Great Britain’s Deteriorating Relationship with Her American Colonies, 1765-1775

For 10 years (1765-1775), Great Britain experienced a deteriorating relationship with her 13 colonies in North America. This eventually lead to the American Revolutionary War starting in April of 1775. Here is a summary of the major events in this decade’s pre-war struggle.[1]

In 1765 the British Parliament adopted the Stamp Act imposing taxes on paper for various purposes, and the colonial Stamp Act Congress that same year responded with resolutions opposing the tax and asserting rights as Englishmen. This led the next year, 1766, to British repeal of the Stamp Act in the Declaratory Act that asserted parliamentary authority over the colonies “in all cases whatsoever.”

The 1765 British Mutiny and Quartering Acts required the colonists to provide quarters and supplies to the British troops in the colonies. In response, the Massachusetts and New York legislatures refused to provide the supplies.

To counter that colonial resistance, Parliament in 1767 suspended the New York legislature, adopted the “Townshend duties,” i.e., duties on various colonial imports and established a board of customs commissioners in the colonies. The purpose of these measures was to raise revenue in the colonies to pay the salaries of governors and judges so that they would be independent of colonial rule, to create a more effective means of enforcing compliance with trade regulations, to punish the province of New York for failing to comply with the 1765 Quartering Act, and to establish the precedent that the British Parliament had the right to tax the colonies.

These measures were not well received in the colonies. To protest these measures the Massachusetts legislature led a colonial resolve to resist every tax imposed by Parliament while Boston merchants organized a boycott of British goods.

In 1770 Parliament repealed the Townshend duties, except for the import duty on tea. But hostile crowds in Boston forced the customs commissioners to take refuge in a castle in the city’s harbor. In response additional British troops were stationed in Boston, but they were hassled by the crowds, and on March 5, 1770, during one of these encounters the troops fired and killed five colonists and wounded others. This quickly became known as “The Boston Massacre.”

In 1773 Parliament passed the Tea Act to aid the nearly bankrupt East India Company. It permitted the Company to export its products in the colonies without paying the usual British export taxes; this resulted in lower prices to the American consumers even with the Townshend import duty on the tea in the colonies. But the colonists renounced tea in favor of coffee and chocolate. On December 16, 1773, “the Boston Tea Party” occurred when colonists threw tea chests on three British ships in the city’s harbor into the water.

Britain responded in the Spring of 1774 with five “Coercive Acts” (“Intolerable Acts” in the colonies). The Boston Port Act closed the port to all shipping. The Massachusetts Government Act concentrated power in the royal governor. The Administration of Justice Act allowed British soldiers and officials to be tried in Britain or another colony. The Quartering Act directed the local Boston authorities to find quarters for British troops in the city. The Quebec Act enlarged the boundaries of Quebec and granted religious freedom to the Roman Catholic inhabitants of the province; the colonists saw this statute as a new model for British colonial administration, which would strip the colonies of their elected assemblies and promote the Roman Catholic faith in preference to widely-held Protestant beliefs; It also limited opportunities for colonies to expand on their western frontiers.

Britain hoped that the Coercive Acts would isolate the so-called Massachusetts radicals and cause American colonists to concede the authority of Parliament over their elected assemblies.This was a horrible miscalculation by the British because the harshness of some of the acts made it difficult for colonial moderates to speak in favor of Parliament.

Instead the Coercive or Intolerable Acts promoted sympathy for Massachusetts and encouraged colonists from the otherwise diverse colonies to organize the First Continental Congress. At its meeting in Philadelphia in September 1774 the Congress called for military preparations for a possible British attack in Boston and for a boycott of British goods. It also adopted the Declaration and Resolves that objected to the Intolerable Acts. More importantly, it declared that the colonists, “by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts” had the following rights:

  1. “That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”
  2. “That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.”
  3. “That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.”
  4. “That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bonfide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.”
  5. “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”
  6. “That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.”
  7. “That these, his Majesty’s colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.”
  8. “That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.”
  9. “That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.”
  10. “It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous and destructive to the freedom of American legislation.”

Early the next year (1775) Parliament considered the American Declaration and Resolves and adopted the Conciliatory Resolution. It declared that any colony that contributed to the common defense and provided support for the civil government and the administration of justice (ostensibly against any anti-Crown rebellion) would be relieved of paying taxes or duties except those necessary for the regulation of commerce. But this was “too little, too late.” In fact, the Conciliatory Resolution did not reach the colonies until after the war had started.

In the meantime the colonists were organizing militias with Minute Men (men with muskets ready to go to war at a minute’s notice) to be ready to fight the British troops and with means of communication for prompt distribution of news about political and military events. They also developed a philosophy of revolt based upon the English constitution, the laws of nature and of God.

As we have seen, John Brown (my maternal sixth great-grandfather) was involved in some of these events as a leader of the town of Leicester, Massachusetts.

[1] E.g., T. Harry Williams, Richard N. Current & Frenk Freidel, A History of the United States [To 1876], Ch. 6 (New York: Alfred A. Knopf 1959); Henry Steele Commager & Richard B. Morris, The Spirit of ‘Seventy-Six: The Story of the American Revolution as Told by Participants, Chs. One & Two (New York: Harper & Row, 1967).

Ancestor’s Service as a Leader of the Town of Leicester in the Province of Massachusetts Bay

From at least 1761 through 1773, John Brown, my maternal 6th great-grandfather, was a leader of the town of Leicester in the Province of Massachusetts Bay.[1]

He frequently was elected to represent the town in the Great and General Court of the Province of Massachusetts Bay, which was established by a 1630 charter from King Charles I and which served as the colonial legislature and judicial court of appeals. John Brown also served the town in other capacities.

Protesting the Stamp Act

In 1765 the British Parliament adopted the Stamp Act requiring many printed materials in the British colonies in North America to be produced on stamped paper made in London with an embossed revenue stamp. This tax had to be paid in valid British currency, not in colonial paper money, and was designed to help pay for troops stationed in North America after the British victory in the Seven Years War, as the French and Indian War was called in Europe.

As most of us in the U.S. know, this tax was very unpopular in the colonies, and Mr. Brown was instructed by the town of Leicester on October 17, 1765, to advocate in the General Court for “their natural rights; their rights as Englishmen . . .; and those granted them by charter” and to assert that the Stamp Act was “contrary to the rights of man, subversive of the English constitution, and directly tending to bring them into a state of abject slavery and vassalage.” [2]

The instructions also criticized the expansion of the powers of the British admiralty court “by which, every man, at the option of a malicious informer, is liable to be carried [to London] . . . before a court of vice admiralty; there tried without a jury, amerced [punished] by an arbitrary judge, and taxed with costs, as he shall please; and if the parties have not wherewith to satisfy the same, to die in prison in a foreign land.” Such practice was “repugnant to the magna charta, by which no freeman shall be taken, imprisoned, or deprived of his liberties, or free customs, nor passed upon, nor condemned, but by lawful judgment of his peers, or by the law of the land.”

New York City Hall, circa 1765

Later that same month of October 1965, 27 delegates from nine colonies met in the colonial Stamp Act Congress in New York City’s City Hall. After 12 days of deliberation, it produced the Declaration of Rights and Grievances. It petitioned for repeal of the Stamp Act, the expansion of the jurisdiction of the admiralty court and any other statutes restricting American commerce after declaring that the colonies’ inhabitants owed allegiance to the British Crown and subordination to its Parliament. More significant, in light of subsequent developments, were its declarations that:

  • The inhabitants of the colonies “are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.”
  • It “is inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.”
  • The “people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.”
  • The “only representatives of the people of these colonies are persons chosen therein, by themselves; and that no taxes ever have been or can be constitutionally imposed on them but by their respective legislatures.”
  • It “is unreasonable and inconsistent with the principles and spirit of the British constitution for the people of Great Britain to grant to His Majesty the property of the colonists.”
  • “[T]rial by jury is the inherent and invaluable right of every British subject in these colonies.”
  • The Stamp Act and the expansion of the jurisdiction of the admiralty “have a manifest tendency to subvert the rights and liberties of the colonists.”
  • Certain duties or taxes on the colonies “will be extremely burdensome and grievous, and, from the scarcity of specie, the payment of them absolutely impracticable.”
  • The “increase, prosperity, and happiness of these colonies depend on the full and free enjoyment of their rights and liberties, and an intercourse, with Great Britain, mutually affectionate and advantageous.”

Protesting the Dissolution of the Massachusetts Legislature

Three years later, in 1768, the Governor of the Province dissolved the General Court. In response a convention at Boston’s Faneuil Hall was called to protest this action, and in February 1768 John Brown was elected to be one of the town’s representatives to the convention as well as the chair of a committee to prepare the instructions for the town’s representatives.[3]

Those instructions of February 1768 condemned the dissolution of the colonial legislature while also expressing the people’s allegiance to the King and their willingness to risk their lives and fortunes in defense of their rights. The document also asserted that “the British Parliament, or any other power on earth, had no right to dispose of one cent of their property without their consent, in person, or by representatives; and that carrying any person out of this province, or beyond the seas for any supposed crime, is contrary to the magna charta, and unconstitutional.”

The 1768 Leicester instructions also recommended that Massachusetts share its opinions with the other colonies “as we are embarked in a common cause.”  The document continued, “when we reflect upon the evils our forefathers underwent in the settlement of this country, the dangers to which they stood continually exposed from an insidious and bloodthirsty foe, and the blood and treasure they expended,. . .  it would be despising the bounties of our creator; an infamous prostitution of ourselves, and a total disregard to posterity” if they “tamely and pusillanimously suffer the execution” of the British laws regarding the colonies.

Protesting the Assessment of the Governor’s Salary

Five years later, in January 1773, John Brown again was called to serve the town of Leicester, this time on a committee to react to a report from Boston protesting the decision by the British to assess the Governor’s salary out of the American revenue.[4]

The Leicester committee report contained the prefatory statement that the town’s inhabitants bore “true allegiance” to King George III and were ready “to hazard our lives in defence [sic] of his person, crown, and dignity.”

On the other hand, the committee’s  instructions stated that the people of Leicester “have a right to all the liberties and privileges of subjects [living] within the realm of England; and that we esteem and prize them so highly, that we think it our duty to risk our lives and fortunes in defence [sic] thereof.”

The 1773 committee document claimed that “the Parliament of Great Britain has enacted laws subversive of our rights and privileges, in a particular manner, in raising a revenue in the Colonies, without their consent and thereby depriving us of that right of keeping our own money until we think fit personally, or by our representatives, to dispose of the whole, or any part thereof” and that “neither the British Parliament, nor any other power on earth, has a right to dispose of one farthing of our money, or any of our property, without our consent in person or by our representatives.”

The Leicester committee of 1773 also reiterated its opposition to “the carrying any person or persons out of this province, beyond the seas or elsewhere, for any supposed or real crime committed here, [as] against Magna Charta, and unconstitutional.”

[1] Carol Willits Brown, William Brown–English Immigrant of Hatfield and Leicester, Massachusetts, and His Descendants c. 1669-1994 at 6 (Gateway Press; Baltimore, MD 1994).This account is based upon two secondary sources about the town of Leicester written in the 19th century by Emory Washburn: (a) Topographical and historical sketches of the town of Leicester in the Commonwealth of Massachusetts (1826) [“EW#1”}; and (b) Historical sketches of the town of Leicester, Massachusetts, during the first century from its settlement (1860)[“EW#2”]. I would greatly appreciate corrections and supplementation by anyone with more direct knowledge of the General Court during this period.

[2] EW#1 at 40-41; EW#2 at 280-81, 434-38.

[3] EW#1 at 42-44; EW#2 at 438-39.

[4] EW#2 at 285, 439-42.

Ancestors’ Military Service in the French and Indian War

In 1754 both France and Great Britain had large colonial interests in North America. Britain, of course, had the 13 colonies[1]  plus Newfoundland, Nova Scotia, New Brunswick and Hudson’s Bay. France had New France, which extended from Isle Royale (Cape Breton Island today) in the east to the Rocky Mountains in the west and from what is now southern Ontario in the north to the Gulf of Mexico in the south.

French & Indian War, 1754-1763

The two countries’ competition for expansion led in 1754 to what became known in the U.S. as the French and Indian War. The war was fought primarily along the frontiers separating New France from the British colonies and lasted until the signing of the Treaty of Paris on February 10, 1763, with France ceding New France to the British. (This war was part of the global Seven Years War, 1756-1763, focused on conflict between Britain and the Bourbons in France and Spain and territorial battles by others in the Holy Roman Empire.)

My sixth great-grandfather, John Brown, and two of his sons, Perley Brown (my fifth great-grandfather), and John Brown, Jr., served with the British forces in this war.[2]

In the Fall of 1756, the three men were members of a Minute Men brigade that went from their home town of Leicester, Massachusetts to join others in a planned assault on the French Fort St. Frederic (now Crown Point) at the southern end of Lake Champlain in today’s upstate New York.  However, before the offensive got underway, word arrived of the French victory at Fort Oswego on the southeastern shore of Lake Ontario in present-day New York. The British feared that an overwhelming French army would be assembled in the Champlain Valley, and, therefore, the British cancelled the planed attack.

Fort William Henry

In August of the next year, 1757, the three men and other Minute Men from Leicester went to help defend the British Fort William Henry at the southern end of Lake George in the Province of New York. The Fort, however, was weakly supported, and after several days of French bombardment, the British surrendered. Afterwards the French destroyed the fort. (The fort has been reconstructed and is open with a museum for tourists.)

Under the terms of surrender, the French were to protect the British from the Indian allies of the French. The Indians, however, attacked the withdrawing British forces who had been stripped of their ammunition and killed and scalped a significant number of soldiers. The Indians also captured women, children, servants and slaves. (This incident was portrayed in James Fenimore Cooper’s 1826 novel, The Last of the Mohicans.) Fortunately the three Browns were not involved in this massacre.

[1] The 13 colonies were Province of New Hampshire, Province of Massachusetts Bay, Colony of Rhode Island and Providence Plantation, Connecticut Colony, Province of New York, Province of New Jersey, Province of Pennsylvania, the Lower Colonies on Delaware, Province of Maryland, Colony and Dominion of Virginia, Province of North Carolina, Province of South Carolina and Province of Georgia.

[2] Carol Willits Brown, William Brown–English Immigrant of Hatfield and Leicester, Massachusetts, and His Descendants c. 1669-1994 at 6, 11, 17 (Gateway Press; Baltimore, MD 1994).

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “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 . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

U.S. Supreme Court Justices, 2012

As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.

This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.

The Supreme Court’s Opinions on the Interstate Commerce Power

Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.

The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

Chief Justice         John Roberts

First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’  The power over activities that substantially affect interstate commerce can be expansive.  That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited  Wickard v.  Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and  Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)

Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause.  We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'”  Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)

Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)

2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.

Associate Justice Anthony Kennedy

Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)

Associate Justice Clarence Thomas

Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)

3. Associate Justice Ginsburg’s Opinion.

Associate Justice Ruth Bader Ginsburg

Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)

She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.”  (Id. at 15-16.)

Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)

The Interstate Commerce Power After the Supreme Court’s Decision

Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.

When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.

Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.

As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?

Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.

There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.

  • First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
  • This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
  • Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
  • Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
  • Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
  • All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.

There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”

I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.

It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the  European economy and currency from imminent collapse.

Legal Ethics Issues in the “Anatomy of a Murder” Movie

We have seen a brief identification of the main characters and a synopsis of the plot of the movie Anatomy of a Murder. Now let us examine the issues of legal ethics raised by the film.

The defense attorney, Paul Biegler (played by Jimmy Stewart) comes across as an earnest, straightforward, honest attorney who zealously defends the accused.

Paul Biegler (Jimmy Stewart) &
Frederick Manion (Ben Gazzara)

Yet Biegler comes close to crossing the lawyer’s ethical line of not suborning perjury when in the initial consultations with his client, Lt. Frederick Manion (played by Ben Gazzara), Biegler tells the client the only potential defense is insanity before the lawyer knows all the facts and then implicitly invites the client to develop a story of insanity.

Paul Biegler      (Jimmy Stewart)

During the trial, Biegler frequently appears to be an unskilled trial lawyer. He makes improper objections, such as “Now, he [Dancer, one of the prosecutors] cannot do that.” Biegler also frequently and knowingly asks improper questions, and the prosecution’s objections are sustained. His client, Manion, asks Biegler in an aside how the jury can forget something that the judge has stricken. Biegler says the jury cannot forget, which is precisely the reason why Biegler asked the improper question.

Another example of Biegler’s apparent inept performance as a defense lawyer is his failure to object to the examination of one witness by both prosecutors–District Attorney Mitch Lodwick (played by Brooks West) and Assistant Attorney General Claude Dancer (played by George C. Scott). Such “dual teaming” is clearly improper as a matter of trial practice. Soon thereafter, however, Biegler reveals his calculating courtroom manner when he raises that very objection while slyly arguing to the jury that it is unfair for a simple country lawyer like himself to face two legal giants with the same witness, and the court sustains Biegler’s objection. Who really is the courtroom giant?

Judge Weaver (Joseph Welch), Paul Biegler, Mitch Lodwik & Claude Dancer
Claude Dancer
(George C. Scott)

Biegler also reveals his skills as a trial lawyer when in a conference in chambers with Judge Weaver (played by Joseph Welch), Biegler initially plays dumb when Dancer asks if Biegler is familiar with a Michigan statute that allows the prosecution to have its psychiatrist examine an accused who is asserting the insanity defense. Dancer then comes across as a reasonable attorney when he suggests that Biegler just agree to the adverse examination. But Biegler is well aware of the statute when he tells the judge that a formal application is required for such an adverse examination, but that the time for such has passed. Dancer then is forced to abandon his request. Later during Biegler’s cross examination of the prosecution’s expert witness, Biegler forces the adverse expert to admit that he did not examine Manion whereas Manion’s expert had and that Manion’s expert, therefore, had a better basis for his opinion.

At the heart of the legal issues in the movie was the definition of insanity as a defense to criminal liability. At the time of the movie and today, the definition in most states in the U.S. is the M’Naghten rule: a person is insane if at the time of the act, he did not know what he was doing or did not know that what he was doing was wrong.

In a few states, on the other hand, insanity was defined as someone who could not control what he was doing because of a mental impairment even though he knew what he was doing was wrong. This was the so-called “irresistible impulse” test.

In the movie, Biegler assumes that Michigan follows the M’Naghten rule, but on the Saturday before the start of trail, he and his co-counsel, McCarthy, spend time in the county law library in the courthouse and find an old Michigan case that approves of the irresistible impulse rule. [1] This makes for a dramatic scene in the movie. But to conduct legal research on the key issue in a murder case only a few days before the start of trial really is skirting the edges of legal malpractice.

This legal issue becomes important in a conference in chambers with Judge Weaver (Welch) when the prosecution suggests that Manion change his plea to guilty after his expert psychiatrist testifies that Manion could have known right from wrong when he killed Quill. Biegler refuses this proposal while handing the judge the law book containing the Michigan case. Dancer then backs away from his idea, saying he remembers the case.

Dancer’s conduct raises another legal ethics problem. As an assistant state attorney general, he is brought into the case because of his expertise on the insanity issue. As such an expert and as a member of the Michigan attorney general’s office, he has to know that the Michigan Supreme Court had approved of the “irresistible impulse” test, as he indicates when he says he remembers the case. (How could he forget?) Yet Dancer makes the suggestion in chambers that Manion change his plea because his psychiatrist did not support the application of the M’Naghten test. Perhaps he thought he could trick his supposedly less-sophisticated adversary, Biegler, with this suggestion. But an attorney has an obligation not to knowingly misstate the law to the court, and by making the suggestion in chambers that is exactly what Dancer did. In Dancer’s defense, he could argue that he was not making a formal motion for a directed verdict that required a decision by the judge, but this distinction, in the author’s opinion, is insufficient to exempt a prosecutor, who also has obligations to justice.

The movie ends with an interesting twist that I will not reveal so as not to spoil the fun.

Buy or rent the DVD of the movie. Watch it. Enjoy the performances of great actors and the music of a great musician (Duke Ellington). And learn about some issues of legal ethics.

[1] The case they find in the law books in the movie is an actual case, People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886).