Ameritopia_ The Unmaking of America - Mark R. Levin [64]
Filling the Supreme Court and the lower Article 3 courts would be a joint endeavor between the executive and the Senate (which was originally intended to represent the states), ensuring that no justice or judge would be beholden to one or the other political branches. The president would nominate judicial candidates and the Senate would consent, or reject them. Article 2, Section 2, Clause 2 provides: He [the president] shall … nominate, and by and with the Advice and Consent of the Senate, … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.…”
COMMERCE
Montesquieu’s view of the beneficial effects of private property and commerce in a republic was also shared by the delegates. As Montesquieu explained, “[T]he spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.…” (1, 5, 6) “Commerce cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores.…” (4, 20, 1) “In short, one’s belief that one’s prosperity is more certain in these states makes one undertake everything, and because one believes that what one has acquired is secure, one dares to expose it in order to acquire more; only the means for acquisition are at risk; now, men expect much of their fortune.…” (4, 20, 4)
Indeed, during the convention debates Madison noted that the predatory and retaliatory taxation visited on some states by their neighbors was an endless source of “dissatisfaction and discord” and resulted in “New Jersey, placed between Philadelphia & N. York, [being] likened to a cask tapped at both ends; and N. Carolina, between Virginia & S. Carolina to a patient bleeding at both arms.”29 The Framers adopted language intended to overcome these obstacles to commerce. Article I, Section 8, Clause 3 of the Constitution provides: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.…” This clause is often referred to as the Commerce Clause since it was intended to promote the trading of goods between and among states and eliminate state barriers to interstate commerce, extend prosperity and tranquility throughout the republic, and regulate commerce with foreign nations and Indian tribes.
Concomitant with promoting commerce, the Constitution protects private property from seizure by the government without a legitimate public purpose and fair compensation to the property owner. As part of the Bill of Rights, Congress approved, and the states ratified, the Fifth Amendment, which included the “Takings Clause” of the Constitution. It provides, “[N]or shall private property be taken [by the government] for public use, without just compensation.”
Obviously, there is much more to the Constitution and the events surrounding it. But the purpose here is to highlight the most important areas of Montesquieu’s influence on the Framers. Although he was not the only authority relied on by the Framers, his reach was momentous. Montesquieu’s dread of despotism, commitment to political liberty, and keen intellect in analyzing both, together with his genius in applying philosophy to the mechanics of politics, were essential guideposts in establishing the Constitution and the American republic.
After fighting and winning a long, bloody, and costly revolution, it was certainly conceivable, or at least theoretically possible, that rather than join together to improve and then discard the Articles of Confederation for a new constitution, the Founders, many with different and conflicting notions of the particulars and nuances of governance and aligned with one or another faction, could have abandoned the process of establishing a federal government