Monday, 25 June 2012

Hope Soars for Libyan Election

Election Posters in Tripoli  
I saw many posters like this today during my visit to Tripoli--for the Muslim Brotherhood, the coalition party (made up of 30 different organizations), the Libyan National Salvation Front, and the national party.  Everywhere the green, black, and red flag is flying--on bunting as shown above, over streets and buildings, even painted on metal doors and found on countless graffitied walls.

The hope for upcoming elections is also ubiquitous.  All I met with talked of hope for their country - hope that corruption will decrease, hope that businesses will finally be allowed to prosper, and hope that the government will ensure stability and security for its much-beleaguered citizens.

For their sakes, and for the health of the Middle East revolutions, I hope it is so.  In a week where Turkey is pressing for retribution against Syria for shooting down a plane, and an Egyptian counter-revolution was a near-miss, the region could certainly do with legitimated political success.

By the looks of things, the Libyans are well on their way.

Sunday, 24 June 2012

Recorded Webcast: History of the Commerce Clause

Really enjoyed presenting this webcast on the history of the Commerce Clause for the National Constitution Center last Thursday:

Thursday, 14 June 2012

A (Very) Brief History of the Commerce Clause

I am giving a webcast tutorial through the National Constitution Center on a tool I helped prepared for ConSource detailing the documentary history of the Commerce Clause (available for download here).  This will occur next Thursday, June 21, or the day the Health Care Cases are decided by the Supreme Court, whichever comes first.

The tie, of course, to the Obamacare cases is that one of the most controversial constitutional questions at stake is whether the individual mandate, or the requirement to purchase health care, is an appropriate use of Congressional power articulated in Article I, Section 8 of the Constitution, "To regulate Commerce...among the several States."  The language quoted is what has become known as the "Interstate Commerce Clause," or, simply, the Commerce Clause.

In preparation for the webcast, I provide here a (very) brief overview of the founding history of the United States as a background for the history of the Commerce Clause.  They turn out to be very nearly one and the same.

The American Revolution began on April 19, 1775 with "the shot heard 'round the world" and with the battles at Lexington and Concord.  Yet hostilities or disagreements between the thirteen colonies and Britain date to the 1760's, and the first Continental Congress met at Carpenter's Hall in Philadelphia on September 5, 1774.  By then, the rebels claimed Britain had the right (and obligation) to regulate commerce "for the purpose of securing the commercial advantages of the whole empire." (Charles Thomson, Sullivan’s Draught (Declaration of Colonial Rights) (Oct. 14, 1774), in 1 Journals of the Continental Congress, 1774-1779 at 68-69 (Worthington C. Ford ed., Library of Congress 1904-1937.)

In 1776, independence was declared and states began writing their own constitutions (but not necessarily in that order - New Hampshire issued its first constitution on January 5, 1776, a full six months before the Declaration of Independence).  Written in 1776 and 1777, the Articles of Confederation did not fully come into operation until 1781, when the thirteenth state,  Maryland, ratified the document.  Until then, national authority was exercised by the Continental Congress without any kind of written constitutional authority.

The Revolution officially ended on September 3, 1783 with the signing of the Treaty of Paris, but British troops did not evacuate New York until November 25, 1783.

During and after the war, the Continental Congress under the Articles was impotent to effectively regulate and protect commerce with foreign nations and between the states.  American merchant ships continued to be attacked by British ships, states issued their own currencies, and states discriminated in charging duties on imports from other states.  In the chaos that ensued, some states resorted to self-help.

Maryland and Virginia joined in a compact to decide the question of trade upon the Potomac (still in force today and litigated as recently as 2003 at the Supreme Court) at what has famously become known as the Mount Vernon Convention.  Thereafter, the Maryland delegates recommended to their legislature that further agreements be made involving not only the initial two states, but Pennsylvania and Delaware.  This lead John Tyler of Virginia, ancestor to President Tyler, to recommend in the Virginia legislature a meeting of all states to discuss commercial interests and regulations.

Thus was born the ill-fated but pivotal Annapolis Convention, wherein only five states had full representation.  In aborting the attempt to convene in September of 1786, Hamilton penned the resolution by those in attendance recommending that each state legislature authorize a general convention to discuss all defects of the Articles that next spring. (Proceedings of Commissioners to Remedy Defects of the Federal Government (Sep. 14, 1786), reprinted in Documents Illustrative of the Formation of the Union of the American States, Pt. 1, at 40-42 (Charles C. Transill, ed., 1927).)

Thus it was that the Constitutional Convention, known then as the Federal Convention, convened in Philadelphia May 15, 1787.  A quorum not being present until May 28, it was on May 29 that two plans of Government were presented to the delegates.  One proposal, not discussed or considered until the Committee of Detail convened July 26 of 1787 (the Pinckney Plan), contains the first version of the Commerce Clause: "The Legislature of the U.S. shall have the exclusive Power...of regulating the Trade of the several States as well with foreign Nations as with each other..." (Excerpts from the Pinckney Plan in William Ewald & Lorianne Updike Toler, Early Drafts of the U.S. Constitution, 85 The Pennsylvania Magazine of History and Biogrphay 309 (July 2011).)

After the Constitution was signed September 17, 1787, containing the text of the Commerce Clause as quoted above, it was debated and discussed in state ratification debates.  Commercial power continued to feature large in the debates--mostly as a widely-accepted reason to adopt the Constitution.  Experience with the affects of poor national powers to regulate commerce was universal.  These debates culminated with ratification by 11 states by 1789 (North Carolina and Rhode Island, the constitutional ludite state, were to ratify later) and elections and installment of a Congress in New York and the inauguration of George Washington on April 30, 1789.

Yet diversions of opinion as to the scope and extent of the Commerce Clause were evident even during ratification.  Alexander Hamilton expressed his sentiments in Federalist 23: "[I]n respect to commerce...Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success."

Compare Madison's letter to Joseph Cabel in 1828: "For a like reason, I made no reference to the ‘power to regulate commerce among the several States.’ I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." (Letter from James Madison to Joseph Cabell (Oct. 30, 1828), in 4 Letters and Other Writings of James Madison 14-15 (Philadelphia: J.B. Lippincott & Co., 1865).)

It seems the debate over the extent of powers granted Congress by the Commerce Clause is neither new nor unprecedented.  I wonder whether Hamilton would be in favor of the individual mandate, and Madison would guard against it.  What do you think? 

Tuesday, 5 June 2012

Guns, Tribes, and Democracy

In her newly-released book, Lindsey Hilsum (whom I had the privilege of meeting in February in London) quotes a local from Tobruk, where the Libyan revolution was begun: "We don't respect the law in Tobruk.  We have thousands of guns for shooting birds.   The tribe controls everything else."

The elements of this statement might appear as the recipe for disaster: lawlessness, ubiquitous private gun ownership, and tribal control.  Indeed, we saw yesterday the brief seizure of the Tripoli airport by the Tarhouna tribe, incensed over the arrest of their commander, Abdul Elija.

But reading the reports yesterday (and hearing them first hand from a colleague there who had visited with tribal militia men at the airport before the army arrived) and this prescient quote captured by Hilsum caused me to recall another time in history when local militias were well armed and respect for authority ran low: the American Revolution.

In the glossy literature, fireworks, and flag-waving of holidays like Memorial Day, we Americans often forget a time of rampant lawlessness in our own history.  As pointed out by many historians of the Second Amendment, gun ownership was essentially required, as militias consisted of all able-bodied men in a town.  In addition to Shay's rebellion in Massachusetts, there were many uprisings by unruly has-been soldiers protesting new authority during the Confederate period, and we need only reference the Whiskey Rebellion to evoke examples of lawless unrest post-1789.

The analogy to Libya is not perfect. The tribal structure is unique to Libya, although there were competing rival power structures found in each state, and confusion particularly in regulating currency (issued by each state) and the economy as a whole.    

Yet there may yet be historical lessons that can instruct in this instance.  How were American Constitution-writers then able to unite a gun-owning, divided people who had long ceased to respect, in many regards, ruling powers?  One answer was to encourage, support, and respect existing divisions and to respect gun ownership.  State authority was recognized in that each was entitled to an equal vote in both the Continental Congress and the Constitutional Convention.  This proved practically frustrating to many and eventually undermined the legitimacy of the ineffective, impotent Congress, but it did serve to signal to states and state governments that all were equal in new national structures and legitimize the process.   Later, gun ownership and militia organization were protected in the Second Amendment.

Even if not developed with the specific, intentional purpose of engendering acceptance and legitimacy of new power structures, these elements of government creation and incorporation into the fundamental document served to do just that.  These elements, along with a process which was careful to preserve all appearances of legitimacy in an extra-legal environment, facilitated the voluntary acceptance of the new fundamental text by the armed, divided, and disrespectful masses.

Perhaps, by considering similar structures of tribal and gun recognition and even incorporation into the process and fundamental text, Libyans will be enabled to encourage voluntary compliance with law after four decades of lawlessness under Gaddafi.  They are well on their way already by ensuring seats for tribes and localities in the new National Assembly, to be voted into power sometime later this (perhaps next if elections are delayed) month.