What Did the Founding Fathers Say About Impeachment?

House Managers

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

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

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

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

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

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

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

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

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

Read the rest here.

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

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Gouverneur Morris

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

September 14, 1787:

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

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

e89b2-madisonJuly 20, 1787:

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

Italics are mine.

Slavery and the Nation’s Capital

Early Washington D.C.

Over at website of The White House Historical Association, public historian Lina Mann explains why slavery flourished in Washington D.C. 

Here is a taste:

For the first seventy-two years of its existence, the nation’s capital, Washington, D.C., harbored one of America’s most difficult historical truths and greatest contradictions: slavery. The city’s placement along the Potomac River, in between the slave states of Maryland and Virginia, ensured that slavery was ingrained into every aspect of life, including the buildings, institutions, and social fabric of Washington, D.C. Enslaved workers contributed to public building projects, were bought and sold within the boundaries of the city, and served many of the men who founded the nation. Slavery was alive and well in the President’s Neighborhood.

In June 1790, Secretary of State Thomas Jefferson sat down to dinner with Virginia Congressman James Madison and Secretary of the Treasury Alexander Hamilton. By the end of the evening, these men had agreed upon a new location for the United States capital. Prior to this dinner, a debate on its location divided members of the fledgling government. Hamilton and his supporters believed the capital should be in New York City, while others preferred Philadelphia or a location along the Susquehanna River in Pennsylvania. Southerners like Jefferson and Madison favored a location along the Potomac River, fearing that a northern capital would diminish southern power, undermine slavery, and encourage corruption among bankers, merchants, and creditors. That night, according to Jefferson’s recollections, the three agreed to place the capital along the Potomac in exchange for the federal assumption of states’ war debts from the American Revolution.

On July 16, 1790, Congress passed the Residence Act, moving the capital from New York to Philadelphia for ten years’ time and then permanently to the “river Potomack.”

By placing the seat of government firmly in the South, this legislation allowed slavery to flourish in the new capital. After President George Washington signed the Residence Act into law, he took an active role overseeing the construction of the Federal City. Working with French-born engineer Pierre (Peter) Charles L’Enfant, he selected a building site near his Mount Vernon estate at the confluence of the Potomac and Anacostia Rivers.

To establish this new Federal City, Maryland ceded about seventy square miles, while Virginia contributed around twenty.

President Washington also appointed three commissioners in January 1791 to manage city construction: Thomas Johnson, David Stuart, and Daniel Carroll.

All three men owned slaves.

Read the rest here.

George Will: The GOP is “a party of slow-learning careerists” who have tethered their “careers to a downward-spiraling scofflaw”

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I am glad that conservative columnist George Will is coming to Messiah College on October 31, 2019.  In yesterday’s column, Will rips into the Republican Party and its “canine loyalty” to Donald Trump.  Here is a taste:

In Federalist 51, James Madison anticipated a wholesome rivalry and constructive tension between the government’s two political branches: “Ambition must be made to counteract ambition. The interest of the man must be connected to the constitutional rights of the place.” Equilibrium between the branches depends on “supplying, by opposite and rival interests, the defect of better motives.” But equilibrium has vanished as members of Congress think entirely as party operatives and not at all as institutionalists.

Trump is not just aggressively but lawlessly exercising the interests of his place, counting on Congress, after decades of lassitude regarding its interests, being an ineffective combatant. Trump’s argument, injected into him by subordinates who understand that absurdity is his vocation, is essentially that the Constitution’s impeachment provisions are unconstitutional.

The canine loyalty of Senate Republicans will keep Trump in office. But until he complies with House committee subpoenas, the House must not limply hope federal judges will enforce their oversight powers. Instead, the House should wield its fundamental power, that of the purse, to impose excruciating costs on executive branch noncompliance. This can be done.

In 13 months, all congressional Republicans who have not defended Congress by exercising “the constitutional rights of the place” should be defeated. If congressional Republicans continue their genuflections at Trump’s altar, the appropriate 2020 outcome will be a Republican thrashing so severe — losing the House, the Senate and the electoral votes of, say, Georgia, Arizona, North Carolina and even Texas — that even this party of slow-learning careerists might notice the hazards of tethering their careers to a downward-spiraling scofflaw.

Read the entire piece here.

Donald Trump is Threatening James Madison’s Vision of Religious Freedom

WaldmanI haven’t had a chance yet to read Steven Waldman‘s new book Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom, but I have heard good things about it.  I was hoping to catch him next month at the Midtown Scholar Bookstore in Harrisburg, but, unfortunately, I will be out of town.

Here is a taste of his recent piece at Washington Monthly: Breaking the Faith“:

At the heart of James Madison’s vision was a system of fair competition among religions: the power of the state should not be used to favor one over another. Trump’s ascent to the presidency has challenged that principle directly: he proudly advertises his desire to favor one group, white evangelicals, over others, especially Muslims. 

“The Christians are being treated horribly because we have nobody to represent the Christians,” Trump said during the 2016 campaign. He promised not only to protect Christians from persecution but also to restore their dominance: “We have to band together. . . . Our country has to do that around Christianity.” Although Trump has advocated a few legitimate expansions of rights for religious people generally, he mostly has defined religious liberty downward, using the concept, for instance, to justify allowing tax-exempt churches to endorse political candidates. 

Meanwhile, Trump stocked his government with men allied to the most extreme anti-Muslim activists. Michael Flynn, his first national security adviser, dismissed Muslims’ claims that they should be protected by the First Amendment as a treacherous tactic. John Bolton, the current national security adviser, appointed as his chief of staff Fred Fleitz, the senior vice president of Frank Gaffney’s Center for Security Policy, one of the leading groups peddling conspiracy theories about the looming threat of sharia. After the Boston Marathon bombing in 2013, Secretary of State Mike Pompeo, then a member of Congress, claimed that the “silence of Muslim leaders has been deafening” and that therefore “these Islamic leaders across America [are] potentially complicit in these acts.”

Trump and the anti-Muslim extremists he has empowered have already degraded the basic rules that had long propelled America’s unique model of religious freedom. But things could still get much worse. After ten years of propaganda from Fox News, right-wing trolls, talk radio hosts, and now the president of the United States, a substantial minority of Americans don’t believe that Muslims are worthy of First Amendment protections. The foundation of religious freedom has been soaked with gasoline. 

Now imagine there’s a large-scale terrorist attack on American soil committed by a Muslim radical. Does anyone expect Trump to caution his followers against blaming Islam as a whole? He would more likely add fuel to the fire. How many hours would pass before we heard him say, “See, I was right about the Muslims!” And since the whole thrust of the anti-Muslim movement of the last decade has been to blur the line between Muslim terrorists and ordinary Muslims, Trump’s reaction could embolden more of his supporters to take matters into their own hands. And history is full of reminders that once animus is normalized against one religious minority, others are at risk of being next in line.

Read the entire piece here.

“Hamilton” Finds Its Way into My U.S. Survey Course

As I posted earlier this week, I am teaching a course on the “Age of Hamilton” in the Fall.  We will be discussing the history behind the Broadway musical “Hamilton” and I will be making extensive use of the soundtrack.

As I prepare the course, I have tried-out a few Hamilton songs in my United States Survey to 1865 course this semester (Spring 2019).  For example, I used the song “You’ll Be Back” to introduce my students to the deeply embedded royal culture in the colonies on the eve of the American Revolution:

We are now covering the 1790s in the course.  On Wednesday I used the soundtrack to help my students make sense of Hamilton’s debt assumption plan and the Jefferson/Madison opposition to it.  These two songs were very helpful:

I will probably use one more Hamilton song next week when I lecture about U.S. foreign policy in the late 1780s and 1790s:

Not all the “Hamilton” songs work well in a U.S. Survey course (largely because many of them are historically inaccurate), but I have found that several songs bring to life the debates between Federalists and Democratic-Republicans and help my students make sense of this material.

What Would Madison Think?

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Over The Atlantic, Jeffrey Rosen offers a nice primer on how America is now living “James Madison’s worst nightmare.”  Here is a taste:

Twitter, Facebook, and other platforms have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace.

We are living, in short, in a Madisonian nightmare. How did we get here, and how can we escape?

Rosen still has hope:

To combat the power of factions, the Founders believed the people had to be educated about the structures of government in particular. “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both,” Madison wrote in 1822, supporting the Kentucky legislature’s “Plan of Education embracing every class of Citizens.” In urging Congress to create a national university in 1796, George Washington said: “A primary object of such a national institution should be the education of our youth in the science of government.”

The civics half of the educational equation is crucial. Recent studies have suggested that higher education can polarize citizens rather than ensuring the rule of reason: Highly educated liberals become more liberal, and highly educated conservatives more conservative. At the same time, the National Assessment of Educational Progress has found that citizens, whether liberal or conservative, who are educated about constitutional checks on direct democracy, such as an independent judiciary, are more likely to express trust in the courts and less likely to call for judicial impeachment or for overturning unpopular Supreme Court decisions.

These are dangerous times: The percentage of people who say it is “essential” to live in a liberal democracy is plummeting, everywhere from the United States to the Netherlands. Support for autocratic alternatives to democracy is especially high among young people. In 1788, Madison wrote that the best argument for adopting a Bill of Rights would be its influence on public opinion. As “the political truths” declared in the Bill of Rights “become incorporated with the national sentiment,” he concluded, they would “counteract the impulses of interest and passion.” Today, passion has gotten the better of us. The preservation of the republic urgently requires imparting constitutional principles to a new generation and reviving Madisonian reason in an impetuous world.

Read the entire piece here.

What is Treason?

trump

On Monday, Donald Trump said that the Democrats who refused to applaud during his State of the Union address were committing treason.  Yesterday the Pittsburgh Tribune ran an article on Trump’s remarks that quotes University of California-Davis law professor Carlton F.W. Larson, who is writing a book about treason and the American Revolution.

Here is Larson’s definition of treason:

For starters, treason is the only crime defined in the U.S. Constitution. And it specifically makes it a crime to adhere to or give comfort to the enemies of the United States.

Discussion of the topic has been around for some time. And by that, we mean a long, long time.

The New York Times reported in “Treason Against the United States” — an article published in 1861:

• Section 110, Article III, of the U.S. Constitution:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. The Congress shall have power to declare the punishment of treason.”

• The U.S. Congress in 1790 enacted that:

“If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and SHALL SUFFER DEATH; and that if any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some one of the Judges thereof, or to the President or Governor of a particular State, or some one of the Judges or Justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.”

• James Madison, founding father and former U.S. president, said:

“The Constitution confines the crime of treason to two species; First, the levying of war against the United States; and Secondly, adhering to their enemies, giving them aid and comfort.”

John Mitchell and Philip Weigel–two of the so-called “whiskey rebels” of 1791–were the first people convicted of treason in the United States.

Read the entire Tribune-Review piece here.

Slavery at James Madison’s House

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Alyssa Rosenberg reports on efforts to tell the story of slavery at James Madison’s Montpelier.  A permanent exhibit titled “The Mere Distinction of Colour” opened on June 5.

Here is a taste of Rosenberg’s piece at The Washington Post:

…The new galleries, which opened on June 5, do something radical: They treat the people who were enslaved at Montpelier as if their lives were as worthy of historical examination as that of the man who owned them.

These displays at Montpelier provide ample evidence for visitors to consider as they reckon with the fact that the same James Madison who drafted the Bill of Rights also spent considerable time trying to track down a runaway slave named Anthony. (Madison’s own enslaved valet, John, went to his grave without telling Madison anything about Anthony’s whereabouts.) But that sort of reconsideration, important as it is, still risks consigning the people who were enslaved by the Founding Fathers to a subordinate role. If museums limit themselves to those assessments, they send, intentionally or not, the message that enslaved people’s importance lies in the way they illustrate the moral frailties of great men, rather than in their own lives and accomplishments.

Montpelier does not stop there. The people who were enslaved by the Madisons emerge from the displays as lively individuals.

Read the rest here.

Montpelier to Open Exhibit on Slavery

james-madison-s-montpelier

A local CBS news outlet is reporting that James Madison’s Montpelier will soon be telling the story of the slaves who worked at the mansion.

Here is a taste:

Working in the shadow of Montpelier, kneels Terry Brock, Senior Research Archeologist for the mansion.

Brock is part of a greater effort by Montpelier to tell the story of the slaves who once lived and worked at the mansion.

“Over 100 people were enslaved on this property,” Brock said. “So that means that the vast majority of the people who lived and worked here were enslaved African-Americans.”

Finding new artifacts almost every minute, Brock and his team have been able to unearth a substantial amount of information on the slaves of Montpelier.

“We see a lot of evidence of trying to create your own space on the landscape,” Brock explained. “For example, a pipe bowl that is found in a slave quarter, therefore definitely belonged to an enslaved individual, has the word ‘liberty’ on it.”

Now, Brock’s discoveries are being used in a new, multi-million dollar exhibit at the mansion that takes a comprehensive approach to explaining and understanding slavery.

The new exhibit is called “The Mere Distinction of Colour.”

Read the rest here.

Can the Constitution Really Save Us?

GansehGanesh Sitaraman, a law professor at Vanderbilt University and the author of The Crisis of the Middle-Class Constitution, argues in a piece at The New Republic that the Constitution of the United States was not designed to get us out of the mess in which we find ourselves.

Here is a taste:

Long before Trump came along, America was already mired in a constitutional crisis—one that crept up on us gradually, as historical transformations always do. The reason is simple: Our Constitution wasn’t built for a country with massive economic inequality and deeply entrenched political divisions. The three times in our history when the republic has faced a threat to its very existence—the Civil War, the Gilded Age through the Great Depression, and the present moment—the crisis arose because America had evolved in ways the Founders could only dimly imagine. In each instance, the social conditions of the country no longer matched the Constitution.

Trump is a symptom, not the cause, of the crisis we now face. It is written, in fact, into the very fabric of our society. And the only way we’ll avert the disintegration of our political system—as Lincoln and the abolitionists did in their day, and the Roosevelts and the progressives did in theirs—is first to understand its origins.

Read his 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.

The Author’s Corner with Andrew Shankman

Original Intents.jpgAndrew Shankman is Associate Professor of History at Rutgers University at Camden.  This interview is based on his new book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding (Oxford University Press, 2017).

JF: What led you to write Original Intents?

AS: I was excited by the charge given to me by Oxford University Press—to write a book that would advance scholarly knowledge of the nation’s constitutional, political, economic, and financial origins, but that would be entirely accessible to any reader and that could be completely understood without any prior knowledge of subject.  Oh, and to keep it under 200 pages!  That was an exciting challenge.  Scholars are very good at writing for other scholars, and some of them get good at writing for a general audience.  That such a prestigious press wanted me to write a book that the general public could enjoy and learn from, and that would not sacrifice any complexity—would not “dumb it down”—and so would benefit scholars too—that seemed such an exciting and a great idea, and a very worthy challenge to take on.

JF: In 2 sentences, what is the argument of Original Intents?

AS: Original Intents examines the political, constitutional, and economic ideas and policies of Alexander Hamilton, Thomas Jefferson, and James Madison from the American Revolution through the early 1790s.  Original Intents argues that Jefferson and Madison had profound disagreements with Hamilton about the meaning and purpose of the Constitution and the future of the nation, and that the ideas of all three were shaped, evolved, and changed by their ongoing and heated arguments with each other.

JF: Why do we need to read Original Intents?

AS: Original Intents recreates in close to real time the step by step ways in which Hamilton, Jefferson, and Madison came to realize what they thought and who they were.  They came to their understanding through intense engagement with each other during the most significant, creative, and productive period of their lives. The arguments the three had with each other from the American Revolution through the early 1790s (mostly it was Jefferson and Madison agreeing with each other and seriously disagreeing with Hamilton) established the framework for how Americans came to understand their Constitution.  Their arguments also began the debates that continue to our day about the proper relationship between the national and state governments, how much and in what ways governments should tax and take on debt, and what sort of nation we the citizens should aspire to have.  In their different ways, all three of them believed the United States was an ongoing experiment, that its institutions were only as strong and durable as the citizens who made use of them, and that the Constitution provided the basis and the beginning for a never-ending conversation among citizens and between those who governed and the people they were governing.  Original Intents explores how all that began, and how three of the people most responsible for shaping and overseeing the new Constitution quickly discovered that they disagreed about what it said and what it meant.  Understanding their ideas—their differing original intents—allows us to better understand the immensely important historical legacy we have inherited, and the tremendous burdens, responsibilities, and also privileges that come with being a citizen.

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

AS: From an early age I knew I wanted to study history.  I loved mythology, the middle ages, the Civil War, the old west.  But I decided to try to become a professional historian and specialize in late 18th and early 19th century American history in the fall semester of my junior of college at Northern Illinois University, in 1991.  That semester I took a course in American diplomatic history to 1898 with a wonderful professor who died this past December named Carl Parrini.  The first eight weeks were all about the 1780s and 1790s.  Learning about Hamilton’s financial system, the crazy 1790s when Americans were accusing each other of being secret British agents scheming to restore monarchy, or of being crazy radical operatives of revolutionary France plotting to erect a guillotine in Philadelphia—all that stuff was amazing to me.  The paintings make all these 18th century folks look like boring wax figures wearing wigs.  To learn that they weren’t that at all, to learn just how fascinating and passionate and complex they all truly were, and how wild and wooly it all really was, I was hooked, and I’ve stayed hooked.

 JF: What is your next project?

AS: My next book moves forward in time to the period between the end of the War of 1812 (1815) and the Nullification Crisis (early 1830s), which was when South Carolina argued that it could nullify federal law within its state borders.  I’m looking at a group of younger (for the most part) followers of Jefferson, who came to be known as the National Republicans.  By the end of the War of 1812 the National Republicans began to fear that much of what they had expected to be true about the United States was not going to happen.  They had assumed three things: first, that the U.S. could and should remain almost exclusively agricultural.  Second, that the national government could be very inactive most of the time, especially domestically.  And third, that slavery would naturally grow less and less significant over time.  Between 1815 and 1825 people like Henry Clay, John C. Calhoun, Mathew Carey, Richard Rush, and many, many others came to believe that none of those three things was true or was going to happen.  My book will be about why they concluded that, what they tried to do about it, and why, by the early 1830s, they had provoked a large national movement in opposition to them that defeated them.  I’m writing a story of thoughtful, principled, and often deeply flawed failure.  I plan to title it The National Republicans: Capitalism, Slavery, and the State during the Long 1820s.

JF: Thanks, Andrew!

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.

Quote of the Day

Madison and Jefferson“The tyranny of the legislature is really the danger most to be feared, and will continue to be for many years to come.  The tyranny of the executive power will come in its turn, but at a more distant period.”  –Thomas Jefferson to James Madison, March 15, 1789

Slavery and Historical Interpretation at Monticello, Montpelier, and Ash Lawn-Highland

slaveryatmonticello C-Ville, a website covering life in the Charlottesville, VA area, is running a nice piece on slavery interpretation at the homes of Virginia presidents Thomas Jefferson, James Madison, and James Monroe.

Here is a taste:

The sickeningly horrible institution of slavery was a blight on our nation until the Civil War ended it in 1865 at the cost of 750,000 American lives. Despite the passage of 150 years, however, and despite the country’s best attempts at education, the interpretation of slavery at historic sites—the presentation of the lives of those enslaved—is still controversial, emotionally charged. At some historic properties, the perceived emotional comfort of the visitors, and that of the guide staff itself, preclude the accurate retelling of the awful conditions under which slaves toiled and lived. Here in central Virginia, however—at the plantations owned by Jefferson, James Madison and James Monroe—slavery interpretation is thriving. Indeed, it’s expanding.

“Slavery is an important part of the American story,” says Katherine “Kat” Imhoff, president of the Montpelier Foundation, the organization that operates Montpelier, the Orange County home of our fourth president, Madison. After his presidency from 1809 to 1817, he lived out his remaining 19 years at Montpelier.

“Without understanding the role of slavery in the founding era,” says Imhoff, “you can’t understand what happened afterward. …It’s such a painful subject for all Americans that we’ve tended to turn away from it, to gloss over it. I really believe strongly that that’s a disservice to all of us. As the leader of a cultural institution dedicated to telling a complete, accurate and human story about our country, I see the improved interpretation of slavery as crucial.”

Read the entire piece here.

A Comical Look at the Original Intent of the Second Amendment

Madison and JeffersonJohn Quaintance of The New Yorker offers a fictional exchange of letters between James Madison and Thomas Jefferson on the original intent of the Second Amendment.  Very funny.

A taste:

December 5, 1791
James Madison
House of Representatives

Dear James,

How is it almost 1792?! Quick question on the right to bear arms thing in your “Bill of Rights”—the wording and punctuation are slightly confusing. Did you mean that the right of the people serving in the militia to keep and bear arms shall not be infringed, or people in general? I’m assuming the former, but don’t want to make an ass of you and me! (Franklin made that up, but I’m using it everywhere!) Could you please send me a quick note whenever to clarify?

TJ

P.S. To be honest, I’m still meh about “Bill of Rights” as a name.

* * *
December 7, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

I know, it’s so crazy how fast this year has gone—I just got used to writing 1791 on my deeds of purchase (of slaves)!

As far as the amendment, of course it’s the former. If every private citizen had the right to carry a musket, a thousand people would’ve shot Patrick Henry by now, am I right? Don’t worry about it. Everyone will know what it means.

JM

P.S. You’re not back on “The Ten Amendments” are you? It’s trying way too hard to sound Biblical.

* * *
December 9, 1791
James Madison
House of Representatives

Dear James,

Hahaha re: Patrick Henry. And I agree it should be obvious. It’s just, why not make it so clear that even the biggest Anti-Federalist looney tune can’t misinterpret the meaning? I’d add “while serving in the militia” to line three. Also, not to be a grammar redcoat here, but the use and placement of the comma isn’t helping. Can we change it? It will take two seconds.

I know I’m being annoying!

TJ

P.S. How about “Constitution, Part Two?” (Not a serious pitch, unless you like it!)

* * *
December 11, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

There is literally zero chance that anyone will misconstrue this, and the great news is that if someone actually does, the Supreme Court will set them straight. I don’t want to change it. It won’t take two seconds, because the addition would push a page and I’d have to do the whole rest of it over again and W. is breathing down my neck about it. Plus, I like the way my signature looks on the version I sent you, and you know I always hate the way it looks on important stuff.

Not trying to be snippy, but you’re worrying about nothing.

JM

Read the rest here.

The Author’s Corner with Mary Bilder

Mary Bilder is Professor of American Legal and Constitutional History at Boston College Law School. This interview is based on her new book, Madison’s Hand: Revising the Constitutional Convention (Harvard University Press, 2015).

 
JF: What led you to write Madison’s Hand?
 
MB: I wrote an article about James Madison’s law notes and how they revealed his mind. I was curious about what we could learn about Madison from his famous notes of the Convention. After reading the late-nineteenth century transcript of the Notes, I began to realize that there were many mysteries surrounding Madison’s Notes. Historians had used Madison’s Notes as an almost objective source to tell the history of the Convention, but very few people had explored the actual manuscript.
 
JF: In 2 sentences, what is the argument of Madison’s Hand?
 
MB: The Notes do not date in their entirety to the summer of 1787, but were revised by Madison as he changed his understanding about the Convention, the Constitution, and his own role. Over fifty years, Madison transformed the Notes from an incomplete political diary, taken in part for Thomas Jefferson, to a seemingly impartial and objective account of the writing of the Constitution.
 
JF: Why do we need to read Madison’s Hand?
 
MB: Many people have used the Notes as if they were a contemporaneous and objective report of the writing of the Constitution. They were not. Even in the summer of 1787, Madison wrote the Notes with hindsight and focused on his political commitments and disappointments. He understood his subsequent revisions as repeated efforts to create a record—his record—of what he saw as significant in the Convention. Yet each revision—small and large—increased the distance from the summer of 1787.
 
JF: When and why did you decide to become an American historian?
 
MB: In my last year of law school, Professor Bernard Bailyn taught a course on the History of the US Constitution. A friend told me to take it. I was astounded that I had spent 3 years in law school studying the Constitution but no one had ever talked about how and why it was written. I was fortunate to clerk for a federal judge who loved history and encouraged me to go to graduate school. Because I was an English major in college, I have been particularly interested in the history of the book and cultural and material history.  
 
JF: What is your next project?
 
MB: I believe that all historians have an obligation to contribute to making available new documentary sources. This book, for example, could not have been written without the work of many people who created documentary editions of Madison’s materials.  In the late nineteenth century, for example, a small team of State Department employees created a remarkable transcript of Madison’s Notes showing the revisions. I could not have written my book without their effort. My contribution, however, is in an area unrelated to Madison’s Hand. Several colleagues and I are working to complete a digital catalogue of all the cases and printed briefs appealed to the Privy Council from the American colonies, the Caribbean, and Canada before 1783. Historians have not been able to write about the law of the British empire or early American colonial constitutional law because these sources were never printed or made available. I hope that these sources will help other historians create new arguments and insights about slavery, women’s property rights, commercial law, and a myriad of other issues addressed in these cases.
 
JF: Thanks, Mary!