the war of 1812. "During that war," says Jefferson in a letter to General Lafayette, "four of the Eastern States were only attached to the Union, like so many inanimate bodies to living men."]

But even if the Government of the Union had any strength inherent in itself, the physical situation of the country would render the exercise of that strength very difficult. *a The United States cover an immense territory; they are separated from each other by great distances; and the population is disseminated over the surface of a country which is still half a wilderness. If the Union were to undertake to enforce the allegiance of the confederate States by military means, it would be in a position very analogous to that of England at the time of the War of Independence.

a [ The profound peace of the Union affords no pretext for a standing army; and without a standing army a government is not prepared to profit by a favorable opportunity to conquer resistance, and take the sovereign power by surprise. [This note, and the paragraph in the text which precedes, have been shown by the results of the Civil War to be a misconception of the writer.]]

However strong a government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its constitution. The Union was formed by the voluntary agreement of the States; and, in uniting together, they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so; and the Federal Government would have no means of maintaining its claims directly, either by force or by right. In order to enable the Federal Government easily to conquer the resistance which may be offered to it by any one of its subjects, it would be necessary that one or more of them should be specially interested in the existence of the Union, as has frequently been the case in the history of confederations.

If it be supposed that amongst the States which are united by the federal tie there are some which exclusively enjoy the principal advantages of union, or whose prosperity depends on the duration of that union, it is unquestionable that they will always be ready to support the central Government in enforcing the obedience of the others. But the Government would then be exerting a force not derived from itself, but from a principle contrary to its nature. States form confederations in order to derive equal advantages from their union; and in the case just alluded to, the Federal Government would derive its power from the unequal distribution of those benefits amongst the States.

If one of the confederate States have acquired a preponderance sufficiently great to enable it to take exclusive possession of the central authority, it will consider the other States as subject provinces, and it will cause its own supremacy to be respected under the borrowed name of the sovereignty of the Union. Great things may then be done in the name of the Federal Government, but in reality that Government will have ceased to exist. *b In both these cases, the power which acts in the name of the confederation becomes stronger the more it abandons the natural state and the acknowledged principles of confederations.

b [ Thus the province of Holland in the republic of the Low Countries, and the Emperor in the Germanic Confederation, have sometimes put themselves in the place of the union, and have employed the federal authority to their own advantage.]

In America the existing Union is advantageous to all the States, but it is not indispensable to any one of them. Several of them might break the federal tie without compromising the welfare of the others, although their own prosperity would be lessened. As the existence and the happiness of none of the States are wholly dependent on the present Constitution, they would none of them be disposed to make great personal sacrifices to maintain it. On the other hand, there is no State which seems hitherto to have its ambition much interested in the maintenance of the existing Union. They certainly do not all exercise the same influence in the federal councils, but no one of them can hope to domineer over the rest, or to treat them as its inferiors or as its subjects.

It appears to me unquestionable that if any portion of the Union seriously desired to separate itself from the other States, they would not be able, nor indeed would they attempt, to prevent it; and that the present Union will only last as long as the States which compose it choose to continue members of the confederation. If this point be admitted, the question becomes less difficult; and our object is, not to inquire whether the States of the existing Union are capable of separating, but whether they will choose to remain united.

Amongst the various reasons which tend to render the existing Union useful to the Americans, two principal causes are peculiarly evident to the observer. Although the Americans are, as it were, alone upon their continent, their commerce makes them the neighbors of all the nations with which they trade. Notwithstanding their apparent isolation, the Americans require a certain degree of strength, which they cannot retain otherwise than by remaining united to each other. If the States were to split, they would not only diminish the strength which they are now able to display towards foreign nations, but they would soon create foreign powers upon their own territory. A system of inland custom-houses would then be established; the valleys would be divided by imaginary boundary lines; the courses of the rivers would be confined by territorial distinctions; and a multitude of hindrances would prevent the Americans from exploring the whole of that vast continent which Providence has allotted to them for a dominion. At present they have no invasion to fear, and consequently no standing armies to maintain, no taxes to levy. If the Union were dissolved, all these burdensome measures might ere long be required. The Americans are then very powerfully interested in the maintenance of their Union. On the other hand, it is almost impossible to discover any sort of material interest which might at present tempt a portion of the Union to separate from the other States.

When we cast our eyes upon the map of the United States, we perceive the chain of the Alleghany Mountains, running from the northeast to the southwest, and crossing nearly one thousand miles of country; and we are led to imagine that the design of Providence was to raise between the valley of the Mississippi and the coast of the Atlantic Ocean one of those natural barriers which break the mutual intercourse of men, and form the necessary limits of different States. But the average height of the Alleghanies does not exceed 2,500 feet; their greatest elevation is not above 4,000 feet; their rounded summits, and the spacious valleys which they conceal within their passes, are of easy access from several sides. Besides which, the principal rivers which fall into the Atlantic Ocean—the Hudson, the Susquehanna, and the Potomac—take their rise beyond the Alleghanies, in an open district, which borders upon the valley of the Mississippi. These streams quit this tract of country, make their way through the barrier which would seem to turn them westward, and as they wind through the mountains they open an easy and natural passage to man. No natural barrier exists in the regions which are now inhabited by the Anglo-Americans; the Alleghanies are so far from serving as a boundary to separate nations, that they do not even serve as a frontier to the States. New York, Pennsylvania, and Virginia comprise them within their borders, and they extend as much to the west as to the east of the line. The territory now occupied by the twenty-four States of the Union, and the three great districts which have not yet acquired the rank of States, although they already contain inhabitants, covers a surface of 1,002,600 square miles, *c which is about equal to five times the extent of France. Within these limits the qualities of the soil, the temperature, and the produce of the country, are extremely various. The vast extent of territory occupied by the Anglo-American republics has given rise to doubts as to the maintenance of their Union. Here a distinction must be made; contrary interests sometimes arise in the different provinces of a vast empire, which often terminate in open dissensions; and the extent of the country is then most prejudicial to the power of the State. But if the inhabitants of these vast regions are not divided by contrary interests, the extent of the territory may be favorable to their prosperity; for the unity of the government promotes the interchange of the different productions of the soil, and increases their value by facilitating their consumption.

c [ See "Darby's View of the United States," p. 435. [In 1890 the number of States and Territories had increased to 51, the population to 62,831,900, and the area of the States, 3,602,990 square miles. This does not include the Philippine Islands, Hawaii, or Porto Rico. A conservative estimate of the population of the Philippine Islands is 8,000,000; that of Hawaii, by the census of 1897, was given at 109,020; and the present estimated population of Porto Rico is 900,000. The area of the Philippine Islands is about 120,000 square miles, that of Hawaii is 6,740 square miles, and the area of Porto Rico is about 3,600 square miles.]]

It is indeed easy to discover different interests in the different parts of the Union, but I am unacquainted with any which are hostile to each other. The Southern States are almost exclusively agricultural. The Northern States are more peculiarly commercial and manufacturing. The States of the West are at the same time agricultural and manufacturing. In the South the crops consist of tobacco, of rice, of cotton, and of sugar; in the North and the West, of wheat and maize. These are different sources of wealth; but union is the means by which these sources are opened to all, and rendered equally advantageous to the several districts.

The North, which ships the produce of the Anglo-Americans to all parts of the world, and brings back the produce of the globe to the Union, is evidently interested in maintaining the confederation in its present condition, in order that the number of American producers and consumers may remain as large as possible. The North is the most natural agent of communication between the South and the West of the Union on the one hand, and the rest of the world upon the other; the North is therefore interested in the union and prosperity of the South and the West, in order that they may continue to furnish raw materials for its manufactures, and cargoes for its shipping.

The South and the West, on their side, are still more directly interested in the preservation of the Union, and the prosperity of the North. The produce of the South is, for the most part, exported beyond seas; the South and the West consequently stand in need of the commercial resources of the North. They are likewise interested in the maintenance of a powerful fleet by the Union, to protect them efficaciously. The South and the West have no vessels, but they cannot refuse a willing subsidy to defray the expenses of the navy; for if the fleets of Europe were to blockade the ports of the South and the delta of the Mississippi, what would become of the rice of the Carolinas, the tobacco of Virginia, and the sugar and cotton which grow in the valley of the Mississippi? Every portion of the federal budget does therefore contribute to the maintenance of material interests which are common to all the confederate States.

Independently of this commercial utility, the South and the West of the Union derive great political advantages from their connection with the North. The South contains an enormous slave population; a population which is already alarming, and still more formidable for the future. The States of the West lie in the remotest parts of a single valley; and all the rivers which intersect their territory rise in the Rocky Mountains or in the Alleghanies, and fall into the Mississippi, which bears them onwards to the Gulf of Mexico. The Western States are consequently entirely cut off, by their position, from the traditions of Europe and the civilization of the Old World. The inhabitants of the South, then, are induced to support the Union in order to avail themselves of its protection against the blacks; and the inhabitants of the West in order not to be excluded from a free communication with the rest of the globe, and shut up in the wilds of central America. The North cannot but desire the maintenance of the Union, in order to remain, as it now is, the connecting link between that vast body and the other parts of the world.

The temporal interests of all the several parts of the Union are, then, intimately connected; and the same assertion holds true respecting those opinions and sentiments which may be termed the immaterial interests of men.

Climate change: less of a scientific agenda and more of a political agenda

June 23, 2014 by Marita Noon

Those who don’t believe in climate change are “a threat to the future,” says the Washington Post in a June 14 article on President Obama’s commencement address for the University of California-Irvine. Regarding the speech, the Associated Press reported: “President Obama said denying climate change is like arguing the moon is made of cheese.” He declared: “Scientists have long established that the world needs to fight climate change.”

The emphasis on a single government policy strays far from the flowery rhetoric found at the traditional graduation ceremony—especially in light of the timing. While the president was speaking, all of the progress made by America’s investment of blood and treasure in Iraq was under immediate threat. And, as I pointed out last week, what is taking place right now in Iraq has the potential of an imminent impact to our economic security. Instead of addressing the threat now, why is he talking about “a threat to the future” that might happen in the next 100 years?

The answer, I believe, is found later in his comments.

In his speech, Obama accused “some in Congress” of knowing that climate change is real, but refusing to admit it because they’ll “be run out of town by a radical fringe that thinks climate science is a liberal plot.”

Perhaps he’s read a new book by a climatologist with more than forty years of experience in the discipline: The Deliberate Corruption of Climate Science by Tim Ball, PhD—which convincingly lays out the case for believing that the current climate change narrative is “a liberal plot.” (Read a review from Principia Scientific International.) In the preface, Ball states: “I’ve watched my chosen profession—climatology—get hijacked and exploited in service of a political agenda.” He indirectly calls the actions of the president and his environmental allies: “the greatest deception in history” and claims: “the extent of the damage has yet to be exposed and measured.”

It is not that Ball doesn’t believe in climate change. In fact, he does. He posits: “Climate change has happened, is happening and will always happen.” Being literal, Obama’s cheese comment is accurate. No scientist, and no one is Congress, denies natural climate change. However, what is in question is the global warming agenda that has been pushed for the past several decades that claims that the globe is warming because of human-caused escalation of CO². When global warming alarmists use “climate change,” they mean human-caused. Due to lack of “warming,” they’ve changed the term to climate change.

Nor is he against the environment, or even environmentalism. He says: “Environmentalism was a necessary paradigm shift that took shape and gained acceptance in western society in the 1960s. The idea that we shouldn’t despoil our nest and must live within the limits of global resources is fundamental and self-evident. Every rational person embraces those concepts, but some took different approaches that brought us to where we are now.”

Ball continues: “Environmentalism made us aware we had to live within the limits of our home and its resources: we had a responsibility for good stewardship.” But, “the shift to environmentalism was hijacked for a political agenda.” He points out: “extremists demand a complete and unsustainable restructuring of world economies in the guise of environmentalism” and claims: “the world has never before suffered from deception on such a grand scale.”

Though it is difficult to comprehend that a deception on such a grand scale, as Ball projects, could occur, he cites history to explain how the scientific method was bypassed and perverted. “We don’t just suddenly arrive at situations unless it is pure catastrophe. There is always a history, and the current situation can be understood when it is placed in context.”

In The Deliberate Corruption of Climate Science, Ball takes the reader through history and paints a picture based on the work of thought leaders in their day such as Thomas Malthus, The Club of Rome, Paul Erlich, Maurice Strong, and John Holdren. Their collective ideas lead to an anti-development mindset. As a result, Ball says: “Politics and emotion overtook science and logic.”

Having only been in this line of work for the past seven-and-a-half years, I was unfamiliar with the aforementioned. But Ball outlines their works. Two quotes, one from Erlich, author of, the now fully discredited, The Population Bomb, and the other from Strong, who established the United Nations Environment Program (the precursor to the Intergovernmental Panel on Climate Change), resulted in an epiphany for me. I now know that the two sides of the energy debate are fighting apples and oranges.

I’ve been fighting for cost-effective energy, jobs, and economic growth. I point out, as I do in a video clip on the home page of my website, that the countries with the best human health and the most physical wealth are those with the highest energy consumption. I state that abundant, available, and affordable energy is essential to a growing economy. I see that only economically strong countries can afford to care about the environment.

While the other side has an entirely different goal—and it’s not just about energy.

Erlich: “Actually, the problem in the world is there are too many rich people.” And: “We’ve already had too much economic growth in the United States. Economic growth in rich countries like ours is the disease not the cure.”

Strong: “Isn’t the only hope for the planet that the industrialized nations collapse? Isn’t it our responsibility to bring that about?”

When the other side of the energy debate claims that wind turbines and solar panels will create jobs and lower energy costs—despite overwhelming evidence to the contrary, I’d mistakenly assumed that we had similar goals but different paths toward achieving them. But it isn’t really about renewable energy, which explains why climate alarmists don’t cheer when China produces cheap solar panels that make solar energy more affordable for the average person, and instead demand tariffs that increase the cost of Chinese solar panels in the U.S.

Ball states: “In the political climate engendered by environmentalism and its exploitation, some demand a new world order and they believe this can be achieved by shutting down the industrialized nations.”

He cites Strong, a senior member of The Club of Rome, who in 1990 asked: “What if a small group of these world leaders were to conclude the principal risk to the earth comes from the actions of rich countries?” A year later, The Club of Rome released a report, The First Global Revolution, in which the authors state: “In searching for a common enemy against whom we can unite, we came up with the idea that pollution, the threat of global warming, water shortages, famine and the like, would fit the bill. …The real enemy then is humanity itself.”

Throughout the pages of The Deliberate Corruption of Climate Science, Ball goes on to show how in attempting to meet the challenge of collapsing an industrialized civilization, CO² becomes the focus. “Foolishly we’ve developed global energy policies based on incorrect science promulgated by extremists.”

Ball concludes: “Because they applied politics to science they perverted the scientific method by proving their hypothesis to predetermine the result.” The results? “The sad truth is none of the energy and economic policies triggered by the demonization of CO² were necessary.”

Obama said: “Scientists have long established that the world needs to fight climate change.” Yes, some have—many for reasons outlined in Ball’s easy-to-read new book. But, surely not all. Next month, hundreds of scientists, policy analysts, and thought leaders, who don’t agree with the president’s statement (including Ball and myself), will gather together for the Ninth International Conference on Climate Change. There, they won’t all agree on the reasons, but they’ll discuss and debate why each believes climate change is not a man-caused crisis. In real science, debate is welcome.

The computer models used to produce the scientific evidence and to provide legitimacy in support of the political agenda have a record of failed projections that would have doomed any other area of research and policy. Ball points out: “The error of their predictions didn’t stop extremists seeing the need for total control.”

The claim of consensus is continually touted and those who disagree are accused of thinking the moon is made of cheese. According to Ball: “Consensus is neither a scientific fact nor important in science, but it is very important in politics.”

Do you want to live in a world with “the best human health” or in one where “the real enemy is humanity itself?” Energy is at the center of this battle.

“It is time to expose their failures [and true motives] to the public before their work does too much more damage.”

Author’s Note: The title is taken from a 2011 quote from India’s Union Environment Minister Jairam Ramesh.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations’ combined efforts serve as America’s voice for energy.