The U.S. Senate’s Dysfunctional Confirmation Process

The recent squabble over new U.S. Attorney General Jeff Sessions’ testimony at his confirmation hearing before the U.S. Senate Judiciary Committee highlights the dysfunctionality of that process. After examining the current process as used for Sessions, suggestions will be made for an improved process.

The Current Process

Every member of the committee is allotted a set number of minutes to make statements and ask questions. The committee chair (now a Republican) opens followed by the ranking member of the other political party (now a Democrat). Then a member of the majority party (Republican) is granted the same privilege before returning to someone from the minority party (Democrat). The committee members also are permitted to submit written questions to the nominee after the hearing.

As a result, the time and ability to ask follow-up questions is severely limited and indeed is sidelined by the structure of the hearing.

In addition, the senators are used to making political speeches and hogging the limelight. Some are not lawyers by training or have forgotten how to ask questions designed to elicit useful information. These facts also adversely affect the ability of a hearing to obtain pertinent information from the nominee.

Committee’s Confirmation Hearing for Sessions

The above problems were exemplified at Mr. Sessions January 10 confirmation hearing by his responses to questions from Minnesota’s Senator Al Franken and New Hampshire’s Senator Patrick Leahy:[1] Here are those exchanges:

  • Franken:CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, ‘Russian operatives claimed to have compromising personal and financial information about Mr. Trump.’ These documents also allegedly say quote, ‘There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.’
  • “Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”
  • Sessions:“Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.”
  • Leahy: “Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?”
  • Sessions: “No.”

Franken’s question was clearly too verbose and difficult to understand and was focused on what Sessions would do in the future as Attorney General if there were evidence that the Trump campaign communicated with the Russian government during the campaign. Sessions’ volunteering that he did not have communications with the Russians during the campaign is now shown to be incorrect, but it was not responsive to the question.

Leahy’s question is better, but is still limited to contacts with Russian government officials “about the 2016 election.” Thus, Sessions’ flat “No” may or may not be truthful in light of subsequent disclosures that he had at least two meetings with the Russian Ambassador to the U.S.

Committee’s Post-Hearing Proceedings for Sessions

After the hearing, Senator Franken submitted 20 such questions with many subparts, but none concerned Russia. Senator Leahy also submitted 37 such questions, again with many subparts. Other written questions came from four of the 11 Republican committee members and from all of the other seven Democratic members.[2]

One of Leahy’s question (No. 22) concerned Russia with subparts about the U.S. intelligence community’s report about Russian interference in the U.S. election of 2016, and Sessions said he had not reviewed the report, “but have no reason not to accept the [report’s] conclusions.”

Another subpart (e) of that Leahy question stated: “Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions response: “No.” (Emphases added.)

This written question from Leahy comes closer to asking the appropriate foundation question, but it was still limited to contacts “about the 2016 election,” which provided Sessions with a basis to interpret that limitation and to say “no” if any such contacts were not about the election as so interpreted.

Supplemental Committee Proceedings for Sessions

The truthfulness of Sessions’ responses to these questions was called into question by a March 1 Washington Post report that he had had at least two meetings with the Russian Ambassador to the U.S. in this time period. Indeed, this report prompted Senator Franken to state that Sessions had misled the American public about his contacts with Russian officials and that he should reappear before the committee to answer “tough questions” on this subject.[3]

The Attorney General, however, immediately responded to these concerns. On March 1 his spokesperson said that he did have the two meetings with the Ambassador that were referenced in the Washington Post article, but that they were in his capacity as a member of the Armed Services Committee, not as a Trump supporter, and that there was no discussion about issues regarding the presidential campaign. The next day Sessions said his hearing testimony was “honest and correct as I understood it at the time” although he was “taken aback” by Franken’s question and was focused on its reference to possible contacts between Trump campaign surrogates and Russian officials. “In retrospect,” he said, “I should have slowed down and said I did meet one Russian official a couple times, and that would be the ambassador.” Sessions also said that the September meeting at his office with the Ambassador included two of the Senator’s senior staffers, that the two principals talked about a trip the Senator made to Russia in 1991, terrorism and Ukraine, that the conversation became “a little bit . . . testy” and that the Senator declined the Ambassador’s invitation to lunch. In addition, on March 2 Sessions recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”[4]

The Judiciary Committee Chair, Senator Chuck Grassley (Rep., IA), resolved this controversy by rejecting the request by the Democratic committee members for another public hearing and by offering Sessions an opportunity to supplement his testimony in writing.

Sessions did so on March 6 with the following statement after repeating the previously quoted Franken question and Sessions’ answer:[5]

  • “My answer was correct. As I noted in my public statement on March 2, 2017, I was surprised by the allegations in the question, which I had not heard before. I answered the question, which asked about a “continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,” honestly. I did not mention communications I had had with the Russian Ambassador over the years because the question did not ask about them.”
  • “As I discussed publicly on March 2, 2017, I spoke briefly to the Russian Ambassador at the Republican National Convention in Cleveland, Ohio, in July 2016. This was at the conclusion of a speech I had made, when I also met and spoke with other ambassadors. In September 2016, I met with the Russian Ambassador at my Senate office in the presence of members of my professional Senate staff. I do not recall any discussions with the Russian Ambassador, or any other representative of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Sessions then responded to two questions posed in a March 3 letter by the Democratic members of the committee. The first asked why he had not supplemented the record to note any contact with the Russian Ambassador before its public disclosure. Sessions said, “Having considered my answer responsive, and no one having suggested otherwise, there was no need for a supplemented answer.” The second question asked why he had not recused himself from “Russian contacts with the Trump transition team and administration.” Sessions said the scope of [his] recusal as described in the Department’s [March 2] press release would include any such matters. This should not be taken as any evidence of the existence of any such investigation or its scope. Suffice it to say that the scope of my recusal is consistent with the applicable regulations, which I have considered and to which I have adhered.”

After the submission of this Sessions’ letter, Committee Chair Grassley released the letter as an attachment to a press release announcing that there “are no plans to ask Sessions to come before the committee before an annual oversight hearing, as is customary.” Grassley also stated, ““I appreciate Attorney General Sessions’ quick action to clear up confusion about his statement and I look forward to confirming the team who can help him carry out the functions of the department, like going after sex offenders, protecting Americans against terrorists and criminal activity, and stopping drug traffickers.”  Grassley added that Sessions had recused himself as he said he would in his hearing testimony in sharp contrast to the failure of former Attorney General Loretta Lynch to do so with respect to investigation of Hillary Clinton’s personal email server and classified information found on it.[6]

A Suggested Different Procedure

The squabble over Sessions’ testimony regarding contacts with Russians could have been eliminated by a procedure whereby an attorney on the committee staff with experience of interrogating witnesses would do the questioning on selected topics, rather than having only the senators on the committee do so. The following is a better way of asking Sessions about whether he had any contact with Russian officials:

  • On February 28, 2016, you endorsed Donald Trump for the Republican presidential nomination.[7] Correct? (Sessions: Yes.)
  • On and after February 28, 2016, to the present, have you had any communications, oral or written, with any Russians? (Sessions: Yes.)
  • Identify all such communications by their date, location and the names of the Russians.
  • For all such communications, identify any other persons present, the length of the communications or meetings, state the substance of the communications and identify all documents (including, but not limited to, letters, memoranda, agendas, notes, audio and/or video recordings) regarding or reflecting the communications.

Conclusion

Although this Senate procedure is flawed and should be changed, a prominent New York Times’ columnist, Nick Kristof, asserts, “there has been too much focus on Attorney General Jeff Sessions, not enough on Paul Manafort, the former Trump campaign manager” with respect to connections between the Trump presidential campaign and Russia. Instead Kristof identifies specific facts or “dots” to support his suspicion “that Trump’s team colluded in some way with Russia to interfere with the U.S. election” and supports a full and fair investigation to determine whether that suspicion is validated.[8]

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[1] Carroll, In context: What Jeff Sessions told Al Franken about meeting Russian officials, PolitiFact (March 2, 2017).

[2] U.S. Senate Judiciary Committee, Nomination of Jeff Sessions, of Alabama, to be Attorney General (Feb. 28, 2017).

[3] Entous, Nakashima & Miller, Sessions met with Russian envoy twice last year, encounters he later did not disclose, Wash. Post (Mar. 1, 2017); Franken, Sen. Franken’s Statement on Report That Attorney general Jeff Sessions Misled American Public under Oath During Confirmation Hearing about His Contact with Russian Officials (Mar. 2, 2017); Demirjian, O’Keefe, Horwitz & Zapotosky, Attorney General Jeff Sessions will recuse himself from any probe related to the 2016 presidential campaign, Wash. Post (Mar. 2, 2017).

[4] Dep’t of Justice, Attorney General Sessions Statement on Recusal (Mar. 2, 2017).

[5] Letter, Sessions to Grassley & Feinstein (Mar. 6, 2017); Assoc. Press, Sessions Clarifies Testimony on Russia, Says He Was Honest, N.Y. Times (Mar. 6, 2017).

[6] Grassley, Grassley: Attorney General Clears Confusion on Hearing Testimony (Mar. 6, 2017).

[7] Stokols, Sen. Jeff Sessions endorses Trump, Politico (Feb. 28, 2016).

[8] Kristof, Connecting Trump’s Dots to Russia, N.Y. Times (Mar. 9, 2017).

U.S. First Congress: Adoption of First Ten Amendments to U.S. Constitution, 1789-1791

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. [1]

Because there had been considerable public concern that the U.S. Constitution did not contain provisions protecting certain rights of the citizens, one of the most important tasks facing the First Congress was developing and adopting constitutional amendments on these subjects to propose to the states for ratification followed by the states’ ratification of ten of these proposals. [2]

Congress’ Adoption of Proposed Amendments

The House of Representatives opened this “Great and Delicate Subject” on June 8, 1789, when Representative James Madison introduced his nine proposed amendments. He said they were to meet objections by some citizens that the Constitution “did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power.” For illustration, Madison’s fourth article of amendment stated, in part, as follows:

  • “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 by in any manner, or on any pretext infringed.”
  • The people shall not be deprived or abridged 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.”
  • “The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.”

Madison’s proposals, however, were not immediately welcomed, by his own Federalists and by the Antifederalists. Many saw them as a waste of time or premature and preventing attention on more pressing business. Therefore, the proposals would have to wait.

On July 21, 1789, Madison unsuccessfully tried to move his amendments to the House floor. Instead they were assigned to a pro-Federalist select committee. Madison was aided in his amendment project by quoting from a not-quite-secret private letter from President Washington saying, “I see nothing exceptionable in the proposed amendments. Some of them, in my opinion, are importantly necessary; others, though in themselves not very essential, are necessary to quiet the fears of some respectable characters and well meaning Men. Upon the whole, not foreseeing any evil consequences that can result from their adoption, they have my wishes for a favorable reception in both houses.”

Thereafter the select committee reshuffled, tightened, and reconfigured Madison’s proposals into a more coherent list of nineteen, but still including what we now know as the Bill of Rights with narrower language for freedom of conscience. Madison argued that this language meant that Congress could not enforce the legal observance of any religion nor compel anyone to worship God in any way contrary to his conscience.

The select committee also revised Madison’s militia amendment—he had proposed an absolute individual right to bear arms—to make clear that the amendment applied specifically to organized, officially sanctioned militias, which were seen as the front line of defense against any foreign military invasion.

On August 24, 1789, the House after a cursory, mostly non-substantive debate approved 17 articles of amendment, including these important rights. Federalists thought they were self-evident, and Antifederalists were more interested in states rights. These articles then were sent to the Senate, which was not very enthusiastic about considering them.

On September 2, 1789, however, the Senate took up the amendments that had been approved by the House and altered and consolidated them into 12 articles that passed the Senate on September 9. Thereafter the House agreed to most of the Senate’s changes, and a conference committee reconciled the remaining differences.

On September 25, 1789, the First Congress approved these revised 12 articles of proposed amendments. According to Bordewich, “the collective mood [of the Congress] was less one of triumph than of sheer exhaustion. No one in Congress regarded passage of the amendments as more than an exercise in political housekeeping” or “paper guarantees.”

States’ Ratification of First Ten Amendments to Constitution

These 12 articles of proposed amendments then were sent to the states for ratification. Although nine states so ratified 10 of the 12 articles within ten months, their actual ratification did not happen until December 15, 1791.[3] Here are the ratified amendments (now the Bill of Rights) or Articles I through X in “Addition to, and Amendment of, the Constitution:”

  • Article I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
  • Article II. “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
  • Article III. “No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.”
  • Article IV. “The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon principal cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
  • Article V. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
  • Article VI.“In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.”
  • ArticleVII. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined, in any court of the United States, than according to the rules in common law.”
  • Article “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
  • Article IX. “The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • Article “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
  • ==================================

[1] U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017).

[2] Bordewich, The First Congress at 13, 85-93, 107, 115-143, 158-59, 312 (Simon & Schuster, New York, 2016); House of Representatives, Amendments to the Constitution, The Founders Constitution.

[3] Article II of these proposed amendments was ratified on May 7, 1992, and is now the 27th Amendment to the U.S. Constitution. Article I of the proposed amendments from 1789, therefore, is still pending. (Twenty-seventh Amendment to the United States Constitution, Wikipedia.)

Trump’s Macroeconomic Idiocies

President Trump continues to spout with expensive ways to implement at least some of his campaign promises. He has not yet submitted a proposed budget for the federal government that would reveal whether and how the competing needs for federal expenditures would be reconciled.

So far, however, Trump continues to utter macroeconomic idiocies. Here are a few.

First, he urges unspecified huge increases in military spending.

Second, Trump continues to call for the construction of a wall along the U.S.-Mexico border. Trump initially said it would cost $8 billion and subsequently upped his figure to $10 to $12 billion. Last October, however, the MIT Technology Review put the real figure at $27 to $40 billion. (Editorial, The Costs of Mt. Trump’s Dragnet, N.Y. Times (Feb. 26, 2017.)

Second, Trump has called for expansion of U.S. arrests and deportation of undocumented aliens.  Already such efforts annually cost over $19 billion, and the American Action Forum recently estimated that expelling all unauthorized immigrants and keeping them out would cost $400 to $600 billion. (Iibid.)

Moreover, says that Forum, such drastic actions would reduce the U.S. GDP by $1 trillion. “Farms and restaurants, hotels, manufacturers, retail businesses–all sectors of the [U.S.] economy benefit directly or indirectly from immigrant labor.” In addition, they pay income, property and sales taxes and make financial contributions to our Social Security Administration while generally not collecting any Social Security benefits. That Administration estimates that such contributions annually total $13 billion while only getting back $1 billion. (Ibid.)

Another glaring socio-economic idiocy of Trump’s suggested massive increase of deportations of unauthorized immigrants is its failure to recognize obvious U.S. demografic trends. The U.S. has low birth rates and aging and declining population in many parts of the country, especially in rural areas. Immigrants are needed in those areas to care for older citizens in their own homes or in assisted-living centers of various kinds while foreign-born primary-care physicians already are a major provider of medical care.  (E.g., Karl, Minnesota used to attract more people from other states than it lost to them. Now it’s the opposite. What happened!, Minn. Post (Feb. 24, 2017).)

Third, the recent heavy rains in Northern California and the threatened collapse of the Oroville Dam have highlighted the dangerous condition of many dams and other important infrastructure systems throughout the U.S. and the need to repair, modify and replace many such structures. An expert pointed out, “Most of the dams in the [U.S.] are over 50 years old” and desperately need such work. (E.g., Assoc. Press, Rural California Levees Beseiged by Pounding Wet Winter, N.Y. Times (Feb. 24, 2017); Griggs, Aeschylus & Almukhtar, America’s Aging Dams Are in Need of Repair, N.Y. Times (Feb. 23, 2017).) An objective analysis of competing demands for federal funds should put this demand at the top of the list.

Fourth, Trump also has called for reduced taxes and unspecified changes to health care insurance

Conclusion

From a macroeconomic perspective an argument could be made for a stimulative federal budget with expenditures exceeding revenues. But the Trump proposals to date show no sign of confronting the questions of how much is too much.

There are many reasons to oppose Trump’s trumpeting the proposed U.S.-Mexico wall and expansion of arrests and deportations of undocumented foreigners: human rights, human decency and promoting positive relations with neighboring countries. They deservedly have received much attention. Yet another reason is their enormous cost.

U.S. First Congress: Debates Slavery, 1790

Anyone who has studied any American history knows that slavery existed at the adoption of the U.S. Constitution in 1788 and that the Constitution’s original Article I, Section 2 apportioned representatives in the House of Representatives “according to their respective Numbers, which shall be determined by adding to the number of free Persons, including those bound to Service for a Term of Years, and excluding Indians no taxed, three fifths of all other Persons [i.e., slaves].” (Emphasis added.)[1]

In addition, the First Congress in 1789 implicitly recognizing slavery when it enacted statues for an U.S. census and U.S. naturalization citizenship requirements. [2]

As the First Congress prepared to commence operations, emancipation advocates were seeking regulation of the slave trade or abolition of slavery while defenders of the “peculiar institution” contemplated secession if that happened. The latter’s House representation, of course, was bolstered by having their population increased by 60% (3/5th) of the number of their slaves.[3]

The emancipation advocates were led by Quakers who starting in early February 1790 “way-laid” and “assailed” Senators and Congressmen with pamphlets and diagrams of overcrowded slaves ships while urging support of anti-slavery petitions. One such petition asked Congress “with a sense of religious duty” to end “the gross national iniquity of trafficking in the persons of fellow men” and “the inhuman tyranny and blood guiltiness inseparable from it.” Another petition that was signed by Benjamin Franklin called for use of “all justifiable measures to loosen the bonds of Slavery & promote a general enjoyment of the blessings of Freedom.”

Southern reaction to these petitions was “explosive.” They accused the Quakers of “intemperate and unwarrantable meddling,” of “an intolerant spirit of persecution” against the slave states, of disloyalty and cowardice during the Revolutionary War (because on religious principles they did not bear arms) and the promotion of “Insurrections & bloodshed & persecution.” A Georgia Congressman said religion “from Genesis to Revelations” had approved of slavery.

The three petitions were referred to a House select committee, which later reported that Congress had no power to emancipate slaves or interfere with the slave trade before 1808. On the other hand, the committee said, Congress had the power to put a tax on imported slaves and thereby motivate slave-owners and slave states to improve their treatment of slaves.

Thereafter the pro-slavery forces went on the attack. Their leader quoted Scripture, suggested that nothing could be done about it, that the new country needed exports to Africa and that slaves were incapable of mastering freedom. Some of the nation’s leaders personally opposed slavery—George Washington, Alexander Hamilton and James Madison-even though they were slave owners, but remained quiet in Congress because they feared loss of Southern support for other measures or a breakup of the new country.

The result? The House concluded that all power to end slavery and tax imported slaves rested with the states. In short, it was an endorsement of the status quo and the protection of slavery.

Fergus Bordewich, the author of a leading book on the First Congress, concludes that the “most consequential failure of the First Congress was its evasion of the corrosive problem of slavery. . . . Even members who loathed slavery feared that the new government could not risk an open debate on the subject without splintering . . . . [Thus,] for the next seven decades this evasion encouraged southerners to bully any northern politicians who challenged slavery by threatening secession and war, as the number of enslaved Americans swelled from 323,000 in 1790 to almost 4 million in 1861, and the moral problem of slavery became ever more deeply enmeshed with the politics of states’ rights.”[4]

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[1] The above provision of the original Constitution was deleted by Section 2 of the Fourteenth Amendment thereto, which was adopted after the Civil War in 1868 and which states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

[2] U.S. First Congress: Establishment of Racial Categories for the U.S. Census and U.S. Citizenship Naturalization, 1790, dwkcommentaries.com (Feb. 20, 2017).

[3] Bordewich, the First Congress at 3,6, 75-77, 104, 112, 124-25, 149, 151-52, 172, 178, 183, 195-96, 198-220, 223-24, 230, 244-45, 249, 276, 279-80 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931

[4] Id. at 304.

U.S. First Congress: Establishment of Racial Categories for the U.S. Census and Citizenship Naturalization, 1790

Important tasks for the First Congress of the U.S. were establishing the requirements for the first census of the country and for becoming a citizen by naturalization. [1]

Anyone who has studied any American history knows that slavery existed at the adoption of the U.S. Constitution in 1788 and that the Constitution’s original Article I, Section 2 apportioned representatives in the House of Representatives “according to their respective Numbers, which shall be determined by adding to the number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves].” (Emphasis added.)[2]

Therefore, it should not be surprising that the very First Congress of the U.S. enacted a statute for the first U.S. census and a statute establishing requirements for becoming a naturalized U.S. citizen, both of which distinguished between “white” individuals and “slaves.” Nevertheless, it was still startling for me to discover these two statutes and the subsequent history of these aspects of U.S. law.

The First U.S. Census

On March 1, 1790, the First Congress enacted a statute that established the following categories for the first enumeration or census: “Free white males of sixteen years and upwards, including heads of families; Free white males under sixteen years; Free white females, including heads of families; All other free persons; and Slaves.” (Emphasis added.) It also called for identifying an individual’s occupation.[3]

These provisions were not controversial. There, however, was controversy, according to Fegus Bordewich, over whether the first census “was too ambitious, too detailed, and subdivided the population into [occupational] ‘classes too minute’” and was too invasive of privacy. (P. 196)

The First Naturalization Statute

On January 8, 1790, President George Washington delivered the first State of the Union address, in which he said, “Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization.”(P. 180) [4]

Thereafter the members of the First Congress debated whether an oath of allegiance should suffice, whether there should be a residence requirement, whether there should be a national or a state-by-state requirement and whether foreign seamen could easily become citizens. The answer to these fears apparently was provided by Virginia’s Representative John Page, a large slave owner: “’It is nothing to us whether Jews, or Roman Catholics, settle amongst us; whether subjects of kings or citizens of free states wish to reside in the [U.S.], they will find it their interest to be good citizens; and neither their religious or political opinions can injure us, if we have good laws, well executed.’” (Pp. 196-97)

On March 26, 1790, the First Congress enacted a statute that limited naturalization to an “alien, being a “free white person.”(Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship. Other requirements were being a “resident” for one year of a state, possessing “good character,” and having taken “an oath or affirmation . . . to support the constitution of the [U.S.].” [5]

As discussed in another post, the “white” racial category (with subsequent additions of other racial categories) for naturalization remained in U.S. statutes until 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.” [6]

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[1] See generally The U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017); Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster, New York, 2016)[the above text of this post cites to to specific pages of this book].

[2]  The above provision of the original Constitution was deleted by Section 2 of the Fourteenth Amendment thereto, which was adopted after the Civil War in 1868 and which states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

[3] An Act providing for the enumeration of the Inhabitants of the United States, 1 Stat. 101 (1790), U.S. Constitution.  The “white” category has been used in every decennial census through 2010 while “slave” was used through 1840.

[4] President Washington, State of the Union Address,  (Jan. 8, 1790), presidency.ucsb.edu/was/?pid=29431 , http:www.

[5] An Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790),

[6] Long History of Racism in U.S. Laws Regarding United States Citizenship, dwkcommentaries.com (June 24, 2016).

U.S. First Congress: Creation of Federal Judiciary, 1789

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. We now look at its creation of the federal court system in the Judiciary Act of 1789, which was adopted on September 24, 1789.[1]

The Constitution

The backdrop for this legislation was Article III of the Constitution of the U.S.A., which provided the following:

  • Section 1 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
  • Section 2 “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
  • “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
  • “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Judiciary Act of 1789

The previously mentioned Judiciary Act of 1789 had the following key provisions:

  • Section 1. The “supreme court of the United States shall consist of a chief justice and five associate justices . . . .” [The Supreme Court’s cognizance or jurisdiction was established in Section 13.][2]
  • Section 2. The U.S. “shall be, and they hereby are divided into thirteen districts [as defined in that section].[3]
  • Section 3. There shall be “a court called a District Court, in each of the aforesaid districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge. . . .” [The cognizance or jurisdiction of each of the District Courts was specified in Sections 9 and 10.][4]
  • Section 4. These thirteen districts, except those of Maine and Kentucky, “shall be divided into three circuits, and be called the eastern, the middle and the southern circuit. . . . and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court and the district judge of such districts . . . .’ [The cognizance or jurisdiction of the Circuit Courts was specified in Section 11, and certain of their procedures were contained in Section 5.] [5]
  • Section 12 [Procedure for removal of certain cases from state court to federal court.]
  • Sections 6, 8, 14-26, 29-35. [Established rules of procedure for the federal courts.]
  • Section 7 [Supreme Court and District Courts have power to appoint clerks with specification of their duties.]
  • Sections 27-28. [District courts have power to appoint marshals with specification of their duties.]

According to Fergus Bordewich, the author of a leading book about the First Congress, the bill’s primary author was Senator Oliver Ellsworth, a staunch Federalist from Connecticut and an experienced litigator and state court judge. Ellsworth was especially concerned about maritime issues because virtually all of the federal government’s revenues would derive from import duties. Another maritime issue was regulating privately owned raiders by validating captured prizes and ensuring that they did not commit outright piracy. [6]

There was “vigorous debate” about the bill. Some believed that having only six Supreme Court justices was insufficient to combat the state courts; that it would be wrong to allow state courts to have jurisdiction over some federal cases; that there was insufficient federal revenue to support the federal courts; that this judiciary was intended to enrich lawyers; that the federal judges would have too much “inquisitorial power;” that the federal courts should not have the power to invalidate state laws that were believed to conflict with the Constitution or federal laws or treaties. James Madison in the House of Representatives thought the bill was too complicated and too expensive. Some even thought that having two overlapping judicial systems (state and federal) was totally unnecessary.

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[1] U.S. First Congress, 1789-1791: Overview, dwkcommentaries.com (Feb. 15, 2017); Judiciary Act of 1789, http://avalon.law.yale.edu/18th_century/judiciary_act.asp.

[2] Over the years Congress has passed various acts to change the number of Supreme Court justices from six to a low of five and a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. (U.S. Sup. Ct., Frequently Asked Questions (FAQ). https://www.supremecourt.gov/faq.aspx#faqgi

[3] There now are 94 U.S. district courts as some states like New York have more than one such district and as some non-states (e.g., Puerto Rico) have such courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[4] Most, if not all, of today’s U.S. district courts have more than one judge. Thus, as of May 2012 there were 2,758 such judges.

[5] The U.S. circuit courts have been replaced by 13 U.S. courts of appeal, and as of May 2012 there were 714 judges on these courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[6] Bordewich, The First Congress at 105-12, 141-43, 159-60 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931

Trump and Rubio Share “Similar Views” on Cuba

At President Trump’s rambling press conference on February 16 he said that over dinner the previous night he and Senator Marco Rubio (Rep., FL) “had a very good discussion about Cuba because we have very similar views on Cuba.” Trump added that “Cuba has been very good to me, in the elections. . ., the Cuban people, Americans.” (Torres, Trump: Rubio and I have ‘very similar views on Cuba,’ Miami Herald Feb. 16, 2017).)

No details were provided on which views were similar, but Rubio’s opposition to former President Obama’s normalisation of U.S. relations with Cuba is well known, and during last year’s presidential campaign Trump voiced similar thoughts. (See posts listed in ¨ U.S. and Cuba in the Trump Administration, 2017¨section of List of Posts to dwkcommentaries.com–Topical: CUBA.)

As  an advocate of such normalization, this is disturbing, but unfortunately not surprising, news.