Thursday, July 29

Reminiscing About Ratification

Perhaps the greatest, and potentially fatal, error committed by the Framers of the US Constitution was the assumption that everyone, every citizen, would (a) value the Constitution and its principles as highly as they, the Founders and Framers, did; (b) that those same citizens would consequently possess at least a rough, working knowledge of the Document; and that (c) the most fundamental principles of the American Constitution would be taught from generation to generation throughout the life of the American Republic. This confidence was reflected in Chief Justice John Marshall’s famous exposition of implied powers in the 1819 decision of McCulloch v. Maryland:

Chief Justice John Marshall

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. (emphasis added) … It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution  (emphasis in original) we are expounding.

There was a time when this confidence was amply justified. (Note that Mr. Marshall assumes that the Framers intended for the Constitution to be understood by the public, not just by professors of “con law”.) In reading, as I did several years ago, her magisterial book on the ratification of the Constitution by the State conventions, Ratification, by MIT history professor the late Pauline Maier, I was amazed at the intimacy with which the delegates to each State convention were acquainted with the Document – most of whom were farmers, mechanics, artisans, in any case, few attorneys, most of whom possessed very little property, and who were distinguished only by their literacy, their common sense, and their sheer ordinariness:  nary a John Marshall or a James Madison among them. But they knew and valued the Constitution. Unfortunately, we, 232 years later, cannot say as much. For us, the Framers’ assumptions (a), (b), and (c) are not true.

Prof. Pauline Maier


For one thing, during the years of the Ratification from 1787 to 1790 – North Carolina ratified the Constitution in 1789; Rhode Island, in 1790 -- the Constitution was new. But in the intervening years we became used to it. We took it for granted. The Constitution became the province, almost the property, of the Academy, of legal theorists, of law schools, and the highly specialized subdisciplines of constitutional lawyers, who, with certain blessed exceptions, e.g., Prof. Akhil Reed Amar of Yale Law School, tended to talk mostly to one another in the language of abstruse articles in law journals, and not to the public. Contra Chief Justice Marshall, for the most part, law school faculty did indeed forget that “it is a Constitution we are expounding”.

Prof. Akhil Reed Amar

We – meaning “We the People” – were mostly content with that status quo. Who has time, in the workaday world where mortgages and kids’ orthodontists’ bills have to be paid, to tackle issues like enumerated powers, to parse the difference between the “privileges or immunities” clause of Section 1 of the 14th Amendment and the “privileges and immunities” clause of Article IV, section 2 (there is a difference, by the way), the relationship between the 9th and 10th Amendments and the doctrine of “reserved powers” (hint:  they are the same thing), to say nothing of the subtleties distinguishing “textualism” from “originalism” as hermeneutical strategies for interpreting the Constitution, and the various sub-types of both approaches, etc., etc., etc., etc. … ad infinitum. Most of those issues did not exist – could not have existed -- during the Ratification.

In a strange kind of way, the Constitution was like a primitive god:  at first, people worshipped it naively and without the mediation of go-betweens. But over time, the subtleties of theology developed that resulted in the origin of a priesthood that separated the worshippers from their god – in this case, a priesthood of (almost always honorable and well-intentioned) constitutional lawyers, professional scholars, and academics. Every so often, yes, you do find a masochist like me who, partially by virtue of being retired, is free to invest prodigious amounts of time and intellectual bandwidth in buying (mostly for Kindle) and reading multiple hundreds of texts on all those subjects, many quite technical, and in auditing law-school con-law classes, even though he has never been a law school student – but who thereby acquires an almost religious reverence for the Constitution, its history, and its principles. (The US Constitution is a Universe on parchment.) I do not solicit your admiration. On the contrary, the point is:  pity me, I am a Constitution nerd. But far more importantly, the point is that, during Ratification, avocational Constitution nerds like me were almost a dime a dozen. Unlike today. But additionally … well … keep reading …

Secondly, schools, especially secondary schools, in many cases no longer teach world history. Least of all is there an emphasis on American history. This trend was developing when I was a junior-high student. What few classes – only one or two -- I took in American history I did not pay attention to. I learned the material well enough to pull As, but beyond that … nothing … zip … zilch … nadabupkis. Most of my history teachers in secondary school had no passion for American history in general, and least of all for the history of the Constitution in particular. I simply mimicked their and my peers’ apathy.

When I began my really serious and dedicated study of the Document around 2008 – two years before I retired – I basically had to start from scratch. Why? The short answer is that I saw the 1993 movie Gettysburg and was appalled as I left the theater that I knew only Gen. Robert E. Lee. Nothing of Gens. Longstreet or Mead. Nothing of Little Round Top or Col. Chamberlain. Nothing of Pickett’s charge. Nothing of Cemetery Ridge. Nothing of … well … you get the picture. Literally the next day, I began to remedy that ignorance with a vengeance by reading biographies of President Lincoln. Eventually, that led naturally to the study of what, precisely, the Union was defending:  the US Constitution. (In the process, I became both a Civil War nut and an American Revolution nut.) The plane lifted off the flight deck and I kicked in the afterburner. I am not exceptional:  what I did you can do, too. Anyone can. Problem is, most of us choose not to.

On a parallel track, I discovered that, indeed, Nature abhors a vacuum, a maxim no less true for being a cliché. What took the place of the value the Framers and Ratifiers placed on the Constitution and the principles enshrined therein? The short answer:  money. Pay close attention to the news sometime, and you will find that, with the possible exceptions of, e.g., MSNBC, CNN, the Huffington Post, et. al., you will find that the metrics being used to assess the health of the Nation are, at base, almost exclusively money-centric:  the Dow, the unemployment rate, what the Fed is going to do with interest rates, the rate of increase of the GDP, consumer confidence, etc., etc., etc. An interstellar visitor from a planet orbiting, say, Epsilon Eridani, observing American news, might well draw the conclusion that, in American culture, a nation – any nation – is basically a huge business enterprise that exists for the sole and exclusive purpose of making money for its citizens, and that the values, priorities, and morality of a nation are all determined by purely economic and pecuniary parameters.

Hugh Hewitt

No better example is to be found of this it’s-the-economy-stupid (ITES) ideology than an April 27 Washington Post column by Hugh Hewitt, in which Hewitt assessed Donald Trump’s chances of reelection by almost exclusive reference to economic and monetary factors. That, plus Trump’s pandering to the far-rights penchant for jingoistic MAGA bombast. Problem is, I think Hewitt is probably right – though one can only wish that someone had pointed out -- as I did in a recent "Skeptic's Collection" column -- that all the reasons he adduces for voting for Trump would have been equally good reasons to vote for Hitler and the National Socialists in the 1930s. The ratifiers of the late 1780s, the mechanics, farmers, small businessmen, cottage artisans, etc., etc., who looked at the Constitution for the first time would have disagreed with Hewitt and his ITES compatriots. They knew better.

14th mendment

Had we partaken of their spirit, their passion for the Constitution, their zeal for liberal democracy – even if they did not know enough to call it by that term … had we been more like the Ratifiers of the late 1780s… the Trump candidacy would have been over the moment Trump vowed to litigate dissident media outlets out of existence by simply suing them into bankruptcy. Or the plague would have been cured before it gained a hold in the body politic the instant Trump so much as suggested that Muslims should have been registered like Jews in 1930s Germany, and that mosques should be subject to warrantless surveillance simply by reason of their association with Islam. There would have been a Nation-wide strike the moment word got round about Trump’s wistful fantasy, expressed to Chairman Xi in China, about a lifetime American Presidency. If the spirit and passion that animated the Ratification had survived down to the present day, people would have thronged the halls of Congress and blocked the entrance to the White House demanding that, because the “equal protection” clause of 14th Amendment references “persons,” not just “citizens,” that the protection of the law be extended equally to immigrants at the southern border and their children.

Unfortunately, we were too busy ensuring the survival of the economy to worry about the survival of the Nation. We believed the two were the same. We were wrong. We are still wrong.

“Every country has the government it deserves.”

 -- Joseph de Maistre

James R. Cowles

Image credits

Prof. Pauline Maier … WashingtonWiki … Creative Commons Attribution-Share Alike 3.0 Unported
States' ratification … Flickr … No known copyright restrictions
Chief Justice John Marshall … Columbia Univ … Public domain
Prof. Akhil Reed Amar … Matthew W. Hutchins, Harvard Law Record … Creative Commons Attribution 3.0 Unported
1st Amendment … Ed Uthman … CC BY-SA 2.0
14th Amendment … National Archives … Public domain
Hugh Hewitt … Gage Skidmore … Creative Commons Attribution-Share Alike 2.0 Generic
"Four Freedoms -- Freedom of Speech" -- Norman Rockwell, courtesy of the National Archives ... Public domain

Leave a Reply