Constitutional Myths

by Ray Raphael

  All seemed in place, and on June 8, 1789, Madison took the floor in the House of Representatives and offered nineteen additions to the Constitution, which he grouped into nine amendments (see appendix F). In his presentation, he focused more on placating opponents than on the actual need to protect rights. “It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled,” he noted. “On principles of amity and moderation,” Congress should “conform to [the] wishes” of “a great number of our constituents” and “expressly declare the great rights of mankind secured under this constitution.” He then revealed his political reasoning:

  There have been objections of various kinds made against the constitution. Some were levelled against its structure … because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State Governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power…. It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution.

  Almost begrudgingly, he paid lip service to the inherent value of amendments that enumerated rights. “It is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it,” he said. “We have in this way something to gain, and, if we proceed with caution, nothing to lose.”28

  Madison’s lukewarm endorsement of a listing of rights did not convince many of his Federalist colleagues in Congress, who saw the amendment issue as a nuisance, interrupting urgent business. Congress had yet to settle on impost duties to pay its bills, a matter of top priority. It hadn’t begun to establish federal courts, nor had it established how representatives and senators would be paid. “The executive part of the Government wants organization; the business of the revenue is incomplete, to say nothing of the judiciary business,” said Roger Sherman. “Now, will gentlemen give up these points to go into a discussion of amendments, when no advantage can arise from them?”29

  Nor did Madison win the hearts of colleagues favoring amendments, who did not appreciate being upstaged by a Federalist. Why should Madison’s list, prepared by one individual, take precedence over those suggested by full bodies of elected representatives of their respective states? Why his and not the extensive lists of amendments approved by the Virginia and New York ratification conventions?

  At first, the House tabled Madison’s list of amendments, but despite the indifference of Federalists and the resentment of their adversaries, Madison pressed the issue. Six weeks after his initial presentation, he “begged the House to indulge him in the further consideration of amendments.” This time the House formed a committee and assigned Madison’s list to them; that committee made a few small changes; and finally, on August 13, in the middle of a midsummer New York heat wave, and with “the political thermometer high each day,” the House of Representatives debated the amendments on the floor.30

  Before addressing the substance of each amendment, representatives discussed their placement. Following Madison’s lead, the committee had woven the amendments into the text of the Constitution, indicating precisely where each change would be placed, but Roger Sherman took issue with this approach. Interweaving the amendments would be “destructive of the whole fabric,” he contended. “We might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles.” Madison countered, “There is a neatness and propriety in incorporating the amendments into the constitution itself.” Had Madison prevailed, we would not have a distinct “Bill of Rights,” but Madison lost and the amendments were placed at the end of the original Constitution.31

  Substantively, the list proposed by Madison and revised by the House committee contained protections that would evolve into what we call the Bill of Rights. It included a few additional items that were later rejected, but none of these addressed the major structural revisions that the Constitution’s opponents had called for at the state ratifying conventions. This glaring omission infuriated Aedanus Burke of South Carolina, who said the proposals were “not those solid and substantial amendments which the people expect; they are little better than whip syllabub, frothy and full of wind, formed only to please the palate…. All the important amendments were omitted.”32

  At various times during more than a week of vigorous debates, representatives who had opposed the Constitution in 1787–1788, and who still had their doubts in 1789, tried to place more “important amendments” on the table. On August 18 Elbridge Gerry moved that all the amendments “proposed by the several states” be discussed, but his motion was defeated by a margin exceeding two-to-one. Thomas Tudor Tucker of South Carolina then presented a list of seventeen structural amendments, but the House dismissed them without debate. Those demanding substantive amendments also staged more pointed attacks. They tried to guarantee the right of people to instruct their representatives, and although this move stirred extensive debate, it failed by a four-to-one margin. Following the lead of several state ratifying conventions, they tried to insert the word “expressly” before “delegated” in the amendment that stated, “The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.” This revision would have forced a strict interpretation of the Constitution and would have prohibited the expansion of federal powers, but it too went down to defeat (see chapter 4). When they moved to require a two-thirds vote of Congress to form a standing army in time of peace, that proposal lost by thirteen votes. They tried to limit federal control of congressional elections, and although that motion failed by only five votes, this was far short of the two-thirds supermajority required for constitutional amendments.33

  And finally, the amendment most dear to the hearts of the Constitution’s critics and deemed most dangerous by its supporters: circumscribing Congress’s powers of taxation (see chapter 2). On Saturday, August 22, South Carolina’s Tucker moved to prohibit Congress from levying direct taxes unless the states had failed to meet their requisitions. This amendment was “of more importance than any yet obtained,” argued Samuel Livermore of New Hampshire, and if Congress failed to include it, “he knew his constituents would be dissatisfied.” They would value all the others—the eventual Bill of Rights—as no more “than a pinch of snuff.” Although Tucker and Livermore might have spoken for the majority of Americans, within Congress they were a distinct minority. Their motion to check federal taxation failed by an overwhelming vote of nine to thirty-nine. In one vote after another, the House preserved the federal government’s stipulated powers, most particularly the power of taxation.34

  On August 24 the House approved Madison’s revised amendments and sent them on to the Federalist-dominated Senate, where once again they received a cool reception. South Carolina senator Pierce Butler commented: “A few milk-and-water amendments have been proposed by Mr. M., such as liberty of conscience, a free press, and one or two other things already well secured. I suppose it was done to keep his promise with his constituents, to move for alteration; but, if I am not greatly mistaken, he is not hearty in the cause of amendments.” Likewise, Pennsylvania senator Robert Morris treated the amendments dismissively: “Poor Madison got so cursedly frightened in Virginia, that I believe he has dreamed of amendments ever since.” Morris was
perhaps the strongest senatorial opponent—he called the amendments “nonsense” and a “waste of precious time”—but even he admitted they would result in “neither good or harm being perfectly innocent.” The handful of senators who had opposed the Constitution introduced less “innocent” amendments akin to those offered by the state ratifying conventions, but these were immediately rejected. Deeming the amendments sent from the House inconsequential, Federalists in the Senate acted with dispatch, making some adjustments but then granting their approval.35

  In the midst of the House debates, frustrated by the resistance he encountered from both sides, Madison referred privately to his diversionary scheme as “the nauseous project of amendments,” but however distasteful the “project” worked. He had hoped to “kill the opposition every where” and end “the disaffection to the Govt.”—and he did just that. Even before final approval of the amendments, debates in the House of Representatives were reprinted in the press, and the mere fact that Congress was considering amendments helped defuse dissent.

  Although many former critics were warming to the new Constitution, diehard opponents realized Madison had outflanked them. Senator Richard Henry Lee of Virginia complained that “the English language has been carefully culled to find words feeble in their nature or doubtful in their meaning,” and the amendments that emerged were “much mutilated and enfeebled…. The great points of free election, … the unlimited right of taxation, and standing armies in peace, remain as they were.” Patrick Henry, who had led the Constitution’s foes in the Virginia ratifying convention the previous year, regretted the defeat of the amendment limiting direct taxation, which he said was worth more than all Congress’s weak amendments put together. William Grayson, Virginia’s other senator, said the amendments were “so mutilated & gutted that in fact they are good for nothing, & I believe as many others do that they will do more harm than benefit.”36

  The politics surrounding a bill of rights had come full circle. Those who had originally supported a bill of rights as their strongest case against the Constitution had become opponents, whereas Federalists, who originally had opposed a bill of rights, now were the ones working out the details and ushering the amendments through Congress.

  Revolutionary-era Americans were fond of celebrating their nation’s remarkable transformations. Back in 1776, following the congressional vote for independence, Americans did so by reading in public Congress’s declaration, by tearing down statues of King George III and destroying other signs of royalty, and by drinking through the night, offering toast after toast to American heroes and America’s destiny. On the night of July 3, 1776, John Adams wrote enthusiastically to his wife, Abigail: “The second day of July, 1776 [the day Congress voted for independence], will be the most memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illumination, from one end of this continent to the other, from this time forward forevermore.”37

  On July 4, 1788, just days after New Hampshire and Virginia ratified the Constitution, ensuring that it would take effect, the people of Philadelphia staged a parade, called “The Federal Procession,” the like of which had never been seen and has rarely been equaled since. Some 5,000 participants strung out for a mile and a half along the three-mile route, with forty-four different groups of tradesmen—cordwainers, bricklayers, coopers, brewers, engravers, whip manufacturers, and so on—outdoing each other with creative, gargantuan floats. Butchers marched two oxen side by side down the street, one labeled ANARCHY and the other CONFUSION. The banner strung between their horns read, “The Death of ANARCHY and CONFUSION Shall Feed the Poor and Hungry,” and at the conclusion of the parade, the men who led the oxen made good on their word by practicing their trade. On another float, blacksmiths heated swords in a working forge and then pounded them into plowshares. The featured display was the “Grand Federal Edifice,” a large dome supported by thirteen Corinthian columns (one per state, of course) and adorned with a frieze showing thirteen stars. Constructed on a carriage and drawn by ten horses, the edifice rose to a height of thirty-six feet above street level. The previous evening, workers had climbed and limbed trees along the course to accommodate the magnificent structure.38

  So what happened when news spread that ten amendments to the Constitution had just been ratified?

  Nothing. We have no record of a single public celebration and barely any mention in the press. There was one official notice, a letter by Secretary of State Thomas Jefferson to the state governors, on March 1, 1792—almost five years after the opening of the Federal Convention in Philadelphia:

  I have the honor to send you herein enclosed, two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fisherman employed therein; also of an Act to establish the post office and post roads within the United States; also the ratification by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and being with sentiments of the most perfect respect, your Excellency’s &c.39

  Fisheries, post roads, and “certain articles”—it was not a ceremonial inauguration. Jefferson, one of the few national leaders who had advocated a bill of rights from the outset, did not even call these amendments the “Bill of Rights.” Placed at the end of the Constitution, they seemed like an afterthought. They contained no sweeping, memorable statements as appeared in the Declaration of Independence and several state declarations of rights, no talk of inherent rights or the pursuit of happiness. Rhetorically, they had little appeal. In many minds, too, they fell far short of demands made at the ratifying conventions. “Enfeebled,” Anti-Federalists complained. Mere “milk-and-water,” Federalists boasted.40

  From these inglorious beginnings, the Bill of Rights eventually emerged as a founding document in its own right that serves multiple ideological purposes. On one end of the political spectrum, the First and the Fourth through Ninth Amendments provide support for Americans who advocate free speech, resist state-sponsored religion, and wish to protect privacy and the rights of the accused. On the other end, citizens who oppose gun control, support states’ rights, or want to limit the role of government base their arguments on the Second and Tenth Amendments. Each group benefits not only from the specific enumeration of rights but also from branding the overall package the “Bill of Rights” and treating it as the constitutional equivalent of scripture.

  On a grand scale, the naming and ascension of the Bill of Rights supports an even larger, overarching narrative: the founding fathers created the Bill of Rights to promote liberty over government. There must always be a tradeoff, people say, and the founders wanted to ensure that liberty came first.

  While many Americans of the time certainly felt that way, the men who wrote the Constitution did not. Too much focus on liberty, this group believed, could lead to anarchy and a state of nature, a fearful war of all against all that endangered life and property. A well-constituted state or nation, on the other hand, was liberty’s ally, not its enemy. Whether valid or not, this was their argument. Consider Hamilton’s forthright statement in the first Federalist essay: “An over-scrupulous jealousy of danger to the rights of the people … will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, … that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated.”

  By enshrining the Bill
of Rights and even placing that appendage ahead of the Constitution itself, we turn the framers’ argument on its head. Ask Americans today what they value most about their Constitution, and they will likely say the freedoms it guarantees, not the “vigor” of the central government it created, which was the framers’ major goal. If you then ask which freedoms those are, you might hear a list gleaned from amendments that most framers’ originally opposed. Few will tell you that with the exception of Jefferson, who supported a bill of rights all along, the men we most venerate as the founding fathers—including almost all of the framers of the Constitution—backed into the protection of rights grudgingly, or, worse yet, that the political function of the first ten amendments, the reason Madison bothered to propose them and other Federalists belatedly supported them, was to prevent other amendments from weakening the federal government.

  8

  ORIGINALISM

  Myth: By discovering what the framers intended or how the founding generation understood the text, we can determine how each provision of the Constitution must be applied.

  Unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.

  —Supreme Court Justice Clarence Thomas1

  The originalist at least knows what he is looking for: the original meaning of the text. Often—indeed, I dare say usually—that is easy to discern and simple to apply.

  —Supreme Court Justice Antonin Scalia2

  Kernel of Truth

  Unlike the British Constitution, which evolved over the centuries and blends written and unwritten components, the United States Constitution is contained in a single document that was adopted at a specific point in time, though later amended. Whereas it does not give us our laws, it does set guidelines for what types of laws are permitted and how they are to be enacted and enforced. The framers deliberately set the ground rules for governance in clear, simple writing, and we should listen to what they were saying. Casting aside overlays from later history that only confuse the matter, we can try to understand what they had in mind, the framers’ “original intent.”