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!


Carson Digs A Deeper Hole for Himself

I like Ben Carson.  He seems like a good guy.  I even agree with him on a few things.  But he is just not cut out for a presidential run.  He seems very uncomfortable in this role.  He is a brilliant neurosurgeon and a person of deep Christian faith who, to put it frankly, is in over his head.

Let’s take his recent claim that Thomas Jefferson wrote the United States Constitution.  Here is part of what I wrote on Monday about this whole incident:

Carson needs to be more careful in the way he references American history.  I think we should expect our presidential candidates to have a working knowledge of our country’s history. (I know this is asking for a lot).

I will not be voting for Carson, but part of me wants to give the guy a break on this latest Jefferson blunder.  Perhaps he just misspoke.  I do this all the time when I am lecturing.  Maybe he got confused for a moment.  


Yet instead of simply admitting that he made a mistake or misspoke, Carson went on Fox News and doubled-down on the erroneous claim that Jefferson was somehow involved in crafting the Constitution.

Here is the video.  The Jefferson stuff picks up about the 4:30 mark.

http://video.foxnews.com/v/embed.js?id=4628962819001&w=466&h=263Watch the latest video at video.foxnews.com

As I predicted in my earlier post, Carson blames the media for trying to corner him with another “gotcha” question.

What is even more interesting about this interview is that Carson seems to parroting a piece that appeared earlier in the day at USA Today. The author is David Mastio, the deputy editorial page editor of the newspaper.

Mastio writes:

...here’s an interesting historical footnote to the Constitutional Convention. At the time, an early version of email was available. It was the social media of its day, called “letters.” Important people, say, the U.S. minister in France, could give pieces of paper to ship captains who’d take them by boat all the way to Philadelphia. In Philadelphia, other important people would read words scratched onto the paper and respond in kind with a “reply.”

In this fashion, early Americans could discuss important matters like constitutions and other government stuff ministers would care about. This was called “correspondence.”

Guess who was writing these letter thingies? Thomas Jefferson.

And do you know who was replying? George Washington and James Madison, among the most important framers of our Constitution.

So here’s the crazy thing: Jefferson, Madison, Washington and others were discussing how the U.S. Constitution should be written.

After the Constitution Convention was over, Jefferson had this other idea called a “Bill of Rights,” which you might have heard is a part of the Constitution. Jefferson sorta played a key role in all that First Amendment, Second Amendment stuff. If you don’t believe me, go ask the American Civil Liberties Union, which is big on rights like free speech and freedom of religion.

Saith the ACLU: “The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution’s first 10 amendments became the law of the land.”

The ACLU even quotes Jefferson’s argument: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

To get the basics of Jefferson’s role in the creation of the Bill of Rights, which are, as I mentioned, a pretty important part of the Constitution, all you have to do is read the Spark Notes version. Or you can get it in easy Q&A format from the U.S. Archives.

All that laughing I did at Carson’s expense? I take it back. I guess he sorta did know what he was talking about, after all.

A website is now demanding that in the wake of the Mastio piece fifteen news agencies and “verified Twitter accounts” owe Ben Carson an apology for the way they covered this issue.

Some thoughts:


1). I am still trying to figure out if Mastio’s piece is sarcasm.  I’m not sure.

2).  I am guessing that Carson’s handlers saw the Mastio piece and thought it might be useful in fending off critics on this issue.

3).  If the piece is not meant to be sarcastic it is still filled with historical problems.  Here is historian Kevin Gutzman (used with permission from his Facebook page):

One more time: 1) there is no evidence that Thomas Jefferson had any — any — effect on the “crafting” of the US Constitution, and 2) the Bill of Rights was *not* “his idea.”
1) He was in France in summer 1787, at a time when it took six weeks for a letter to cross the Atlantic to the east and longer to the west. The delegates to the Convention were all sworn to secrecy, so they could not have consulted him even if they had desired to do so and it had been practicable.
2) The first promise to seek a bill of rights was made by Federalists in Massachusetts to get Governor John Hancock and other waverers to support ratification. None of them consulted Jefferson–who was still in France, if anyone in Boston had cared. James Madison was finally persuaded to favor a bill of rights, which he had opposed, by political imperatives in Virginia: the North American Baptist movement happened to be centered in his home county, and local Baptists insisted he promise to seek amendments, particularly one like the Establishment Clause, before they voted for him over James Monroe for Congress. Everyone knew this was his motivation at the time.

Again, Carson should have just admitted he made a mistake, noted that he did get the facts straight in his book, and move on.  It is never a good idea for a political candidate to try to challenge a historian. After all, we do this stuff for a living.

Are Madison’s Notes From the Constitutional Convention Unreliable?

Perhaps “unreliable” is too strong a word, but most historians would have no qualms about saying that Madison’s notes do not provide an objective account of what happened in that Philadelphia summer of 1787.

Mary Sarah Bilder, a law professor a Boston College and the author of a new book on Madison and the Constitutional Convention, reminds us of something that most serious students of history already know–primary documents should be read critically and are often biased by the beliefs of their authors.  This is clearly the case with Madison’s “Notes.”  Here is a taste of Bilder’s piece, published this week at The History News Network:

Madison’s Notes are the only source that covers every day of the Convention from May 14 to September 17, 1787. No other source depicts the Convention as Madison’s Notes do: as a political drama, with compelling characters, lengthy discourses on political theories, crushing disappointments, and seemingly miraculous successes. The Notes are, as the Library of Congress catalogs them, properly considered a “Top Treasure” of the American people.
But the Notes do not date in their entirety to the summer of 1787.  They are covered in revisions. This fact is known – but the number is a shock. When I saw the manuscript in the conservation lab at the Library of Congress—in the aptly named Madison Building—the  additions appear in various ink shades, with handwriting, some youthful, some with the shake of Madison’s later years. Madison even added slips of paper with longer revisions.
The revisions do not detract, but enhance Madison’s manuscript. Madison’s Notes were revised as he changed his understanding about the Convention, the Constitution, and his own role. Madison’s Notes were originally taken as a legislative diary for himself and likely Thomas Jefferson. They tracked his political ideas, his strategies, and the positions of allies and opponents. The original Notes reflected what Madison cared about.
I love talking about the Notes with students because they know that one cannot take notes of oneself speaking. When they are called on, they either leave their notes blank or they compose that section later, reflecting what they realized afterwards was the right answer. Madison’s own speeches are thus the most troubling in terms of reliability. In fact, in the years immediately after the Convention, he likely replaced several of the sheets containing his speeches in order to distance himself from statements that became controversial. 
Madison never finished the Notes that summer. In late August, as the Convention debated the first draft of the Constitution, the delegates sent controversial issues to committees. Madison served on the three most important committees: dealing with slavery, postponed matters, and the final draft. Moreover, he became sick—something that he seemed susceptible to under stress.
Madison stopped writing the Notes. He was too involved in drafting to bother with a diary. Moreover, he likely could not keep distinct decisions made in committees and those in the Convention. Thus at the very moment when the Convention decided many of the issues we debate today—certain congressional powers, impeachments, the vice-president, the electoral college, presidential powers—and the groupings and relationship that converted twenty-three articles into the final seven—the Notes are the most unreliable. Yet this collapse of the Notes reflected the contemporary inability of the delegates to see the final Constitution in the sense that we mistakenly imagine they could.   

Read her entire piece here.

The Author’s Corner with Carol Berkin

Carol Berkin is residential Professor of History at Baruch College and a member of the history faculty of the Graduate Center of CUNY, Emerita. This interview is based on her new book, The Bill of Rights: The Fight to Secure America’s Liberties (Simon & Schuster, May 2015).


JF: What lead you to write The Bill of Rights: The Fight to Secure America’s Liberties?

CB: I wanted to challenge many of the myths that surround the first ten amendments. I knew that many Americans thought they were written at the constitutional convention, or that they were unanimously advocated by all the ‘founding fathers’ or that, from the moment they were ratified, they became the American credo. None of this was true — and the true story was far more fascinating. I knew I had to carefully read the debates in Congress over these amendments and to understand them in the context of 18th century America. Only then, could I share the story of these amendments with the reading public.
JF: In two sentences, what is the argument of The Bill of Rights: The Fight to Secure America’s Liberties?
CB: The Bill of Rights was Madison’s brilliant tactic to crush the strong opposition that continued even after the Constitution was ratified. In modern parlance, he hoped to separate the opposition’s base [the many Americans who honestly worried about a strong central government and its potential for tyranny] from its leadership [men who wanted to eviscerate the power of the new government, taking away its right to tax and regulate commerce]. Madison believed a bold statement of the rights of the people would calm popular fears even though the federal government actually had no power to enforce those rights in 1789. Most of Madison’s fellow Federalists thought a bill of rights was unnecessary, even useless but Madison persisted and eventually won.

JF: Why do we need to read The Bill of Rights: The Fight to Secure America’s Liberties?
CB: I think readers will find the book tells a fascinating story. As the men in Congress debated Madison’s proposals, they drew on their memories of British abuses and expressed their anxiety over the future of the new republic. They argued over the proper balance of power between the federal government and the state governments, an argument that still resonates today. Tempers flared; egos were exposed; foolish comments abounded. Following these debates, we can see that these men understood what a great gamble the creation of a republic was, how fragile the peoples’ liberties actually were, and how heavily the burden of preserving the new nation lay on their shoulders.

JF: When and why did you decide to become an American historian?
CB: I decided to become an American historian while I was a student at Barnard College. I loved the idea that History was a form of time travel and I wanted to visit the past and try to understand people whose views and perspectives were so different from mine. I chose the history of my own country so that I could better understand the origins of issues that matter to us today.

JF: What is your next project?
CB: My next project, The Republic in Peril, is a reevaluation of the first decade of the nation under the Constitution. It looks at how fragile this experiment in representative government was and how worried its leaders were that the experiment might, despite their best efforts, fail. I am going to look closely at four crises the Federalist in power faced, two domestic challenges to the federal government’s authority and two foreign challenges to its sovereignty and independence. As in my two previous books— A Brilliant Solution: Inventing the American Constitution, which looks at debates at the constitutional convention, and The Bill of Rights: the Fight to Secure America’s Liberties— I want to show the men who founded the nation as ordinary human beings, aware of their great undertaking, concerned that they might fail but determined to persevere.

JF: Thanks Carol.

And thanks to Megan Piette for facilitating this installment of The Author’s Corner

Thoughts on Hobby Lobby: Is a Corporation a Person?

The American Historical Association’s Perspectives on History asked me to write a short piece on the Hobby Lobby decision as part of a historians forum on the landmark Supreme Court case.  The forum also includes short essays by Ruth Bloch, Naomi Lamoreaux, and Alonzo Hamby.  My contribution is titled: “We hold these truths to be self-evident, that all corporations are created equal.” Here is a snippet.

But can a corporation have religious liberty? I obviously don’t know how Roger Williams, Isaac Backus, James Madison, or Thomas Jefferson—the great early American defenders of religious liberty—would have responded to Burwell v. Hobby Lobby, but there is little doubt that they would have considered such a proposal to be very strange. For these men, religious liberty was a very personal thing. Religious liberty was meant to protect deeply held spiritual convictions that found their home in the “soul” or “conscience.” Religious liberty was an inherently Protestant concept. It stemmed from the belief that people could read the Bible for themselves and draw their own religious conclusions. It has always been a religious idea applied to individual human beings. Can a for-profit cooperation have a soul? Can it truly practice liberty of conscience?
We might also ask, as political scientist Patrick Deneen has done so brilliantly, whether a big box store such as Hobby Lobby, located in a massive shopping center constructed on a slab of asphalt at the edge of town, can be considered a person. And if it is a person, can it exercise religious liberty? What happens to a traditional and historical understanding of a person—a human being embedded in political, religious, and local communities exercising virtues such as friendship, love, duty, and citizenship—when it is defined in the context of a soulless corporate world with the primary purpose of maximizing profits?
Read the entire post here.

Did Madison and Jefferson Influence the First Amendment Religion Clauses?

James Madison

In a recent article in American Political Thought which I have yet to read, Mark David Hall argues that there is little evidence to support the claim that the men who ratified the first amendment were influenced by James Madison’s Memorial and Remonstrance (1785) and Thomas Jefferson’s Statute for Religious Liberty (1786).  I have heard Hall make this argument before.  I am glad to see it is now in print.

For more see Jon Rowe’s post at American Creation.

The Undemocratic Senate

Anyone who studies American Constitutional history knows that the United States Senate was never meant to be a “democratic” institution.  In its original design, the senators were not elected by the people.  The so-called upper house was meant to be a “check” on the more popular House of Representatives.

For example, think about the impeachment process.  The “people” bring impeachment charges against the president, but the Senate serves as the jury.  The Senate, to use the words of Henry Hyde during the Bill Clinton impeachment trial, are the gods on “Mount Olympus.”  In the minds of the founders, the Senate was to be made up of wiser, more educated men who would keep “the people” in check. The so-called gods of Mount Olympus did not see fit to remove Andrew Johnson or Bill Clinton from office, despite what the “people” wanted.

Granted, the 17th Amendment made the Senate a more democratic place by establishing the direct election of senators, but according to Brooklyn College political scientist Corey Robin, the upper house is still the place “where democracy goes to die.”

His post is informed heavily by the work of Stanford historian Jack Rakove and this New York Times piece by Adam Liptak.

A taste:

Every once in a while I teach constitutional law, and when I do, I pose to my students the following question: What if the Senate apportioned votes not on the basis of states but on the basis of race? That is, rather than each state getting two votes in the Senate, what if each racial or ethnic group listed in the US Census got two votes instead?

Regardless of race, almost all of the students freak out at the suggestion. It’s undemocratic, they cry! When I point out that the Senate is already undemocratic—the vote of any Wyomian is worth vastly more than the vote of each New Yorker—they say, yeah, but that’s different: small states need protection from large states. And what about historically subjugated or oppressed minorities, I ask? Or what about the fact that one of the major intellectual moves, if not completely successful coups, of Madison and some of the Framers was to disaggregate or disassemble the interests of a state into the interests of its individual citizens. As Ben Franklin said at the Constitutional Convention, “The Interest of a State is made up of the interests of its individual members.  If they are not injured, the State is not injured.” The students are seldom moved.

Then I point out that the very opposition they’re drawing—between representation on the basis of race versus representation on the basis of states—is itself confounded by the history of the ratification debate over the Constitution and the development of slavery and white supremacy in this country.

Something to think about.  Read the rest here.

HT: Amy Bass

Environmental Conservatism?

I have always wondered why more conservatives weren’t environmentalists or conservationists.  Don’t conservatives like to conserve things?  With this in mind, I found Peter Blair’s review of Roger Scruton‘s recent book How to Think Seriously About the Planet: The Case for an Environmental Conservatism (Oxford) to be very interesting.  According to Blair, “Scruton argues that conservative thought is actually a better resource for environmentalism than liberalism.”

Here is a taste:

In order to prevent people from externalizing the costs of their risks—from passing on those costs to people who did not incur them—conservatives support what Scruton calls “homeostatic systems.” Such systems are self-correcting, making use of negative feedback loops to react to change and to keep people accountable for the costs of their risks. Markets, traditions, customs, families, civil associations, and the common law are all examples of homeostatic systems. 

Conservatism aims to preserve and maintain renewal of these systems, especially the “civil associations” that Scruton calls society’s “little platoons,” in the words of Edmund Burke. The little platoons—families, local clubs and institutions, churches and schools—keep us accountable to ourselves and our environment, teaching us how to “interact as free beings, each taking responsibility for his actions.” Daily life in these civil associations assimilates and connects us to a settled home, a place and a people we identify as peculiarly “ours.”

In the conservative vision, threats to one’s home, environmental or otherwise, are met by public spiritedness, by volunteering efforts united by what Scruton calls “oikophilia,” love of home. Politics then becomes modest, about compromise and enforcing the conditions that allow homeostatic systems to function properly. It also becomes localized, because it is only attachment to local civil associations that can solicit people’s loyalty and inspire them to accept the sacrifices that the common good requires. “Such associations,” he writes, “form the stuff of civil society, and conservatives emphasize them precisely because they are the guarantee that society will renew itself without being led and controlled by the state.”

And another taste:

Scruton also defends environmental conservatism with arguments less often heard from American conservatives. Central to his case, for example, is his view that a local, voluntary, patriotic culture can motivate environmental care. Under local stewardship, people don’t defend the environment because they are on a global campaign to save the world. They defend it because they have thick ties to their home, and they want to keep their home safe and beautiful.

Yes, all well and good. I might even find Scruton’s vision attractive. But conservatives also believe in human limits.  Christian conservatives might call this human sin.  If conservatives believe such things about human nature can they really trust their fellow human beings to practice this kind of conservatism or stewardship of the earth without some type of government regulation? After all, as James Madison reminds us in Federalist #51, if men were angels (and took care of the planet), government would not be necessary.

I’ll have to give this some more thought and read Scruton’s book.  In the meantime, comments are welcome.

Rakove Reviews Brookhiser’s Biography of James Madison

Jack Ravoke, professor of history at Stanford, wonders why conservatives love James Madison so much: 

GO TO THE homepage of the Federalist Society, and you will discover that its logo is a profile of James Madison. Whether Madison (as opposed to, say, Hamilton) is the best icon for this celebrated consociation of conservative lawyers and law students could be subject to some dispute. Madison’s revealing proposal, in 1787, to give Congress the power to negate state laws, which he wanted to use to protect individual and minority rights, could just as easily qualify him as a trademark for the ACLU. His criticisms in the 1790s of presidential abuse of the powers of war and diplomacy hardly accord with neo-conservative doctrine or the take-no-prisoners constitutionalism of Dick Cheney and his legal saber, David Addington. Yet Madison’s profound awareness of the difficulty of constitution-making reveals a conservative sensitivity to the dangers of the experiment he had just pioneered. Some of Madison’s writings on representation echo themes that we associate with Burke, whom intellectually grounded conservatives so deeply admire, even while American conservatism now appears to be plunging into a know-nothing vacuum that its modern pioneers, such as the late William Buckley, would have abhorred.

This is the opening paragraph of Rakove’s review of Richard Brookhiser’s new biography of James Madison (Basic Books, 2011).  Here is an additional taste:

With his long association with Buckley’s National Review, Richard Brookhiser might seem the best writer available to explain why Madison might be a conservative icon. Brookhiser has become a major player in the literary-historical cult of “founders’ chic,” and by my count this is his eighth contribution to the trade. Yet portraying Madison as a conservative of foundational stature is not in fact the path that Brookhiser takes. For one thing, interpretation in any serious sense of that term is at best a modest feature of this book: much of it is simply a narrative into which Madison is made to fit. Reading this book is another reminder of the differences between the respective approaches of journalists and scholars to the same life. Brookhiser’s biography may be the quickest-paced biography I have ever read. Knowing the background (as a scholar must) left me either gasping or gaping at how quickly Brookhiser can reduce significant points to the shortest statement possible. Indeed at points his biography struck me as a sort of adult version of the Landmark Books I was reading by third or fourth grade (back around the time that Mr. Cub started playing shortstop at Wrigley Field).

Brookhiser saves his central argument for his final pages, and it might have been wiser to bring it out more explicitly much earlier, the better to explain the latent emphasis of his effort. Madison left two legacies, Brookhiser suggests. One is the manifest legacy—the monument of “American constitutionalism,” Brookhiser calls it, just as Sir Christopher Wren made St. Paul’s Cathedral, his burial site, his monument. This means not merely the primal documents (the Constitution, the Bill of Rights, The Federalist) with which Madison is associated, but also “the laws of doing and not doing, and all the debate and revisions they have generated.” Here Madison is the author of the documents and modes of constitutional argument that give our tradition its underlying form. But Madison’s “other monument, coequal if not greater,” Brookhiser concludes, “is American politics,” meaning “the behavior that makes constitutionalism work.” This is the Madison who, even more than his ally Jefferson, constructed the first political party system of the 1790s, and who came to understand that the dominant force in republican politics was a public opinion that one could both educate and manipulate. This Madison is manifestly a political actor, making contingent decisions good and bad, and not simply a serious intellectual—arguably America’s greatest political thinker—whose legacy lies in the Constitution, its first ten amendments, and his twenty-nine essays in The Federalist.


Haberski: How Stanley Haurwaus Has Benefited From James Madison’s Views of Church and State

Raymond Haberski Jr., in a post at US Intellectual History, reflects on how the radical theology of Stanley Hauerwas, particularly as it relates to church and state, has benefited from the thought of James Madison.  Here is a taste:

In considering the public role Hauerwas has played over the last three decades, he clearly has not remained (if he ever was) a resident alien.  His work has been, as he would be the first to  claim, overtly political in the sense that being Christian and considering ethics is nothing if not about power and how wexercise and critique it.
 

However, I have been teaching about James Madison’s challenge to the way religion became enshrined politically in the founding the American government.  I wondered with my students the other day what kind of career someone like Hauerwas would have had if Madison’s recommendation of a strong statement regarding religion had found its way into the Constitution.  Instead of Madison’s argument that civil government cannot need religion in order to survive and operate and Americans should have acknowledges that fact clearly, we have a Constitution that promises no state interference in religious worship and that’s about it.


David Sehat in The Myth of American Religious Freedom, a book that I find to be one of the most important to appear in 2011, has made me consider a way to conceive of what Madison wanted: the test for religious freedom is not whether churches flourish, they will or will not based on the people who worship in them, but whether a society supports (not merely tolerates) those who reject religion and, most especially, mainstream religion.  In short, religion didn’t need the state and the state didn’t need religion.  But that’s not we got. And Tocqueville was perceptive enough to recognize that within a few decades after the ratification of the Constitution, American society had developed a co-dependent relationship with the idea of religion.   

Stanley Hauerwas has, in a way, benefited from that relationship, in that his work constantly seems relevant because he challenges the way we speak about God.  But at the same time, I read his memoir as recovery of  sorts of the dream Madison had of a society in which religions rose and fell without any consequential connection to the health of the state.  In the end, there is an irony to Hauerwas’s prominence—like his foil, Reinhold Niebuhr, his fame is based on the way his theology plays a role in the politics of the nation and not in the creation and understanding of Christian ethics.  Madison’s warning continues to haunt the religious.

What Would Madison Do?

Over at her excellent blog, My Stories, Beth Lewis Pardoe offers some sane and reasoned historical thinking about the Tea Party Movement, factions, tyranny, and James Madison’s (perhaps flawed?) understanding of a republic.  Here is a taste:

Poor James Madison thought he had the risks of republics beat.  He stood Hume’s ideal government on its head in order to prevent tyranny of the majority with the creation of so many electoral units that even if a majority tyrannized one, they could never terrorize the whole.

He failed to imagine that if a mere minority of congressional districts fell victim to the tyranny of their internal majorities, their congressional representatives could hold the full federation hostage.  Whoops!

Read the rest here.

Excavation of Slave Quarters Begins at Montpelier

We know that James Madison owned slaves, but soon we will know a whole lot more about their everyday lives thanks to an archaeological dig going on at Madison’s Montpelier home. Here is a snippet from an article in the Charlottesville Daily Progress:

At James Madison’s house, Montpelier, archaeologists are unearthing the undisturbed remains of slave dwellings.

The actual dwellings of house, stable, garden and field slaves were abandoned abruptly in about 1840. But the sites on which they had stood were never dug up again, leaving a trove for researchers.

“We’ve just got an incredible playground for archaeologists to work in,” said Matthew Reeves, director of archaeology at Montpelier.

Researchers are in the first year of a three-year program backed by a $250,000 We the People grant from the National Endowment for the Humanities. The digging has begun with stable and garden slave quarters, which were closer to the main house than the quarters of field slaves, but not as close as those of house slaves.

Assistant professor Christopher T. Fennel of the University of Illinois referred in an e-mail to the work Reeves and the others are doing as “great.”

In an article this year in the Journal of Archaeological Research he reported that researchers are approaching the question of African experiences outside of Africa in a variety of ways and from a variety of angles.

Among other things, “archaeologists have focused on questions concerning the ways in which ethnic group identities and social networks among African diaspora populations form, evolve and dissipate over time and in particular spatial domains, engaging with related debates concerning the processes of [the mixing and creation of racial, cultural and religious identity].”

James Madison’s Lost Law Notes

John Warren at New York History reports on a 39-page book of James Madison’s law notes recently found among the Thomas Jefferson papers at the Library of Congress by legal scholar Mary Sarah Bilder. Bilder has an essay on her find in the recent issue of Law and History Review entitled “James Madison, Law Student and Demi-Lawyer.”

Here is a snippet from Warren’s report:

Bilder contends that the law notes demand a reassessment of Madison who, unlike other important early national leaders such as John Adams, Thomas Jefferson and John Marshall, had been thought to have had little interest in law beyond some desultory early studies.

The notes cover a wide range of topics including criminal law, the make-up of courts, elections, how to accurately measure time and even sex and relationships.…

It is only a matter of time before a Christian nationalist uses these notes to prove that Madison was a Christian or was somehow influenced by Christian ideas about the law.

Preserving the Architecture of Jim Crow

Last Sunday’s Washington Post ran an interesting article about the restoration of segregated railroad station on the grounds of Montpelier, the estate of former president James Madison.

Here is a taste:

Two things distinguish a small 1910 train depot a few miles south of Orange, Va., on Route 20. Newly renovated and with a fresh coat of marigold yellow paint, it looks as though it were built yesterday, as if the freight trains that still lumber by might actually stop and unload cargo. But it is the signs above the old waiting room doors at this abandoned Southern Railway flag stop that are the most astonishing feature.

“Colored” and “White.” Built in the era of Jim Crow, the Montpelier Depot was constructed according to standard plans issued by the Southern Railway’s Washington office, and the standard plans called for segregated waiting rooms. The train station, which sits on the grounds of James Madison’s Montpelier estate, was recently restored, and when it was reopened to the public last Sunday, the old signs from the Jim Crow years were back.

The freight room of the station serves as a U.S. post office, but the rest of the building has been restored as an architectural reminder of what segregation looked and felt like. Signs inside and out make it amply clear that this is no sick joke or a monument to an ugly past. It’s part of the nonprofit Montpelier Foundation’s ongoing efforts to explore the full history of an estate owned by an architect of the Constitution, a landscape soaked in Civil War gore, in a state that embraced segregation early and clung to it to the very end.

Did Philip Vickers Fithian Know James Madison?

Yesterday, March 16, was the anniversary of James Madison’s birthday. (He was born in 1751). Steve Waldman has a nice reflection in the Wall Street Journal on Madison’s commitment to religious freedom. Waldman admits on his blog that the op-ed is part of his efforts to promote the paperback edition of his excellent, Founding Faith. (See my review of it here).

I will take Waldman’s lead and use Madison’s birthday to help promote (shamelessly) the paperback version of The Way of Improvement Leads Home. Madison and Fithian attended the College of New Jersey at Princeton together. Madison was in the class of 1771. Fithian was in the class of 1772. They were both students of John Witherspoon, the only minister to sign the Declaration of Independence. Madison was the president of the Whig debating society in 1771 and Fithian was the secretary. They both teamed up against the rival Clio Society, whose membership included Aaron Burr.

When I first embarked on this Fithian project I expected that Madison would have much to say about his classmate from southern New Jersey. I thought Fithian would have even more to say about Madison. So you can imagine how disappointed I was to find that Madison never mentions Fithian in any of his private papers and Fithian never mentions Madison. Yet both of them wrote all the time about their other Princeton classmates.

You will have to read the book to see my attempt to explain this. The fact that Fithian never mentions Madison is still one of the great mysteries of his story.