Broadcast Episodes: The Cargo of the Brig Aurora

The Cargo of the Brig Aurora

Original Airdate: January 24, 2013

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On Saturday, May 26, 1787 the French diplomatic envoy to the Thirteen United States reported via a private memo to Paris that he had reason to believe that if the convention now meeting in Philadelphia failed to produce a strong national government, then a group of former military officers might simply impose one with General George Washington as its “crowned head.”[1] It seemed possible.

The day before the General had been unanimously selected as the President of the Convention. The great General was deeply honored and expressed his thanks in the typically self-deprecating “Who, me?” expressions of the day, including pointing out for the record his own lack of qualifications, asked advanced forgiveness for any errors he may make, and then reminded the convention of the importance of the work at hand.[2] His words resonate down through history:

“It is too probable that no plan that we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair. The event is in the hands of God.”[3]

As the members presented their credentials and began the tasks of not-quite ex nihilo creation of a government, the constant threat of the Damoclesian sword of Washington was a reminder of how fragile their hard won freedoms and rights remained.  The idea that a King might yet sit on the throne of the United States was not, on that day, a rainy Saturday, the unthinkable.

The idea of a two house system of a central government was by no means unfamiliar to the delegates. However the idea of division of powers, separation of limited and designated area of authority based on strict and distinct designations was. Like most things, it came from their long experience as Englishmen and an innate understanding of history that seemingly is lost to us.

The functional division of the English Parliament between the Puritan and therefore people loyal dominated House of Commons and the Cavalier and therefore Royal loyal landowners had resulted not only in bloody civil war, but also in the migration of two different philosophies to the new world. As each group fell out of power in England, their defeated adherents took with them the ideas and positions as they made their way west to the Colonies in America.[4] Here each ancestral position took root and grew with Americanization of its basic philosophies, until the Philadelphia convention when the Framers recognized that the two ideas must find a way to co-exist within a framework that allowed for a strong central government while at the same time more than just protecting individual rights, actually securing them and insuring that no one person or group could possibly ever be allowed into a position of complete dominance.

In short – a strong government without a single person in charge.

The establishment of the two houses, Representative and Senate harkened back to the days of the Puritan belief in the power of the people, while acknowledging the importance of the deliberative qualities of the old Court system, Roman Senate and even the royalty, all represented in the governmental power and sovereignty of the various States. Many have commented and written upon the brilliance of the system of separation of power, but few understand the reason in blood why the Framers believed so strongly in the defined and absolute separation.

Above all else, this must be understood, while George Washington himself never advocated for the throne for himself, some others did. While the idea seems farfetched an unrealistic to us with the 20/20 vision of 250 years of hindsight, it was not so clear to the men gathered in Philadelphia. They knew that what they had that day was not working and would not last. They knew that they were tasked with a revision that would not only please the intellectual Cavalier, but the earthy Puritan. Both of which, to them, were as well known as the Rebel and Yankee are to us.

The intention of the Framers was to insure that no one man, no one small group of men or even one ideology ever gained the de facto throne. Like Israel of old, they intended that no man should ever rule over the thing that was now in the hands of G-d.

When we look to today we begin to be surprised at the power now consolidated in the hands of the President, one single person. Is this not the very Sword the Framers feared above all else? If so, how did it go from its suspended string over the head of the nation and into the hands of the White House?

Like so many things, it started with a simple misunderstanding that led to a lawsuit.

In February of 1810, the British cargo brig, Aurora, found herself impounded and her cargo seized in New Orleans as a consequence of a Congressional action that made sense, but like so much of what Congress did (and does) contained more than it seemed at face value. In short, the Congress passed a law in 1809 that said that Britain and France were violating US neutrality on the open ocean by seizing US vessels and cargos. To that end, the law they passed made it legal for the US to seize and impound British and French cargos and vessels IF – and that is the most important part – the President decided after a certain date that Britain and France had not mended their ways.

A little more than a decade since ratification has passed, and Congress for the first time allowed the Executive to in essence decide the law. As surely as a sunrise, an English ship, the “Aurora,” left England before the date the President had to make the “determination and arrived in New Orleans after the date. The cargo was seized and the owners of the ship’s cargo – Americans – sued claiming that the President did not have the Constitutional authority to in effect, pass a law. Congress had failed to actually pass legislation; therefore it was not lawful to have their cargo seized.

People often ask me when things began to go off the rail of original intent. The fact is that the Framers were clear that all legislative power resided in Congress, not the Executive. They feared and loathed the idea of a strong President and believed firmly that the people, through the House, and the States, through the Senate, should decide what the laws of the land would be. Otherwise, they feared, the President could become a de facto King, perhaps without a crown and within the limits of being elected, but a king nevertheless. The brilliant system of the Electoral College helped to prevent the re-election of any man who saw fit to put himself above the law and the Constitution.[5]

Now the Supreme Court was being asked to decide if the President could in fact make the law. The Court decided that by simply “making a finding” – in this case that England was being aggressive and not observing the US neutrality – that Congress had not in fact, abrogated its legislative authority. The cargo remained seized and the President now knew that he had a permanent loophole. All Congress had to do was include his “finding” as a condition of a law and the Court would allow it to stand.

By 1928 the Court allowed the President to determine tariff rates and, of course, had already abdicated it’s budget process by not only allowing the President to make findings regarding the budget, but punting the whole thing to his Office, meaning that henceforward the President, not the Congress, would actually make spending decisions (and presumably revenue decisions) for the United States. No one would seriously argue that the interpretations of the Constitutions Article 1 Section 1 ever meant that the original intention was to have Congress simply give authority reserved by the Framers to the President.

And yet, nobody is surprised that it happened, either. It was the simply entropy of political systems and particularly republics throughout history.

Even ancient Israel was never intended to have a King, yet the people, in their ignorance and their unwillingness to trust themselves to govern pleaded with the Deity for a King. Despite the warnings of Samuel, they insisted that it would be better to have more and more power concentrated in less and less people AND that their freedoms were worth the gains they supposed would be made.

Each and every time the Congress hands more of its power to the President it is justified as being “more streamlined,” “easier to manage,” “better facilitated,” “sure there is a loss of original intent, but the Framers could not have foreseen this fill-in-the-blank situation.” Freedoms and liberties are made secondary to more and more power concentrated in less and less persons.

Indeed, Congress has – three times in my lifetime – “approved the use of force” in conflicts that by most definitions, and indeed by their very proper noun names, have been “wars.” Yet in none of those cases have Congress “declared war.” Today the President carries the “War Powers Act,” passed by Congress in 1973 with the intention of “checking” the President’s ability to commit the US to conflict. Like most legislation, including an 1809 law designed to “protect” American neutrality, it has had a completely opposite effect, including three wars in my lifetime, none of which were constitutionally “declared” as intended by the Framers.

Washington’s sword long ago fell into the hands of the President… how do we get it back on its string?

[1] Constitutional Journal, Jeffrey St. John ©1987 pg17

[2] Madison, James (2005-12-01). Journal of the Federal Convention: Volumes 1 & 2 (Kindle Locations 399-400). Packard Technologies. Kindle Edition.

[3] Records of the Federal Convention of 1787, 3:381-382

[4] Interestingly enough, and beyond the scope of this essay, the Cavaliers of the North in England tended to settle in the southern colonies, while the Puritans of southern England tended to settle in the northern colonies. In many ways the American Civil War was the final action of the English Civil War fought over two centuries between the ideals of the Puritans and those of the Cavaliers.

[5] Yet another reason to distrust the motives of those who seek to demolish the Electoral College

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Posted on January 22, 2013, in 2013, Art 1 Sect 1, Article 1, Audio Files, Broadcast, Dave, Legislative Vesting Clause and tagged , , . Bookmark the permalink. 1 Comment.

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