I just finished reading Joseph J. Ellis’s The Quartet: Orchestrating the Second American Revolution, his history of the — and there is no other word for it — scheming which attended the process by which the United States under the Articles of Confederation was transformed into the United States under the Constitution. I’ve also read Ellis’s His Excellency: George Washington, a very useful biography and one which sheds some interesting light on the man Ellis (in The Quartet) calls the “Foundingest” of all the Founding Fathers; his Passionate Sage: The Character and Legacy of John Adams; and, if memory doesn’t fail me, his Founding Brothers: The Revolutionary Generation.
I have to say I enjoyed all of them, particularly the Washington biography and The Quartet. He has an easy, very accessible style and he’s not afraid to make editorial comments. They are, after all, his books, and a biographer or historian who has nothing to come right out and say beyond the bare factual narrative isn’t much of writer. Of course, what facts the writer chooses to include or omit also says something about him, but bald statements of characterization aren’t out of place either. Just don’t try to hide them, is all I ask.
The Washington book I found interesting because Ellis spends a great deal of time addressing the Great White Elephant in the Room, namely Washington’s Auseinandersetzung (show me a better English word for it and I’ll use it) with the institution of slavery and the relations between the races. Hadn’t known, just for example, that up to a full 20-25% of the Continental Army was at any given time what they’d refer to as “dark green” soldiers (all soldiers being green, you see; in the navy all sailors are blue, and some are light blue and some are dark blue) in today’s army. This experience with blacks as fighting men changed Washington profoundly, much as it did so many of the Union soldiers in the Civil War. You simply can’t watch a man stand up to artillery pounding or gales of small arms fire and be immune to the idea that he’s just as good as you are. [Aside: This is why it is so historically significant that it was the U.S. armed forces which, first among all public institutions and voluntarily, de-segregated.]
It was during the war that Washington stopped selling slaves. By the time he died a large (comparatively) number of his slaves were well past working age. I can’t recall off the top of my head if Ellis actually uses the expression “retirement home” or an equivalent, but it’s certainly the impression that emerges from the book. Martha Washington, notably, never changed her own attitudes about slavery or slaves. And Ellis highlights the fact that a significant number of what we think of as “Washington’s” slaves were actually Martha’s, inherited from her father. Washington, as I recall, was his executor, and as Martha’s husband was legally charged with the safe-keeping of her property . . . including her slaves. This conundrum played itself out in Washington’s final act on the subject: As is well known, he freed his own slaves at his death (nearly alone among the Founding Fathers who were slave owners), but he did not have the legal authority to free Martha’s, and so didn’t.
But on to The Quartet. Gentle Reader will recall that I have previously written here and here about Washington’s Farewell address, his (written) valedictory to the nation he had done so much to establish. In both previous posts I’ve mentioned the curious fact that Washington spends something like eight paragraphs addressing the calamity of disunion and the need to resist all who would insidiously suggest fracturing of the union as being the way to go . . . but nowhere breathes so much as a word to the effect that the Constitution itself simply does not permit secession. In beginning The Quartet I’d been very keen to see what light Ellis threw on the subject, whether it would have come up in the Convention debates or in the ratification process. [Aside: Ellis does answer a question for me, namely whether anyone has actually studied in detail the ratification debates in all the states. There in fact has been someone — one person — who has done so, and unfortunately I can’t call his name from memory.] But Ellis is silent on the point, so we can’t tell from his book whether the issue was discussed or not. He does attach, as an appendix, the full text of the Articles of Confederation, which the Constitution replaced. Interestingly, that document does, in Article XIII, expressly provide, “And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual[.]”
There is it, in plain Anglo-Saxon; in fact, the statement that “the Union shall be perpetual” is in there not once, but twice, just a few lines apart. Search as you may, but no similar statement is to be found in the Constitution or any amendment to it. Lest Gentle Reader be tempted to read the provisions of the Articles of Confederation by implication into the Constitution, Ellis makes it very plain that the Constitution did not amend or supplement the Articles, but replaced them in toto. It represented, as Ellis clearly demonstrates, not merely a change in text but a fundamental re-ordering of the very nature of the union from a confederacy of equals, in which each “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled” (Article II, in its entirety), to a nation-state in which the states are specifically subordinate entities, although not as fully subordinate as James Madison originally desired them to be. He had in fact, in the Virginia Plan for the Convention, specifically proposed that the federal executive be given an express veto over state statutes and other laws.
All of which only heightens the interest in the omission. It certainly goes a long way towards under-cutting the argument that the secessionists of 1861 were not only morally abhorrent for their defense of chattel slavery, but also legally and indisputably traitors to their country. I suppose one might say the omission of 1787 was supplied at bayonet point from 1861-65. In all events, the nature of the union has now and forever been resolved, and I for one am happy at the outcome, however good-faith the argument on the point may have been at the time.
Back to the book. The actual “quartet” Ellis refers to are Washington, Madison, Hamilton, and John Jay. The first three are of course well-known. The fourth, Jay, is known as the third member of the triumvirate who wrote the essays now known as The Federalist, the most cogent arguments for ratification of the Constitution (although as Ellis points out, they were targeted specifically at New York’s ratification convention and in fact do not seem at the time to have garnered much if any attention beyond that state), and among lawyers as the first Chief Justice. History wonks will also remember him as the negotiator of the Jay Treaty of 1794 with Great Britain (which finally removed the British from the frontier forts they’d kept occupying, the 1783 Treaty of Paris notwithstanding), and the principal negotiator, with Franklin, of the 1783 treaty itself. Ellis shares the vignette of Jay in conference with the Spanish envoy (it must be remembered that Spain and France were allied at the time against Great Britain); the Spaniard drew a line with his finger on a map, from the Great Lakes more or less due south to Florida (Spanish at the time), to indicate that as the western boundary of the United States, everything to the west presumably going to Spain. The Americans had been given explicit instructions by the Continental Congress to conduct all negotiations in consultation with France, which thus meant subject to Spanish veto. Jay then took his own finger and traced the Mississippi River. That evening he went to Franklin’s lodgings, awoke him, and convinced him to disregard their instructions in respect of France, and to make a separate peace with Britain. Had Jay not succeeding in convincing Franklin, or had they knuckled under to Spain’s demands, the history of the entire world for the last 225-plus years would have been not just different, but radically different.
In any event, Ellis recounts how each of the four, by his own route, arrived at the conviction that the Articles of Confederation just were not going to do, and in fact that they were so hopeless as to be beyond salvage by mere amendment. Washington and Hamilton of course had personal knowledge of the system’s failure to support the army in the field. Jay got to experience the futility of the system as foreign minister, when the Europeans, who could read the Articles just as well as anyone else, more or less laughed in his face when he purported to represent a “United States of America” that they could see did not in fact exist. Indeed, it not only did not exist de jure, but as Ellis also shows, it likewise had no place in the sentiments of the ordinary people. Folks simply did not think of themselves as being “Americans” in the sense of belonging to any greater polity than their own state, if their vision extended even that far.
I won’t recount in detail either the machinations of the Constitutional Convention itself, or the ratification process. In fact, Ellis doesn’t spend any terribly great amount of time on the ratification process, except in respect of Madison’s stage-managing (or trying to) the order of ratification among the states. Short version: By deferring votes in the large, questionable states until near the end of the process, the likelihood was increased that those states would be presented with an accomplished political fact of ratification, and they’d vote to join so as not to be left out. And that’s pretty much how it worked in practice. To reiterate, I’d have appreciated much more exploration of the extent, if any, to which issues like potential secession got aired out.
My caveats? Well, Ellis displays his good leftish credentials in two places in the book. The first (p. 172) comes at the tail-end of his discussion of what he describes as an “ambiguity” about where the balance of sovereignty was located by the document eventually submitted for ratification. Key statement:
“The multiple compromises reached in the Constitutional Convention over where to locate sovereignty accurately reflected the deep divisions in the American populace at large. There was a strong consensus that the state-based system under the Articles had proven ineffectual, but an equally strong apprehension about the political danger posed by any national government that rode roughshod over local, state, and regional interests . . . .”
From the above statement, the truth of which I think Ellis does an excellent job demonstrating, he then hikes his leg and lets a glaring non sequitur in church: “In the long run — and this was probably Madison’s most creative insight — the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document.”
Very respectfully, Prof. Ellis, it is nothing of the kind. For starts, the truly revolutionary nature of the Constitution was precisely that it was written. Ellis correctly demonstrates the core nature of the Articles as being a treaty among equals. The Constitution was something different; it established, to a limited extent, a hierarchical relationship between the states and this new animal, the United States of America. But most importantly, the states’ relations among each other and with the new national state was spelled out in writing. There was a reason, after all, why monarchs violently resisted granting written constitutions, all the way down to 1905 in Russia: A written document pins the sovereign down. With a written document you can point to a specific clause or word or phrase and say to the government, “Look here, Buster; it says right here you cannot do that.”
The notion of a “living document” — in the sense that Ellis is using it — is very, very much a 20th Century phenomenon, and it is specifically a judicial creation from wholecloth. The Founding Generation would have looked at you as if you were speaking Tagalog if you had suggested that what they’d come up with was a “living document” in which judges got to make things up as they went along (“evolving standards of decency”), and under which a president such as Dear Leader claims an inherent executive authority to act to impose law for no better reason than he cannot get Congress to act as he sees fit on issues which are important to him (“I’ve got a pen, and I’ve got a phone”), and Congress can prescribe how much water your toilet uses (1.0 gal/flush, anyone?). I’ll go so far as to state that had you tried to sell the Constitution as a “living document” in 1787-88, you’d never have got nine states to ratify; in fact, I question whether the populace of any state would have been so daft.
Secondly, the mere fact that the Constitution abandoned the state-centered structure of the Articles but rejected the All-Powerful National State which Madison had gone into the Convention advocating emphatically does not mean that the answer to the question, “Where does sovereignty lie?” is a forever mutable response. It is perfectly possible for the answers (and there can be many) to that question to lie at multiple points between those poles, depending on which issue or question you’re asking. Just for example, the states are prohibited from making war or peace, or coining money. That’s specifically reserved to the federal government. On the other hand, the regulation of “Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” while extremely broad, is not, and cannot with honesty be read to constitute, a grant of authority to Congress (to say nothing of the executive) to prohibit a man from feeding his own family with the produce of his own land. And yet that’s precisely what the Supreme Court said the Commerce Clause does. I’m still waiting to hear anyone make a convincing case that, had you told the farmers of any of the 13 states that they were ceding authority to Congress to dictate what they could and could not grow on their own land to feed their own children, the Constitution would have stood a ghost of a chance of ratification. The fact that a group of sophists on the bench can articulate a rationale which, as long as you don’t actually press on it with any force, supports such an outcome does not mean that outcome was contemplated by the men who drafted or voted on the Constitution as among the permissible. The argument that everything is both necessary and proper to accomplish some hypothetical purposed which allegedly by some remote chain of causation (think: the schoolbook example of the butterfly flapping its wings off the coast of Africa, which results in a Category 5 hurricane coming ashore at Gulfport, Mississippi) is an argument which renders superfluous the entire text of Article I Section 8. If that argument has any validity then Section 8 could have been written simply as, “Congress shall have all Powers to enact such Legislation as it shall deem expedient.”
As if to emphasize the extent to which Ellis doesn’t Get It, he offers us this: “Madison’s ‘original intention’ was to make all ‘original intentions’ infinitely negotiable in the future.” Got that? Just because it says you can’t be president unless you’re 35, it doesn’t really mean that. Just because it says each state gets to elect two senators, a state — let’s say, Alabama — can go ahead and elect three, and have them seated. Just because it says, “No Tax or Duty shall be laid on Articles exported from any State,” and just because Article I Section 8 gives Congress the authority to “lay Taxes, Duties, Imposts and Excises,” (and requires that such be “uniform throughout the United States”), that wouldn’t stop Dear Leader from levying a tax on tobacco shipped from North Carolina to Amsterdam, but excusing tobacco grown in northern California from that tax. Can private property be taken for public use without “just compensation”? According to Ellis, the answer is yes, if you can get either a majority in Congress, or the president acting without Congress, to decide to do it. Because “infinitely negotiable.” Right now there is a lawsuit pending in which the House of Representatives is suing Dear Leader over the “Affordable” Care Act’s spending of money. Remember this one: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”? Well, it seems that at least some provisions of the ACA produce just that outcome: expenditures not authorized by law. According to Ellis, that prohibition is “infinitely negotiable” for all time. Why, one wants to ask Ellis, did the drafters include a provision (Article V) for the document’s amendment, if nothing in it had any now-and-forevermore meaning anyway? “Living documents” require no amendment; all they require is a consensus that it doesn’t mean that anymore. Like Brown v. Board of Education, presumably. What exactly, under the leftish framework, would prohibit Congress and the president from deciding that Brown was decided entirely wrong and well, gosh darn it, we’re going back to “separate but equal”?
Bless the dear professor’s heart. He puts in a good word for collectivism/corporatism/fascism, but really can’t bring it off. Not to an intelligent audience, in any event.
The second place where Ellis goes to bat for the leftists occurs beginning on page 211. He gives Madison’s original draft of what became the Second Amendment. The two clauses of the text we know (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”) were inverted in the original draft, with the “necessary to the security” starting out as “being the best security of a free country.” Madison’s draft also included a specific clause excusing what we would know as conscientious objectors from “render[ing] military service in person.” Ellis just refers to “some editing in the Senate,” and laconically observes that it became the Second Amendment. He provides no clue as to what the substance of that “some editing” might have been.
According to Ellis, Madison’s draft was merely “to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army.” According to Ellis, Madison’s draft makes clear that the right to keep and bear arms was “not inherent but derivative, depending on service in the militia.” Good leftist talking point. He’s got some problems, of course, starting with the simple text itself. The amendment, even in its original draft, does not speak of the states being free to arm their militias; nor does it provide that the right of militia members to keep and bear arms shall not be subject to unreasonable restriction; nor grant the states the right to compel militia service.
If you look at Madison’s first draft, it consists of two independent clauses separated by a subordinate clause. Let’s try this as a catechism.
Q: What “shall not be infringed”?
A: A right.
Q: What right?
A: To keep and bear arms.
Q: Whose right?
A: The right “of the people.”
Simple enough. But perhaps Madison (and more importantly, the rest of Congress) really meant “the states” when writing “the people”? Plausible, until you consider that in four other instances in the Bill of Rights the expression “the people” is used. The First Amendment protects “the right of the people peaceably to assemble.” Now read that to substitute “states” for “the people” and what result do you get? The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Same exercise: Are the states to secure against unreasonable searches and seizures? Say it with a straight face, Prof. Ellis. The Ninth Amendment provides that the enumeration of “certain rights” shall not be construed to “deny or disparage others retained by the people.” I guess you could read that to mean “the states,” but then what to make of the Tenth Amendment, which of course provides for the reservation of all rights neither granted to the U.S. nor prohibited to the states “to the States respectively, or to the people.” If the leftish reading of the Second Amendment is correct, then the Tenth Amendment can mean “to the States respectively, or to the states.” You just cannot get around the fact that in every other instance where the Bill of Rights refers to a right “of the people,” either is preservation or its reservation, the reference is plainly to individual humans.
Well, maybe “shall not be infringed” really means “shall not be subject to unreasonable restriction”? Why, then, does that “unreasonable” qualifier appear in the Fourth Amendment but not the Second? But what of the subordinate clause about well-regulated militias? That’s very nice, but that phrase has neither subject nor verb. Structurally it bears the same relationship to the grammatically operative portion of the text that the Preamble bears to the overall document. Actually, that’s not quite true: The Preamble does contain a subject, verb, and direct object: “We the People . . . do ordain and establish this Constitution for the United States of America.” This is in marked contrast to the prefatory clause of the Second Amendment.
So far as I am aware there has never been serious suggestion that the language of the Preamble operates to qualify or limit the scope or operation of any substantive provision of the document. Does Congress only have authority to regulate commerce among the several states if and to the extent reasonably necessary to “provide for a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”? Of course not; it has all authority “necessary and proper” to regulate that commerce for any purpose not prohibited by the balance of the Constitution. Any at all. Or read the Preamble as a qualifier to the judicial power granted to the Supreme Court and such subordinate courts as Congress may establish. How is that going to work?
[Purely as an aside, I’d note that — except for those boobs on the bench, of course — no one makes an argument that the Free Exercise Clause, or the right of peaceable assembly, or the freedom of the press are subject to any purpose-based restriction, as is argued by the leftists about the Second Amendment. Nor is the “unreasonable searches and seizures” clause of the Fourth Amendment so read as to provide that hiding one’s criminal activity is not a legitimate object of that protection. In fact, the Second Amendment is the subject of its very own interpretive scheme under the leftish project. Curious, isn’t that?]
I’d also observe that what Ellis is arguing for is not only the “original intent” which he just 39 pages before disparaged in favor of a “living document,” but he’s arguing for the “original intent” as contained in a draft that never made it into the document. Priceless; but, it illustrates rather well the leftish principle that all means are permissible to the Party, because what the Party line is at the moment is by definition the Truth.
Again, dear Prof. Ellis takes a mighty swing at the bat for his Party, but comes up with air. I was a bit disappointed that he didn’t work in something about Global Climate Change or how Citizens United is just such a horrible decision because Koch Brothers. Or something like that.
Notwithstanding his gratuitous introduction of 20th Century political theory into 18th Century politics — and let me allow that I think Ellis is entirely correct in his portrayal of the Convention and ratification process as being as much or more about practical politics than it was the implementation of a theory — I still highly recommend this book. It grates to have to read a book like this with one’s bullshit filters at high alert, but nowadays when there’s no such thing as a politics-free zone, I guess we’ll just have to learn to live with writing like this.
The Quartet does a marvelous job of showing just how unlikely a prospect was the transformation of the United States from a maelstrom of co-equal sovereigns to a multi-polar entity almost serendipitously adapted to the task of subduing and populating the better part of an entire continent.
Read it for the story of a political miracle, not for its legal analysis.
