Tuesday, December 26, 2006


On 26 December 1776, George Washington and his band of revolutionaries won the battle of Trenton, New Jersey. With about 2,400 soldiers, their victory 230 years ago set the stage for our liberties.

As George was fond of saying, "Perseverance and spirit have done wonders in all ages."

Thursday, December 21, 2006

The founders and the "ratio of representation"

Constitutional representation fueled the well-named Spirit of ‘76. One of the most popular slogans during the revolution was “No Taxation Without Representation.” Patrick Henry declared the common sentiment in simple terms – “Taxation without Representation is Tyranny.”

However, as the Constitutional Convention began in Philadelphia on 25 May 1787, such revolutionary slogans had fallen aside and into disuse. Instead there was an unease and even pessimism of revolutions. After winning one, the founders wanted things to calm down, and taxation without representation became a necessity - the country was too big for a true democracy, where all vote for all. What was needed was a new way.

This new way was developed at the Constitutional Convention. The gathering in Philadelphia took a turn that some thought too much. Instead of working on “fixing” or reforming the current government – The Articles of Confederation and Perpetual Union – the mood and momentum turned toward a new form of government altogether. You can see this change in the records from the meeting: it began on 25 May, and by 11 June the first major change was underway. That was when the founders first passed a resolution on changing from the old system, equal representation and one state, one vote, to a new system and the “ratio of representation”:

"Resolved that the right of suffrage in the first branch of the national Legislature ought not to be according to the rule established in the articles of confederation; but according to some equitable ratio of representation."[1]

The resolution passed. Seven states were for the change, three against, and the Maryland delegation divided. (That accounts for 11 of the 13 votes – as Rhode Island and New Hampshire did not have delegates present on this day.) In less than three weeks, the founders had made a fundamental change in the distribution of power: the new government would be based on “some equitable ratio of representation.” Today, this equitable ratio of representation is found in Article 1 of the US Constitution: "The Number of Representatives shall not exceed one for every thirty Thousand".

This was not the first time a ratio had been proposed in the colonies for representation. On 7 October 1777, the Continental Congress, discussing the terms of the Articles of Confederation, had voted against two proposed representation ratios. One proposed ratio was one representative for every 50,000 inhabitants; the other was one for every 30,000 inhabitants. At that time, the newly independent states agreed to a third proposal for representation – the one state, one vote compromise – with only Virginia in dissent.[2] So the concept of a ratio for representation was familiar to the founders by the time of the Constitutional Convention in 1787.

Two other votes of interest from 11 June 1787 included one on ‘who was to be counted and how?’ as well as ‘what to do with the second branch of the national legislature?’ On the first question – Who counted and how? – The founders passed a resolution stating, “that the right of suffrage in the first branch be according to the whole number of white and three fifths of the other inhabitants.” Thus, slavery and representation were paired together at the beginning.

On the second question – How to represent the second branch? – They voted for a resolution making the right of suffrage in the second branch just like the first – based on an equitable ratio. The equitable ratio for the second branch, the future Senate, became the one we are familiar with – two Senators per each state in the Union.

*Excerpt from chapter 2, Representation and our Constitution, in Article the first of the Bill of Rights (2006), by Bryan W. Brickner.

[1] Farrand’s Records, 1:192. Italics added.
[2] See Alfred de Grazia, Public and Republic: Political Representation in America (1951), p. 84.

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Friday, December 15, 2006

Will the 110th Congress Obey George Washington's Constitutional Wish?

On 4 January 2007, the new members of Congress will take the oath of office for the first time. In doing so, the new Representatives and Senators will swear to defend these twelve words from Article 1: "The Number of Representatives shall not exceed one for every thirty Thousand." The question is, will the new members, in the name of such founders as George Washington, work to enforce the twelve words from Article 1? And if they do not, why?

Congress has not obeyed the "representation ratio" in Article 1 since the Second Congress began ignoring it in April 1792. The last time Congress added new representation, that is, new seats in the House, was 1911 - or 95 years ago. Today, with only 435 Representatives for 300 million citizens, Congress is now a system of under-representation of We the People.

But on 4 January 2007, the 110th Congress will convene. In taking the oath for the first time, the new members should embrace the constitutional spirit of George Washington. His way was constitutionalism and he would remind them to enforce all the words in the Constitution, and in particular, the "representation ratio" in Article 1. Washington supported the ratio on three distinct occasions: first, the signing of the Constitution, 17 September 1787; second, in Article the first of the Bill of Rights, 25 September 1789; and third, the Executive's first veto, by President Washington, on 5 April 1792.

The 110th Congress is not organized as the Constitution demands because it does not represent We the People as Article 1 states. In the name of George Washington, will the new members of the 110th Congress work to represent We the People as the Constitution is written, "one for every thirty Thousand"?

We the People will soon find out.

Wednesday, December 13, 2006

Speak truth to power

"Speak truth to power" was featured in the DrugSense Weekly, Dec. 8, 2006 #478. In debating the DEA about the drug war, I realized how much constitutionalism (ie., following the words in Article 1 of the US Constitution), had in common with the war on citizens who use illegal drugs. If a House of Representatives based on the constitutional representation ratio would vote to continue the drug war, then that vote would be constitutionally valid: until then, it is not. A review of the debate is at DrugWarRant.com.

~ Speak truth to power
As I prepared to debate a representative of the DEA about ending the drug war, a friend said I should speak truth to power. “The truth,” he said, “is a way among many. Power, on the other hand, is just used to getting its way.”

The friend was correct.

When speaking truth to power, the immediate effect is usually not noticed. In debating William Otis, JD, Counselor to the Administrator of the DEA, nothing really happened at all. We were at the University of Illinois College of Law auditorium in a debate sponsored by the UIUC Federalist Society and the Coalition of Student-Professionals for Social Change. We talked and discussed the drug war for two hours. We both provided lots of information. But afterwards, when the debate was over, I realized nothing had really happened: citizens would still be arrested for violating the Controlled Substances Act and prohibition would drone on.

Ah, but here is another way of looking at the debate. Great moments, like the ending of the drug war, will perhaps be inaudible to us. In other words, we often do not sense the meaning of moments as they happen. That being the case, when speaking truth to power, one should watch for when “the spell” begins to break.

The spell? The spell is the spell of power. It begins to break when the appearance of the reasons for believing become unbelievable. In the case of the drug war, the reasons for fighting it no longer produce fear. Without the fear of the illegal drug user – in oneself and in others – power has only one remaining effect, that of force.

Here is an example from the debate. The new science clearly states that smoking cannabis does not cause lung cancer. Most recently, in May 2006, researcher Donald Tashkin, MD, of UCLA’s David Geffen School of Medicine, reported that even heavy cannabis smokers did not show an increased risk for lung cancer. But at the debate, Mr. Otis said, on several occasions, that smoking marijuana was considerably worse than smoking tobacco.

That is what power will do. Power will force its way. It is used to getting its way, so it first plays to our emotions and second to the use of force.

But truth, which generally works at a different pace, that is, slower, waits for the evidence to unfold. More importantly, as it concerns the ending of a war, the reasons for fighting the war (such as, smoking marijuana is considerably worse than smoking tobacco), no longer produce the intended effect.

Here is another example: illegal drugs and the people who use them were once the latest most-scary-thing facing our social order. President Nixon and our Congress responded to this supposed threat with a war on citizens who use illegal drugs. That war has failed. The truth is that a war on citizens who use illegal drugs causes more social disruption than illegal drug use.

The citizens of the United States were told we would win the drug war by fighting drugs at their source and by imprisoning drug traffickers. The truth is that staying the course in the drug war means accepting 1.5 million annual citizen casualties (or arrests) for drugs. That means we are willing to accept, as policy, 1.5 million annual drug violations. That also means, as policy, that we are willing to accept 1.5 million occurrences when a police officer could be spending his or her time improving other aspects of our social order.

Prohibition has proven to be an anti-liberty solution for a nation based on liberty. Nobel Prize recipient Friedrich Hayek, writing about true coercion in his book The Constitution of Liberty, did not advocate the power of government to coerce behavior (i.e., the drug war).

“True coercion,” Hayek wrote, “occurs when armed bands of conquerors make the subject people toil for them, when organized gangsters extort a levy for protection, when the knower of an evil secret blackmails his victim, and, of course when the state threatens to inflict punishment and employ physical force to make us obey its commands.” (1960:137)

Coercion is the truth of the war on illegal drug users – as punishment and force equal power.

When speaking truth to power, keep the focus on science and liberty – and look for when the spell begins to break.

Friday, December 08, 2006

Perfidy (a clerihew)

Uphold the Constitution, so help me God!
Bend it just a little, not a soul will nod.
Midterm elections, parties sad, turnout worse;
Mr. Brickner right? Check out "Article First!"

~ A poem by Robert B. Moreland for the first Article in our Constitution. A clerihew is a humorous quatrain (only four lines) about a subject. In most cases, the first line names a person, and the second line ends with something that rhymes with the name of the person. Isosyllabic, 11 syllables a line.

Wednesday, December 06, 2006

From Cato: term limits and a lottery

Edward H. Crane is the President of Cato, a libertarian think-tank. In the November/December 2006 issue of the Cato Policy Report, he writes about our "congresscritters," as he refers to them. Crane argues we should strive for term limits, "particularly in the House of Representatives." He also states that he would "prefer a lottery to the system we have now."

An interesting concept this lottery, although Crane doesn't say why a lottery of 435 for a nation of 300 million would be called representation. And the idea of a lottery, like term limits, is not found in the US Constitution. What is found in the Constitution concerning the US House of Representatives is a representation ratio that "shall not exceed one for every thirty Thousand." The lack of any discussion of the constitutional ratio or the number of Representatives should be noted.

Crane also makes this point: "Congress today ignores the Constitution, which should be the basis for our rule of law."

Yes - following the Constitution is the basis of our rule of law, and that can only begin with a constitutional House representing We the People. What is called for today, constitutionally speaking, is a new US House of Representatives based on the representation ratio found in the Constitution - "The Number of Representatives shall not exceed one for every thirty Thousand."

But hey - what are the chances of that?

(Bonus: if it were a lottery, why would randomness give us good representation? Didn't James Madison and the founders advocate virtue?)

Tuesday, December 05, 2006

A question

Why are there only 435 Representatives for a nation of 300 million people?