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!

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

LHO_BuildingFrontSlider

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.

Not Everyone Who Studies the Past is a Historian

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A couple of weeks ago Stanford history professor Jonathan Gienapp published a critique of the so-called “originalist” approach to the interpretation of the U.S. Constitution.  Gienapp showed the difference between the ways historians think about the Constitution and the ways judges and lawyers think about it.

Georgetown law professor Randy Barrett responded to Gienapp’s piece here.

And now Gienapp has responded to Barrett with another lengthy post that is, once again, worth reading for it’s articulation of how historians approach the past, particularly the founding era. It is a great reminder that not everyone who studies the past is a historian and it returns to the old debate between the past as “usable” and the past as a “foreign country.”

Here is just a small taste of his piece at Process blog: “Knowing How Vs. Knowing That: Navigating the Past.”

…in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within.

Read the entire piece here.

Mary Sarah Bilder on “Originalism”

6c546-madisonSome of you may recall our Author’s Corner interview with Mary Sarah Bilder on her book Madison’s Hand” Revising the Constitutional Convention.

Yesterday Bilder turned to the pages of the Boston Globe to challenge the “originalist” interpretation of the United States Constitution.

Here is a taste:

The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.

Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

Read the entire piece here.

What Would the Founding Fathers Think About Originalism?

22c0d-united-states-constitution

Andrew Shankman, author of Original Intents: Hamilton, Jefferson, Madison, and the American Founding and the author of my favorite review of one of my books, says “not much.”

Here is a taste of his piece at History News Network:

President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.

Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.

Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.

Read the rest here.

I also recommend Jonathan Gienapp’s piece at Process, “Constitutional Originalism and History.”

No, Stephen Miller. That’s Not How it Works.

This post is pretty basic, but it needs to be said.  In this day and age there are a lot of “basic” things that need to be said about how our government works, how republics are maintained, and how a democratic society functions.

In case you missed, here is Trump adviser Stephen Miller suggesting on CBS’s Face the Nation that Donald Trump’s power to protect the country are “very substantial and will not be questioned.”

No Mr. Miller, that’s not how the United States government works.  We have a system of checks and balances in this country for the very purpose of “questioning” every decision that the President makes.

Here are some passages from James Madison’s Federalist #47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Again “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” 

Here is Madison in Federalist #48:

In a government, where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire.  (See my post “Political Jealousy is a Laudable Passion“).

Here is Madison in Federalist #51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

Here is George Washington in his 1796 Farewell Address:

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes.

Here is Thomas Jefferson in his Notes on the State of Virginia:

The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.

For a nuanced explanation of all this I recommend Aaron Blake’s piece at The Washington Post.

Did Benjamin Rush Believe That the U.S. Constitution Was Ordained by God?

benjaminrushIt certainly seems that way.

As Spencer McBride, the author of the newly released Pulpit & Nation: Clergymen and the Politics of Revolutionary Americawrites in a recent post at The Junto blog:

Rush was a Philadelphia physician, an eager student of the Enlightenment, and—during the late 1880s, at least—a devout Christian. He had signed the Declaration of Independence as a member of the Continental Congress, but left public office in 1778 to pay full attention to his medical practice. His election to the Pennsylvania ratifying convention marked his reentry into the political arena. Convention minutes recorded Rush asserting that he “as much believed the hand of God was employed in this work [of drafting the Constitution], as that God had divided the Red Sea to give passage to the children of Israel or had fulminated the Ten Commandments from Mount Sinai!” To Rush, “the unanimity of the [Constitutional] Convention, the general approbation of the Constitution by all classes of people, and the zeal which appeared everywhere… from New Hampshire to Georgia,” were “reasons to believe that the adoption of the government was agreeable to the will of Heaven.” He argued that “the Vox Populi” was the “Vox Dei;” that in a republican government, God manifested his will through the people. As the convention’s secretary summarized the speech, Rush was expounding upon a “new species of divine right.”

But McBride suggest that it is more complicated than this.  He continues:

As for the ideological context of Rush’s metaphysical language, we have seen that biblical references were prevalent in American political culture at this time. But because of Rush’s religious devoutness, it is possible to view his rhetorical style as possessing a greater level of biblical literalism than we would assume in the writings of men such as Thomas Jefferson, who used biblical allusions in a far more conventional way. When Rush used religious language in his letters and speeches, it was often as a way for him to mesh his religious beliefs with his scientific and philosophical studies. He recorded many of his meditations on this subject in his commonplace book. In one such instance, he wrote that “The affairs of men are governed alternately by and contrary to their wills, to teach us both to use our Reason and to rely upon Providence in all our undertakings.” On another occasion, he wrote that “God reveals some truths to our senses and to our first perceptions,” but that “many errors are [also] conveyed into the mind through both, which are to be corrected only by reason.” As an example of such a multifarious path to knowledge, Rush explained that without astronomical inquiry and investigation, mankind might still believe that the sun revolved around the earth. For Rush, men and women did not need to choose between enlightened reason and revealed religion. As paths to knowledge, they were complementary and codependent. Accordingly, Rush sought to make sense of the Revolutionary events shaping his life by Christianizing the Enlightenment and enlightening Christianity.

It was likely in this vein of thought that Rush professed his strong approval for the Constitution. Though his use of biblical language aligned with earlier American precedents for appropriating religion for ostensibly political ends, the ideological implications of Rush’s claims went beyond mere political propaganda. It had been over a century since the divine right of kings had been a viable political theory in the British Atlantic. Constitutional thought in England, and subsequently America, had been largely shaped by the liberalism of Thomas Hobbes, John Locke, and others who maintained that civil society originated by social compact and not by divine appointment. By 1788, these ideas were prevalent—even commonplace—in American society. But the idea that some form of divine intervention influenced state formation had not yet vanished entirely. Rush had not been in the Constitutional Convention, but owing to his experience as a former member of Congress, he found it incredible that the framers had agreed on a system of government despite the many competing interests of the states they represented. When Rush ascribed the near unanimity of the delegates to divine intervention, he was suggesting that God still intervened in the formation of civil governments, but that such intervention occurred in more enlightened, republican ways. It was, in a sense, the divine right of republics.

Read the entire post here.