Recovering the Anti-Federalist Values of Americas First Constitution
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Recovering the Anti-Federalist Values of Americas First Constitution
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What did the American Founders actually intend for the country, and does it even matter today? If America began as an idea, then what kind of idea? In a time of increasing turmoil over American history, politics, and society, Crossroads for Liberty: Recovering the Anti-Federalist Values of Americas First Constitution takes a surprising and thought-provoking look at the American Revolution, the Articles of Confederation, and the Constitution, and asks what we can learn from them.
Author William Watkins casts a critical eye on conventional wisdom about the Articles of Confederation, as he outlines the differences between that original U.S. governing document and the Constitution, which replaced it. He finds that the Articles protected individual liberty and community-centered government in ways that the looser language of the U.S. Constitution did not. Watkins draws from contemporary examples of bureaucratic overreach and expansion to support his argumentexamples that were startlingly predicted by proponents of small government at the time of the Constitutions adoption. Along the way, he points back to the Articles and the values of the American Revolution as a framework for reimagining American politics to foster liberty and truly representative governance.
Crossroads for Liberty arrives at an important time in American political life, and its reexamination of the American Founding presents a significant contribution to the story about America. Readers will come away with a greater understanding of current political and constitutional issues, as well as a new perspective on American history.
Table of Contents
- Hopeful Petitioners
- The Issue Forced
- Toward Philadelphia
- The Problem of Scale
- Taxing and Spending for the General Welfare
- The Regulation of Commerce
- The Necessary and Proper Clause
- Voter Qualiﬁcations
- Standing Armies
- The Commander in Chief
- The Judiciary
- The Amendment Process
- Rights, Amendments, and Alterations
- A Tub to a Whale
- Mending the Venerable Fabric
- Lessons for Today
Appendix A Articles of Confederation (1778)
Appendix B Constitution of the United States (1787)
Appendix C Amendments to the Constitution of the United States
Appendix D Lessons from the Confederate Constitution Notes
About the Author
- American government today faces serious problems best remedied by implementing ideas reflected in the nations first charter and championed by the statesmen who doubted that the U.S. Constitution was an improvement. The Articles of Confederation (1781-1787) were not perfect, but they and the Anti-Federalist skeptics of the Constitution offered provisions that would have prevented the rise of a gargantuan national debt, the undue influence of special interests, and a Congress far removed from the concerns of ordinary people. Amendments dealing with such issues were proposed in the state ratification conventions, but they were never considered by the first Congress. Americans seeking fundamental government reform should consider making the adoption of similar amendments a top priority.
- Although despised by modern historians, the Articles of Confederation better express the principles of 1776 than does the Constitution. The driving force behind the American Revolution was the right of self-government: the right of the people of each state to control their own affairs, rather than rule by a distant Parliament unfamiliar with local circumstances. The Articles of Confederation merit veneration because they preserved the rights of the people of the several states to make their own laws and enabled Americans to claim victory over the superpower that was Great Britain.
- The Anti-Federalists were not men of little faith in representative government, but instead were men of exceptional vision who strongly believed that the American experiment could succeed. Their north star, however, was a concept of republicanism that is alien to us today. They championed the principles of decentralization embodied in the Articles. They believed that republican liberty had the best chance of survival in small units in which the people participated actively. Representatives, they reasoned, should reflect the interests of their constituents, mix with them, and be amenable to their wishes. This type of government, they held, could exist only on a small scale. Once a unit of government reached a certain size, representatives would be alien to their constituents and work with a centralized bureaucratic apparatus to impose rule from above.
- The Founders would be shocked to see how far removed from the federal government the American people have become. Based on the 2010 census, each of the 435 members of the House of Representatives is chosen from an average district of 710,767 persons. This ratio would have shocked the Framers of the Constitution and the Anti-Federalists. Under accepted understandings of representation, such a body as our current House of Representative would have been anathema to the revolutionary generation. Allowing only one House member for a supersized district of 710,767 persons contradicts the fundamentals of meaningful representation.
- The Anti-Federalists were remarkably accurate in their predictions of how powerful and pushy the national government would grow under the Constitution. Over and over they predicted the inevitability of a puissant federal government under the Constitution. The Federalist Papers is celebrated for insights of political theory, but James Madison, Alexander Hamilton, and John Jay missed the mark more often than they hit it. In contrast, Thomas Jefferson revealed keen insight when he criticized the Constitution for its lack of term limits for delegatesknown in the Articles as rotation in office.
The last place most Americans would look for ideas for reforming the U.S. government is the Articles of Confederation, which perished only six years after the nation won its independence from Britain. Our first national constitution, we have been taught, was an unsalvageable disaster unworthy of study, let alone emulation. Such views are greatly mistaken, and we hold them to our detriment. The Articles have much to tell usif only we would listen.
In Crossroads for Liberty: Recovering the Anti-Federalist Values of Americas First Constitution, attorney and author William J. Watkins, Jr. (Reclaiming the American Revolution) contends that the Articles better express the principles of 1776 than does the Constitution that replaced them. Moreover, he claims, they can serve as guideposts for solving contemporary problems that plague American government, including runaway federal spending, inadequate representation, and crass cronyism.
Both a work of historical narrative and a call to rediscover the lost values of republicanism, Crossroads for Liberty reveals the wisdom of practical statesmen who anticipated many of the challenges facing America todayand shows its usefulness for addressing some of our most troubling national dilemmas.
Independence and Confederation
Crossroads for Liberty begins on the eve of the American Revolution, as the continental congresses and their delegates responded to Parliaments encroachments on colonial rights. The delegates, who were independence-minded but respectful of the reconciliationists in their midst, agreed to issue petitions and impose economic sanctions. They believed, however, that a British government claiming the right to legislate for the colonies would provide the spark to ignite the powder of revolution.
The Declaration of Independence was a de jure observation of a de facto truth: Americans had come to regard themselves as sovereign. Once independence was declared, Congress began work on a formal plan of confederation. A proposed amendment to the first draft, offered by Thomas Burke of North Carolina, clarified the locus of sovereignty. The Articles of Confederation, it said, held up the principle, that all sovereign power was in the States separately. Except when the Articles specifically permitted Congress to act, state power would be supreme and controlled only by state constitutions.
Congress approved Burkes amendment along with other measures to limit the new confederations government. These revisions ensured that Congress would have no authority to transgress on the rights of the people and the states.
The ultimate version of the Articles gave Congress the tools needed to defeat the British superpower. Congress raised an army, borrowed money, entered into foreign alliances, and obtained funding from the several states. The system accomplished the task at hand: the government operating under the Articles reached the goal of political independence from England.
Although the United States won the revolutionary war, the new system of government was far from perfect. Any amendment of the Articles of Confederation required the approval of all thirteen statesa provision that proved to be the Achilles heel of the new government. Unable to reach unanimity, Congress could not secure an independent source of revenue. The Philadelphia convention was charged with revising the Articles, but ultimately it abandoned the confederation model.
The plan of government that emerged from the convention was described as partly federal and partly national: measures signed into law would operate directly on individuals, rather than states; but the states were to retain full sovereignty over all matters not delegated to the national government. On some issues the national and state governments would possess concurrent jurisdiction.
Federalists and Anti-Federalists
For the new Constitution to be ratified, nine of the thirteen states had to agree to its terms. A great debate arose across the country on the merits and dangers of this new document of government. The Constitutions friendsthe Federalistsclaimed that the new governments powers were few and defined, and would be exercised on external objects such as foreign affairs and foreign commerce. The Constitutions opponentsthe Anti-Federalistschallenged the claims that the new plan of government was a mild antidote for the ills of the Confederation.
The Anti-Federalists were not easily assuaged. They believed that all important powers were becoming concentrated in a centralized government and that this distant body would be controlled by a small number of men. They predicted that the Constitution would render the states mere administrative subdivisions of the center and leave the people at the mercy of the national government. Sovereignty, they asserted, could not be shared.
With astonishing perspicacity, the Anti-Federalists foresaw how the national government would use the Constitution to aggrandize itself at the expense of the states and the people. Fears the Anti-Federalists expressed about the proper scale of republican government, meaningful representation, and consolidation of power have come to pass.
Outwitting the Anti-Federalists
After the Constitution was ratified, an opportunity arose to correct many of the flaws identified by the Anti-Federalists during the ratification debates. The state ratifying conventions suggested more than 200 amendments and were promised that the new federal Congress would entertain these amendments early on. Proposed amendments concerned a variety of matters, such as representation, taxation, term limits, government borrowing, suspension of habeas corpus, and deployment of troops. Virginia and New York went so far as to call for a new constitutional convention to consider the suggested amendments.
The first Congress took up amendments and sent a bill of rights to the states for ratification. However, none of the amendments altered the structure of the new government. Rather than a great bulwark of liberty, the Bill of Rights was merely a ruse to silence Anti-Federalist calls for a new convention. Valuable rights were declared, but the powers that remained were sufficient to nullify broad promises of individual liberty and state autonomy.
Could the Articles Have Been Salvaged?
The failure of the Constitution and Bill of Rights to create a truly limited national government invites provocative questions: What would have happened had America kept the Articles of Confederation? Could the Articles have been revised to meet the exigencies of the union without destroying the self-government won in the Revolution? Thomas Jefferson and other republicans thought so. Writing in 1786, Jefferson described the Articles a wonderfully perfect instrument, considering the circumstances under which it was formed. He believed that three or four new articles could have been added to address the palpable defects of Americas first constitution.
Based on Jeffersons writings and his 1783 draft constitution for Virginia, Crossroads for Liberty contends that the United States would have been better off had the Articles been revised. America could have thrived under the Articles provided that (1) Congress had been given full authority over trade and duties placed on imported goods; (2) the Confederation government had been divided on separation of powers principles; (3) a Confederation court had been established, subject to strict congressional oversight, to handle disputes between the states and the government of the union; and (4) the unanimity requirement for amendments had been modified so that one recalcitrant state could not block needed reform.
Lessons for Today
The Articles of Confederation and the Anti-Federalists are not merely of historical interest. The final chapters of Crossroads for Liberty apply their insights to major current problems: a huge national debt, weak political representation, and an entrenched political class cut off from the concerns of everyday people.
The Articles anticipated the problem of excessive government spending and sought to prevent it from arising by imposing a requisition system on Congress. The Constitution of 1787 sought a different remedy, by providing Congress with the power to tax as well as to spend for enumerated purposes. The Anti-Federalists, however, worried that its lack of a requisition system invited profligate spending.
To allay this concern, the New York ratifying convention called for an amendment that, had it been adopted, would have required spending measures to win the approval of two-thirds of both houses of Congress. If a similar supermajority provision were adopted today, Crossroads for Liberty argues, senators and representatives would likely become more fiscally responsible.
The American commonwealth also suffers from weak political representation. The Constitution stipulates that The number of representatives shall not exceed one for every 30,000. In other words, no district should be smaller than 30,000 individuals. The Constitution is silent, however, on how large a district can be. Today, each of the 435 House members represents an average of 710,767 persons. Such massive numbers would have shocked the Anti-Federalists.
In their view, a representative should be one of the peoplesomeone who worships alongside ordinary constituents, engages in commerce with them, and socially mingles with them. To abide by the precepts of meaningful representation, the size of the House could be gradually expanded to create districts closer to the human scale than what we have today.
The modern Congress is also largely composed of careerist legislators. As the enormity of the national debt indicates, longevity in office does not correlate with sound decision-making. To limit congressional power, the Articles of Confederation imposed rotation in office. Under Article V, no person shall be capable of being a delegate for more than three years in any term of six years. This provision, it was hoped, would thwart the establishment of a ruling aristocracy and encourage public service by men equally talented as (or perhaps more so than) the old guard.
A provision for rotation never made it into the Constitution, however, and Thomas Jefferson considered its absence a grave defect. If the omission were remedied today through the adoption of term limits, the ideal of the citizen-legislator might at last be realized.
America cannot return to the rural and agrarian world of 1776, but we can still aspire to govern ourselves local communitiesor wards, as Thomas Jefferson called them. Not every problem must rise to the level of a national issue requiring presidential task forces and congressional legislation. The states and their subdivisions, serving as laboratories of democracy, should be allowed to experiment with a variety of solutions based on local circumstances and resources.
The U.S. government today is approaching bankruptcy and few, if any, human activities are beyond its control. Reformers seeking to tame the federal beast would do well to revisit the republican tradition of the Articles of Confederation and the Anti-Federalist opponents of the Constitution of 1787.
For more than two decades William Watkins has been exploring alternative views of our republican traditions, and, in the process, has become one of our most provocative and insightful constitutional historians. With Crossroads for Liberty and in an era when we are increasingly coming to realize that we live in a time of government gone amok, Watkins has produced a splendidly inspiring look at the Anti-Federalists, who were able presciently to warn us of the perils to come. Watkins not only gives us a superb exposition of their thought, but he reminds us of some of the wisdom of our First Constitution (the Articles of Confederation, which are helpfully reproduced as an appendix), and offers us some remedies for our ailing polity.
Stephen B. Presser, Raoul Berger Professor of Legal History Emeritus, Pritzker School of Law, Northwestern University; author, The American Constitutional Order; Recapturing the Constitution; Individual Rights and the Constitution, The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist Jurisprudence; and other books
At a time in our history when most people take it as an article of faith that the federal government must provide a solution to every major problem, from education to terrorism to economic downturn, the indispensable book Crossroads for Liberty advances the notion that our massive federal government is the problem, and that the solution lies in ideas that have lain dormant for over two centuries. William Watkins gives much needed consideration to the unwisely disparaged ideas of the Anti-Federalists and, particularly, the Articles of Confederation. According to Watkins, the Constitutional Convention of 1787 would have been far wiser to stick with its assigned mission of proposing amendments to the Articles, rather than creating a wholly different and far more centralized form of government that has grown into the behemoth we have today. Recognizing that we cannot turn back the clock and return to the Articles of Confederation, Watkins nevertheless believes that the Articles and their Anti-Federalist proponents have invaluable lessons to teach us, if only we open our minds to the possibility. We would be wise to listen.
Alex A. Kozinski, Judge, U.S. Court of Appeals for the Ninth Circuit
In his important book, Crossroads for Liberty, William Watkins astutely urges us to study the Framers, but not merely the Federalists. Close attention should be paid to the Anti-Federalists and the contemporary weakening of separation of powers and checks and balances. Instead of a system of self-government, political power has shifted in ever greater degree to the President and the Supreme Court. The results should concern us all.
Louis Fisher, Scholar in Residence, The Constitution Project; author of Presidential War Power, The Law of the Executive Branch, Constitutional Conflicts Between Congress and the President, and other books
In the compelling book Crossroads for Liberty William J. Watkins, Jr. recounts the rarely examined history of lost liberty in Americas infancy. In a truly eye-opening historical examination, Crossroads explains how the principal goal of the American Revolution in 1776the removal of centralized power in favor of diverse and independent local and state governance, in which individual Americans could select the level and severity of the governance they wished for themselveswas abandoned in just eleven years. If you yearn, as I do, for minimal government and maximum individual liberty, you need to understand how the monster federal government came about. Crossroads is that well-told but sad story.
Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel; Distinguished Visiting Professor of Law, Brooklyn Law School; author, The Constitution in Exile, Constitutional Chaos, Suicidal Pact, Dred Scotts Revenge, and other books
Given that the Anti-Federalists' predictions about the growth of national power have come true, their views of the weaknesses of the Constitution deserve to be heard. Could the amended Articles of Confederation that they favored have done a better job of protecting our liberty? Read Crossroads for Liberty and decide.
Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory and Director, Center for the Constitution, Georgetown University Law Center; author, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People
The U.S. Constitution is a remarkable document that is insufficiently understood by Americans today. It was the product of passionate debates by able patriots on both sides, and might well have turned out quite differently. Many college and law school students study essays by Madison, Hamilton, and Jay in defense of ratification; but the Anti-Federalist case is too often ignored. In the remarkable and much-needed book Crossroads for Liberty, William J. Watkins, Jr. has performed an invaluable service in carefully examining the most important Anti-Federalist insights and we all in his debt.
Robert F. Turner, Professor and Co-Founder and Associate Director, Center for National Security Law, University of Virginia School of Law; Founding President, U.S. Institute of Peace; editor, The Jefferson-Hemings Controversy: Report of a Commission of Scholars
Immortal though counterproductive federal programs, constantly growing government debt, seemingly endless federal usurpation of states reserved powers, an outsized policymaking role for unelected federal judges, and unresponsive party politics are among the most notable characteristics of contemporary American political culture. To some extent, the U.S. Constitutionwhich was sold by the Federalists of 1787-91 as establishing a limited, decentralized, republican systemhas failed to live up to its friends promises. This arguably amounts to the failure of the American Revolution. In Crossroads for Liberty, William J. Watkins, Jr., recalls Anti-Federalists warnings that things would be so, and he asks, Could the Articles of Confederation have been revised to meet the exigencies of the union without destroying the self-government won in the Revolution? After concluding that Anti-Federalists were right in insisting that they probably could have, he proposes reforms in line with Anti-Federalist thinking. This is a bracing book.
Keven R. C. Gutzman, Professor of History, Western Connecticut State University; author, James Madison and the Making of America, Virginias American Revolution: From Dominion to Republic, 17761840, Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama, and The Politically Incorrect Guide to the Constitution
The Articles of Confederation are often regarded as an unworkable failure, an ill-advised detour en route to a more perfect Union. In Crossroads for Liberty, William Watkins, Jr. reexamines Americas first structure of government and the values it embodied, tracing the document from its pre-Revolution origins to its ultimate replacement by the U.S. Constitution. Watkins first discusses the Federalist and Anti-Federalist debates, revisiting a spirited contest over the power to regulate commerce, executive power, federalism, and protections for individual liberties. Next, he imagines Anti-Federalist responses to the rise of the administrative state, the national debt, and modern jurisprudence. Ultimately, Watkins concludes that the Articles offered a model of limited government and decentralization that warranted slight modifications, but not a wholesale repudiation, and he offers a handful of modest fixes for the document: vesting the power to regulate foreign commerce in the national government, creating the tripartite separation of powers familiar to us today, and jettisoning the unanimity requirement for constitutional amendments. In rejecting the idea that the Articles of Confederation were unsalvageable, this succinct, thoroughly readable historical treatment of the Anti-Federalists underscores the value in retracing our constitutional steps.
Harvard Law Review
In our age, Madison's optimism for the Constitution, its careful enumeration of specific powers, and its additional boundaries etched out in the accompanying Bill of Rights, have so frequently been construed to enact a central government of virtually unconstrained power. The new book, Crossroads for Liberty, recalling the meaningful vitality of our first Constitution, the Articles of Confederation, is a welcome antidote to our current malaise of a sprawling national government consolidating power in what has become an unlimited national leviathan, to the dismay of the Founders themselves. The Anti-Federalists were prescient in their cautionary warnings.
William W. Van Alstyne, Lee Professor Emeritus of Law, Marshall-Wythe Law School, College of William and Mary; William R. and Thomas L. Perkins Professor Emeritus of Law, Duke University; author, The American First Amendment in the Twenty-First Century
With Crossroads for Liberty, I am delighted to have a serious treatment of the role and ideas of the Anti-Federalists. In short compass this excellent history provides some needed balance to our understanding of the Founders and the Founding. Watkins takes issue after issue that the Founders wrestled with, pointing out how our later history demonstrates the extent to which the fears of the Anti-Federalists have proven all too well-founded. Crossroads for Liberty is a very valuable contribution to the literature and will be of interest to both students and scholars of American constitutional history and government.
Joyce Lee Malcolm, Patrick Henry Professor of Constitutional Law and the Second Amendment, Antonin Scalia Law School, George Mason University; former Director of Research Programs, National Endowment for the Humanities; author, Peters War: A New England Slave Boy in the American Revolution, The Tragedy of Benedict Arnold, and other books
If there was ever a time when it behooved Americans to revisit the debates that took place between the Federalists and the Anti-Federalists in the wake of the framing of the American constitution, that time is nowas we witness a full consolidation of power in the hands of the federal government that the Federalists would no more have countenanced than the Anti-Federalists. William Watkinss important book Crossroads for Liberty is a timely reminder that there really was something to the fears voiced by the Anti-Federalists in the late 1780s.
Paul A. Rahe, Jr., Charles O. Lee and Louise K. Lee Chair in the Western Heritage, Hillsdale College; author, Republics Ancient and Modern: Classical Republicanism and the American Revolution
William J. Watkins's careful exploration of the constitutional principles of the Anti-Federalists is far more than a scholarly endeavor to understand America's first governing document. Crossroads for Liberty is, perhaps even more importantly, a fascinating piece of counterfactual history that focuses on what might have been. How would the U.S. have developed if the Founders had agreed to continue to live under the Articles of Confederation that came out of the American Revolution? What would be the state of our liberties under this alternative regime? Would we be dealing with the administrative centralization and the hollowing out of local rule that has become increasingly characteristic of the U.S. since the Progressive Era? Watkins thinks not and provides lessons for us todayand he may be correct.
Paul E. Gottfried, Horace Raffensperger Professor Emeritus of Humanities, Elizabethtown College; author of Fascism: The Career of a Concept, After Liberalism: Mass Democracy in the Managerial State, Multiculturalism and the Politics of Guilt: Towards a Secular Theocracy, The Strange Death of Marxism: The European Left in the New Millennium, and other books
Watkins sets himself two formidable tasks. The first is to rehabilitate the Articles of Confederation as a template for a constitutional order that is not removed from the human scale and embraces the principles of decentralization and limited government. The second is to celebrate the Anti-Federalists as men of great faith who recognized that republican liberty has the best chance of survival in small units in which the people participate actively. . . . The book is an interesting read, provocative and occasionally insightful. Watkins knows the founding-era literature and primary-source material, and, as a dedicated advocate of states rights, he has an eye for modern federal sins and sinners. . . . Watkins concedes that the Articles had flaws. Drawing on Thomas Jefferson and the Anti-Federalists, he suggests that mending the venerable fabric would have entailed giving Congress the authority to regulate commerce with foreign nations, to embrace the separation of powers, to create a more workable amendment process, and to provide the means to secure an independent source of revenue for its ordinary expenses. In his view, each step would arguably have made the Confederation stronger and more effective.. . . Governmental units that are closer and more directly accountable to the people that they serve may well have certain advantages. State legislatures and city councils are often in a much better position to address issues that are purely local than are remote central authorities.
Journal of Interdisciplinary History
"What did the American Founders actually intend for the country, and does it even matter today? If America began as an idea, then what kind of idea? In a time of increasing turmoil over American history, politics, and society, Crossroads for Liberty: Recovering the Anti-Federalist Values of America's First Constitution, by William J. Watkins, Jr. (a Research Fellow at the Independent Institute), takes a surprising and thought-provoking look at the American Revolution, the Articles of Confederation, and the Constitution, and asks what we can learn from them. Crossroads for Liberty arrives at an important time in American political life, and its reexamination of the American Founding presents a significant contribution to the story about America. Readers will come away with a greater understanding of current political and constitutional issues, as well as a new perspective on American history. While unreservedly recommended as a critically important addition to community, college, and university library Political Science and American History collections, it should be noted for the personal reading lists of students and the non-specialist general reader with an interest in the subject that Crossroads for Liberty is also available in a Kindle format ($9.99)."
Midwest Book Review
William J. Watkins, in his fourth book on the Constitution, Crossroads for Liberty, gives us a look at what was really going on in constitutional thought in 1787-89 by bringing to light seven of the most prominent Antifederalist opponents of the Philadelphia plan of government. It is obvious that everything they predicted about the Constitution dooming Americans to and unbounded centralized power has come to pass, in spades. The Antifederalists were statesmen and patriots, motivated by the desire to protect recently won liberty. . . . Watkins has succeeded admirably in amending conventional wisdom about the ratification period and cataloging how the prophecies of the Antifederalists about abuses and usurpations of power have been revealed as true right up to the present day. If we truly want to reform the runaway government, he writes, we would do well to dust off the Articles of Confederation, the Anti-Federalists writings, and the amendments proposed by the state ratifying conventions.
In his insightful book Crossroads for Liberty, author William J. Watkins rescues the Articles from obscurity and condemnation. He does not argue that the Articles constituted a perfect system, but it was a far better system than has been portrayed in the history booksa fact that some of the Founders would have agreed with. . . . Watkins has produced a thought-provoking book, one that would make a good addition to the library of any American who favors liberty and limited government.
The New American
2017 Benjamin Franklin Gold Award for Political and Current Events
Robert Ade, Communications Manager