by Ray Raphael
53.Madison to Thomas Ritchie, September 15, 1821, Farrand, Records of Federal Convention, 3:447–48. Madison never claimed that his essays should be used to define the Constitution, as the title to a recent book by Michael I. Meyerson states: Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (New York: Basic Books, 2008). Indeed, it seems doubtful such a thought would even occur to him, and a simple glance at The Federalist No. 37 explains why not. Questions of constitutional interpretation, Madison explained, could not be decided in advance by any assemblage of words or philosophies, even the Constitution itself. “Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches,” he wrote. “Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.” Such questions, he concluded, could only be worked out on the ground, after implementation. “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
The context for these remarks was to show that the Federal Convention could not possibly create a perfect plan with absolute clarity. Madison explained further: “Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.”
If we accept Publius at face value, as many insist we must, we have no choice to heed what he says in that essay: the final meaning of the Constitution, as determined by its practical application, cannot be decided in advance by prior conjectures, even his own, but only by “a series of particular discussions and adjudications” once the new rules take effect. The Federalist No. 37, by denying its own authority, gives the lie to all rationales for relying on Publius to settle practical disputes over constitutional law.
54.Clinton Rossiter, in the introduction to his 1961 classic edition of The Federalist, states, “The Federalist stands third only to the Declaration of Independence and the Constitution itself among all the sacred writings of American political history. It has a quality of legitimacy, of authority and authenticity, that gives it the high status of a public document” (Rossiter, Federalist Papers, vii). Publius’s writing, however brilliant, does not in itself make the work any more legitimate or authentic than other contemporary sources by private citizens.
55.Publius conveniently ignored the complicated compromise involving the temporary ban on slave importation, the fugitive slave clause, and the requirements for commercial treaties (see chapter 3). Although he had to admit to the three-fifths compromise, central to the key issue of representation, he did so begrudgingly. In The Federalist No. 54 Madison placed a justification of that provision within quotations and then added, “Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.” This was as close as Publius came to addressing the framers’ most consequential haggling. While he did refer to other political compromises, he dispatched them as briefly as he possibly could, preferring to portray the Constitution as a cohesive whole firmly grounded on republican theory.
56.Durchslag, “The Supreme Court and the Federalist Papers,” 315.
57.Ibid., 313. The cases, with the justices who made the citations, are listed on pages 316–49. In several cases Publius was cited in two or more opinions.
58.Chicago Tea Party website: Resources, Issues, Limited Government, http://teapartychicago.netboots.net/node/175 (accessed February 16, 2012).
59.Beck, Original Argument, 12. One trouble with the Charles/Beck translation is that neither writer understands the original language. Lacking the historical context, they frequently distort and even invert the text. In The Federalist No. 85, for example, Hamilton condemned the campaign against the Federalists: “The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men.” In the second of these three interrelated sentences, Hamilton was possibly referring to debtor relief legislation at the state level, and he was certainly referencing the political attacks by the Constitution’s opponents against respectable, prominent men—“the wealthy, the well-born, and the great”—who supported the Constitution and were on his side. But Charles and Beck, with no understanding of Hamilton’s political, social, and intellectual connection to the mercantile class, give the passage their own populist twist. Under the heading “Original Quote,” they reverse Hamilton’s condemnation of mindless attacks on men of standing: “The constant favors and special treatment which have been common for the wealthy, the well-born, and the great, must surely disgust all reasonable men, just as the numerous misrepresentations and concealments of the truth from the public eye deserve the disapproval of all honest men.” Then, immediately following, they proclaim the “Relevance for Today”: “We should have equal protection before the law, but Congress continues to pass legislation and get special treatment. Senior government officials, for example, are exempt from TSA pat-downs at the airport. And some government officials don’t have to comply with all elements of the Health Care Reform Act” (Original Argument, 36). How any of this contributes to an understanding of our Constitution or its “relevance for today” is a mystery, yet merely by citing The Federalist Beck and Charles garner support from the founding fathers.
From The Federalist No. 41, Beck and Charles choose for their featured quotation: “The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat.” Strangely, Beck and Charles see in this passage support for their call to establish English as an official language, a nonissue in the founding era. Its “relevance for today,” they say, is this: “A united America is more powerful than an army. But too many actions by the federal government now serve to divide us rather than to bring us together. We need a common language, a commo
n national identity, and common equality before the law” (Original Argument, 80). A common language was never a priority for the founders. National leaders at the time, all of whom favored national expansion, favored immigration from diverse European nations. Without immigrants who didn’t speak English, speculators in westward lands (this includes most of the famous founders) would never be able to populate them.
Beck and Charles are not alone. According to the Chicago Tea Party, cited above in n. 58, “The Constitution (whose provisions, and original intent thereof, are informed by the Declaration of Independence and the writings of the Founders in the Federalist Papers) is the supreme law of the land.” How the Constitution was “informed” by the so-called Federalist Papers, which were written afterward, is curious. Those essays, it says, “were written by the Founders to set forth their rationale for the various provisions in the Constitution.” In this rendering, “the Founders” are reduced to James Madison, Alexander Hamilton (who absented himself from most of the Federal Convention), and John Jay (who never attended). It’s a common ploy.
The “basic philosophy” of the Ravalli Republic website starts with this: “Adherence to Constitutional government as defined in the Constitution of the United States and the Bill of Rights as explained in the Federalist Papers.” Here the Federalist Papers “explain” the Bill of Rights, yet another complete reversal. The Federalist, of course, was written over a year before the first ten amendments were even drafted, and Publius’s only mention of a possible Bill of Rights was in The Federalist No. 84, in which Hamilton argued in the strongest possible terms against amending the Constitution to add a bill or declaration of rights. Ravalli Republic website: http://ravallirepublic.com/news/opinion/viewpoint/article_863912c8-efc0-11e0-9ff2-001cc4c03286.html#ixzz1adVzZpC5 (accessed February 16, 2012).
60.Publius-Huldah’s blog: Understanding the Constitution: http://publiushuldah.wordpress.com/2011/01/24/why-states-must-nullify-unconstitutional-acts-of-congress-instructions-from-hamilton-madison-jefferson/(accessed February 16, 2012).
61.McCulloch v. Maryland, Cornell University Law School, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZO.html.
7. Bill of Rights
1.At http://www.sodahead.com/united-states/did-god-give-us-the-bill-of-rights/question-452661/?page=4#comments (posted June 23, 2009, and accessed January 9, 2012). These two options are not mutually exclusive. “The Bill of Rights exists for no other purpose than to make sure we have the right to practice what the Creator told us to do,” said prolific author David Barton (Original Intent: The Courts, the Constitution, & Religion; Separation of Church and State: What the Founders Meant; The Second Amendment) on the Glenn Beck show, August 6, 2010, http://www.foxnews.com/story/0,2933,598802,00.html.
2.At http://wiki.answers.com/Q/Who_was_the_author_of_the_Bill_of_Rights (accessed January 9, 2012).
3.At http://www.lewrockwell.com/gregory/gregory49.html (accessed January 9, 2012).
4.Avalon Project, Yale Law School, http://avalon.law.yale.edu/17th_century/england.asp.
5.The various state constitutions and declarations of rights appear in Schwartz, Bill of Rights 1:231–379. Only the last of these, New Hampshire’s in 1784, called the list of rights a “bill of rights.” The rest used the term “declaration of rights.”
6.Schwartz, Bill of Rights, 1:49–175.
7.Ibid., 1:71–84.
8.Leonard W. Levy, “Bill of Rights,” in Leonard W. Levy, ed., Essays on the Making of the Constitution (New York: Oxford University Press, 1987), 268–69; Schwartz, Bill of Rights, 1:231–50, 256–379. Vermont, which was not yet a state, also passed a Declaration of Rights, modeled after that of Pennsylvania but with the notable addition of a prohibition against slavery. Two states, Connecticut and Rhode Island, did not draft new constitutions, but Connecticut did enact a short list of rights (Schwartz, Bill of Rights, 1:289–90). For the difference between constitutional commands and codification of principles, see William E. Nelson and Robert C. Palmer, Liberty and Community: Constitution and Rights in the Early American Republic (Dobbs Ferry, NY: Oceana Publications, 1987), and Richard B. Bernstein, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (New York; Times Books/Random House, 1993; paperback, Lawrence: University Press of Kansas, 1995), 14–47.
9.Mason had drafted Virginia’s 1776 Declaration of Rights, which served as a model for the “declaration or bill of rights” proposed by Virginia’s ratifying convention. Mason no doubt assumed a national bill of rights could be based on these existing documents.
10.Mason also offered a related argument: “The laws of the U.S. are to be paramount to State Bills of Rights.” During the debates over ratification, opponents of the proposed Constitution seized on this idea and warned that the new federal government could in effect nullify the state declarations of rights.
11.DHRC, 8:43–45 or 13:348–50.
12.Ibid., 13:339–40.
13.Hamilton made one additional argument against a bill of rights in The Federalist No. 84. His argument was intriguing but easily rebutted. “Bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince,” he wrote. “They have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.” Kings, however, were not the only tyrants to be guarded against, as Americans at the time knew too well. It was Parliament that passed the oppressive laws leading up to the Revolution, and colonials had for a decade addressed their grievances against Parliament to the Crown. More recently, state legislatures had passed laws that the framers thought violated the rights of a minority (creditors) in favor of the majority (debtors). What would happen if the new national legislature, without a monarch, trampled the rights of citizens? Were no precautions in order? Again, Hamilton’s argument failed to convince.
14.Madison to Jefferson, October 17, 1788, Madison, Papers, 11:297.
15.Madison, Notes, September 15.
16.Southborough: DHRC, 5:1032–33. “Language adopted to slaves”: DHRC, 5:834.
17.Revolutionary War and Beyond website: http://www.revolutionary-war-and-beyond.com/history-bill-of-rights.html. The final sentence is incorrect on two counts. First, as shown below, this was not “a Bill of Rights.” Second, Federalist delegates at the Massachusetts ratifying convention could not promise a so-called Bill of Rights “would be added,” only that they would work toward that goal.
18.The Massachusetts amendments are in Schwartz, Bill of Rights, 2:712–23; DHRC, 6:1381–82; or Avalon Project, http://avalon.law.yale.edu/18th_century/ratma.asp.
19.Schwartz, Bill of Rights, 2:756–57, 760–61, 840–45, 911–18, 966–71; Avalon Project: South Carolina: http://avalon.law.yale.edu/18th_century/ratsc.asp; New Hampshire: http://avalon.law.yale.edu/18th_century/ratnh.asp; Virginia: http://avalon.law.yale.edu/18th_century/ratva.asp; New York: http://avalon.law.yale.edu/18th_century/ratny.asp; North Carolina: http://avalon.law.yale.edu/18th_century/ratnc.asp. The Maryland Convention did not formally propose amendments, but a committee of the convention did vote to approve thirteen suggestions for amendments. A minority of that committee presented fifteen others that the majority rejected. Rather than join the intracommittee squabble over which amendments to include, the convention ratified without officially adopting the committee’s report (Schwartz, Bill of Rights, 2:732–38; DHRC).
20.New York’s official ratification statement also expressed its “full confidence” that “until a Convention shall be called and convened for proposing Amendments,” the federal government would not send New York militia out of state for longer than six weeks, Congress would not control congressional elections within New York, Congress would not levy any excise taxes (“Ardent Spirits excepted”) within N
ew York, and, most significantly, Congress would not “lay direct taxes within this state” unless imposts and excises had proved insufficient and New York had failed to comply with its requisition. New York stopped just shy of demanding these amendments as a condition of ratification, changing the words “on condition” to “in full confidence” by a vote of thirty-one to twenty-nine (Maier, Ratification, 392–93, 397; Elliot, Debates, 2:412–14; DHRC, 22: 2326–30.)
21.Madison to Hamilton and Madison to Washington, June 27, 1788; Madison to Jefferson, August 23, 1788; Madison to Washington, August 11, 1788, Madison, Papers, 11:181–83, 238, 230.
22.Washington to Madison, August 17, 1788, Madison, Papers, 11:234.
23.Madison to Richard Peters, August 19, 1789, Veit et al., Bill of Rights, 282.
24.Jon Butler, “James Ireland, John Leland, John ‘Swearing Jack’ Waller, and the Baptist Campaign for Religious Freedom in Revolutionary Virginia,” in Alfred F. Young, Gary B. Nash, and Ray Raphael, eds., Revolutionary Founders: Rebels, Radicals, and Reformers in the Making of the Nation (New York: Knopf, 2011), 182; Madison to George Eve, January 2, 1789, Madison, Papers, 11:404–5.
25.Washington’s First Inaugural Address to Congress, April 30, 1789, Washington, Papers (PS), 2:176.
26.Washington to Jefferson, August 31, 1788, Washington, Writings, 30:83.
27.Washington to Madison, ca. May 31, 1789, Washington, Papers (PS), 2:419.
28.Annals of Congress, 1:449–50. After listing his proposed amendments, Madison continued his seemingly faint praise of declarations of rights. “The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find, that, although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency. It may be said, in some instances, they do no more than state the perfect equality of mankind. This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a Constitution.” Ibid., 1:454. Madison’s speech, with his proposed amendments, is reprinted in The Founders’ Constitution, 1:479–84, and Veit et al., Bill of Rights, 11–14, 77–86.
