A 90 Day Study United States Congress and the Constitution Fire on the Floor: The Rules, Conflict, and Debate that Fuel the United States Congress Starting Presidents Day, February 19, 2018 Featuring Essays by Constituting America’s Guest Constitutional Scholars Edited and Compiled by Amanda Hughes 2 Fire on the Floor: The Rules, Conflict, and Debate that Fuel the United States Congress Constitutional Scholar Essayists David Alvis, Associate Professor of Government, Wofford College; Author, The Removal Power Controversy 1789-2010, and Statesmanship and Progressive Reform James D. Best, Author, Tempest at Dawn, a novel about the 1787 Constitutional Convention; and Principled Action, Lessons from the Origins of the American Republic Marc Clauson, Professor of History and Political Economy, and Professor in Honors, Cedarville University Daniel A. Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association Patrick Cox, Award-winning and acclaimed historian, author, and conservationist; President, Patrick Cox Consultants, LLC Bruce Dierenfield, Professor of History, Canisius College Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park Patrick Garry, Professor of Law, University of South Dakota; Author, Limited Government and the Bill of Rights, and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor Amanda Hughes, Outreach Director and 90 Day Study Director, Constituting America; Author, Who Wants to Be Free? Make Sure You Do; Anthology Contributor, Loving Moments, and Moments with Billy Graham(forthcoming) Joseph Knippenberg, Professor of Politics, Oglethorpe University 3 Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow George Landrith, President, Frontiers of Freedom Andrew Langer, President, Institute for Liberty; Host, The LangerCast, RELMNetwork.com; Constituting America Fellow James Legee, Visiting Lecturer of Political Science, Framingham State University LaVaughn G. Lewis, Co-editor with W. David Stedman, Our Ageless Constitution and Rediscovering the Ideas of Liberty; Former Teacher Adam J. MacLeod, Professor of Law, Faulkner University; Author, Property and Practical Reason, and Co- editor, Foundations of Law Robert M. S. McDonald, Professor of History, United States Military Academy, West Point; Author, Confounding Father: Jefferson’s Image in His Own Time Cleta Mitchell, Partner, Foley & Lardner, LLP practicing election and political law, Washington, DC office William Morrisey, William and Patricia LaMothe Chair in the United States Constitution, Hillsdale College; Constituting America Fellow; Author, Self-Government, The American Theme: Presidents of the Founding Civil War; and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government Forest Nabors, Professor of Political Science, University of Alaska at Anchorage Brian Pawlowski, Member, American Enterprise Institute State Leadership Network; Pursuing a Master’s Degree in American History; Served as a Marine Corps Intelligence Officer; Former Lincoln Fellow, Claremont Institute for the Study of Statesmanship and Political Philosophy 4 Ben Phibbs, Constituting America High School Best Essay Winner; Moot court participant and church youth band leader; Homeschool Senior planning to attend Patrick Henry College Gary Porter, Executive Director, Constitution Leadership Initiative Joseph Postell, Associate Professor of Political Science, University of Colorado-Colorado Springs; Author, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government; Editor, Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era Samuel Postell, Ph.D. Student, University of Dallas The Honorable Frank M. Reilly, Professor of Constitutional Law, Election Law, and Political Science, Texas Tech University; Lawyer; Municipal Judge W. David Stedman, A Founder, National Center for America’s Founding Documents and National Foundation for the Study of Religion and Economics; Co-editor with LaVaughn G. Lewis, Our Ageless Constitution and Rediscovering the Ideas of Liberty Flagg Taylor, Associate Professor of Political Science, Skidmore College Janine Turner, Constituting America Founder & Co-President Richard E. Wagner, Holbert Harris Professor of Economics, George Mason University Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow 5 INTRODUCTION The United States Congress and Its Place in Constitutional Government Guest Essayist: William Morrisey Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country. Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it. Such legislative dominance had seemed to make the rule of law unquestionable, but the contrary turned out to be true. Under the Articles, laws passed by Congress couldn’t penetrate into the states to govern individual citizens. This left an apparently formidable, unicameral federal legislature dependent upon the states for revenues and for enforcement. The purpose of the rule of law is to place a layer of protection between the persons enforcing the commands of government and persons ruled by those commands. But the rule of law is nonetheless a form of ruling. Under the Articles, the states amounted to a second, political ‘layer’ of authority; the federal government could enact laws but it could not rule by those laws. As Publius writes in The Federalist, “Government implies the power of making laws”; it also implies the power of enforcing them. If the federal government shall truly govern, however, additional safeguards needed to be built into it. A unicameral legislature that made laws but also enforced them and judged cases arising under them, reaching down to individuals within each state, might behave like a many-headed version of George III. Better, then, to follow the longstanding recommendation of John Adams and establish a bicameral legislature. With the legislators in one house proportioned to the population of the states, the popular or democratic character of American republicanism would survive. Although women couldn’t vote in most states, the percentage of adults who could vote in the United States was still higher than in any other legislative body in the world at that time– far higher than in the British House of Commons, for example, whose members were elected by no more than fifteen percent of the adult population. By contrast, not only were the House members chosen by a more broadly-based electorate, but members themselves needed to meet no property requirements. Publius observes, “Under… reasonable limitations, the door of the House of Representatives is open to merit of every description, whether native or adoptive, whether 6 young or old, and without regard to property or wealth, or to any particular profession or religious faith.” The other branch of the legislature, the Senate, exists to protect the states, which exchanged their power effectively to veto federal legislation for a hand in making that legislation. With each state equally represented in the Senate, and with Senators elected by their state legislatures, citizens in every state could feel confident that the federal laws which would now rule them directly would not compromise the rightful powers of the states. In addition, the requirement that any proposed law would need approval of both houses, and that the senators would serve terms three times longer than members of the House, guarded citizens against what Publius calls “sudden or violent impulses” in lawmakers who might otherwise be swept up in the passions of the moment. Although our contemporaries frequently use the terms ‘democratic’ and ‘republican’ as if they were synonymous, the Founders did not. The purpose of republican or representative government, as distinguished from the pure democracies of ancient Greece, where all acted as legislators and often as judges in the assembly, was precisely to empower reason over passion, to obtain “a cool and deliberate sense of the community,” as Publius phrased it. “Had every Athenian citizen been a Socrates”–a philosopher, a person ruled by reason–“every Athenian assembly would still have been a mob,” so powerful the passions become when