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Defending the Constitution: Secrets behind those ‘obscure’ provisions

Defending the Constitution: Secrets behind those ‘obscure’ provisions

This essay was first published in the July 6, 2021 Epoch Times.

In previous essays in the Defending the Constitution series, I’ve responded to “progressive” attacks on prominent terms in the document: equal representation in the Senate, denying D.C. statehood, and the Second Amendment, among others.

But “progressives” also assail less prominent parts of the Constitution. For example, one liberal law professor reacted to the Origination Clause—requiring tax measures to be introduced first in the House rather than the Senate—with the question, “Why should anyone care?”

Below are questions and answers addressing five of the Constitution’s less famous provisions—including the Origination Clause.

Question: Why did the Constitution require approval of conventions in nine states to ratify the document? (Article VII). Why not all 13, as required by the Articles of Confederation? Or why not a mere majority of seven?

Answer: As I explained in an earlier essay, the Articles of Confederation did not create a real government. It was a treaty organization akin to the NATO compact. Under international law the signatories (the states) were free to make any new arrangements they thought best.

The Confederation’s rule that amendments be approved unanimously had proved unworkable. However, the nine-state rule employed by the Confederation for other purposes was more acceptable.

Moreover, ratification by popularly elected conventions in any nine states—even the nine least populated—would ensure that the document was approved by a majority of the electorate. (Compare the congressional allocation in Article I, Section 2, Clause 3.) So upon ratification by nine states, the Constitution would have been endorsed by both (1) two-thirds of the states and (2) a majority of “We the People.”

Each state had the option of refusing to ratify and staying out of the Union. No state took that option.

Question: Why does the Constitution require the president to be a natural born citizen? (Article II, Section 1, Clause 5). Why not a naturalized citizen?

Answer: The framers understood that for republican government to work, there had to be a close identity of interest, knowledge, and feeling between the governors and the governed. We might call this “empathy,” but the founding-era term was sympathy (pdf).

Persons born and raised in foreign countries lack many of the formulative experiences most Americans share. Even the most patriotic naturalized citizens may have unconscious foreign loyalties or contacts. Or they may be subject to pressure imposed on family members in their place of birth. All these factors potentially create conflicts of interest.

Indeed, the Constitution’s framers knew from English history of officials born or raised outside the country who betrayed their trust to foreign powers. In Britain, therefore, even members of Parliament had to be natural born.

Yet the framers recognized that America was a nation of immigrants and needed the skills of naturalized citizens. In addition, the framers wished to avoid any appearance of creating a caste system. So because the president has principal responsibility for foreign affairs, they limited the “natural born” requirement to the president and to the vice president who might succeed him.

In recent years, both Barack Obama and Kamala Harris have come under fire for allegedly failing to qualify as natural born citizens. Under the rules in effect when the Constitution was adopted, both do qualify as natural born. But I sometimes wonder how their views might differ if they had not spent so much of their childhood outside America.

Question: The Privileges and Immunities Clause of Article IV provides, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” What does that mean?

Answer:  The Privileges and Immunities Clause has been widely misunderstood, even among legal scholars. However, in 2009 I published an exhaustive research article (pdf) that I think pretty well establishes its meaning.

“Privileges and immunities” was a common expression in 18th century legal documents, with a distinct legal meaning. A privilege was a benefit or advantage government bestowed on one or more people. (The modern word is “entitlement.”) An immunity was the flip side of a privilege. Thus, the privilege of a tax exemption was an immunity from taxation. Neither term included natural rights, such as freedom of religion or self-defense.

The Privileges and Immunities Clause provides that if a state gives all its citizens a particular privilege, then the state must give the same privilege to visiting out-of-staters. Thus, if a state affords trial by jury to all adult citizens, then the state must offer trial by jury to visitors as well. Similarly, if a state prescribes procedures by which adult citizens may transfer land, then it must allow visitors access to those same procedures. But no state grants all adult citizens the privilege of voting, so no state need grant visitors the privilege of voting.

Article IV contains several provisions designed to tie the states more closely to one another. The Privileges and Immunities Clause is one of these: It protects interstate travelers from certain kinds of discrimination.

Question: Article IV also has a provision that reads, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Why is this clause in the Constitution? What is the “Republican Form?”

Answer: This is called the Guarantee Clause. In the founding era, a republic was a sovereign political unit that (1) had no monarch, (2) followed the rule of law, and (3) rested directly or indirectly on the majority of citizens (pdf). The framers inserted the Guarantee Clause primarily to prevent any state from being a monarchy. They knew from history that when a monarchy was part of a federation, the monarch often tried to undermine other states in the federation.

The Guarantee Clause imposes an obligation directly on the U.S. government and implicitly grants the government the power to carry it out.

One last point on the Guarantee Clause: You may have heard that “We have a republic, not a democracy.” That expression is incorrect. American government is both a republic and a constitutional democracy.

No 18th century sources distinguished sharply between republics and democracies. On the contrary, in most contexts the terms were interchangeable. For example, delegates to the Virginia convention that ratified the Constitution repeatedly referred to American governments as both “democracies” and “republics.” In the language of the time, the only democracies that were not republics were “pure democracies”—complete mob rule without either magistrates or the rule of law.

The alleged distinction between republics and democracies arose from a distortion of James Madison’s Federalist No. 10 by partisans during a political dispute in the 1840s. They overlooked Federalist No. 63, where Madison treats the two terms as interchangeable.

Question: Why does the Constitution state that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills” (Article I, Section 7, Clause 1)?

Answer: This is the Origination Clause. In the British system, the leading protection for popular government was that all tax and spending bills had to be introduced in the House of Commons. The House of Lords could not even amend them; the Lords were limited to “yes” or “no.”

The U.S. Senate is more representative of the people than the House of Lords, but less representative than the U.S. House of Representatives. The Origination Clause therefore is a compromise with British practice: (1) It applies only to tax bills and not to spending bills, and (2) the Senate, unlike the Lords, may propose amendments.

The compromise was brokered at the Constitutional Convention by Delaware’s John Dickinson and Virginia’s Edmund Randolph—two essential Founders whose contributions are under-appreciated today. Dickinson and Randolph accurately judged that without the Origination Clause the people might reject the Constitution as “too aristocratic.”

Incidentally, one of the reasons the Affordable Care Act (Obamacare) is unconstitutional is that part of it was enacted in violation of the Origination Clause (pdf). The Supreme Court has never examined this issue.

Rob Natelson