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

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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

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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

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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!

Constitution Day Reading

Federalist Papers

Today is Constitution Day.

Here are some history books (and one primary source) on the Constitution that I have found helpful:

The Federalist Papers

Richard Beeman, Plain, Honest Men: The Making of the American Constitution

Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution

Pauline Maier, The People Debate the Constitution, 1787-1788

Max Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State

Gordon Wood, The Creation of the American Republic

Akhil Amar, America’s Constitution: A Biography

Woody Holton, Unruly Americans and the Origins of the Constitution

“Amending America” Exhibit Comes to Lancaster, Pennsylvania

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You can see the National Archive’s exhibit “Amending America: The Bill of Rights” at LancasterHistory.org in Lancaster, PA.  Learn more from Jennifer Kopf‘s piece at Lancaster Online.  Here is a taste:

Two years ago, on the 225th anniversary of that Bill of Rights, the National Archives curated an exhibit that explores how those first 10 amendments were composed. “Amending America: The Bill of Rights” then went on a cross-country tour of America that arrives in Lancaster later this week.

When “Amending America” opens at LancasterHistory.org Saturday, it will be the 11th stop on a tour that’s taken the exhibit to the presidential libraries of Gerald Ford and Richard Nixon, the home of Founding Father George Mason, a museum in Dealey Plaza, Dallas, and, most recently, to the Jewish Museum of Maryland in Baltimore.

Using reproduction documents and petitions, political cartoons and interactive stations, the exhibit also will have a feature none of the other stops on the tour has had.

Local curators have assembled a complementary exhibit on President Jame

AmendingAmerica_Web

s Buchanan and Congressman Thaddeus Stevens. Both immensely powerful mid-19th-century politicians and both Lancastrians, Stevens and Buchanan held radically different ideas about what powers were permitted and prohibited by the Constitution.

Robin Sarratt, vice president of LancasterHistory.org, says the timing of the exhibit’s arrival here “is fortuitous.”

“Amending America,” Sarratt says, encourages the process of asking questions, of thinking about what citizenship means, about what the words in the Constitution and Bill of Rights meant in that era — and what they mean today.”

Read the entire article here.

Saul Cornell on the “Mythic Second Amendment”

CornellFordham University’s Saul Cornell, the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, explains the myth that the Second Amendment relates to the history of the American frontier.  Here is a taste of his piece, “Bearing Arms vs. Hunting Bears: The Persistence of a Mythic Second Amendment in Contemporary Constitutional Culture“:

The myth of the frontier is one of the most enduring in American history; it has been commodified and used to market everything from cigarettes to cars, and has been central to firearms sales for more than a century. It is a little shocking that the same myths used to sell cigarettes played a pivotal role in two federal appeals court decisions: Moore v. Madigan and Peruta v. San Diego. Both cases evoked “the familiar image” of an armed “eighteenth-century frontiersman . . . ‘obtain[ing] supplies from the nearest trading post.” Contrary to this mythic view of the American past, the bulk of the nation’s population in the eighteenth century was clustered along the coast, not the frontier. Nor is there any evidence that members of the Founding era such as George Mason or James Madison were thinking about the plight of the tiny percentage of the American people who lived on the frontier when they discussed the right to keep and bear arms in the Virginia Ratification Convention. The debates in the First Congress certainly do not afford much evidence that this was a major concern. Given the realities of American society at this point in the nation’s history, such concerns would have been odd. In 1790, the mean population center of the United States, a standard measure of population distribution, was situated somewhere between Baltimore and Philadelphia, not western Kentucky, northern Maine, or the Ohio valley.

Frontier mythology has shaped another aspect of the current debate over firearms policy and the law. In response to the horrorific shooting at Sandy Hook Elementary School, the NRA’s Wayne LaPierre warned that the “the only thing that stops a bad guy with a gun is a good guy with a gun.”Setting aside the policy debates and statistics about the utility of armed self-defense, particularly in active-shooter scenarios such as schools, the suggestion that giving a guy a gun turns him into an effective agent of law enforcment, it itself part of a set of myths about regenerative violence dating back to colonial America. The leading historian of this mythology, Richard Slotkin, has charted how this motif has been constantly re-invented in American popular culture over the long arc of American history. David Crockett has morphed into Jason Bourne, and most recently the iconic image of a gun-toting hero is more likely to fight off alien invaders or the hordes of the zombie apocolypse than the marginalized others of earlier mythic tales of violence and redemption.

Read the entire piece at The Panorama.

Allen Guelzo on Why History Shows Impeachment May be a Bad Idea

Andrew_Johnson_impeachment_trial

Abraham Lincoln and Civil War scholar Allen Guelzo reminds us what happened when Andrew Johnson was impeached.  The subtitle of his recent Wall Street Journal piece is “Many members of Congress in 1868 hoped to remove a president they merely disliked.  It didn’t go well.”  Here is a taste:

If the Democrats win the House in November, they’ll come under pressure to impeach President Trump. Even if Robert Mueller fails to turn up some astounding surprise, many Democrats want to impeach Mr. Trump because they simply don’t like him. Since the Constitution specifies that a president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” such a move would mean Democrats consider being disliked by the House majority to be a disqualifying crime.

That is precisely what many members of Congress thought 150 years ago this week, at the conclusion of the first impeachment of a sitting president, Andrew Johnson. The 17th president’s impeachment offers the important lesson that although the mechanism for impeachment is easy, the subsequent process of trial, conviction and removal from office is not. A failure at that stage of the process covers everybody with embarrassment—impeachers and impeached alike.

 

Read the rest here.

Guelzo seems to be preparing for the Democrats to take the House.  It is definitely a possibility.

How Trump Undermines Democracy

Framers CoupMichael Klarman is the Kirkland & Ellis Professor at Harvard Law School and the author of The Framers’ Coup: The Making of the United States Constitution. (See our Author’s Corners interview with Klarman here).

Check out his piece at Process: “Trump, Democracy, and the Constitution.”

Here is a taste:

At the Philadelphia Convention of 1787, Elbridge Gerry, a delegate from Massachusetts, warned against too much democracy. The people, he stated, were “the dupes of pretended patriots” and were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men.” Two hundred and thirty years later, Gerry’s concerns—which most of the framers shared—were vindicated: the American people elected a president who disdains basic tenets of democracy.

Democracy depends on norms, some written into the Constitution, others implicit in it. Donald Trump regularly disparages or repudiates at least ten of these norms: (1) an independent judiciary; (2) the freedom of the press; (3) the presence and function of independent actors within government; (4) the peaceful resolution of political disputes rather than the encouragement of violence; (5) the acknowledgment of the legitimacy of election results and recognition of the sanctity of the right to vote; (6) a refusal to threaten legal prosecution against political opponents; (7) the condemnation of brutal foreign dictators; (8) a respect for transparency within government; (9) a sharp separation between the private and public interests of governmental officials; and (10) at least a minimal commitment to the truth. These norms are essential to American democracy, yet Trump routinely violates them.

Read the rest here.   I discuss some similar ideas in my forthcoming Believe Me: The Evangelical Road to Donald Trump.

Read the rest here.

The Problem of the 1780s

ArticlesOver at The Nation, historian Richard Kreitner interviews Seattle University Law Professor George William Van Cleave about his new book We Have Not a Government: The Articles of Confederation and the Road to the Constitution.   I hope to read Van Cleave’s book at some point since I don’t think I have ever read a book-length treatment of the Articles of Confederation.

Here is a taste of the interview:

RK: The overarching problem of the 1780s, as you write, was “stalemate government.” Why were things so blocked up?

GWVC: There are two basic reasons. First, the structure of the Confederation itself. The government designed by the Articles of Confederation made it easy for relatively small groups of people—especially individual states or sections of the country—to block any change. There was a requirement for every single state to agree to alter the powers of the Confederation. At least nine states needed to support any significant fiscal or military legislation. Any section could say, “We’re opposed to this, so it’s not gonna happen.” This happened repeatedly throughout the period I’m writing about.

The other significant reason is that from the beginning the Union had been a pretty loose alliance, so people felt relatively free about saying they just didn’t feel like going along with a particular policy. New York is a great example. New York City had one of the major ports in the United States, and the import taxes were very profitable for the state, which didn’t have to raise other kinds of taxes. But the rest of the states wanted to pass a federal import tax, which would have forced New York to give up its own. That was anathema for New York’s political leaders, who thought about how they could block such a tax every time they got out of bed. But, under the Articles of Confederation, there was no way for Congress to impose sanctions on New York for holding out, even if all the other states wanted to go forward. The result was stalemate.

Read the rest here.

 

The Real History of the Second Amendment

CornellIn an earlier post I recommended Fordham University historian Saul Cornell‘s book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  It is the best historical account of the Second Amendment that I have read.  I was again reminded of why I admire Cornell’s book when I read his recent piece at The Baffler titled “Gun Anarchy and the Unfree State.”

Here is a taste:

To begin reckoning with this challenge, it’s worth pausing to consider the entire wording of the Second Amendment. Contrary to what the NRA would have us believe, the amendment does not even mention guns, but instead proclaims, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, the Second Amendment, in contrast to the First Amendment, contains a preamble; an introductory clause affirming the necessity of a well-regulated militia. This arcane Latinate construction so dear to the Founding generation was an ablative absolute. Translated into modern parlance, the amendment would read something like this: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Also, note what the aim of a citizen’s militia is: achieving the security of a free state. In other words, the Second Amendment not only ties the right to keep and bear arms to a particular means, but it states a clear purpose. What, then, is entailed in promoting the security of said “free state”? To begin with, we should clearly stipulate that the individual right of self defense—the one closest to the heart of modern Americans—denoted something very different from a free state’s maintenance. Americans esteemed this right, but did not have much to worry about when it came to safeguarding it. Indeed, the right was such a fixture of Anglo-American law that John Adams used it as the basis for his defense of the British troops charged with murdering civilians in the Boston Massacre. An American jury empaneled to hear that case found Adams’s argument entirely persuasive and exonerated six of the eight soldiers.

So a free state’s security was something other than procuring the self-defense of a society’s individual members. It was, rather, a collective enterprise: In the eighteenth century, the security of a free state was accomplished by a well-regulated militia—a local institution, composed of citizen soldiers. And as the wording of the amendment makes plain, that militia was subject to extensive regulation by government. Indeed, militia statutes were typically the longest laws on the books in early America. So the logical question that one ought to ask—one that seldom gets raised in the contentious modern debate over the role of guns in contemporary American society—is this: How do we maintain and promote the security of a free state when we no longer live in small rural communities and depend on well-regulated militias? How can one enjoy liberty in a society awash in guns?

This is, at bottom, a historical question—one that’s largely anathema to the NRA and other advocates of expansive gun rights. Many gun-rights advocates fail to understand the actual historical background of the Second Amendment because our debates over gun ownership typically revolve instead around a potent set of myths that cloud our historical understanding. Chief among these myths is the iconic image of the “good guy with a gun,” eagerly manufactured and marketed by American popular culture. From the dime novels of the nineteenth century to Hollywood westerns and more recent figures such as Jason Bourne, a powerful entertainment folklore has infused the gun-rights narrative.  

Read the entire piece here.

On Treason

JeffersonDavisBenedictArnoldTreasonCartoon1865

Satan and Benedict Arnold welcome Jefferson Davis (right) to hell (Wiki Commons)

I think it was Virginia Senator Tim Kaine who her first raised the “T” word in the wake of news that senior officials in the Trump presidential campaign, including Donald Trump Jr., met with a Russian lawyer in June 2016.

“Treason” is not a word we use very much in political discourse.  The word harkens us back to an early age in American history.  For example, many will note that the patriots during the American Revolution committed treason against England.  Benedict Arnold committed treason in 1780 when he tried to hand West Point to the British.  Aaron Burr was tried for treason in 1807 after he tried to establish an independent republic from Spanish territory that he hoped to annex from Louisiana and Mexico (he was acquitted). John Brown was convicted of treason against the Commonwealth of Virginia after he led a slave rebellion on the arsenal at Harper’s Ferry.  He was executed.

Over at The Philadelphia Inquirer, historian Brian Carso, author of Whom Can We Trust Now?: The Meaning of Treason in the United States, provides some historical context for this whole Russia-gate mess.

Here is a taste:

When the Framers completed the Constitution in September 1787, a famous story tells of a woman who approached Benjamin Franklin as he left Independence Hall and asked him, “Dr. Franklin, what kind of government have you given us?” To which Franklin replied, “A Republic, if you can keep it.” Thus, Franklin defined the moral responsibility that is a birthright of every American citizen, which is “to keep it” — to preserve this republic, to put some thoughtful effort into maintaining this fragile experiment in democracy. We call it treason, when such efforts are betrayed.

For all its hyperbole and incendiary color, talk of treason is primarily a rhetorical shorthand that conjures deep-seated feelings of loyalty, national identity, and trust. Historically, when Americans speak of treason, they do so not to identify elements of law so much as to express concern for abstract notions of allegiance and political obligation that they recognize as a profound American tradition.

Prosecutors will have many diverse laws at their disposal to bring about justice should it be proved that individuals assisted the adversarial Russian regime’s interference in our democratic practice. The rest of us will gather about the water cooler, or the kitchen table, and talk about treason.

Read the entire piece here.

More Constitutional Craziness from David Barton

Here is the latest logic from David Barton‘s “Wallbuilders Live” radio program:

  • The Constitution does not mention God
  • The Declaration of Independence mentions God four times
  • The Constitution is “part two” of the Declaration of Independence
  • Thus the writers of the Constitution did not have to mention God again because they already mentioned God in the Declaration.

Listen:

There is absolutely no evidence for anything Barton says here.  He is making this up.  The idea that the founders believed the Constitution was a natural extension of the Declaration of the Independence in the way Barton describes it ignores everything that happened between 1776 and 1787.

I challenge Barton to show me any member of the Constitutional Convention who made the connection between the God-language of the Declaration of Independence and the lack of God language in the Constitution in the way Barton suggests.

I suggest Barton read the following books:

Gordon Wood, The Creation of the American Republic

Woody Holton, Unruly Americans and the Origins of the Constitution

Michael Klarman, The Framers’ Coup: The Making of the United States Constitution.

These books all do a nice job of explaining the complicated relationship between the Declaration of Independence and the Constitution.

So I guess I am one of these “brainless” professors Barton talks about.  Actually, he has called me worse .

I am also still waiting for Barton to apologize for this.

For a different approach to the religious dimensions of the Declaration of Independence and the U.S. Constitution check out Was America Founded as a Christian Nation?: A Historical Introduction.

Liberty Counsel and Conservatives on the Texas School Board Continue to Base Public Policy on False Historical Claims

Christian NAtionFact-checker extraordinaire Warren Throckmorton calls our attention to yet another example of politicians and cultural warriors using fake history to justify public policy proposals that have the potential of affecting millions of people. In this case, the perpetrators are the Liberty Counsel (Mat Staver) and the conservatives on the Texas School Board (defenders of prayer in schools).

This is an easy one.

I am sorry Mat Staver, but you are wrong.  Members of the Constitutional Convention meeting in Philadelphia in the summer of 1787 did not hold a prayer meeting that lasted “several hours.”  Benjamin Franklin called for prayer, but his call was rejected.

Here is what actually happened on Thursday, June 28, 1787:

Franklin’s proposal:

In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection.–Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a Superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth–that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that “except the Lord build the House they labour in vain that build it.” I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human Wisdom and leave it to chance, war and conquest.

I therefore beg leave to move–that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that service–

And the response:

Mr. Hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1. bring on it some disagreeable animadversions. & 2. lead the public to believe that the embarrassments and dissentions within the convention, had suggested this measure. It was answered by Docr. F. Mr. Sherman & others, that the past omission of a duty could not justify a further omission–that the rejection of such a proposition would expose the Convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within. would at least be as likely to do good as ill.

Mr. Williamson, observed that the true cause of the omission could not be mistaken. The Convention had no funds.

Mr. Randolph proposed in order to give a favorable aspect to ye. measure, that a sermon be preached at the request of the convention on 4th of July, the anniversary of Independence,–& thenceforward prayers be used in ye Convention every morning. Dr. Frankn. 2ded. this motion After several unsuccessful attempts for silently postponing the matter by adjourng. the adjournment was at length carried, without any vote on the motion.

Again–no multi-hour prayer meeting took place.  The motion was tabled. I discuss this incident on p.152 of Was America Founded as a Christian Nation?: A Historical Introduction.