This Day in National History: Lewis and Clark help form Missouri Fur Company

OK, this was actually for yesterday.

I've been interested recently in the interplay between the activities of the national government and business in the expansion of the nation westward. The Jefferson Administration was not only responsible for the Louisiana Purchase - and the Mississippi River system - but also early effort to explore it as well as lands all the way to the Pacific.

This story points out that Lewis and Clark - the men responsible for mapping out the land to the west, were also involved in developing ways to exploit it commercially. It involved the fur trade - which was to early America what the oil industry is now. There's lot's more to this story, but this is is pretty sweet in my opinion. It supports the idea that the design of the government established in the Constitution helped further the development of commercial interests in the nation.

- Click here for the article in history.com.

In September 1806, William Clark and Meriwether Lewis completed their epic journey to the Pacific Ocean, arriving back in St. Louis after more than two years in the western wilderness. Except for the difficult crossing of the Rocky Mountains, the expedition team had traveled by river. On the journey, they were overwhelmed by the abundance for beaver, otter, and other fur-bearing creatures they saw. The territory was ripe for fur trapping, they reported to President Thomas Jefferson.

Both Lewis and Clark recognized that sizeable fortunes could be made in fur trapping, and they were not averse to using their exclusive knowledge to gain a share of the profits. Two years after their return, Lewis and Clark helped organize the St. Louis Missouri River Fur Company. Among their partners were the experienced fur traders and businessmen Manuel Lisa, Pierre Choteau, and Auguste Choteau.

Lewis, whom Jefferson had already appointed to the governorship of Louisiana Territory, was presumably a silent partner, and for good reason. The new company planned to mix public and private interests in potentially unethical ways. During their earlier voyage west, Lewis and Clark had convinced an Upper-Missouri River Mandan Indian named Big White to go east and meet President Jefferson. Lewis had promised Big White that the American government would later return him to his people. Now the St. Louis Missouri River Fur Company proposed to use public money to mount a private expedition to take Big White home in the spring of 1809. Once Big White was home safely, however, the expedition would continue on to begin fur trading on the Yellowstone River, where it would enjoy a monopoly guaranteed by Governor Lewis.

In May 1809, the hybrid public-private expedition headed up the Missouri River. The men safely returned Big White to his home and inaugurated a fairly successful fur trading operation. Whatever questions there might have been about Governor Lewis’ conflicting interests in the company soon became moot: He either killed himself or was murdered on October 11, 1809, while traveling on the Natchez Trace in Tennessee. Clark continued to be involved with the company for several years, and no one ever raised questions about the ethics of his participation. Standards of behavior were often lax on the frontier, and it was not unusual for private and governmental interests to become confused. For all but the most critical observer, Clark’s actions would have been acceptable. The St. Louis Missouri River Fur Company the two men helped create endured until 1825 and was instrumental in furthering the exploration and settlement of the Far West.

On a related note, a movie is about to be released documenting some of the exploits of this period.

- Wikiepdia: The Revenant.
- Wikipedia: Hugh Glass.

Is solitary confinement cruel and unusual punishment?

A movement is underfoot attempting to make that argument.

From the Opinionator:

There are many ways to destroy a person, but the simplest and most devastating might be solitary confinement. Deprived of meaningful human contact, otherwise healthy prisoners often come unhinged. They experience intense anxiety, paranoia, depression, memory loss, hallucinations and other perceptual distortions. Psychiatrists call this cluster of symptoms SHU syndrome, named after the Security Housing Units of many supermax prisons. Prisoners have more direct ways of naming their experience. They call it “living death,” the “gray box,” or “living in a black hole.”
A recent Senate Subcomittee focused on this issue.

The committee was the U.S. Senate Judiciary Subcommittee on the Constitution, Human Rights, and Civil Rights.

Click here for the testimony before the committee.

This applies to future discussions about both the Constitution (US or Texas) and what it means (and how we figure that out), but the role of legislative committees in highlighting issues by having hearings on issues, and conducting oversight over executive agencies. That last part brings up checks and balances.

The Tribe Memo

A great insider's analysis of the personalities and dynamics on the Supreme Court.

Institutions Matter

This is the most clear headed comment I've yet seen about the (potential) problem posed by wikileaks and other organizations that seek to subvert established institutions:

. . . could we please pause for a moment amidst all of our technological triumphalism to reflect on the potential downside to all of this antinomian empowerment of the individual? The libertarian imagination, amply furnished with metaphors of invisible hands and spontaneously generated order, is thrilled by such technological empowerment. What could be better than giving every human being on the planet the capacity to subvert all established authorities and institutions, private or public, tyrannical or meritocratic? What would be better, I submit, is lucid self-awareness about how much our liberty depends on the existence of stable, functioning institutions to protect it against those who long to extinguish it in the name of sundry anti-liberal theological and ideological projects.


The framers of the Constitution would agree with this sentiment. It is the very point made in Federalist #10 and helps us understand, in a contemporary context, the dangers that passionate majorities angry at existing institutions, can pose to free societies. Not that stable societies always respect or maintain individual freedom -- they don't always -- or that occasional challenges to the status quo are not worthwhile -- they are in fact necessary in order for societies to evolve and for freedom to expand. But the chaos that inevitably results when stable institutions are gleefully undermined is perhaps the greatest threat to individual freedom. Madison would certainly agree with that sentiment.

That said, institutions must be subject to challenge from time to time in order to determine whether they are in fact preserving freedom or merely maintaining existing privileges. Early efforts to expand suffrage, for example, were opposed for much the same reason. It took time for the expansion of political participation to demonstrate that it would not undermine existing institutions and lead to chaos. This was demonstrated empirically, and the same will have to be demonstrated in this case. Can free societies survive the transparency and instability that unlimited information will force on its institutions? We will see.

For educators, charged with preserving the republic, the trick will be to ensure that students will be made aware of the historical role that properly designed governing institutions and systems have played in securing liberty and not make capricious choices that can undermine them.   

The Tea Party and the Proper Interpretation of the Constitution

Ron Chernow, who has written about Alexander Hamilton among others, disagrees with the Tea Party's claim that they speak for the founder's vision of the Constitution. He tells us that disputes over proper interpretation stem from the question about whether the Constitution authorized the creation of a national bank, even though that power is not specifically delegated in the document. Hamilton and Washington believed that the bank was authorized through the necessary and proper clause, while Madison and Jefferson said it didn't.

John Marshall would claim that this episode led to the development of the two party system:

John Marshall, the famed chief justice, traced the rise of the two-party system to that blistering episode, and American politics soon took on a nastily partisan tone. That the outstanding figures of the two main factions, Hamilton and Jefferson, both belonged to Washington’s cabinet attests to the fundamental disagreements within the country. Hamilton and his Federalist Party espoused a strong federal government, led by a powerful executive branch, and endorsed a liberal reading of the Constitution; although he resisted the label at first, Washington clearly belonged to this camp.


Jefferson and his Republicans (not related to today’s Republicans) advocated states’ rights, a weak federal government and strict construction of the Constitution. The Tea Party can claim legitimate descent from Jefferson and Madison, even though they founded what became the Democratic Party. On the other hand, Washington and Hamilton — founders of no mean stature — embraced an expansive view of the Constitution. That would scarcely sit well with Tea Party advocates, many of whom adhere to the judicial doctrine of originalism — i.e., that any interpretation of the Constitution must abide by the intent of those founders who crafted it.
And that helps explain political controversies ever since.

Is Congress Broken? Part 3

A conversation between Lawrence Lessig and Ezra Klein.

The Impact of War on Presidential Power

It increases it.

Health Care and Federalism

Legislators in some states are prepared to challenge the constitutionality of the requirement that individuals carry health insurance on federalism grounds.

Parental Rights vs. the Protection of Children

We discussed the case of Daniel Hauser in class today. He's the cancer stricken kid whose mother does not want him to have chemotherapy. She apparently wants him to have a natural cure and is heading to Mexico to get it. Child protective services in Minnesota had taken her to court to force her to allow her son to have the chemo. By not doing so she has been argued to be placing her child in danger.

So the question we considered was whether she was in fact doing so and whether the state was overstepping its bounds.

To make matters more interesting, the family is a member of the Nemenhah religion. This raises the potential question of free exercise violations if the state does not allow her to seek a treatment that is inkeeping with her religious beliefs. Precedence allows the state to intervent if religious practices place children in danger. The greater interest of society in keeping children safe overweighs the parents free exercise rights (sounds like the polygamy case from a year ago). The question is whether that is in fact what is happening here.

A warrant for the mother's arrest has been issued so I expect more on this soon.

Does the Chrysler Bankruptcy Deal Violate the Constitution?

HotAir thinks it does.

I blame the late hour, but the reasoning is too high brow for me. There are however increased concerns that the range of federal actions taken to keep the economy afloat has expanded government's role in the economy too far.

Click here for background on the Chrysler deal.

Stare Decisis, Judicial Conservatism, and David Souter

The New Republic argues that David Souter's adherence to precedence has made him the only true conservative, as opposed to a movement conservative, on the Supreme Court over the past few years:

Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.

The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.

From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman's right to choose abortion.

Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it's downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court's own doctrine and decisions. He stood by stare decisis.

Its a good read, and a useful way to evaluate the various labels placed on both ideologies and approaches to the Constitution.

It puts an interesting spin on the decisions of Justices Scalia and Thomas for example:

...the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court's liberal precedents.

Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"

Here's where movement conservatism -- which we might define as political support for a set of beliefs that we label conservative -- butts up against (and even contradicts) classical conservatism which is defines as a system of government which respects traditions and the slow organic way that law develops over history. To seek to overthrow tradition, precedence, is to behave radically, not conservatively. Society gets law right gradually over time, not at the single stroke of a pen.

This argument is sure to go nowhere with contemporary conservatives of course.

OGs and the Expansion of National Law Enforcement Power During the Great Depression

This may be a bit lowbrow, but I've been flipping through cable and stumbled across a History Channel piece on the history of crime, which put its hook in me and I watched for a while. One of the points made in its coverage of crime in the summer of 1933, during the Great Depression, was that local law enforcement quickly became incapable of fighting back against increasingly better armed gangsters.

Small towns were selected principally due to their inability to protect themselves. Many of the names were familiar with during this time (Dillinger, Bonnie and Clyde, etc...) were in operation at the same time period, which caught the attention of the national media. For an ambitious bureaucrat like J. Edgar Hoover this was a perfect opportunity to expand his institution's authority. Though law enforcement had previously been primarily a state and local domain - a reserved power - support increased for the national involvement in order to assist local authorities, and the increased focus on criminality led to popular support. Since banks had been robbed, and the crimes crossed state borders, the constitution's commerce clause was used as providing justification for the expansion of power.

The point I'm making is that quite often when people discuss constitutional issues, especially those involving expansions of national power, we tend to only focus on the textbook problems associated with how terminology is interpreted and forget about the pragmatic problems faced at different points in our history and how expansions of national authority were considered to have been practical solutions to those problems.

File this under ideology versus pragmatism.

Professor Obama

From the NYT. Makes me want to dream big.

Are Hate Crimes Laws Constitutional?

Thanks again to Michael for pointing out a current controversy, this one over the hate crimes legislation that passed the U.S. House of Representatives this past week.

I'll wait til later to outline the arguments that are made regarding its constitutional status (which focus primarily on whether it violates First Amendment speech and free exercise rights as well as the equal protection clause of the 14th Amendment), but opencongress.org has text of the bill so we can at least look at what we are judging:

Local Law Enforcement Hate Crimes Prevention Act of 2009 -

Authorizes the Attorney General to provide technical, forensic, prosecutorial, or other assistance in the criminal investigation or prosecution of any crime that:

(1) constitutes a crime of violence under federal law or a felony under state, local, or Indian tribal law; and

(2) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the state, local, or tribal hate crime laws.

Directs the Attorney General to give priority for assistance to crimes committed by offenders who have committed crimes in more than one state and to rural jurisdictions that have difficulty covering the extraordinary investigation or prosecution expenses.

Authorizes the Attorney General to award grants to assist state, local, and Indian law enforcement agencies with such extraordinary expenses.

Directs the Office of Justice Programs to:

(1) work closely with funded jurisdictions to ensure that the concerns and needs of all affected parties are addressed; and

(2) award grants to state and local programs designed to combat hate crimes committed by juveniles. Amends the federal criminal code to prohibit willfully causing bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of such person.

Amends the Hate Crimes Statistics Act to expand data collection and reporting requirements under such Act to include:

(1) crimes manifesting prejudice based on gender and gender identity; and

(2) hate crimes committed by and against juveniles. Declares that nothing in this Act shall be construed to prohibit the exercise of constitutionally-protected free speech.

Hate crimes laws are argued by supporters to be necessary in order to ensure that crimes that are historically not prosecuted by state and/or local officials (like lynching back in the bad old days) are prosecutable at a higher level less prone to local and state prejudice. The question is whether they go beyond simple punishment of acts and punish thoughts instead, which would be found unconstitutional (....probably, but read up on the Supreme Court's approval of a law punishing pandering) and whether the assumptions that the law is based on (that these criminal acts will not be prosecuted at lower levels) is no longer relevant and that this law recognizes a special class of people who will be protected at a higher level than others. Religious groups seem to have picked up on the fact that the last part of the law states that the law should not be construed to prohibit speech, but says nothing about free exercise of religious belief.

This is a great mental workout. I'll dig up some useful comments on this subject and post them soon.

Concentrated Power Watch: The Houston Crime Lab and Prosecutors

From Grits for Breakfast:

Houston crime lab only reported prosecution friendly evidence.

The Right to Conscience and Public Order

If you are taking 2301 with me, consider this Stanley Fish article mandatory reading. It touches on the concept of the right of conscience and the ability of individuals to not just think for themselves, but to act on these beliefs, especially if those actions puts one in conflict with the law.

It concerns Obama's repeal of the Provider Refusal Rule, which had allowed doctors and others from performing certain functions (like filing out a birth control prescriptions if you are a pharmacist) if they had moral opposition to doing so.

Why shouldn't you be free from doing certain things if you were morally opposed, as an individual, to those things? What rights does society, acting through its government, have in limiting this individual freedom?

Fish reaches back to Thomas Hobbes, who Fish claims held:

that if one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

As I take it, the shared conscience, as enshrined in various public and private entities, must take precedence over individual consciences because it provides for the steadiness necessary to civil society. Individual will is arbitrary and capricious.

This even applies to religious objections:

“As citizens, we should all be concerned when freedoms that are enshrined in the constitution (e.g. freedom of conscience and religion) are blithely swept away” (Susan Martinuk, Calgary Herald).

But while these freedoms may be enshrined in the constitution, they have not fared so well when they have come in conflict with laws passed with an eye toward maintaining order and predictability. In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

But while these freedoms may be enshrined in the constitution, they have not fared so well when they have come in conflict with laws passed with an eye toward maintaining order and predictability. In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The last part especially is pretty radical. In case you didn't get it, the Supreme Court in 1870 basically stated that the rules of civil society are superior to religious doctrine. If a law is neutral to religion--does not single one for punishment or special status--it takes priority.

Agree? Disagree?

Alexander Hamilton, Toxic Assets, and the Location of the Nation's Capitol

While discussing the financial crisis in class, I've tried to make the point that there is nothing new under the sun. The following op-ed from the Boston Globe (and an approving second from Salon) reminds us that this is true for the current dilemma over how to handle toxic assets. Alexander Hamilton, it turns out, had to deal with what we now call toxic assets when he was Treasury Secretary:

When he took office the new republic was drowning in a sea of wild financial speculation and crushing debt from the Revolution. To pay off these obligations the 13 states and the Continental and Confederation Congresses printed paper money to the point where it had become worthless. When the printing press could no longer suffice, they resorted to borrowing funds. Altogether by the time Hamilton took office the states and the federal government owed more than $77 million, a sum roughly equivalent to more than 10 times the government's budget. In a decade and a half of incessant printing and borrowing, these obligations had been sold, resold, bartered, and bundled so many times that no one understood their "real" value. Unless Hamilton could bring sense to this financial mess the republic might collapse.

Hamilton proposed that regardless of their "real" value the federal government should assume these debts at their face value. Southerners saw this as a power grab by northern bankers and merchants aimed at enhancing the power of the federal government over the states. Worse, they argued, it would reward greed and double dealing.

Speculators would make out like bandits, and since they tended to live in northern states, so would the north in general. So southern senators and representatives could kill the deal if they wanted, but he goes on to remind us that a solution was arranged in a dinner with Hamilton, Jefferson, and Madison. In exchange for their agreement to not actively oppose the proposal, Hamilton would support placing the nation's capital in Virginia.

The article points out the importance of compromise in order to solve major problems, but also -- though the author does not state this outright -- that speculators tend to get what they want. Remember that one of the major objectives of nationalization, by which I mean swapping out the Articles of Confederation for the Constitution, was to decrease the risk associated with business speculation. Again, there is nothing new under the sun.

Secret Executive Memos

One of President Bush's more aggressive claims was that the inherent powers of the presidency allowed him broad latitude in conducting the war of terror. It has been tough to evaluate this claim because we are only now getting to know exactly what these claims were. Now we are beginning to find out.

About Those Judges

Are they too powerful? Do they need to be taken down a notch or two?

Do Checks and Balances Still Exist?

Has Congress delegated so much power to the executive that it has effective delegated itself into a secondary status.

So is it now naive to think that you can learn about government by reading the Constitution?