Jefferson on the Constitution

Joseph Ellis, in his book The Quartet argues that many of our founding fathers who actively participated in bringing us our constitution were not focused on creating an ever binding document that would hold in place the nation’s laws forever. They sought, Ellis argues, to build a constitution that would serve as a guiding document for the political thought and ideals of the time. They understood that the Constitution would have to change, and while thy hoped that it would be endearing enough to be well respected and to not be scrapped within ten years, they did not believe the Constitution to be beyond the scope of political discussion and change.

 

This sentiment is capture by Thomas Jefferson, who was not active in the process of writing the constitution and developing its ideas since he was in France during the Constitutional Convention of 1787:

 

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.”

 

In my mind, the most clear modern example of what Jefferson described in the quote above is the debate in our country over the Second Amendment. In 1787 our founding fathers found it important enough for the nation to be able to be build a militia when needed and for citizens to be able to bear arms to for their protection from tyrannical governments both internal and external to the United States. But the firearms of the Revolution were unlike the weapons of today’s world. The original intent doctrine suggests that we should not limit people’s ability to own and use firearms. This seems very clear with the inclusion of the the Second Amendment, but it also feels to me, that we are forcing the nation to wear its boyhood jacket when we force the modern problems with guns into the framework of the Second Amendment. It is clear that the founding fathers did not write the Second Amendment with handguns in mind. The guns of the time were bulky, slow to reload, and inaccurate. A modern handgun is easily concealable, can be fired rapidly, and is deadly accurate.

 

Jefferson, it appears based on this quote from the end of his life, would argue that the Second Amendment needed to change, that there was not a superhuman view of firearms and democratic preservation written into the Constitution to which we should affix ourselves today. The technology of the world has advanced in unpredictable ways since 1787, and Jefferson would argue that our institutions for governing the nation should change as well.

Paradoxes Within Our Constitution

The Constitution of the United States is over 230 years old. With many amendments added through the years, and with new interpretations of the Constitution, our country is still guided by a founding document written in 1787. What has made this document so enduring, argues Joseph Ellis in his book The Quartet, is not that it was written with the divine influence of providence or that it held unique support among men, but that it understood and adapted a paradoxical framework about government. Writing on our founders and the endurance of the constitution Ellis states,

 

“It has endured not because it embodies timeless truths that the founders fathomed as tongues of fire danced over the heads, but because it manages to combine the two time-bound truths of its own time: namely, that any legitimate government must rest on a popular foundation, and that popular majorities cannot be trusted to act responsibly, a paradox that has aged remarkably well.”

 

The ideas of our Constitution were not universally accepted and clear to everyone at the time of its adoption, and even today the paradox of our constitution is not well understood. Government does not rely on complete power and authority in the United States. A leading political figure, an agency, and the legitimacy of our government only persist because they can react (at least to some extent) to the popular demands of our citizens. At the same time, we have a slow process that in recent years seems to frequently grind to a gridlocked halt when a minority opposes the actions of a popular majority. This limits the ability of government or popular majority to  run roughshod over the rights and liberties of a minority. While politically frustrating, this limitation of the majorities power, and the the divestiture of the majority’s power in a politically elected representative or government creates a system of government that is reactive to its citizens and simultaneously constrained from tyrannical tendencies. It may not be perfect and often does not work as well as we would hope, but through time it has evolved to allow citizens to enjoy liberty and has moved in a direction where minority factions have been preserved and protected (thought often times not well) and gained greater influence over time.

The Bill of Rights, Factions, and the Power of the Government

One of the debates that took place before the 1788 ratification of our Constitution was whether or not the constitution should include a Bill of Rights, guarantees of freedoms that limit the power of government over the states and citizens. As written, Madison thought the Constitution was complete, and did not see the need for a Bill of Rights. The majority of delegates to the Constitution Convention, however, approved of amendments to the Constitution, and in the end, our founders added 10 amendments to create the Bill of Rights we know today.

In his book The Quartet, Joseph Ellis describes Madison’s thoughts regarding the Bill of Rights, an area where Madison and his political mentor, Thomas Jefferson differed in their opinions. Madison believed that a Bill of Rights would not be effective in stopping government from overstepping its authority, and he felt the amendments to be irrelevant. Ellis wrote the following about Madison:

“Jefferson’s problem, as Madison saw it, was that he believed that the primary threat to personal rights came from government. That might be true in Europe, “but in our Governments the real power lies in the majority of the community.” So the real threat came “from acts in which the Government is the mere instrument of the major number of the constituents.”

This is consistent with Madison’s thoughts as written in the Federalist Papers #10 and #51, in which Madison wrote about the dangers of factions and majoritarian groups of citizens. Madison did not see power as flowing from the government and did not see our political rights and stemming from government. He was developing a constitution and a framework of governance where “the people,” as ambiguous as the term is, held authority and power and a written bill of rights, he argued, was not sufficient to dissuade a majority of citizens from violating the rights of others. His suggestion was not to tie the hands of government with a bill of rights, but instead to ensure that power was divided among many factions so that a tyrannical few could not dominate the interests of the many.

What I find interesting here is that Madison is in effect arguing for what we today would call identity politics. The most basic definition of politics is “who gets what and when?” We will always lack the resources to make sure that everyone’s self interest and desires are entirely fulfilled, and some resources, such as status and prestige, cannot be evenly separated among men, women, and differing groups. Politics is about how we decide to distribute what we have, and it is inherently unequal and identity based. The term identity politics now refers to the distribution of resources based entirely on individual characteristics of certain groups rather than on the good of the majority, but as Madison may argue, operating on the basis of the good of the whole is impractical because you cannot give the whole the same opinion, and what you instead have is a tyrannical majority dominating the few. A bill of rights, paper barriers to liberty, are easily ignored when a powerful majority can silence the voice of a minority. Giving minorities more power and influence is a Madisonian idea that was formed in the founding documents of the nation, well before our current tussle of identity politics.

Thoughts on the Federalist Papers

I have read about half of the Federalist Papers, a collection of over 80 papers written by James Madison, Alexander Hamilton, and John Jay under the pseudonym Publius. The articles ran in New York newspapers and were intended to influence the key decision makers in New York to vote in favor of the proposed constitution for the United States. The authors included arguments for a strong central government, examples of the pitfalls of the Articles of Confederation, and stories of the necessity of a strong centralized government to protect the people and help the newly formed states establish themselves in a world of entrenched political powers across the Atlantic.

 

Like our vision of “original intent” the meaning of the Federalist Papers has shifted over time and they have come to represent something greater than what they originally were. Many people look back at the Federalist Papers as a type of manual outlining the thoughts, intentions, and goals of our founding fathers when writing the constitution. We see them as incredibly influential articles that shaped the understanding of the constitution and the direction our nation would move. Joseph Ellis, author of The Quartet sees this view of the federalist papers as troubling. He states, “It is highly likely the Federalist Papers have exercised a larger effect on our later perceptions of the debate over ratification than they did over the debate itself.” Ellis argues that in some ways, the Federalist Papers can be viewed as advocacy propaganda saved from the winning side of an argument and distorted by a victorious view of history.

 

“Even our modern inclination to see the Federalist Papers as the seminal statement of “the original intentions” of the framers is historically incorrect, since Publius represented only one side of the ratification debate–the winning side, to be sure, but a wholly partisan perspective. Finally, the Federalist Papers were aimed not at posterity but at a limited audience of the moment. As Madison later explained, Publius was intended “to promote the ratification of the new Constitution by the State of N. York, where it was powerfully opposed, and where success was deemed of critical importance.””

 

When we look back at the Federalist Papers we read into them what we want to see today and we find support for the ideas we already have. The articles themselves are brilliant and insightful when thinking about government and governance today, but in many ways they cannot be thought of as technical blueprint of the Constitution. They are powerful justifications for the decisions made in adopting the Constitution, but they are just another argument that we can learn from when thinking about how to structure government and the decisions made 230 years ago.

Original Intent

A popular idea among many people, in regard to the Constitution of the United States is the idea of “Original Intent.” It is a concept that suggests that our constitution should be strictly followed and narrowly interpreted, that what was written and ratified in 1788 is what should still guide our government today. Historian Joseph Ellis thinks this is a troublesome view given the nature of the Constitution’s adoption and approaches of Madison who greatly influenced the shaping of the constitution.

 

In my last post, I wrote about the Constitution as a living document, designed with the intent that it would be updated and adjusted through time to meet the needs of citizens at a given point. Ellis, in his book The Quartet, continued with this view of the document and wrote,

 

“The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of “originalism” or “original intent,” this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s “original intention” was to make all “original intentions” infinitely negotiable in the future.”

 

The Constitution has few hard and fast rules, especially when the Bill of Rights and subsequent amendments are not considered. It focuses most thoroughly on the role of Congress and authorities and duties delegated to Congress. The Executive Branch is also fairly well detailed and explained, but the Judicial Branch is hardly developed in the Constitution. Broad language such as “necessary and proper” was written into the Constitution, creating  flexibility for Congress. Trying to look back at the Constitution and assume what the founding fathers waned our government and society to look like today is trivial in the eyes of Ellis. The Constitution they wrote encourages debate, argument, and new interpretation. Clinging to ideas of original intent appears counter productive, because the founders never intended for their understanding of the world to lock in specific governance rules for all time. The intent was a document which would define and separate power to allow for deliberation and debate among the branches and among the people to guide the important decisions of the nation.

 

I also believe that original intent does a disservice to the Constitution and to society by elevating the document and the founding fathers to a quasi-religious level. To assume that original intent is the most appropriate way to understand the Constitution is to assume that the document itself and the men who wrote it were somehow greater than ordinary men and that the written words of the constitution are in some sense sacrosanct and divine. Our founding fathers, the quartet detailed by Ellis in particular, no doubt achieved something remarkable with the writing and adoption of the constitution, but if you study the time and can view history through the lens of those who experienced it, you see that history was shaped by people who made mistakes just as we do today, who were counting on good luck, and who had equally cloudy judgement and foresight as today’s leaders. Just as we would assume that a law written today is not perfect and should not ever be adjusted when the situation calls for it, we should not assume that the Constitution is a document that cannot be re-imagined and re-understood as society and the world change.

A Living Constitution

Our nation is very familiar with debates regarding the constitutionality of rules, regulations, actions, and laws enacted by the Federal Government. As I write this, there are constitutional challenges brought about by our current president with issues involving his profiting from foreign individuals staying at his hotels and questions about his ability to declare a national emergency to pull in funding to build a border structure between the United States and Mexico. The questions involve whether the United States Constitution gives the president authority to do something or bars the president from doing something. We are operating with a legal document that will be entering its 231st year of service in 2019, and it is clear to all that our founding fathers could not have written a document to address ever situation that our government finds itself in today.

 

Historian Joseph Ellis writes about the approach taken by the framers of the constitution in his book The Quartet and helps us understand our relationship to the document ratified in 1788. Ellis writes, “the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.”

 

James Madison, who greatly shaped the text and structure of the Constitution, was focused on creating a document that could pull together the delegates of the 13 states and create a stronger centralized government. Madison knew that he would need the support of large and small states, rural farmers and more industrialized people from burgeoning cities, and would need to convince them that they would all have a voice and that no one group would unduly dominate another. Ellis suggests that we should see the Constitution as a forum for continuous discussion and improvement. He believes that the intent of the framers was to create a guiding document that would provide for national unity and governance, while reacting to the needs and evolving nature of the nation through time. To look at the Constitution as a sacred text whose word must be followed in all situations raises the level of our founding fathers to an unreasonable level. It assumes that they were somehow more than human and that the document they created is somehow greater than any other legal document before or since. The only way we can truly move forward with governance is to continually re-imagine and reshape the Constitution to function within the unique demands and challenges of the time.

Growing Wise With Age: A Quote From Ben Franklin

In his book The Quartet, author Joseph Ellis describes the conflicts and challenges that our founding fathers faced as they attempted to create a new constitution to replace the Articles of Confederation and tried to bring about a new American identity to unite all citizens living across the former British Colonies. The idea of a strong national government was not popular, but George Washington, Alexander Hamilton, James Madison, and John Jay worked to change the minds of key stakeholders and to build support for a new government structure that created a new federal government with more power than the central government established under the Articles of Confederation. One of the people who doubted the government established in the new constitution was Benjamin Franklin, an attendee of the Constitutional Convention in Philadelphia.

 

Franklin, Ellis describes, was in his 80’s at the time of the convention and in declining health. James Wilson, a colleague of Franklin’s from Pennsylvania had to read his statements, and often times Franklin’s ideas and proposals were a bit off track, but always respectfully observed. However, even in his declining health, Franklin managed to deliver one of the wisest comments on the new constitution, demonstrating self-awareness, the influence of the quartet that Ellis describes in the book, and a positive mindset that everyone should remember as we age. In an address to the convention delivered by Wilson, Franklin stated:

 

“I confess that I do not entirely approve this constitution at present, but Sir, I am not sure I shall never approve it: For having lived long, I have experienced many instances of being oblig’d, by better information or fuller consideration, to change opinions on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow the more apt I am to doubt my own judgment, and pay more respect to the judgment of others…
    In these sentiments, Sir, I agree to this Constitution, with all its faults, if they are such; because I think a  General Government necessary for us…”

 

The wisest people I have met or listened to in important conversations have expressed this idea. The people who I have seen make the worst decisions or fail to be the most considerate have demonstrated the opposite mindset. When we are young, we are eager to show our value and intelligence. We put out an image of being more competent and knowledgeable than we really are. As we get older however, we start to see through study, experience, and learning that we do not actually know as much as we would like to believe and present to the world. Accepting that we don’t know everything, that we have a limited perspective and a limited amount of time to observe the world helps us be more honest and open to information which may conflict with what we already believe and with what we want to believe. To find the best outcomes and to be the most considerate of what is really taking place around us requires that we be open to changing our mind and to objectively listening to the opinions of those around us, especially sagacious leaders.

Slavery in the American Constitution

In his book The Quartet, Joseph Ellis examines the debates leading up to the adoption of the current United States Constitution and the actions of four men in particular to drive the nation toward true nationhood and the adoption of the Constitution. George Washington, Alexander Hamilton, James Madison, and John Jay all played crucial roles in advocating for a constitution that gave strong power to a centralized national government that could bring unity and cohesion among the former British Colonies. A central tension and challenge in uniting the colonies existed around slavery and today, as we look back at the founding of our nation and at our Constitution, we cannot help but think about the role that slavery played in the founding of our nation and about the meaning of its inclusion in our Constitution. Regarding slavery, Ellis writes, “Whether this was a failure of moral leadership or a realistic recognition of the politically possible can be debated until the end of time.” Our views of our nations founding and the role that slavery played is hard to think through and is something worth evaluating on a deeper level. Precisely why it was included in the Constitution and the role it played at the nation’s birth is challenging and the meaning attached to it changes as you shift the perspective through which you understand the Revolutionary War and America at the time of the Constitutional Convention.

 

The quartet in Ellis’ book wanted to bring together the North and the South in a single nation, but the economies of both were moving in different directions, with the South becoming increasingly reliant on slaves for economic production (as a side note: a recent comment to my blog suggested that the North enabled slavery by purchasing slave produced products from the South – something I don’t know about but certainly seems likely). To have truly put an end to slavery in the newly independent America would have required a monarch (or tyrant) who could have stamped out the practice by force (something the colonies had just revolted against). Manumission, the process for freeing slaves was also expensive, often requiring that freed slaves be provisioned with enough resources to sustain themselves once free. It is no wonder that the forces of economic self-interest and a fear of tyranny forced an impasse between abolitionists and those whose future and society relied on slavery. A compromise on the issue appears to be absolutely necessary in order to bring the former Colonies together under a single government.

 

At the time our constitution was written, many delegates to the Constitutional Convention recognized the abhorrent evils of slavery. Ellis includes a notebook entry from John Dickinson, a delegate from Delaware who wrote about the compromise written into the new Constitution, “Acting before the World, what will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves. … The omitting of the WORD will be regarded as an Endeavor to conceal a principle of which we are ashamed.” The fact that slavery cut against Jefferson’s words in the Declaration of Independence was not lost on all of our founding fathers. Dickinson and others were aware of the contradiction between the words and principles of our revolution and the structure we built into the Constitution. The political dynamic that united our nation allowed for such evil to continue, but at the same time also provided a way for it to be dismantled. The unending debate in the United States will continue to grow as we debate the best way to interpret the inclusion of slavery in our constitution.

The Non-Transparent Constitutional Convention

In his book, Political Realism, Jonathan Rauch argues that some of the changes we have made to the political system of the Untied States in the last several years have been self-defeating in regards to the functioning, efficiency, and effectiveness of our government. In particular, our ever expanding pursuit of transparency and the degree to which everything is recorded and open has made real debate with tough decisions more challenging. It is hard to have a debate with compromises where unpopular policies are discussed and worked through and more successful and effective legislation is created.

 

I was reminded of this idea from Rauch while reading Joseph Ellis’ book The Quartet. Our nation was originally founded under the Articles of Confederation, which did not pull our states together in a meaningful way to unify and promote our national interests. Replacing the Articles, however, was not a simple task and drafting a new Constitution was challenging. In many ways, the success of the new Constitution required our founding fathers to cut against many of the values they hoped the Constitution would establish for all citizens. Ellis describes it this way, “Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.”

 

Efforts to refine government and open up governance all start from a positive point of view, the belief that sunshine will act as a disinfectant, ridding politics of corruption and illegitimate deal making. The reality however, is that transparency and other reforms to make politics more open and clear can act as sand in the gears of our political machinery. Some debates require closed doors and safe spaces for compromises to be worked out. Getting legislators to organize together requires massive efforts of coordination and often requires conversations that take place outside of the spotlight as legislators and the people they represent have conflicting views and interests. It is worth reflecting on our ever growing pursuit of open democracy and remembering that our nation required what appeared to be non-democratic and non-transparent rules to get its start in the first place.

A Shift in Sovereignty

In my last post I wrote about the complexities of sovereignty, of who has the supreme power and authority in a given polity and where that authority comes from. The Revolutionary War in the United States ushered in a new government with independent states, each sovereign within their own territory, held together by a loosely constructed national government. Power and authority held within the state was derived from the citizens of the state who had come together to forge new lives in America.

 

This arrangement, however, was not politically stable and did not hold the states together in a way that protected the interests of each state and of each citizen within each state. A new government was needed to cement the bonds between the states, and the new government required a re-imagining of sovereignty. Today it is obvious that the Federal Government is sovereign over the state governments. It is clear to us that our elected officials represent us and receive their power with the consent of our votes, but at the time of the American Revolution and at the time of the writing of our Constitution, this was not obvious. Joseph Ellis describes the shift in sovereignty in his book The Quartet by writing:

 

“Sovereignty had shifted from a monarchy claiming to derive its authority from God to a legislature claiming to derive its authority from ‘the people.’ Political power flowed not downward from the heavens but upward from the citizenry. Indeed, this was the fundamental change that had made the war for independence a revolution.”

 

This view of power and authority was radically different from a view of a monarch ordained by God to lead a people. There were many questions that were addressed in the constitution to answer questions about how power and authority would be transmitted through the people to the governing authorities of the nation, and at the time these were new ideas that required a shift in thinking about both power and governance. Sovereignty now had a new basis for legitimacy, and it was bottom up, growing from the public and not top down from a ruler.