HOLDING GOVERNMENT ACCOUNTABLE

 

[Published as part of Constituting America's Ninety Day Study on America's Founding Principles - Principle of Duty of the American People to Continually Maintain Checks on Government Power – Constituting America]

On November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth”.

 

Citizens holding government accountable begins with knowing what their government, at all levels, is doing.

 

Two long standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.

 

During the Virginia Ratifying Convention for the U.S. Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

 

“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”

 

Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:

"As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”

Madison raised concerns about those who aspire to unbridled power.

“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”

Public access to view the proceedings of House and Senate began in December 1795. 

The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches.  The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:

1.    to require agencies to keep the public informed of their organization, procedures and rules

2.    to provide for public participation in the rulemaking process, for instance through public comment

3.    to establish uniform standards for the conduct of formal rulemaking and adjudication

4.    to define the scope of judicial review

The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, the Government in the Sunshine Act was enacted September 13, 1976.  Similar “Sunshine Laws” were enacted among state and local governments.  However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.

The practice of public accessing public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act”. Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.

The world's first law requiring "publicity for official documents" was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).

FOIA@250: World’s First Freedom of Information Act Dates to 1766 | National Security Archive (gwu.edu)

“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”

Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.

While the Administrative Procedures Act mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.

 

Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.

 

In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).

 

On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.

 

Johnson opposed the legislation but allowed it to become law on July 4, 1966.

 

On this 4^th of July we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power. 

 

It reminds us that citizens must remain constantly vigilant to protect our god given rights. 

 

A Fire Bell in the Night: The Story of Maine Statehood (Part 1)

Guest Essayist: Jeffrey Hollingsworth

[Part of Constituting America’s 90 Day Study of State & Local Government]

https://constitutingamerica.org/a-fire-bell-in-the-night-the-story-of-maine-statehood-part-1-guest-essayist-jeffrey-hollingsworth/

Barely 30 years after the contentious adoption of the U.S. Constitution in 1787, the experiment in self-government and democratic republicanism that enraptured de Tocqueville and other noted admirers of the new United States of America was at grave risk of collapse. Maine’s aspirations for statehood were at the heart of the hullabaloo. It was in a wrestling match with Missouri for admission to the Union. In fact, Members of Congress representing the District of Maine, as it was known—then belonging to Massachusetts—voted against legislation that would have admitted their home as a state even after longstanding agitation in Maine for statehood.

So why, when at long last statehood was within reach, did these officials and many of those they represented object to legislation that would unlock the door to statehood? Their reasons are at the heart of why we are “one nation, indivisible” and how small, remote Maine helped preserve the U. S. of A. at a grave hour in its early history.

Earliest Maine: How the Story Began

The first Mainers have been traced to approximately 3,000 BC. They’re known as the “Red Paint People” due to their liberal use of red ochre in pottery and burial rituals. Native American tribes still extant in Maine are the Penobscot, Passamaquoddy, Micmac and Maliseet.

Why Maine is called “Maine” (the only one-syllable state) still isn’t clear. Some scholars say it was named after the French Province of Maine. Others suggest it’s from a maritime term for “the main” or mainland, to distinguish it from islands. Some sources claim Vikings visited Maine as early as 1000 AD, but the first recorded European was Italian explorer Giovanni da Verrazzano in 1524. Others later included Capt. John Smith (yes, the John Smith) for England and Samuel de Champlain for France.

Champlain fostered an attempted permanent settlement in June 1604 on St. Croix Island off Robbinston, Maine, opposite Bayside, New Brunswick. The colony failed within a year, most settlers felled by “mal de la terre” (scurvy). It was home to the first known Christmas celebration in the New World. The island, though in U.S. waters, is an International Historic Site, the only one in North America, jointly administered by the U.S. and Canadian governments.

Instead of Jamestown, Virginia, the Popham Colony in present-day Phippsburg, Maine, could’ve been the first permanent English settlement in the U.S.A. Sir George Popham and Sir Raleigh Gilbert led 120 English settlers to landfall at the mouth of the Kennebec River in August 1607. Other English settlers had reached today’s Jamestown in mid-May 1607. The Popham colonists started off strongly. They built the first commercial ship ever constructed in the New World, the pinnace Virginia of Sagadahock. This milestone was commemorated by a 1957 U.S. stamp officially recognizing the origin of shipbuilding in the U.S.  Shipbuilding has been a mainstay (no pun intended) of Maine’s economy over the succeeding four-plus centuries.

But the Popham Colony was doomed. After experiencing winter, half the surviving cold, hungry settlers grew disillusioned and fled back to England. Gilbert later received news of his father’s passing and needed to address vital family matters. He left for England, never to return.

Lacking leadership, the remaining colonists abandoned the settlement almost a year to the day after landing. Jamestown’s settlers hung on, though barely. Today, archeological excavations at both sites keep unlocking secrets about our country’s first English settlers.

Maine Grows

From Popham through the next 175 years, Maine ownership shifted from one royal grantee to another. The major promoter of Maine settlement was Sir Ferdinando Gorges, an English aristocrat later dubbed “The Father of English Colonization in North America,” though he never set foot in the New World. With Captain John Mason (a principal colonizer of New Hampshire), Gorges secured a patent from King James I in 1622 for vast territory in Maine. During  the next 50 years, disputes and squabbles over Gorges family holdings and competing land claims finally led Gorges’s grandson to sell all the property to the Massachusetts Bay Colony in 1677.

Maine grew slowly but steadily, yet not without incident. Devastating hostilities with Native Americans erupted periodically, and colonial conflicts took their toll. France considered all the land up to the Kennebec River, which bisects Maine, to belong to New France. Its farthest outpost was the present-day town of Castine, which see-sawed between French and British control for decades. In 1674, during a war between France and The Netherlands, Dutch naval forces captured Castine and environs, part of a grandiose venture to establish Nova Hollandia (“New Holland”). Maine suffered further privations during the French & Indian War (1754-63). Then came America’s War for Independence.

Mainers were distinguished soldiers, sailors and commanders in the Revolutionary War, and Maine was the scene of several battles. The most notorious was the infamous bombardment and burning of Falmouth—now Portland—on Oct. 18, 1775. The British Navy launched a far-flung campaign to punish seaports aiding the rebel forces, and Portland fell into the dragnet.

The fierceness and merciless intensity of the assault was widely reported throughout all 13 colonies and helped inflame passions against Britain. It prompted the Second Continental Congress to pass legislation authorizing what John Adams wrote led to “the true origin of the American Navy.” Earlier, in the first naval battle of the Revolution, patriots in remote Machias swarmed and captured the British sloop HMS Margaretta in June 1775. The dead and wounded on both sides were carried to Burnham Tavern, where the plot to seize Margaretta was hatched. The tavern, a National Historic Site, still stands.

The worst American naval defeat until Pearl Harbor occurred near the mouth of the Penobscot River as vessels augmented by ground forces sought to oust the British from eastern Maine (“New Ireland,” as Britain had declared it). A 44-ship armada, reinforced by some 1,000 marines and a 100-man artillery contingent commanded by Lt. Col. Paul Revere, left Boston for Maine in late July 1779. The colonials were no match for the Royal Navy. Most American ships not blown out of the water either were scuttled or captured, then hauled upriver to Bangor and burned. The surviving colonials fled overland with few supplies or weaponry. The “Penobscot Expedition” is among the darkest episodes in U.S. military history.

Many Maine communities were occupied by British forces. It underscored the indifference and incapacity of Massachusetts toward defending the region. Maine took years to recover, and louder rumblings for statehood began. The crippling Embargo Act of 1807 made matters worse, since Maine’s economy relied heavily on seagoing commerce. Then, the War of 1812 put many Maine communities under British boot-heels yet again. Its easternmost city, Eastport, wouldn’t even be liberated until 1818, three years after the war ended. 

Two major (and other lesser) engagements occurred in Maine: the 1814 Battle of Hampden (near present-day Bangor), a humiliating U.S. defeat; and the electrifying clash between HMS Boxer and USS Enterprise on Sept. 5, 1813, just off Pemaquid Point near the mouth of the Kennebec River. The thunderous, furious, 30-minute slugfest, witnessed by scores of residents on shore and heard by many more, resulted in the capture of Boxer. It was a widely reported and celebrated boost for U.S. morale, memorialized by Portland native Henry Wadsworth Longfellow in his poem “My Lost Youth.” The remains of both ships’ slain commanders were ferried to Portland, then reverently buried side by side with full military honors.

The war convinced most Mainers that their area was a mere stepchild of Massachusetts and the state government was nonchalant about defending it. The earlier crippling attacks by the French and native tribes hadn’t been forgotten, either. Besides, travelling to distant Boston, the state capital, on official business was an arduous, time-consuming, risky and expensive venture. The push for statehood acquired new life.

Jeffrey Hollingsworth grew up in Belfast, Maine, and is a University of Maine alumnus. He is a past president of the Maine State Society of Washington, D.C., and principal founder of its charitable foundation. He is the author of Magnificent Mainers (Covered Bridge Press), a compendium of mini-biographies of 100 famous Maine natives. His articles have appeared in Honolulu and Down East magazines and in the Las Vegas Review-Journal, Portland Press Herald, and other periodicals.

SAVING FEDERALISM = SAVING AMERICA

“CONSTITUTING AMERICA” SERIES ON LOCAL GOVERNMENT

America is built on local government.  The future of our nation depends on local communities remaining at the core of representative democracy.

In 1831, the Frenchman, Alexis Clerel, the Vicount de Tocqueville, along with his colleague Gustave de Beaumont, was sent by the French government to study America.  While their mission was officially to review prisons, their nine-month journey produced one of the great classics on America’s civic culture.

“Democracy in America” was published in two volumes (1835 and 1840).  It remains a foundational document describing American exceptionalism.

At its core is de Tocqueville’s description of local government:

The village or township is the only association which is so perfectly natural that wherever a number of men are collected it seems to constitute itself. The town, or tithing, as the smallest division of a community, must necessarily exist in all nations….

….local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.

America has always been a nation of communities.  Its pattern of settlement, through Royal Charters, gave wide latitude for establishing local governance.  Being over 5,500 miles from London, made detailed oversight of colonies impossible.  By necessity, and by desire, colonists embraced local authority over distant rule from a capitol or nation.  When distant rulers attempted to increase their control, colonists ignited a Revolution.

As de Tocqueville explains:

The revolution of the United States was the result of a mature and dignified taste for freedom, and not of a vague or ill-defined craving for independence.

The first form of government was the Articles of Confederation, which created a very weak national government.  External threats and internal dysfunction led to the U.S. Constitution, with extensive safeguards for local sovereignty.

America established a federal government, which means power is shared between national and state government, and the majority of governmental actions take place at the local level.  This is institutionalized in the Tenth Amendment of the U.S. Constitution:

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.

Today, America is governed by 87,576 local units.  This includes 3,034 counties, 19,429 municipalities (cities, towns, villages), 16,504 townships, 13,506 school districts, and 35,052 special districts (such as water & sewer, fire, and conservation).

These independent, and interdependent, local governments reflect the diversity that is unique to America.  In America, the preferred government is one closest to those its serves.

de Tocqueville links local government to being fundamental to a free people:

In the township, as well as everywhere else, the people are the only source of power; but in no stage of government does the body of citizens exercise a more immediate influence. In America ‘the people’ is a master whose exigencies demand obedience to the utmost limits of possibility.

Municipal independence is therefore a natural consequence of the principle of the sovereignty of the people in the United States: all the American republics recognize it more or less;

de Tocqueville uses the townships of New England as his primary example of the effectiveness of local government and their role in establishing America’s unique democracy:

The native of New England is attached to his township because it is independent and free: his co-operation in its affairs ensures his attachment to its interest; the well-being it affords him secures his affection; and its welfare is the aim of his ambition and of his future exertions: he takes a part in every occurrence in the place; he practices the art of government in the small sphere within his reach; he accustoms himself to those forms which can alone ensure the steady progress of liberty; he imbibes their spirit; he acquires a taste for order, comprehends the union or the balance of powers, and collects clear practical notions on the nature of his duties and the extent of his rights.

While discourse over major national and global issues attract the most attention, it is local government that most directly affects our daily lives.  The quality of the school children attend, the condition of roads driven, the safety of neighborhoods, the taste and pressure of water coming from the tap, saving lives and property from fire or accident, are locally governed and provided.

de Tocqueville noted the benefits of locally focused government in America:

In no country in the world do the citizens make such exertions for the common weal; and I am acquainted with no people which has established schools as numerous and as efficacious, places of public worship better suited to the wants of the inhabitants, or roads kept in better repair.

He saw local government promoting individual initiative while restraining growth of a centralized state:

As the administrative authority is within the reach of the citizens, whom it in some degree represents, it excites neither their jealousy nor their hatred; as its resources are limited, everyone feels that he must not rely solely on its assistance…This action of individual exertions, joined to that of the public authorities, frequently performs what the most energetic central administration would be unable to execute.

Thanks to the strength of local government, America remains an inspiration for all those who seek free and open societies. 

While chronicling America in its early years, de Tocqueville recognized how the United States’ embrace of local governance already served as a model for a better world:

I believe that provincial [local] institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people.

The only nations which deny the utility of provincial [local] liberties are those which have fewest of them; in other words, those who are unacquainted with the institution are the only persons who pass a censure upon it.

                     

AMERICA'S SURVIVAL

[Published in NEWSMAX]

There is far more at stake in the November Mid-Term elections than whether or not Trump will be impeached, or America’s political center of gravity shifts leftward.

Voters will determine the survival of our federal republic.

America now has over five hundred jurisdictions, including states and municipalities, with sanctuary policies.

These policies are designed to protect illegal aliens from the consequences of the laws they violate. They bar local officials from enforcing federal law and cooperating with federal law enforcement agencies.

Democrats are the ones initiating, approving, and implementing sanctuary laws. They invoke the 10^th Amendment of the U.S. Constitution, which limits federal jurisdiction and forms the basis of America’s federal system of government.

Democrats have a long history of hypocrisy with federalism. They ignore it when it furthers their goal of expanding federal regulation and control. They embrace it when they wish to either enslave humans in the 19^th Century, suppress minority rights in the 20^th Century, or eliminate the rule of law and national sovereignty in the 21^st Century.

America’s federal system intentionally created tension between local and national authority, but also outlined the parameters of this contention. On March 1, 1781, just seven months before the British surrender at Yorktown, the Articles of Confederation went into effect. The Articles established a very weak and fragmented national government. Its flaws became immediately apparent. Alexander Hamilton explained in the Federalist Paper15:

“Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins.”

This impending disunion led to the Constitutional Convention in 1787. The U.S. Constitution remains the most brilliant and important document in human history. It outlines a timeless framework for addressing competing interests in the public sphere. It is a universal “rules of engagement” that has served America well, and guides freedom loving societies throughout the world. It balances the powers of states and the national government to establish, enforce, and administer law.

James Madison outlined this confluence in the Federalist Paper 39:

“The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national...”

Five hundred local and state governments declaring sanctuary status for illegal aliens fundamentally threatens 229 years of legal precedents and could end federalism. Nullification strikes at the very heart of America’s civic culture and national unity.

In 1850, Democrats ignored Federalism by passing the Fugitive Slave Act. It declared that the Federal Government must enforce slavery, and the rights of slave owners, even in states and jurisdictions that had abolished it. Nicknamed the “Bloodhound Law”, it empowered teams of slave catchers to invade “Free” states. It added to growing sectional tensions.

In 1860, Free states rebelled against these intrusive federal laws by electing Republican Abraham Lincoln. Democrats in Slave states immediately nullified the election by invoking “state rights”, voting succession, and causing the Civil War.

After their defeat, Southern Democrats tried to reverse their defeat by demanding an end to reconstruction. Compromises that resolved the 1876 disputed election ended the era of African-American emancipation and empowerment in the South. Once again, Democrats invoked “states rights” as they methodically suppressed “freedmen”.

Starting with President Woodrow Wilson, Democrats choose to ignore “states rights” and federalism during their massive expansion of government regulation and activism. Republicans on the U.S. Supreme Court maintained the federal balance by striking down many of these federal intrusions.

In 1939, sufficient retirements and deaths allowed President Franklin Roosevelt to reshape the court and establish nearly eighty years of a center-left court.

In 1957, Republican President Dwight Eisenhower, sent federal troops into Little Rock, Arkansas to enforce racial integration in its public schools. Southern Democrats rallied around “states rights” to nullify federal Civil Rights laws and court rulings.

Now, Democrats are embracing nullification of immigration laws to protect illegal aliens over security concerns and the integrity of U.S. sovereignty.

The 2018 Mid-Term elections will be the opportunity for voters to end this threat to America’s federal system by removing state and local officials who are trampling the U.S. Constitution. They can also embolden Republicans in Congress to end federal funding of these rogue regimes. The alternative is a national crisis not seen since the American Civil War or even since the collapse of the Articles of Confederation.

[Scot Faulkner advises global organizations and universities on healthcare reform and innovation. He served as the Chief Administrative Officer of the U.S. House of Representatives. He also served on the White House Staff, and as an Executive Branch Appointee.]