Were the framers of the Constitution “originalists”?

As a historian, I want my students to understand, as best as possible, the meaning of the constitution in its 18th-century context. This requires them to know something about a world that is long gone. We like to say, with the writer L.P. Hartley, that “past is a foreign country, they do things differently there.”

But there is a big difference between understanding the world of the framers and suggesting that we should still live by that understanding today. Such an approach ignores changes over time.

Such an “originalist” approach to the Constitution also implies that the ideals embedded in the Constitution were not contested and controversial at the time they were written.

Here is a taste of constitutional historian Jack Rakove’s piece at The Washington Post:

At first glance, questions of original intent seem like ideal problems for historians to solve. How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its “original meaning.”

But the main advocates for originalist theory are lawyers, not historians, and they act under different assumptions. Where historians would be content to describe a set of debates reflecting an array of perspectives, legal originalists want to “fix” the meaning of constitutional terms — to come up with the one best answer to the puzzles that jurists have to solve. They assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.

One problem with this idea is that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.

Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. There is no adequate dictionary definition of “the executive power” that Article II vests in the president. Understanding what the “establishment of religion” invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his “Notes on the State of Virginia,” the very word “constitution” had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.

Context, context context. As I see it, it difficult to be a historical thinker and a constitutional originalist.

Read the Rakove’s entire piece here.

This interview tells us a lot about John MacArthur and the movement he represents

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Chris Hutchison, the pastor of Grace Covenant Presbyterian Church (PCA) in Blacksburg, VA, brought this to my attention today via Twitter.

Watch John MacArthur speaking to Ryan Helfenbein of the Liberty University Falkirk Center about his battle with the state of California and why no Christian could ever vote for Joe Biden:

Notice what MacArthur does here. He equates biblical teaching with abortion, homosexual marriage, and transgenderism. That’s it. For MacArthur, biblical thinking about politics essentially comes down to these three things. As a result, he believes Christians cannot vote for Joe Biden or any member of the Democratic Party.

Instead, MacArthur wants his church to vote for a Republican candidate whose policies will hurt the poor, who uses racist dog whistles, who has brought pornography into the news, and who lies to the American people multiple times a day. Last time I checked, the Bible says a lot about human dignity, truth, lust, and the poor.

What are the historical forces that have led MacArthur to believe that abortion, homosexual marriage, and transgenderism are the only issues Christian voters should be concerned about? We need to keep asking this question because MacArthur thinks that his view of politics is shaped by a reading of the Bible untainted by social and cultural forces.

About midway through the clip, Helfenbein asks MacArthur about critics who say the members of the Christian Right are single-issue voters. MacArthur responds:

That sounds like 25 or 30 years ago when the differences were sociological or economic between you know ownership and labor. That is long gone.

I have no idea what MacArthur is talking about here. But it sounds like he is trying to say that economic inequality is no longer an issue in the United States in the way that it was “25 or 30 years ago.” (Does he really think that the Christian Right did not push single-issue voting in 1995 or 1990?).

MacArthur seems unaware of the success of democratic socialist politicians like Bernie Sanders who have called attention to economic inequality. Sanders attracted millions of American voters–including many young evangelicals–in 2016 and 2020. MacArthur may not like Bernie’s ideas, but the Vermont senator’s views on income inequality have resonated with Americans. It sounds as if MacArthur has had his head in the sand.

MacArthur says that the Democrats are assaulting American and Christian values, namely the conscience, the family, government, and the church. If a biblical view of the conscience, family, government, and church is indeed eroding as MacArthur says it is, then what does this tell us about the influence of Christians in American life over the last 50-75 years? MacArthur’s diagnosis seems to suggest that Christians have failed miserably in their efforts at sustaining a moral culture. Christians like MacArthur should look into the mirror instead of blaming the Democrats. The church is on the hook here.

Why has the church failed? Have the forces of secularism been too strong? Perhaps.

Or maybe evangelicals have placed too much trust in politics to preserve a moral culture. If you need evidence of this, just consider evangelical support for Donald Trump.

MacArthur believes that the best way to protect the conscience is to vote for a man with no conscience.

MacArthur believes that the best way to save the family is to vote for a man who cheated on all his wives, has been divorced twice, sleeps with porn stars, and has been heard on tape saying he wants to sexually assault women.

MacArthur believes that Trump, with his endless lies and incompetent leadership, is the best man to lead a just and moral government.

MacArthur believes that Christians getting into bed with Trump is good for the church and the proclamation of the Gospel.

Something doesn’t seem right here.

Finally, MacArthur says:

Joe Biden said the other day he’s going to fill his cabinet with Muslims. That is as anti-Christian a statement as you could possibly make. That is a blasphemy of the true and living God.

Yes, it would be blasphemous to fill a cabinet with Muslims if we were living in a Christian theocracy. But we don’t live in a theocracy. We live in a democratic society that celebrates pluralism. As Hutchinson notes in his tweet, we have no religious test for federal office in this country. The United States Constitution, as originally written and ratified by the states, makes one reference to religion. Article 6 affirms that “no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.” So Biden is perfectly within his constitutional rights to fill his cabinet with Muslims.

But MacArthur goes on about this:

No thinking person, no person who wanted any kind of life for anyone in the future could possible affirm that kind of behavior.

Last time I checked, the founding fathers who wrote the Constitution were “thinking people” who cared about the “future” of the republic.

Hutchinson wonders if MacArthur’s claim about Biden filling his cabinet with Muslims is true.

Of course Ryan Helfenbein nods his head in agreement with everything MacArthur says. In this interview we get one of our best views into what is really going-on with both the Grace Community Church controversy and the Liberty University Falkirk Center.

Thanks again to Chris Hutchinson for bringing all of this to my attention. Things are getting really strange.

Sean Wilentz on Tom Cotton and slavery

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The Princeton University American historian Sean Wilentz has been a harsh critic of The New York Times 1619 Project. But that doesn’t mean he is going to give Arkansas senator Tom Cotton a pass for his recent comments about slavery and the founding fathers.

Here is a taste of his recent piece at The New York Review of Books:

Senator Tom Cotton, Republican of Arkansas, has introduced a bill in Congress that would punish school districts that use The New York Times’s 1619 Project in their curriculum by withholding federal funding. In so doing, he announced in a newspaper interview that America’s schoolchildren need to learn that the nation’s Founders said slavery “was the necessary evil upon which the union was built.” His statement is as preposterous as it is false: presuming to clarify American history, Cotton has grievously distorted it.

(As this article went to press, Cotton supported his argument by citing me along with several other liberal historians who have criticized the 1619 Project; with my colleagues, I have fundamental publicized objections to the project, but these in no way mitigate Cotton’s serious misrepresentations of the historical record for evident political gain.)

None of the delegates who framed the Constitution in 1787 called slavery a “necessary evil.” Some of them called slavery an evil, but not a necessary one. Gouverneur Morris of New York, for example, declared to the Constitutional Convention that he would “never concur in upholding domestic slavery,” that “nefarious institution” based on “the most cruel bondages”—“the curse of heaven on the states where it prevailed.” The great majority of the Framers joined Morris in fighting to ensure that slavery would be excluded from national law.

Read the rest here.

Should a statue of Roger Sherman come down?

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The statue in question

Here’s one to talk about over coffee.

Richard Kreitner, a writer at The Nation, makes a case for why a monument to founding father Roger Sherman should be removed from the United States Capitol. His argument is two-fold:

  1. At the Constitutional Convention, Sherman helped to broker the compromise that allowed small states to have equal power in the Senate.
  2. At the Constitutional Convention, Sherman compromised with the slaveholding South.

Here is a taste of Kreitner’s piece at The Baffler:

As we commence a thorough and long-delayed reassessment of our national history, the compromise tradition Sherman represents—and the specific bargains attributed to him—ought also to be reconsidered. It is long past time to embrace the righteousness of those rare and visionary anti-slavery critics who, during the struggle over ratification of the Constitution, called for rejecting it because of the protections it afforded slavery. Accepting those compromises, as one put it, would make Americans “partakers of each other’s sins.” “If we cannot connect with the Southern states without giving countenance to blood and carnage, and all kinds of fraud and injustice,” another Anti-Federalist argued, “I say let them go.”

Roger Sherman, by contrast, epitomizes the kind of moral complicity with evil, as pernicious as the evil itself, on which the endurance of the Union has always been predicated. His statue should be removed from Capitol Hill as a symbol of a broader reckoning with the history and nature of the country he helped create. Mississippi legislators recently made the brave if belated decision to take the Confederate battle flag off the state’s official banner. Michigan’s congressional delegation—well, at least its Democratic members—called for the removal of Lewis Cass, the heretofore much-heralded “founding father” of the state, from the Capitol Hill collection, in acknowledgment of his advocacy for slavery’s expansion and Indian removal. Why shouldn’t Connecticut’s leaders act with similar vision and boldness by admitting their own state’s sordid contributions to the perpetuation of slavery and minority rule?

Up to now, Northerners and other Americans without personal connection to the antebellum South have largely luxuriated in the assumption that they have nothing to apologize for and no heroes in need of reconsideration. But perpetuating the Union on the basis of slavery, right up until the Civil War, was a national project that enjoyed, but for a few scattered abolitionists, national support. Similarly, much of the federal government’s current paralysis is directly the fault of the Constitution’s enshrinement of colonial-era divisions and states’-rights ideology in the structure of our governing institutions. Taking Sherman off his Capitol Hill pedestal would mark a worthy beginning, but one that is ultimately symbolic. Of far greater substance and significance would be doing away with that even more prominent monument to the founders’ fetish for compromise and corrupt bargains: the Senate of the United States.

Read the entire piece here.

Discuss. 🙂

By the way, Kreitner anticipates the “where do we draw the line?” argument:

Conservatives immediately resort to the “where does it all end?” argument. What about slave-owners George Washington and Thomas Jefferson? Is Abe Lincoln next? Yet the answer is not complicated: we shouldn’t endeavor to remove every person who ever uttered an unwoke word or did any kind of dastardly deed. There ought to be a high bar for removal—some kind of equation balancing the degree of the wrong the person did with the magnitude of its consequences.

I submit that Roger Sherman meets the necessary threshold. He is memorialized by one of the statues representing the state of Connecticut. We have Sherman to thank for two of the most celebrated and most odious compromises that made it into the Constitution. One nearly destroyed the Union; the other may yet. Yanking Sherman out of the Capitol would be a gesture worthy of our growing realization of how deep the roots of white supremacy reach, how thoroughly our political system has been tainted by the protections it affords to the power and privilege of wealthy white men. This is unlikely to occur, however, for to repudiate Roger Sherman would be to effectively repudiate the Constitution of the United States, even the Union as we have always known it.

Based on Kreitner’s logic, wouldn’t everyone who signed the Constitution be “morally complicit?” But perhaps that is his real point.

The Author’s Corner with Gregory Downs

the second american revolutionGregory Downs is Professor of History at the University of California, Davis. This interview is based on his new book, The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (University of North Carolina Press, 2019).

JF: What led you to write The Second American Revolution?

GD: A gnawing pit in my stomach and a sense of unfinished business and a golden opportunity. The gnawing pit was from a feeling that I hadn’t done what I genuinely intended to in my American Historical Review essay “The Mexicanization of American Politics: The United States’ Transnational Path from Civil War to Stabilization.” I began that research with an interest in the interaction between domestic/national politics and international events, in the way that events in other nations shaped the discourse around what was possible or probable, and I wanted to use this to show U.S. politics as less bounded than our received terms convey, to explore the mutual construction of what gets classed as national and trans-national history, and to capture the ebb and flow of ideas through particular domestic political contexts. In the process of following the inflow of ideas about Mexican crises to U.S. politics in the 1850s-1870s, however, I never got to the truly interactive nature of those connections, and so in some ways reproduced a domestic framework, in which the United States was influenced by cultural ideas about other nations. This made me uncomfortable, as I knew there was a great deal to the Mexican side of the story that I hadn’t explored, and it also gave me a sense of unfinished business: how could I go further in exploring the mid-19th century as a broad crisis in republican theory, in which calculations of how (and whether) republics survived were shaped by ideas and political actors moving from one nation to another. There was much more to be said about the relationship between the United States mid-century crises and those in other countries.

The opportunity came in the Brose Lectures which gave me a format and an excuse to explore ideas that were historiographically important but might not fit easily into a book. And as I began reading and thinking more deeply, I became more impressed with the ways that the literature was already working to incorporate a multi-sided view of the U.S.-Mexican influence (especially in work by Erika Pani and Pat Kelly and others) and also with a thread I had worried over earlier but not followed: the centrality of Cuba. By following Cuban revolutionary exiles, I was able to find a way to follow circuits into and out of different countries’ domestic politics and to explore the connection between the revolutionary remaking of U.S. political structures and a global revolutionary wave that rose and then fell in the mid-19th century.

JF: In two sentences, what is the argument of The Second American Revolution?

GD: The Civil War was not merely civil–meaning national–and not merely a war, but instead an international conflict of ideas as well as armies. Its implications transformed the U.S. Constitution and reshaped a world order, as political and economic systems grounded in slavery and empire clashed with the democratic process of republican forms of government.

JF: Why do we need to read The Second American Revolution?

GD: The book examines the breadth of U.S. politics at a moment when we need to recover our sense of the bold and of the possible. Much of the book is dedicated to exploring those international currents I mentioned, and those have important (I believe) historiographical ramifications for U.S. history and potentially some interest for historians of Cuba and the Caribbean and 19th century Spain.) But the book also turns inward to examine the norm-breaking boldness of U.S. Republicans in the 1860s as they created new states, forced constitutional amendments through, marginalized the Supreme Court, and in other ways significantly altered the political system. Then, I argue, they covered their tracks in order to make their achievements seem moderate, and we have helped them do so by scolding them for their moderation. But in fact no political candidate offers solutions anywhere near as bold as “moderate” 1860s Republicans; no one matches John Bingham in threatening to dissolve the Supreme Court entirely if it doesn’t recognize the role it must play. Instead we have fallen into calling for respect for norms that are—as in the 1840s and 1850s—no longer respected. When faced with those norm violations, we tend to call for the referees. But there are no referees, other than the electorate. And to the electorate we make claims about broader failings but can’t offer plausible solutions; we tell them the political system is broken but don’t fix it. I think we need to recover our boldness and abandon our sense of futility. Rethinking the constitutional transgressions of the Civil War is one way we can expand our own political thinking to make it at least approach the boldness of allegedly moderate 1860s Republicans, and thus discover ways out of problems like the contemporary Supreme Court, the Senate, and other sticky but intractable problems of U.S. politics.

JF: When and why did you decide to become an American historian?

GD: As a child I was raised between Kauai and my extended family’s home of central Kentucky and my extended family’s eventual new home in Middle Tennessee, and I was from a young age fascinated by the differences between those places, by the way that race and politics and memory worked so differently in Kauai than in Kentucky, and by the shadow that events (the overthrow of the Hawaiian monarchy or the Civil War) continued to gnaw upon the present. I worked as a journalist and as a high school teacher, so I didn’t always know that I would be an academic historian, but I always believed that the study of the past was venerable, difficult, and essential.

JF: What is your next project?

GD: I am working on completing my friend Tony Kaye’s manuscript on Nat Turner, a project he was working on when he died. After that I have many projects I am contemplating and am enjoying the time to reflect on what I most want to do and most feel challenged by.

JF: Thanks, Greg!

The Trump Impeachment Has Revealed Three “Deep Flaws” in the Constitutional System

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Michael Gerhardt, a constitutional law professor at the University of North Carolina, writes at The Atlantic:

…few think that the acquittal of President Trump is a triumph for the Constitution. Instead, it reveals a different, disturbing lesson, about how the American political system—and the Constitution itself—might be fundamentally flawed.

Since the writing of the Constitution, three developments have substantially altered the effectiveness of impeachment as a check on presidential misconduct.

They are:

  1. Extreme partisanship
  2. The internet and social media
  3. The direct election of Senators

See how he develops these points here.

What Did the Founding Fathers Say About Impeachment?

House Managers

House managers in the impeachment trial of President Donald Trump filed their brief to the Senate today.  The brief describes Trump’s behavior with Ukraine “the Framers’ worst nightmare.”

So what did the Framers of the United States Constitution say about impeachment?

Here is a nice summary from the United States Constitution Center:

One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials through the impeachment process. But what did the Founders who crafted that language think about the process and its overall intention?

The need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early at the 1787 convention in Philadelphia. Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the Impeachment Clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention.

Today, impeachment remains as a rarely used process to potentially remove the “President, Vice President and all civil Officers of the United States” if Congress finds them guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

In all, 19 federal officials have been brought up on impeachment charges by the House of Representatives since 1789, with eight people convicted after a Senate trial. Two Presidents – Andrew Johnson and Bill Clinton – faced Senate trials but were not found guilty by a two-thirds majority of the Senate.

The threat of impeachment remains a power check, at least in theory, against the abuse of power, and it is sometimes discussed in times of political controversy, as well as in cases where there is a clear issue with personal conduct in office. Of the eight persons impeached and convicted in Congress, all were judges who faced charges including perjury, tax evasion, bribery, and in one case, supporting the Confederacy.

At the 1787 convention, delegate Edmund Randolph quickly brought up the subject as part of his Virginia Plan. William Patterson’s rival New Jersey Plan had its own impeachment clause. National Constitution Center scholar-in-residence Michael Gerhardt explained the differences in his book, “The Federal Impeachment Process: A Constitutional and Historical Analysis.”

Read the rest here.

“Promote the General Welfare”

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We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Over at The Washington Post, historian J.M. Opal reflects on this often overlooked phrase in the preamble to the United States Constitution and suggests that its application might provide a way forward.

Here is a taste of his piece “How the Constitution can help reclaim government for all of us“:

The impeachment process calls our attention to the Founders’ fear of government gone wrong. As we start a new year, we remember all their warnings and safeguards against unscrupulous men in high places.

Perhaps their wisdom from 1787 will help us turn the page on Donald Trump in 2020. To fully recover from his abusive reign, however, we’ll also need to recall our pro-government traditions, starting with the pledge in the Constitution’s preamble to “promote the general Welfare.”

This clause has deep roots in European statecraft, according to which the sovereign took care of his subjects in return for their fealty. In the 18th century, the general welfare, or salus populi, took on the more positive spirit of the Enlightenment. The goal of human society was not just survival but also happiness, the Swiss jurist Emer de Vattel noted in 1758, and so governments should positively promote “a true and solid felicity” within their countries.

Promoting the general welfare could mean building roads or schools with tax money. It might encourage ingenuity through patents and copyrights or foster public health with quarantines and regulations. And it sometimes required the public to overrule the selfish “rights” of careless or ruthless individuals.

Far from rejecting this tradition, the American revolutionaries gave it a more democratic cast. As Pennsylvania’s new constitution of 1776 put it, governments were made for the “common benefit” of the people, “and not for the particular emolument or advantage of any single man, family, or set of men.” In a republic, the population-at-large rather than any nobility or priesthood was the privileged order — the group deserving of the government’s care. Vermont used similar language the next year, in the modern world’s first constitution prohibiting slavery.

Read the rest here.

Jonathan Turley: Trump WAS Impeached

Trump impeachment

Was Trump impeached?

Last weekend Harvard Law professor Noah Feldman argued that Donald Trump will not be officially impeached until the House transmits the articles of impeachment to the Senate.

Jonathan Turley disagrees.

Some of you may remember Turley.  He is the George Washington University law professor who argued before the House Judiciary Committee on December 4, 2019 that there was not enough evidence to impeach Donald Trump. (The other three law professors called to testify–Pamela Karlan of Stanford, Michael Gerhardt of UNC-Chapel Hill, and Feldman–argued that Trump’s phone call to Ukrainian president Zelinsky was an impeachable offense).

In a recent Washington Post op-ed titled “I testified against Trump’s impeachment. But let’s not pretend it didn’t happen,” Turley writes:

Last Saturday in West Palm Beach, Fla., in remarks to a group of young supporters, President Trump road-tested a talking point that appeared to be aimed at changing the narrative around his December impeachment: “You had no crime. Even their people said there was no crime,” he said of congressional Democrats, before adding: “In fact, there’s no impeachment. There’s no — their own lawyers said there’s no impeachment.”

Trump was clearly baiting House Speaker Nancy Pelosi (D-Calif.) after she refused to send her chamber’s two just-passed articles of impeachment to the Senate before leaving town for the holidays. The move caused something of a stalemate with Senate Majority Leader Mitch McConnell (R-Ky.) and precipitated a curious debate about whether Trump is actually impeached. It’s unclear what Pelosi and McConnell may do in their game of constitutional chicken between now and when the House reconvenes in January, but one thing is clear: Trump was impeached.

As I testified earlier this month before the House Judiciary Committee, I was opposed to this impeachment. While I said that this president could be legitimately impeached on these two articles, abuse of power and obstruction of Congress (while rejecting other potential articles like bribery), the record is the thinnest of any modern impeachment to go to the Senate, which could result in a trial as cursory as its investigation. Trump’s suggestion that he remains unimpeached appears based on a theory recently floated by my colleague, Harvard Law School’s Noah Feldman, that “Trump Isn’t Impeached Until the House Tells the Senate.” But while this theory may provide tweet-ready fodder for the president to defend himself and taunt his political adversaries, it’s difficult to sustain on the text or history or logic of the Constitution.

Read the rest here.

Was Donald Trump Impeached?

Cassidy-ImpeachmentGOPMemo

Noah Feldman of Harvard Law School is one of the legal scholars who testified before the House Judiciary Committee.  He was one of the three (of four) lawyers who concluded that Trump’s phone call to Ukraine and his obstruction of Congress were impeachable offenses.

In his most recent column at Bloomsberg News, Feldman argues that the House has not yet impeached Donald Trump.

Here is a taste:

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

Read the entire piece here.

Some Founders Wanted an Impeached President to be Suspended from Office Until Tried and Acquitted

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Gouverneur Morris

This did not make it into the Constitution, but John Rutledge of South Carolina and Gouverneur Morris  of Pennsylvania thought it might be a good idea.

September 14, 1787:

Mr. Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing Magistrate.

James Madison’s at the Constitutional Convention on “Impeachment of the Executive”

e89b2-madisonJuly 20, 1787:

Mr. Madison thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Italics are mine.

Historian Saul Cornell on Originalism and the Impeachment Process

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Fordham University historian Saul Cornell asks, “How should the Constitution’s provisions on impeachment be interpreted?”  I am glad to see a historian weighing-in here.

Here is a taste of Cornell’s piece at The New Republic:

Another problem with originalism’s approach to history is its static (which is to say, decidedly ahistorical) view of the past. American legal and constitutional history did not pause in freeze-frame when the Constitution was ratified in 1789. And constitutional meaning has likewise not remained frozen over the course of American history, a point that the Founding generation well understood. Even James Madison came to recognize that constitutional meaning would evolve, both through the decision of the courts and through actions taken by the people themselves beyond the formal jurisdiction of the courts. In the 1790s, Madison vigorously opposed Alexander Hamilton’s belief that the Constitution allowed the federal government to charter a bank, but by the era of the War of 1812 he had come to realize that such an institution was a necessity—and all branches of the federal government and the American people had also embraced the federally chartered financial system in a host of ways by then.

Finally, in contrast to originalists, liberal legal scholars need to recognize that interpreting the Constitution inevitably requires some form of translation—taking concepts rooted in the realities of the eighteenth century and trying to make sense of them in our own. Perhaps the best way to illustrate the importance of translation to the entire enterprise of constitutional interpretation is to look at a claim made by the ranking Republican member of the House Intelligence Committee, Devin Nunes, during that committee’s impeachment inquiry last month. Nunes claimed that Trump’s efforts to use Rudolph Giuliani to conduct a shadow foreign policy in Ukraine were no different from George Washington’s decision to dispatch John Jay to negotiate a treaty with Great Britain in the 1790s.

In his flat-footed historical analogy, Nunes suggested that his House Democratic colleagues likely would have impeached Washington for dispatching Jay. Of course, any comparison between Giuliani and Jay is preposterous on multiple levels. Jay was a co-author of The Federalist, chief justice of the Supreme Court, and had extensive diplomatic experience, notably stemming from his tenure as the secretary of foreign affairs under the Articles of Confederation. He was not only one of the most distinguished lawyers of the Founding generation but was one of the most experienced diplomats in the new nation. Moreover, at the time that Washington turned to Jay to negotiate a treaty, there was nothing even remotely resembling the modern State Department. The original State Department consisted of six employees. (By 1824, the department’s staff had more than doubled, to a size of 13.) The geopolitics of the Jay overture were also strikingly different from those of the Ukraine affair: Jay was then negotiating for America from a position of weakness with the most powerful nation on earth. In 2019, America was the most powerful nation on earth, and Ukraine was in a position much weaker than America was at the time of the Jay treaty. Finally, and most importantly, Jay was advancing American interests and acting as an official representative of the American nation; he was not a private actor furthering Washington’s personal interests (and his own).

Moreover, if Nunes had dug deeper, he would have learned that many Americans did demand that Washington face impeachment. (Effigies of Jay were burned in cities across the new nation, a fate that Giuliani has thus far avoided.) Washington rebuffed demands from the House of Representatives that he turn over documents related to Jay’s instruction: Indeed, Washington’s decision laid the groundwork for the idea of executive privilege that the Trump administration has repeatedly asserted over the course of today’s impeachment proceedings. (The concept of executive privilege claims no originalist pedigree to speak of. It appears nowhere in the text of the Constitution and can’t be sanctioned by a strict originalist theory of interpretation.) Yet once he’d asserted this privilege, Washington himself expressly conceded that if Congress requested such materials in the context of an impeachment inquiry, he would have to produce them. Thus, a genuine examination of the relevant history here not only undermines Nunes’s facile analogy, but also sets up the foundation for another impeachable offense. The refusal of the Trump administration to turn over documents critical to the House’s impeachment inquiry is itself an example of a high crime and misdemeanor and hence an impeachable offense.

Read the entire piece here.

Four Scholars Will Testify Before the House Judiciary Committee in Tomorrow’s Impeachment Hearing

Turley

Jonathan Turley will be testifying tomorrow before  the House Judiciary Committee

Tomorrow the Judiciary Committee will hear from four witnesses, all constitutional scholars.  They are:

Noah Feldman of Harvard University.  He is also a Bloomberg News columnist and the author of a biography of James Madison.

Pamela Karlan of Stanford University.  She was the U.S. Deputy Assistant Attorney General for Voting Rights in the U.S. Department of Justice Civil Division during the Obama presidency.

Michael Gerhardt of the University of North Carolina.  He is on record saying that the impeachment inquiry is “fully legitimate.” Gerhardt is Scholar in Residence at the National Constitution Center.

Jonathan Turley of George Washington University.  He is a prolific blogger.  He is probably the most familiar face among the four law professors testifying because he is often on television news programs.

Three of these witnesses were selected by Democrats, and one by Republicans.  Based on what I know about Turley, I am guessing that he was chosen by the Republicans.

This should be fun, but why won’t any historians be testifying?

Federalist 65

Context

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole commuity, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

PUBLIUS.

Source

For more context I recommend this book.

How to Think About Anti-Federalists

sam-adams-head-shot

Sam Adams: Anti-Federalist

Today is Constitution Day.  Over at American Studier blog, Ben Railton turns his attention to the opponents of the Constitution–the Anti-Federalists.  Railton offers three helpful suggestions for framing the Anti-Federalist opposition.  They are:

  1. Revolutionary Radicals (Samuel Adams and Patrick Henry)
  2. Advocates for Rights (George Mason)
  3. Future Democratic-Republicans  (Unless I am reading him wrong, Railton suggests that Jefferson was at the Constitutional Convention.  He was not).

See how Railton unpacks these categories here.

Boris Johnson Wants to Suspend Parliament. Could Trump Suspend Congress?

Boris

In case you haven’t heard, British Prime Minister Boris Johnson asked Queen Elizabeth II to suspend Parliament for five weeks so he can silence dissenters as he leads Great Britian’s departure from the European Union.  Get up to speed here and here.

Could something similar happen in the United States?  Could the President of the United States suspend Congress?  Eliga Gould, a professor of history at the University of New Hampshire, explains why such a move would be unconstitutional.  Here is a taste of his piece at The Conversation:

When Americans started debating what sort of government they wanted for the United States, they knew they needed an executive with some of the vigor that they associated with a monarchy. What they had in mind, however, was different from the British crown. The monarch, as Alexander Hamilton wrote in the “Federalist” essays, was a “perpetual magistrate,” who had powers that were limited only by whatever rules he or she chose to observe.

The newly created role of U.S. president, by contrast, had clearly defined powers under the Constitution, as did Congress. Crucially, the power to summon or dismiss Congress belonged to the House of Representatives and the Senate, which together decided when to convene and when to adjourn. The position of president, in other words, was intentionally designed without the authority to reproduce the 11-year tyranny of King Charles – or the five-week suspension of Queen Elizabeth II and her current prime minister.

Read the entire piece here.

Joanne Freeman on Federalist No. 76 and the Whitaker Lawsuit

Trump and Whitaker

A group of Senate Democrats–Richard Blumenthal (D-Conn), Sheldon Whitehouse (D-R.I.), and Mazie K. Hirono (D-Hawaii)–has filed a lawsuit against the Trump administration.  The suit challenges the constitutionality of the appointment of Matthew Whitaker as acting attorney general.

The suit invokes the Constitution’s Appointments Clause and references Alexander Hamilton in Federalist 76:

The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”

On Twitter, Yale historian Joanne Freeman provides some context:

The Author’s Corner with Jonathan Gienapp

41ZCgkF5jaL._SX327_BO1,204,203,200_.jpgJonathan Gienapp is Assistant Professor of History at Stanford University. This interview is based on his new book The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press: An Imprint of Harvard University Press, 2018).

JF: What led you to write The Second Creation?

JG: I had long been interested in Revolutionary American political culture, intellectual history, and constitutionalism. Initially, I focused most of my attention on the period leading up to the drafting of the United States Constitution. Like so many historians, I instinctively distinguished the pre- and post-1788 periods, assuming that the formal ratification of the Constitution marked a sharp break in American history and a convenient way of bringing the Revolutionary period to a close. But then I found myself attracted to the 1790s and the post-ratification period. I was especially drawn to early debates over constitutional interpretation, not least because they had been far less studied than more famous debates that took place at the Constitutional Convention and then during ratification. Moreover, I began realizing that these early constitutional debates were sprawling and untamed. They often began focused on something specific before quickly morphing into broad, unfettered debates that grappled with what seemed to be almost meta-constitutional questions. That is, participants were not simply applying the Constitution to emerging problems; more fundamentally, they had to gain a deeper understanding of what the Constitution itself even was in order to even begin to know how to apply it. It became clear to me that participants kept having to discuss these broader matter because they were attempting to engage in constitutional debate without the benefit of any working rules for acceptable constitutional argument. They had to invent those rules, those practices, those norms as much as they could simply apply them. In other words, they had to invent the practices that made the Constitution intelligible and usable. From there I became really taken with the idea that the post-1788 period was as a much a chapter in constitutional creation as it was one in constitutional interpretation and it was worth reevaluating the whole period from that perspective.

JF: In 2 sentences, what is the argument of The Second Creation?

JG: It is often assumed that the United States Constitution was fully created in 1787 and 1788 when it was written and ratified. But because so much about the Constitution was shrouded in uncertainty even after these processes were complete, debates immediately following the document’s ratification did as much to give the Constitution its definitive identity as anything that came before.

JF: Why do we need to read The Second Creation?

JG: In forcing readers to reimagine the conventional story of American constitutional creation, The Second Creation forces historians and American citizens alike to reimagine the Constitution itself. It tries to show how certain ways of thinking about the Constitution, ones that are often taken to be essential, are in fact quite contingent; that it wasn’t simply the Constitution’s raw essence that made people begin assuming that it had certain kinds of definitive features. In fact, a lot of those habits of thought–habits that continue to inform how people think and argue about the Constitution today–were invented after the Constitution was written during the explosive decade that followed its ratification. Recognizing this fact is especially important in light of the charged debates over the theory of constitutional originalism that continue to dominate modern constitutional argument. Today, originalism is as popular and powerful as ever and its champions continue to insist that the Constitution should be interpreted now in accordance with its original meaning–the meaning it had when it was first written and ratified. Yet, as I attempt to show, all efforts to recover the original meaning of the Constitution must first reckon with the fact that the Constitution was not fully created in 1787-1788, that the original Constitution itself was in profound flux when it first appeared. Debates over originalism–which are as much about the Constitution’s role in American life today as what happened in the 18th century–ought to be informed by a deeper understanding of the original Constitution itself.

JF: When and why did you decide to become an American historian?

JG: My father was an American historian so I like to say that the apple didn’t fall far from the tree. But I was first intensely drawn to early American history as an undergraduate when I read Bernard Bailyn’s The Ideological Origins of the American Revolution and shortly thereafter Gordon Wood’s The Creation of the American Republic for the first time. What I remember most vividly was less the content or even the arguments of either (although both were stimulating) but more the approach that each embodied: that recapturing the intricacies of the intellectual world of the American Revolution required a meticulous exhumation of a lost conceptual world. I was drawn to the idea that the study of history, even a period and place as seemingly familiar as Revolutionary America, required this kind of deep excavation. I found the past so much more interesting when I realized that understanding it required this kind of careful, immersive work. And I found the historian’s task that much more urgent since it seemed to primarily consist of learning how to climb inside other people’s heads and make sense of their world from their perspectives. It required bracketing one’s own working assumptions and learning how to think like somebody else once had. I have never lost sight of those lessons and, as much as my thinking has changed and developed since those early days, those experiences remain formative. They continue to explain why I became a historian.

JF: What is your next project?

JG: My next project seeks to rethink the rise of American democracy in the late 18th and early 19th-century United States by interrogating, not how American political culture came under greater popular control, but how a peculiar understanding of “democracy” emerged in the first place. A technical concept in political science up to that point, “democracy” came to acquire novel and expansive meaning during this period, morphing into the definitive norm by which all modern political practice has come to be judged. To explain why, classic accounts often focus on popular political transformations. But these transformations did not necessitate a corresponding shift in political language and consciousness. They could not, in their own right, force anybody to call such transformations or the practices they initiated “democratic.” During this period, “democracy” and its cognates took on profoundly new meanings as it was aggressively mobilized in several distinct contexts and in service of several distinct purposes. The project seeks to understand why Americans’ usage and understanding of this crucial word and concept transformed in such fundamental ways–why democracy became such an authoritative standard of political life.

JF: Thanks, Jonathan!