George Mason

[delhalew]

One of the lesser known Founders, he is one of my top three to five framers of our gubment.

We have Mason to thank for our Bill of Rights and he was especially well regarded by Jefferson.
http://www.u-s-history.com/pages/h1232.html

George Mason

Politics and Public Service, 1725-1792

George Mason was never a holder of high office, but was one of the most consistent voices for the protection of American rights during the Revolutionary generation. He was born in Fairfax County, Virginia, and after the death of his father was taken in by an uncle, John Mercer. Mason was educated privately and profited greatly from the titles in his uncle’s renowned library.

George Mason

As a young adult, Mason assumed control of Gunston Hall, one of the most magnificent residences in an area of grand homes. The plantation was known for its tobacco and orchards. George Washington was a neighbor and fellow investor in the Ohio Company. When that venture's speculative activities were ended later by the Crown, Mason took a radical turn in his thinking.

In the 1750s, Mason began a career in local public service. He was selected as a trustee of the town of Alexandria, a justice in the Fairfax County court system and a vestryman of Truro parish.

In 1759, Mason was elected to the Virginia House of Burgesses, where he would become an ardent critic of many British programs. In 1766, during the Stamp Act crisis, he attempted to marshal economic pressure on Parliament by writing a letter to British merchants in an attempt to enlist their opposition to the stamp tax.

Three years later, Mason drafted the Virginia nonimportation agreement that followed the enactment of the Townshend Acts. In 1774, after Parliament had targeted Massachusetts with the Coercive Acts, Mason worked with Washington to summarize the constitutional case against the recent legislation in the Fairfax Resolves.

Mason served as a delegate to the Virginia Convention in 1775 and supported the decision to arm the commonwealth in preparation for a possible war. The following year, he served in the Virginia Constitutional Convention, where he made major contributions to the writing of a new governing document and drafted the Virginia Declaration of Rights, a statement of the inalienable rights of the colonists. His ideas, and some of his wording, were soon adopted by Thomas Jefferson in the Declaration of Independence and by the states in their own bills of rights.

During the War for Independence, Mason played an organizational role in defending his state, but did not see service. He also worked for the disestablishment of the Anglican Church.

In post-war Virginia, Mason urged the cession of western land claims, a view that was not shared by speculators and the frontier population. Acting somewhat out of character, Mason agreed to attend the Constitutional Convention in Philadelphia in 1787, his concern for the well being of the nation outweighing his passion for staying at home. He was a major participant in the proceedings, but was deeply disappointed in the result. His criticisms of the final document included:

* the lack of a bill of rights, a position fully consistent with his longtime advocacy of individual liberties
* the centralization of too much power in the federal government; he was especially suspicious about the roles planned for the Senate and the federal judiciary
* the constitutional recognition given to the institution of slavery. Despite being a slaveowner, Mason felt that all slaves should be freed and that it was unconscionable for the new government to trumpet liberty, but deny it totally to the slaves.

Mason was one of three delegates at the Convention who refused to sign the document. He took his opposition back to Virginia, where he teamed with Patrick Henry and other Anti-Federalists in an unsuccessful attempt to defeat ratification. He published his criticisms in a newspaper essay that was intended to counter the arguments presented in The Federalist; his campaign against the Constitution cost him his friendship with Washington.

Mason later turned down a U.S. Senate seat from the Virginia legislature, but experienced the great satisfaction of seeing the adoption of the Bill of Rights in 1791. Those 10 amendments, along with Amendment XI that limited judicial power, were modeled after his Declaration of Rights. James Madison, a close friend and confidant, was a driving force behind this victory in the first session of the new Congress.

George Mason was one of the Founding Fathers whose name is not widely recognized today; his lack of interest in elective office and his contempt for long-winded political proceedings cost him lasting fame. His contempraries, however, understood the depth of his contribution. Jefferson labeled him the "wisest man of his generation."

My favorite contribution of Mason was this:
The other way to amend the constitution: the article v. constitutional convention amendment process.

INTRODUCTION

The Constitution specifies two different ways for amendments to the Constitution to be proposed. The first method allows Congress to propose amendments when such amendments are approved by at least a two-thirds vote in both houses. (1) The States can then ratify the proposed amendments. The second method is less familiar to most people, as it has never been used. This method requires Congress to call a constitutional convention to propose amendments when two-thirds of the States apply for such a convention. (2) Many questions exist about the use of this amendment process. May the convention's scope be limited to certain subject matters? If so, who may limit it? How are state applications to be tallied--separately by subject matter or cumulatively, regardless of their subject matter? What is the relevance of the convention method of proposing amendments? Why should it ever be used? Some of these uncertainties about the convention have most likely contributed to states' reluctance to use the method. Yet, as of 1993, almost 400 convention applications had been submitted to Congress by the States since 1789. (3) This Note will attempt to explore the history of the Convention Clause in Article V and answer some of the questions about its use.

II. HISTORY

A. The Constitutional Convention

Much of the confusion about Article V comes from its ambiguous language. This ambiguity is the result of compromises at the Philadelphia Convention of 1787 between groups that wanted to exclude the national legislature from participating in the amendment process and groups that wanted to grant the national legislature the sole authority to amend. (4) The earliest proposal for an amendment provision, contained in the Virginia Plan, stated that "the assent of the National Legislature ought not to be required" to amend the Constitution. (5) Convention delegates privately circulated a proposed constitution authored by Alexander Hamilton (6) that gave the power to amend the Constitution to the national legislature and the power of ratification to legislatures or conventions in the States. (7) The Convention's first official action regarding the method for amending the Constitution was to adopt Resolution 17, which stated that the Constitution should contain some means for amendment, but did not specify the particular process to be used. (8)

The first reference to the use of a convention requested by the States is found in drafts of the Constitution kept by the Committee of Detail. (9) After several revisions, the Committee's final statement stated that "[t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.' (10) Hamilton and others argued that in addition to State legislatures, Congress should also have the power to propose amendments, and the Convention approved the addition of language giving Congress the power to propose amendments. (11) James Madison proposed new language that removed reference to a convention and gave the national legislature sole authority to propose amendments whenever it would "deem necessary, or on the application of two thirds of the Legislatures of the several States." (12) This language was adopted by the Convention, with no discussion about the elimination of the references to the use of conventions. (13)

On September 15, as the Convention was reviewing the revisions made by the Committee of Style, George Mason expressed opposition to the provisions limiting the power to propose amendments to Congress. According to the Convention records, Mason thought that "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case." (14) In response, Gouverneur Morris and Elbridge Gerry made a motion to amend the article to reintroduce language requiring that a convention be called when two-thirds of the States applied for an amendment. (15) Madison stated that he did not object to the convention method, but in expressing what proved to be prophetic concerns, he pointed out that "difficulties might arise as to the form" the convention would take. (16) Morris and Gerry's motion was unanimously adopted. (17) After Roger Sherman expressed concern that the Constitution could be amended to take power away from smaller states, (18) the clause stating "that no State, without its consent" could be deprived of "equal suffrage in the Senate" was added. (19) No further changes were made to the text of Article V, and the final version of the Constitution was adopted. (20) The final text of Article V reads:


The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two
thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to
all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be
made prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage
in the Senate. (21)

B. Attempts to Use the Convention Method

Although the convention method for proposing amendments has never been used, the threat of a convention has sometimes spurred Congress to action. During debates over the Constitution's ratification, the threat of a second constitutional convention was a key factor in Congress proposing the Bill of Rights. (22) There have been several occasions where the number of state applications for a convention was close to reaching the required two-thirds; at least once during the course of events leading to the adoption of the Seventeenth Amendment, the threat of a constitutional convention may have spurred Congress to act preemptively to propose the desired amendment itself. (23) The prospect of a convention may also have played a role in leading Congress to propose the Twenty-first, Twenty-second, and Twenty-fifth Amendments. (24)

[delhalew]

I also very much enjoy this guys take on the topic.http://www.mikechurch.com/index.php?option=com_content&view=article&id=4348:the-article-v-conventions-time-has-come&catid=982:todays-lead-story&Itemid=300062

[badger]

http://cdn.faniq.com/images/blog/b998d1b3cb6cece4917bc59afa87a40c.jpg
Butler makes George Mason proud :D

[delhalew]

Another underrated founder. John Taylor of Caroline.
The Constitutional Republicanism of John Taylor of Caroline

“Great power often corrupts virtue; it invariably renders vice more malignant. . . . In proportion as the powers of government increase, both its own character and that of the people becomes worse.”
—John Taylor of Caroline, 1814

John Taylor of Caroline has a secure place in the history of American political thought. Charles Beard’s historical writing did much to revive Taylor’s reputation in the early twentieth century. Eugene T. Mudge saw Taylor as a “prophet” of sectional struggle, while English historian M. J. C. Vile saw him as “in some ways the most impressive political theorist that America has produced.” New Left historian William Appleman Williams thought Taylor “made the best case against empire as a way of life.”

Other historians are dismissive. Louis Hartz chided Taylor for failing to become the American Disraeli, and Richard Hofstadter called him “a provincial windbag.” For Hof-stadter, Taylor’s Jeffersonian ideas were “negative” and “laissez faire,” ending as mere conservatism in the hands of “men like William Graham Sumner.” Manning Dauer saw Taylor as—paradoxically—the father of both Southern Agrarians and “states’ rights industrialists.”

Despite the attention given Taylor over the years, he remains (in my view) somewhat neglected, relative to his actual merits.

Raised in the home of his uncle Edmund Pendleton, John Taylor (1753–1824) attended The College of William and Mary, studied law, served as a major in the Continental Army, and became a successful lawyer and planter, owning several plantations and 150 slaves. He preferred his rural life, but entered politics to defend republican values, serving in the Virginia legislature (1779–81, 1783–85, 1796–1800) and filling out unexpired terms in the U.S. Senate (1793–1794, 1803, 1822–24). Taylor was clearly no archaic-radical republican like Jean-Jacques Rousseau. He did not find freedom in political participation as such, but he would step forward in a crisis, as his sponsorship of the Virginia Resolutions, damning the Alien and Sedition Acts, shows.

Taylor began as an “Anti-federalist.” Once the Constitution won ratification, he meant to hold the victors to the assurances they gave while promoting it. Generally, Taylor’s books (1814, 1818, 1822, 1823) arose from immediate political questions; they included attacks on federal economic policies and reasoned polemics against the centralizing decisions of John Marshall’s Supreme Court. A book by Taylor levels much learning and colorful language against pressing issues, in the manner of Jeremiah.

There are some awkward moments in Taylor’s literary style, as Adams, Jefferson, and John Randolph all noted, but there are also interesting compression and apt expression. Taylor was a secular preacher. Like William Faulkner, he is sometimes better understood when read aloud. He is also a stepfather of semantics and semiotics, as his running critique of “artificial phraseology,” or counterfeit language, shows. He was not an especially successful politician. Taylor served the public better as a critic.

Here I must at least mention the Forty-Years War between historians of the Republican School and the Liberal-Lockean School over early American ideology. For J. G. A. Pocock, classical republican themes—court versus country, the mixed constitution, balanced social orders, “virtuous” agrarian landowners—dominated revolutionary thinking. The Lockeans have Americans abandoning those in favor of abstract individualism and natural rights. But the two political “languages” co-existed throughout the Revolutionary era. What matters is their exact “mix.” Taylor, for one, employs republican language within a liberal framework.

Beginnings of Centralization

Not long after independence, centralizing Federalists replaced the Articles of Confederation with a constitution (1788) aimed at creating a mercantilist political economy. Their opponents coalesced as “Republicans,” broadly continuing the Anti-federalist cause. Federalist-Republican debates over the National Bank, excises, public debt, standing army, and tariffs echoed English debates after 1688.

Perhaps the worst tragedy that can befall an ideology is to have a political party professing allegiance to it come to power. (Think of “conservatism” today.) So it partly was after 1800, with Jeffersonian republicanism in power. Taylor defended Jefferson’s measures into 1804, but gradually drifted into the “Quid” opposition movement within Republican ranks. He railed against the administration’s half-Federalist policies. Along with John Randolph of Roanoke and a few other Republicans, he opposed the War of 1812—his own party’s war—as a “metaphysical war.” He rightly feared its potential for state-building.

For Taylor, the laws of nature suggested political equality instead of the fixed social orders found in John Adams’ archaic republicanism. Popular sovereignty “flows out of each man’s right to govern himself.” Similarly, Taylor traces the right of free speech directly to the right of self-government, which presupposes open discussion.

On solidly liberal ground, Taylor sees human nature as “compounded of good and evil qualities.” Men should frame governments “with a view to the preservation of the good and the control of the evil.” Self-interest was the only real constant in human affairs, and bad structural incentives might make governments “vicious.” Suitable structures would “secure the fidelity of nations to themselves,” even if the people were individually “vicious.” Here Taylor broke decisively with archaic-republican “virtue,” mixed constitutions, and social balance. Americans had chosen to divide rather than “balance” power, and in so many ways—vertically (federally) and horizontally (departmentally)—as to prevent serious abuse.

Protecting men’s lives, liberty, and rightful property was the purpose of government.

The goal of “political law” (the Constitution) was control over all representatives and agents. Taylor hails election, divisions of power, and an armed people (militia) as among the means to republican liberty. “Oaths of agents,” he observes, “are prescribed to enforce, not to destroy, the duties of agency.” Taylor’s overall conception thus far surpasses any tame notions of “checks and balances” or “separation of powers.”

Taylor frowned on notions of absolute sovereignty. Where he does use the word, he is normally referring to self-government, which results from men’s living together in a community. He does not explain community as arising by conventional social contract; indeed, he tends to reject his contemporaries’ half-digested Lockeanism, thereby postponing any final surrender of natural rights. (Here he comes close to Thomas Paine.)

There was, however, an actual contract—the Constitution—creating a limited union with a common agent subjected to structural, procedural, and substantive restraints on its power. This contract was between the peoples of the several states, not between the members of a single, aggregate American people as individuals. The constitutional agreement “derives its force, not from the consent of a majority of the states, but from the separate consent of each” (italics supplied).

Taylor denied the common assertion that the people, “having thought and spoken once, had lost the right of thinking and speaking forever.” If so, “its first will, must be its last will”—something Taylor found absurd. If, for example, the states should call a convention and approve a constitutional amendment previously blocked in the Senate, “any one state may refuse to concur in [it], because each state will resume its original right to refuse or consent, as being independent of each other in negociating the terms of a new union” (italics supplied). Implicit here is renegotiation of the agreement—and even secession in an extreme case. Any other conclusion conflicted with outstanding historical facts, as Taylor saw them.

Taylor observes that no governments—federal or state—could, in their status as subordinate agents, dissolve the union on their own. (The constituent peoples could.) And Taylor was so far from being a positive “disunionist” that, in describing the geographical advantages of the United States, he attributed Americans’ safety to their maintaining a union of some kind. But he was not an unconditional unionist.

Taylor always tried to bracket sovereignty. He supposed the states to possess full concurrent jurisdiction with the federal government, except where one or the other clearly had an exclusive delegation of power. He denied that the Supreme Court’s reasoning necessarily bound the state courts; decisions applied at most between the parties to a case. Taylor thought an occasional inconsistency of outcome preferable to letting the Supreme Court remodel all of American law. To concede final interpretive power to the Court would transfer sovereignty to the general government, as the Court imported consolidation into the Constitution. Finally, the Court would assert “an immoveable power of construction” over the Constitution, over the other branches, and over the people.

Republicanism and Nationalism

Taylor’s states-rights republicanism necessarily collided with the intermittently nationalist views of James Madison. Taylor was trying to unravel the knots Madison tied while confusing different audiences and, finally, himself. Taylor questioned Madison’s claim in Federalist 10 that a republic must be geographically extensive—and even expand farther—to prevent “factious” instability. Taylor viewed expansion as unwise, where it might undermine liberty through war, armies, debt, and taxes. And he had little awe of the Federalist Papers: “The English writers . . . contain whatever is to be found in the Federalist; but all their theories sunk, as soon as they were promulgated; in a vortex of corruption. . . .”

Republican adoptions of Federalist policies were many and galling. Even worse, Federalists remained entrenched as federal judges and appointments by Republican presidents had not changed this. Taylor’s Construction Construed and Constitutions Vindicated (1820) targeted John Marshall’s decision in McCulloch v. Maryland (1819) with its mighty assertions of federal power. “The unknown powers of sovereignty and supremacy may be relished,” Taylor writes, “because they tickle the mind with hopes and fears.” Further, “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings.” Later, “aristocracies and republicks. . . claimed the spoil.”

Sovereignty being “neither fiduciary nor capable of limitation,” Taylor wished to neutralize the concept. Americans had tried “to eradicate it by establishing governments invested with specified and limited powers,” so that “ungranted rights remain also with the grantors . . . the people.” (Alas, the principle that rights or powers “not granted” are not granted failed to impress either Marshall or Harvard Law School.)

Marshall’s decision turned allegedly “necessary and proper” means into actual unenumerated powers. Taylor recalled the 1760s, when Parliament asserted “it would be absurd to allow powers, and with-hold any means necessary or proper.” The colonies found it “more absurd to limit powers, and yet concede unlimited means for their execution.” The principle made the Constitution’s list of powers superfluous. Following Marshall, “[E]nds may be made to beget means” and “means . . . made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people.” Roads being “necessary in war,” Congress could “legislate locally concerning roads.” Congressional power over horses—and everything else—would soon follow.

Taylor believed that Americans had never knowingly adopted that European conception of absolute, unitary sovereignty, which licensed Marshall’s centralizing deductions. Americans supposed their governments to be their agents, not their rulers. Lately, however, American legislatures—state and federal—were aspiring to be “British parliaments,” and if the trend held, one must conclude that in American government, “no experiment at all has been made.”

Marshall made much of the supremacy, superiority, and so on of Congress in its proper sphere of action. Taylor answers, “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people.” The problem was not spheres, but sovereignty in them. Powers might exist, certainly, but granted by principals to agents. No one had “inherent” powers.

[delhalew]

Sphere-Sovereignty Dogma

Taylor preferred the “occasional collisions” arising from concurrent jurisdictions. Instead of creating various institutions, each supreme in a sphere, our system featured “co-ordinate political departments . . . as checks upon each other, only invested with defined and limited powers, and subjected to the . . . controul of the people.” The Court’s sphere-sovereignty dogma overthrew this distribution of powers, because a “power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department.” Congress and the states might pass laws, each one constitutional, which “impede each other. . . . For this clashing the constitution makes no provision.” (Taylor’s view thus differs greatly from the highly artificial “separation of powers” espoused by “conservative” unitary-executive theorists working for the Bush administration.)

Having asserted Congress’s right to “remove all obstacles to its action,” the Court pretended to “hook every implied [power], to some delegated power” as a means. (Even today, a massive regulatory state subsists under the Commerce Clause, while global military enterprises masquerade as simple “defense.”) Taylor did not buy the argument.

Deductions from the international lawyers’ sovereignty-construct intruded into war and peace. Our system, Taylor writes, provided the necessary “powers of making war and peace . . . not as emanations from . . . sovereignty . . . but as delegated powers conferred by the social sovereignty, or natural right of self-government.” Otherwise, “the federal government, as having no sovereignty,” could not have declared war. That international law and lawyers “contemplate the powers of declaring war and making peace, as residing”—inherently—“in an executive department” meant nothing to us; the American system divided the powers and “does not intrust the president with either.”

So the question was “whether these laws of nations or our constitutions have delegated powers to our political departments.” If the former, the game was up, Marshall could go on deducing, and power would not—and could not—be limited. Interestingly, Taylor’s line of attack on these questions supplied materials for refuting United States v. Curtiss-Wright (1936) 114 years before the Supreme Court issued those latter-day deductions about “inherent” executive powers over foreign affairs and war.

Even with all these new, constructively discovered means and powers about, Americans remained complacent, safe in the knowledge that their officials were elective and responsible. For Taylor, representation and elections did not, by themselves, provide security against abuses of power. If elected officials managed to escape their bounds, then we would once again see that “no experiment . . . has been made.” As a mere slogan, “popular sovereignty” meant nothing to Taylor, and he foresaw the probable failure of republicanism if Americans adopted European sovereignty as its legal basis. Indeed, “a sovereign power over labour or property is less oppressive in the hands of an absolute monarch, than in those of a representative legislature” and “the error of trusting republican governments with this tyrannical power, has probably caused their premature deaths, because they are most likely to push it to excess.”

A government outfitted with “the complete panoply of fleets, armies, banks, funding systems, pensions, bounties, corporations, exclusive privileges; and in short, possessing the absolute power to distribute property,” was effectively “unrestrained” and tyrannical—and therefore not a republic in Taylor’s meaning. (Taylor has much to say about power distributing property, but I intend to treat that topic in another place.)

As party leader, aggregator, aider and abettor of factions, would-be war hero, and more, the president of the United States, whoever he might be, spearheaded the political evolution deplored by Taylor. As Taylor writes, the American executive was so constructed as “to excite evil moral qualities . . . propelling us toward force and fraud.” His exclusive control of military patronage, and its extension during war, inclined the president to initiate war. And now we understand Taylor’s commitment to a genuine, revitalized militia system; he wanted it for practical, political—even liberal—reasons, and not out of an attachment to Greek, Roman, or Renaissance Italian republicanism.

Taylor can find no “reason why war, peace, appointments to office, or the dispensation of publick money, should have been counted in the catalogue of the [executive], except for the efficacy of these powers in one man for begetting tyranny.” (He has elsewhere denied real textual, constitutional authority for exclusive presidential power over war and peace.)


More Power to the President

The treaty and appointment powers add to the president’s political weaponry; and to his already excessive military power “is subjoined a mass of civil power,” as well as patronage. Election “procures a confidence which has no foundation.”

The treaty power has long been prized and feared as a source of new, unknowable federal powers. As late as the mid-1950s, the Old Right movement sought to define and curtail that power through the Bricker Amendment. It took all the Eisenhower administration’s leverage to defeat the proposal in Congress. Under the Constitution, properly understood, Taylor finds no magic in the words making treaties part of the supreme law of the land. “On the contrary,” he notes, “the laws were to be made in pursuance of the constitution, and the treaties, under the authority of the United States.” And now he springs his trap: “The United States have no authority, except that which is given by the constitution” (italics supplied).

It followed that treaties could not alter or overthrow the Constitution. He gives an example: “Suppose the treaty-making power should stipulate with England to declare war against France; would that deprive congress of the right of preserving peace, with which it is invested by the constitution?” Presumably not, unless we must once more endure theories of inherency and sovereignty under international juridical deductivism.

James Madison, “father of the Constitution,” thought an extensive and expanding union would “dilute faction” and preserve liberty under an American mercantilism. Tying liberty to territorial expansion, Madison imposed an imperial logic on the Constitution he helped create. Taylor, spying the state-building possibilities of that program, came to oppose it. “A protector is unexceptionally a master,” he noted. Almost two centuries later, under another “Republican” regime betraying principles it never had, we may wonder who was the better prophet over all—Madison or Taylor?

[Scott D]

Mason is my top three founders all by himself.

Madison, Washington, and Jefferson (to a lesser degree) constantly sought the advice of Mason.

[SicEmBaylor]

Great post!

[Veritas]

Pretty cool they named him after that Final Four cinderella team.

[Scott D]

Great post!

pipe down Jeffersonian.

[RUSH LIMBAUGH is my clone!]

Great post!Sure is!