Posts Tagged ‘George Thomas’

A Return to Economic Liberty?

Thursday, July 29th, 2010

by George Thomas*

Claremont McKenna College

Original meaning, with particular focus of the Fourteenth Amendment, has enjoyed a renaissance in recent years. Scholars and justices across the political divide have turned to one form or another of original meaning to aid them in interpreting the Constitution. And yet, by and large, jurists on both the left and the right remain united in their neglect of economic liberty. This is curious because the debates over the Fourteenth Amendment reveal that those who framed and ratified the amendment were deeply concerned with economic liberty.

Taking the original meaning of the Fourteenth Amendment seriously, economic liberties would at least warrant some constitutional scrutiny from the Supreme Court and would figure in the calculus of the president and Congress in framing laws.  As it stands, the Court has begun to apply a lenient standard of review to the textually specific “takings” clause of the Fifth Amendment, watering it down, if not reading its limitations on governmental takings of private property for public use out of the Constitution.[i]

In a curious political turn, we may soon be having a national conversation about economic liberty in a manner that has not occurred since the early years of the New Deal. President Obama’s extraordinary ambitions to fulfill Franklin Delano Roosevelt’s “second bill of rights,” succeeding were even Roosevelt failed, may alter this settlement. President Obama is deeply linked to FDR’s New Deal agenda and aspires to be a president who seeks to “reset the very terms and conditions of constitutional government.” For FDR the “task of statesmanship” included a “redefinition” of rights, where “property rights” would yield to the imperatives of progress. It was in the wake of the “Constitutional Revolution of 1937” that long standing economic liberties were read out of the Constitution. Much of Obama’s agenda—health care, for instance—is rooted in FDR’s “second bill of rights” as he seeks to complete “FDR’s unfinished revolution.”[ii] This attempt offers a chance for the country, and perhaps even the Court, to revisit the question of economic liberty. We might begin this “conversation” with the understanding of civil liberty articulated in the Fourteenth Amendment.

If the congressional debates over the Fourteenth Amendment are occasionally obscure—which might also be said of the textual language of the amendment—they are not on the issue of economic liberty. It clear from the debates that the newly freed slaves, to be truly free, would require, to borrow John Locke’s formulation, “ownership” of themselves. Indeed, when the framers of the Fourteenth Amendment spoke of civil liberties, the liberties they most frequently mentioned were freedom of labor and occupation and the right to acquire and control property—rights that could find protection and be summed up by the fraught phrase—“liberty of contract.”

This is most evident in turning to the Civil Rights Act of 1866, which is deeply intertwined with the Fourteenth Amendment. While the Fourteenth Amendment began on a separate track from the civil rights bill, the two would become intertwined; it is not inapt to suggest, as numerous scholars do, that the Fourteenth Amendment, at the very least, sought to constitutionalize the Civil Rights Act of 1866.  The act was titled “an act to protect all Persons in the United States in their Civil Rights, and furnish the Means for their Vindication.” Section I of the act spoke “of citizens, of every race and color,” who “shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease sell, hold, and convey real and personal property, and to full benefit of all laws and proceedings for the security of person and property, enjoyed by white citizens.”[iii]

The rights deemed most important in this context were rights of contract and property based on the moral liberty to control one’s labor. This is, no doubt, because the “Black Codes” passed in the wake of the Thirteenth Amendment were aimed at depriving blacks of these very liberties. But the fact that they were thought of as fundamental liberties is evident from the congressional debates. Senator Lymon Trumball, a leading defender of the civil rights bill in the Senate, explained that the “first section of the bill defines what I understand to be civil rights.”[iv] Other members of Congress echoed this sentiment.

It is striking to note, against the backdrop of the government’s rescue of large corporations, that economic liberty was often deemed most important to minorities and small businesses. It was frequently the less powerful that depended on the formal protections of law against powerful larger businesses that were often able to sway that government to pass laws favoring them. This is evident in Kelo v. City of New London (2005), the recent takings case that captured national attention. There the City of New London transferred its power of eminent domain to a private development corporation, which then seized private homes that would, in part, be transferred to the Pfizer Corporation to lure the company to New London.  In the name of “economic development,” the private property of the less powerful was transferred to a powerful private corporation. Pfizer has subsequently pulled out of the deal.

Recovering a sense of the importance of economic liberty is not an act of antiquarianism, or to be governed by original meaning as the “dead hand of the past.”  Such liberties will only be liberties in a meaningful sense if they come, once more, to be held by the people. Recovering the logic of “economic” liberty could deepen our sense of liberty—and its counterpart, responsibility—more generally. And revisiting the nature of rights, and the logic that underlies the Fourteenth Amendment, would also seem invaluable in our coming conversation about “positive” rights and the reach of governmental power.


* George Thomas is Associate Professor of Government at Claremont McKenna College and the author ofThe Madisonian Constitution (Johns Hopkins). His essay on “Economic Liberty and the Original Meaning of the Fourteenth Amendment” is forthcoming in the spring issue of National Affairs. The opinions of Professor Thomas are not necessarily those of the Jack Miller Center.

[i] Kelo v. City of New London, 545 U.S. 469 (2005).

[ii] Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).

[iii] The Civil Rights Act of 1866.

[iv] The Congressional Globe, January 29, 1866, at 476.

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Pathway to the Founding

Sunday, April 11th, 2010

Jack Miller Center’s

Pathway to the Founding Online Essays

The Jack Miller Center has begun collecting online introductory essays and book recommendations for topics and themes that broaden understanding of the American Founding. These essays are designed as introductions to the intellectual and political life of American Statesman, our U.S. Constitutional heritage, and the ancient and modern thinkers the Founders drew upon when designing our system of free government.

According to Mike Ratliff, President of the Jack Miller Center, “These essays are intended to convey the richness of the American and Western political tradition, while at the same time presenting often complex ideas in accessible form.  The JMC staff has assembled a stellar list of contributors from many of our country’s leading scholars, and we look forward to seeing their reflections on the ideas and questions of perennial importance to life of a free society.” The essays will appear periodically on the Jack Miller Center website over the next year. A sample of featured essays includes:

Abraham Lincoln (Allen Guelzo, Gettysburg College)

Montesquieu (Thomas Pangle, University of Texas)

Thomas Jefferson (Jeremy Bailey, University of Houston)

James Madison (George Thomas, Claremont-McKenna College)

Adam Smith (Sandra Peart, Jepson School of Leadership)

The American Presidency (Benjamin Kleinerman, Michigan State University)

Benjamin Franklin (Lorraine Pangle, University of Texas)

Alexander Hamilton (Peter McNamara, Utah State University)

David Hume (Scott Yenor, Boise State University)

John Adams (Richard Samuelson, California State San Bernardino)

Publius, Federalist Papers (James Stoner, Louisiana State University)

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A Return to Economic Liberty?

Thursday, April 1st, 2010

by George Thomas*

Claremont McKenna College

Claremont

Original meaning, with particular focus of the Fourteenth Amendment, has enjoyed a renaissance in recent years. Scholars and justices across the political divide have turned to one form or another of original meaning to aid them in interpreting the Constitution. And yet, by and large, jurists on both the left and the right remain united in their neglect of economic liberty. This is curious because the debates over the Fourteenth Amendment reveal that those who framed and ratified the amendment were deeply concerned with economic liberty.

Taking the original meaning of the Fourteenth Amendment seriously, economic liberties would at least warrant some constitutional scrutiny from the Supreme Court and would figure in the calculus of the president and Congress in framing laws.  As it stands, the Court has begun to apply a lenient standard of review to the textually specific “takings” clause of the Fifth Amendment, watering it down, if not reading its limitations on governmental takings of private property for public use out of the Constitution.[i]

In a curious political turn, we may soon be having a national conversation about economic liberty in a manner that has not occurred since the early years of the New Deal. President Obama’s extraordinary ambitions to fulfill Franklin Delano Roosevelt’s “second bill of rights,” succeeding were even Roosevelt failed, may alter this settlement. President Obama is deeply linked to FDR’s New Deal agenda and aspires to be a president who seeks to “reset the very terms and conditions of constitutional government.” For FDR the “task of statesmanship” included a “redefinition” of rights, where “property rights” would yield to the imperatives of progress. It was in the wake of the “Constitutional Revolution of 1937” that long standing economic liberties were read out of the Constitution. Much of Obama’s agenda—health care, for instance—is rooted in FDR’s “second bill of rights” as he seeks to complete “FDR’s unfinished revolution.”[ii] This attempt offers a chance for the country, and perhaps even the Court, to revisit the question of economic liberty. We might begin this “conversation” with the understanding of civil liberty articulated in the Fourteenth Amendment.

If the congressional debates over the Fourteenth Amendment are occasionally obscure—which might also be said of the textual language of the amendment—they are not on the issue of economic liberty. It clear from the debates that the newly freed slaves, to be truly free, would require, to borrow John Locke’s formulation, “ownership” of themselves. Indeed, when the framers of the Fourteenth Amendment spoke of civil liberties, the liberties they most frequently mentioned were freedom of labor and occupation and the right to acquire and control property—rights that could find protection and be summed up by the fraught phrase—“liberty of contract.”

This is most evident in turning to the Civil Rights Act of 1866, which is deeply intertwined with the Fourteenth Amendment. While the Fourteenth Amendment began on a separate track from the civil rights bill, the two would become intertwined; it is not inapt to suggest, as numerous scholars do, that the Fourteenth Amendment, at the very least, sought to constitutionalize the Civil Rights Act of 1866.  The act was titled “an act to protect all Persons in the United States in their Civil Rights, and furnish the Means for their Vindication.” Section I of the act spoke “of citizens, of every race and color,” who “shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease sell, hold, and convey real and personal property, and to full benefit of all laws and proceedings for the security of person and property, enjoyed by white citizens.”[iii]

The rights deemed most important in this context were rights of contract and property based on the moral liberty to control one’s labor. This is, no doubt, because the “Black Codes” passed in the wake of the Thirteenth Amendment were aimed at depriving blacks of these very liberties. But the fact that they were thought of as fundamental liberties is evident from the congressional debates. Senator Lymon Trumball, a leading defender of the civil rights bill in the Senate, explained that the “first section of the bill defines what I understand to be civil rights.”[iv] Other members of Congress echoed this sentiment.

It is striking to note, against the backdrop of the government’s rescue of large corporations, that economic liberty was often deemed most important to minorities and small businesses. It was frequently the less powerful that depended on the formal protections of law against powerful larger businesses that were often able to sway that government to pass laws favoring them. This is evident in Kelo v. City of New London (2005), the recent takings case that captured national attention. There the City of New London transferred its power of eminent domain to a private development corporation, which then seized private homes that would, in part, be transferred to the Pfizer Corporation to lure the company to New London.  In the name of “economic development,” the private property of the less powerful was transferred to a powerful private corporation. Pfizer has subsequently pulled out of the deal.

Recovering a sense of the importance of economic liberty is not an act of antiquarianism, or to be governed by original meaning as the “dead hand of the past.”  Such liberties will only be liberties in a meaningful sense if they come, once more, to be held by the people. Recovering the logic of “economic” liberty could deepen our sense of liberty—and its counterpart, responsibility—more generally. And revisiting the nature of rights, and the logic that underlies the Fourteenth Amendment, would also seem invaluable in our coming conversation about “positive” rights and the reach of governmental power.


* George Thomas is Associate Professor of Government at Claremont McKenna College and the author of The Madisonian Constitution (Johns Hopkins). His essay on “Economic Liberty and the Original Meaning of the Fourteenth Amendment” is forthcoming in the spring issue of National Affairs. The opinions of Professor Thomas are not necessarily those of the Jack Miller Center.

[i] Kelo v. City of New London, 545 U.S. 469 (2005).

[ii] Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).

[iii] The Civil Rights Act of 1866.

[iv] The Congressional Globe, January 29, 1866, at 476.

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James Madison GPS

Sunday, January 24th, 2010

A Jack Miller Center Pathway Essay

By George Thomas

Portrait of James Madison, one of the authors ...

James Madison

Dubbed the “father of the Constitution” by the historian Charles Jared Ingersoll in 1825, James Madison resisted the title. Yet it is by this title that Madison remains best known. While biographies of the “Founding Fathers” continue to meet the public’s appetite —there have been new biographies of George Washington, Benjamin Franklin, John Adams, Thomas Jefferson, and Alexander Hamilton in recent years—books on Madison, especially those that break into the popular fold, tend to be historical studies of the early years of the Republic. Madison has become inseparable from the nation he helped bring into being.  Indeed, when the late Marvin Meyers gathered together the first comprehensive one volume edition of Madison’s writings in the early 1970s, he titled it The Mind of the Founder. And what better way to get at the bookish Madison than by reading.

First published in 1971, but brought out in paperback by the University of Virginia Press in 1990, Ralph Ketcham’s James Madison: A Biography is the best one volume biography of Madison’s life. As an early editor of the Madison Papers when the project was housed at the University of Chicago, Ketcham had access to material that was not available to earlier biographers. (Material on Madison continues to come out from the University of Virginia Press under the editorship of J.C.A. Stagg.) Ketcham’s biography not only traces Madison’s career, it gives us a sense of the man. As Madison said of his early years in Virginia under the study of Donald Robertson, who introduced him to thinkers like Montaigne and Montesquieu, “all that I have been in life I owe largely to that man.” It also captures a side of Madison that is less rarely on display (including a portrait of the beautiful Dolley Madison, who was introduced to Madison by Aaron Burr, and has also come into her own with a recent biography A Perfect Union: Dolley Madison and the Creation of the American Nation by Catherine Allgor.) The slight and frail man dressed in republican black had an impish sense of humor and was a lively presence among friends.

This should come as no great surprise. Madison led the charge in revolutionary Virginia to establish religious liberty, was the most important mind at the Constitutional Convention, joined with Alexander Hamilton to offer the great defense of the Constitution in The Federalist, crafted the Bill of Rights, and was behind the creation of political parties that helped bring about what Thomas Jefferson dubbed “the revolution of 1800”—the first peaceful transfer of power in history. To be so influential, we would expect a certain amount of persuasive character. Witnessing Madison’s exchanges with the gifted orator Patrick Henry in the Virginia ratifying convention, John Marshall called Madison the most eloquent speaker of his age. And yet, it is this very sweep that has often led to charges that Madison was inconsistent and vacillating—a lesser figure who fluctuated between the pull of Hamilton and Jefferson.  To follow Madison through this tumultuous period, one could do no better than Lance Banning’s The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic.  Banning’s book has the great virtue of reconstructing Madison’s thought from Madison’s preoccupations. The result is a Madison that is at once a skillful politician and a great thinker—he is neither Jefferson’s, nor Hamilton’s second.

If Madison was a masterful politician, he has not been seen as a great president. He left office extraordinarily popular, but history has been stern. Madison’s temperate claims of executive power make for intriguing reading against such judgments. The best history of his presidency remains Henry Adams’s History of the United States During the Administrations of James Madison first published in 1890. Adams, grandson of John Quincy Adams and great grandson of John Adams, has an overwrought sense of irony in his treatment of Madison. He is a New Englander who on occasion seems to think of Madison, like the first other four presidents who were not Adamses, as one of those damned Virginians. And, to be sure, many modern historians have offered a more rounded and sympathetic account of Madison’s presidency—even insisting the War of 1812, for all of its faults, helped sustain American independence for the long haul. Still, Adams’s great history is worth reading as it offers a detailed account of Madison’s presidency—coming in at over a 1,000 pages—and is itself one of the first great works of history written in the United States.

Madison lived beyond his contemporaries as the “last of the founders.” This from the frail youth who just after graduating from Princeton wrote that he did not expect “a long or healthy life.” Well, he lived until 1835 and witnessed the development of his handiwork for nearly another two decades. The nation returned to the issues of the 1780s and 1790s in debates over the national bank, the tariff, slavery and, most of all, nullification. Charges of inconsistency returned to haunt Madison and, a lifelong addict to politics and newspapers, Madison himself returned to the fray. Drew McCoy’s Last of the Fathers: James Madison and the Republican Legacy takes up Madison the elder statesmen, weaving together Madison’s late career with his early career in a wonderfully illuminating fashion. In McCoy’s able hands, we get a finely textured history that also happens to be a deeper education in Madison’s thought and the nature of the republic he helped birth.

Above all, Madison is an original constitutional thinker. Jack Rakove’s Original Meanings: Politics and Ideas in the Making of the Constitution is about the ideas and interests that framed the Constitution, but it is written with Madison as its central figure. Rakove captures what it means to make a constitution that is intended to endure for ages to come, but also how this begins from historical problems. When it comes to original meaning and its current application, Rakove offers somewhat ambivalent answers. But, following Madison, Rakove turns to the right questions, which are much broader than our unfortunate preoccupation with the Supreme Court and constitutional law. There is almost certainly an important lesson in the fact that Madison, our great constitutional thinker, was not a lawyer.

If you do not have the time—or is it the virtue?—for a longer book, or want only one book on Madison, you might pick up Rakove’s very brief James Madison and the Creation of the American Republic. For the republican side of Madison, you might try Colleen Sheehan’s James Madison and the Spirit of Republican Government. It’s a bit academic, but is engaging and readable; it even ends with a tribute to that great Madisonian—Harry Potter. If you are more adventurous, read Madison himself. He is imminently readable. You might be surprised how much sense and logic is packed into his short essays, and how relevant they remain for thinking about our Constitution and our politics.

George Thomas is Associate Professor of Government at Claremont McKenna College and the author of The Madisonian Constitution (Johns Hopkins).

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JMC Network Tenure in 2008-2009

Tuesday, November 3rd, 2009

This past academic year, several Miller Center Summer Institute Fellows successfully negotiated their tenure process. The staff at the Jack Miller Center congratulates all of them on this first big step of their academic careers:

Joshua Dunn, University of Colorado- Colorado Springs

Jocelyn Evans, University of West Florida

William Hay, Mississippi State University

Louie Hebert, St. Ambrose University

Robert Ingram, Ohio University

Preston Jones, John Brown University

Johnathan O’Neill, Georgia Southern University

George Thomas, Claremont McKenna College

Jonathan Hand, St. John’s College