15 June 2011

All agree or none shall pass - Part 2

The following was originally posted at The Jacksonian Party.

This is a follow-up article to All agree or none shall pass which is a look at the structure of the US Constitution as put forward by Nicholas Rosenkranz on The Subjects of the Constitution.  The follow-up article on The Objects of the Constitution by Nicholas Rosenkranz was linked to by Glenn Reynolds at Instapundit on 26 MAY 2011.

By establishing the SVO system of sentences (that is Subject, Verb, Object) Mr. Rosenkranz has put forward that the Subjects of the Constitution are part of a logical understanding that actions (that is Verbs) that are being done apply to something (Objects) and are performed by someone (Subjects).  To find out who the Actors or Subjects of a clause or Amendment are in the US Constitution it is necessary to see what the Object of the Verb is which then tells you the Subject of that clause or Amendment.  As this is being applied to a federal structure type of government it is possible to implicate more than one Subject to a Verb acting upon an Object: a federal structure requires division of power and checks and balances amongst branches so as to establish a form of government that does not devolve down to a single branch or individual.

Finding the Subject performing an Verb requires that any reader of the Constitution understand the Object that the Verb is being applied to, so as to understand what the implications are in the Verb and Subject being described are.  To do this requires an examination of the internal structure and consistency within the US Constitution, itself, so as to see how powers (Verbs) are apportioned to different actors (Subjects) to do something (to an Object).  Even within the general Articles of the Constitution there is an apportionment of powers both stated and unstated but present by implication, that reach beyond the branch of government being discussed.  This is done so as to set up the balance of powers systems within the Constitution (and there are more than one power balance system involved), and to discern who is being talked about one must look at the phrasing of clauses and Amendments so as to properly place who gets a power and who is the counter-balance to it.  As there are three branches of government in the federal system (Legislative, Executive, Judicial) and divisions amongst the States and the federal government, and the States having their own republican forms of government that do not mimic the federal system, the types of power that are apportioned must often be directed to the holder of that power type rather than a formulaic system that equates, say, the President directly with a Governor as each State apportions powers differently

As part of the review of the Constitutional structure, Mr. Rosenkranz continues with the examination of powers via the clauses and Amendments and utilizes prior SCOTUS case history and other judicial review documents to see who gets to do what via the way a clause or Amendment is phrased and ties in with other, similarly worded, clauses or Amendments.  This is to perform a logical coherency check on the system to see if there is an underlying theme of how phrases are stated and what the understanding is for each power grant in terms of scope and limitations.  The clauses and Amendments fall into the category of active voice (Congress shall make no law...) which directly addresses an actor, and passive voice in which an actor is not directly named, but has a restriction on an action, instead.  The lineage of the passive voice is a long one and, for Common Law heritage, can be most directly traced back to the first article of the Magna Carta (boldface mine, unless otherwise noted throughout):

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

Compare this to the First Amendment in the Bill of Rights for the US Constitution:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Magna Carta utilizes the passive voice in that it does not state who the people are that cannot limit the English Church's internal operations.  It is a very broad declaration that pertains against the whole of the English government and all of its sub-parts.  For not stating who has done the restricting in the past, the first article puts forward that NO ONE can restrict it in the future and that it is to be run by its own internal election system from that point onwards.  This both establishes the Church of England for the Nation and yet removes it from the power of government, at the same time.

Amendment I of the Constitution is an active voice and narrowly crafted restriction as it names its actor: Congress.  It hits at the point of the federal system in that Congress, using Legislative powers, makes law that is then enforced by the Executive and presided over by the Judicial.  By making the crafting narrow so as to restrict the making of law by Congress, the other branches can gain no foothold nor have any say over the realm of religion as there can be no basis in law for it.  Congress cannot create or establish (or disestablish) a religion or prohibit the free exercise of religion.  Do note that if the people, separately from Congress and the National government, wish to make a National religion outside of the power of government, they are free to do so as Congress gets no say in that as those are the unenumerated powers that are retained by the States and the people.

Both prohibitions work to restrain the power of the government, but the passive voice restraint is universal in tone while the First Amendment is narrow in scope although broad in its implications in that the federal government is restricted from doing these things via the organ of Congress, but says nothing about the States who had as their purview the establishment of State church recognition at the time of the Framing.

To see this in the purely passive form on a similar subject, there is this from the Magna Carta:

(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

And from the Bill of Rights:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Again passive voice in both is an injunctions against unlawful searches and seizures of someone's person or property, which is an Executive power, and that their liberty shall not be violated without having probable cause, which is the production of credible witnesses before seeking out an individual for searches and seizures.  The exceptions for the Magna Carta includes those of from judgments by juries '...the lawful judgment of his equals...' and '...by the law of the land', which is the Legislative arm of government. Amendment IV has an injunction against the Executive to perform  '...unreasonable searches and seizures...' indicating that there are reasonable ones that must be backed by a Warrant issued from the Judicial branch for law made by Congress.  In the absence of law or judgment, there can be no violation of the right against unlawful searches and seizures which is a passive voice restriction that binds the Legislative branch to make 'reasonable' laws, the Executive to ensure that it has good information before going after individuals, and the Judicial is made a part of this in the Magna Carta via court decisions and in the Constitution via the necessity of seeking a Warrant.

This lesson of the passive voice being an involving one because it does not clearly state who the actors are and requires an understanding of who gets these powers within a Nation are ones that any British citizen would know to some extent as this was part of the Common Law system.  The hidden structure within the Constitution is supported by the repetition of phrases amongst clauses and Amendments that point to a common understanding of the functions of the powers of government within the object of the Constitution, which are those powers that the Nation has, as a whole.  That a Nation has concerns that are different than those of States (that is sub-units that cannot make treaties and have other National concerns) is something that is well understood in the Founding and Framing era coming after the works of Grotius, Pufendorf, Montesquieu, Hobbes, Blackstone and de Vattel that all address the limits of National power.

From these examples done outside of the scope of Mr. Rosenkranz's article, it is possible to see how the English language has been utilized not only in the instance of the US Constitution, but thematically across time from at least the era of the Magna Carta.  The structure of sentences dealing with National powers is a form of 'originalism'  that goes beyond the power context of the document as a whole or even in its major sections, but allows for an in-depth understanding of clauses within sections, that tell much about the structural underpinnings gained from the utilization of the language to imply actors in the power arrangement without explicitly stating who they are.

Stepping from this to the interior cross-structural elements of the Constitution, the utilization of multiple instancing of phrases on topics then puts into play an understanding of linkages within the Constitution and its Amendments.  For this I will start with one Mr. Rosenkranz utilized which centers on the analysis done in Barron v Baltimore.  This analysis centers around the Takings Clause in Article I, Section 9 of the Constitution:

No Bill of Attainder or ex post facto Law shall be passed.

This is a passive clause and when asked 'to whom' does it apply, it is clear that the passing of laws is up to the Legislative branch of government as that is the organ of government that passes laws.  Now this language is replicated in Section 10 which applies to the States:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

This clause is a complex one, so it is necessary to concentrate on the structure as it pertains to the Takings Clause in Section 9 which I have put in boldface.  The 'No State shall...' is addressing the States (singular) and then listing prohibitions, which the 'pass any Bill of Attainder...' part highlighted is the one to examine.  Here the verbiage is similar to the restriction upon Congress, but is put on the States. Given that passing laws is a Legislative power, it can be inferred that the restrictions upon the State Legislatures or that set of organs of government that are vested with the Legislative power.  Because each State has a different arrangement of powers, so long as they are republican in form, it is not possible to say that a State may not transfer a power to a different organ for passing these sorts of laws.  So no matter which part of State governments get this power, they are restricted from using it to create a law pertaining to a Bill of Attainder or ex post facto situations.

Similarly the first article of the Magna Carta tells what may not be infringed in the manner of law leaving the implied context that although Parliament is normally the place for such laws, it is possible that the Sovereign may choose other bodies to do such things.  Those bodies, having that power, are also similarly restricted.  While the subject of 'States' are explicit in Art. I, Sec. 10 of the US Constitution, the reference to which part of State government is restricted from doing these things is not explicitly stated.

Reading from the same clause is a restriction on another part of State governments with the 'enter into any Treaty, Alliance or Confederation' restriction.  To whom does this apply at the State level?

In the main body of the Constitution, the only power in this regard is the Senate assent to a Treaty, but this is in Art. 2, Sec. 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

This is an active voice clause 'He shall have Power...' is directed at the Executive branch of government, which is vested in one individual: The President.  With that power is a restriction requiring the Advice and Consent of the Senate by a 2/3 majority of those present. From this the restriction upon the States is to the Executive branch of State governments, namely Governors.  By utilizing a passive voice and generally addressing the States, the Constitution allows for a broad set of restrictions on the States as these powers that they are restricted from having are vested in the federal government.  Instead of an explicit listing of 'No State Legislature shall...'  or 'No State Governor shall...' the writers of the Constitution decided that a summary listing of powers that the States are restricted from having would then imply which organs of each State would face that restriction.  The blanket restriction of this clause removes uncertainty as it has no exceptions, no other mentioned or implied action that can be taken to allow these items, nor any way a State may do them while remaining in the United States.  The categories of power and branches that enact them for the States are embedded within the clause, itself.

A power mapping into the States can be performed by showing the different functions in the clause:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The items marked in red are Executive functions while those in green are Legislative functions.  These function areas come from the formulation of republicanism used by the Founders in the Articles of Confederation and by the Framers of the Constitution, both of which had demarcations between Legislative, Executive and Judicial functions as part of the structure of government.  The structure of a republican form of government is not set in stone, and from Ancient Greek and Roman times through to the time of the Framing, the positives and minuses of republics were understood.  Republics are stronger than Confederations which had been seen as a failure as a system time for the Ancient Greeks as they are more of a passive structured alliance system with sovereign States able to act independently within the alliance with outside Nations.  By centralizing a number of functions to a single government, the ability of sovereign States was limited, but not dissolved.

When the United States was first Independent it was as a Confederation.  The load sharing of debt could not be centralized in that form of government and while the southern States found that with their thriving plantation based agricultural system was able to handle the debt load, the poorer family farming northern States could not due to smaller amounts of distributed output.  In the north the Confederation was breaking apart with uprising against confiscatory taxes leveraged by politicians that mainly represented the few bit cities which then tilted in favor of the merchants and against the rural farmers.  Changing to a republic meant a new Constitution to dissolve the old Confederation, so as to centralize the debt load so that the States as a Nation, not as States, paid off the Revolutionary War debt.  In a very real sense America failed in her first governmental system due to debt, the republic was founded in debt and with one exception under President Jackson, America has always been in debt.  Getting out of debt was a relatively easy thing to do: staying out of debt has proven impossible for this form of government.

One of the minuses of republics that was well known at the Founding and Framing is that they work best with small and compact geographical regions with more or less homogenous populations.  In their era the examples of the Swiss, Dutch and City of Venice were well known and each typified the examples of the Greek and Roman republican systems for being compact geographically, with similar cultural and ethnic backgrounds.  The reason a Confederation was chosen is that the United States were seen as too geographically spread and having major ethnic sub-populations that brought different forms of society together, even while they were colonies.  Each of the colonies had their own form of republican government with strong variations from Georgia to Pennsylvania to Connecticut to Rhode Island. The necessity of changing to a republic was worrying as central governments tend to become distant from those they govern when geographical size overwhelms the homogeneous nature of the republic.  Multi-ethnic and cultural republics have proven to be very few and far between, and not stable.  Rome transitioned from republic to empire before Julius Caesar in many ways with the government subsuming more private functions and handing out goods and services on an unequal basis.  The strength of a republic is also its weakness and it takes a good people who hold the values of republicanism to heart to hold a republic together.

The language of the Constitution reflects this understanding of the form and nature of governmental power at the level of the Nation and the internal workings of Nations as States.  By utilizing a federal form of republic, that is one with restricted allowances on what powers are granted to the National government, the concepts of checks and balances was put into place via the understanding of how they worked not just under British Common Law, but using the examples of republics past and present. 

When crafting sentences and clauses, as well as the Articles of the Constitution, the Framers took pains to understand exactly which powers they were dealing with (sovereign external or internal powers) and to proscribe those powers explicitly via statement and implicitly by the way republics utilize such powers amongst different branches of government.  An understanding of the federal form of government created at the Framing has a pre-requisite of understanding what a republic is and how one works as sovereign and representative power of the Nation in question.  Because of the SVO formulation of English as a language, those underlying power allotments are to be taken into consideration when approaching which actions (Verbs) are given to which actors (Subjects) and applied to which parts of the power structure (Objects).  The flexibility of the English language to have passive and active structures, and change the SVO ordering (although not the internal logic of the SVO order, itself) means that all parts of a sentence must be in accord with the underlying understanding.

All parts must be known and agree with the structural outlay or else it may not be understood and none of the power structure shall pass muster for the federal form of republic.

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