Constitutional Myths Read online

  CONSTITUTIONAL

  MYTHS

  ALSO BY RAY RAPHAEL

  FOUNDING ERA

  A People’s History of the American Revolution:

  How Common People Shaped the Fight for Independence

  The First American Revolution: Before Lexington and Concord

  Founding Myths: Stories That Hide Our Patriotic Past

  Founders: The People Who Brought You a Nation

  The Complete Idiot’s Guide to the Founding

  Fathers and the Birth of Our Nation

  Mr. President: How and Why the Founders Created a Chief Executive

  Revolutionary Founders: Rebels, Radicals, and Reformers in the Making of the Nation (co-edited with Alfred F. Young and Gary B. Nash)

  CALIFORNIA HISTORY AND REGIONAL ISSUES

  An Everyday History of Somewhere

  Edges: Human Ecology of the Backcountry

  Tree Talk: The People and Politics of Timber

  Cash Crop: An American Dream

  Little White Father: Redick McKee on the California Frontier

  More Tree Talk: The People, Politics, and Economics of Timber

  Two Peoples, One Place: Humboldt History,

  volume 1 (with Freeman House)

  EDUCATION AND SOCIOLOGY

  The Teacher’s Voice: A Sense of Who We Are

  The Men from the Boys: Rites of Passage in Male America

  CONSTITUTIONAL

  MYTHS

  What We Get Wrong and How to Get It Right

  Ray Raphael

  © 2013 by Ray Raphael

  All rights reserved.

  No part of this book may be reproduced, in any form, without written permission from the publisher.

  Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 38 Greene Street, New York, NY 10013.

  Published in the United States by The New Press, New York, 2013

  Distributed by Perseus Distribution

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

  Raphael, Ray.

  Constitutional myths : what we get wrong and how to get it right / Ray Raphael.

  pages cm

  Includes bibliographical references and index.

  ISBN 978-1-59558-838-8 (e-book) (print)1. Constitutional history—United States—18th century.2. United States—History—1783–1815.I. Title.

  KF4541.R3752013

  342.7302'9—dc23

  2012041849

  The New Press publishes books that promote and enrich public discussion and understanding of the issues vital to our democracy and to a more equitable world. These books are made possible by the enthusiasm of our readers; the support of a committed group of donors, large and small; the collaboration of our many partners in the independent media and the not-for-profit sector; booksellers, who often hand-sell New Press books; librarians; and above all by our authors.

  www.thenewpress.com

  Composition by dix!

  This book was set in Fournier MT

  10 9 8 7 6 5 4 3 2 1

  For George Washington, who wanted government to work.

  For Benjamin Franklin, smarter than us all but

  still doubting his own infallibility.

  For the Constitution’s framers,

  who did not believe compromise a sin.

  For the founding generation, who kept the framers on their toes.

  And for Americans today—may we listen more, shout less,

  and think to the future, as the framers did.

  CONTENTS

  Preface: The Historical Constitution

  1.

  A Revolution in Favor of Government

  2.

  Taxes

  3.

  Politics

  4.

  Principles

  5.

  The Father

  6.

  The Federalist Papers

  7.

  “Bill of Rights”

  8.

  Originalism

  Documents

  A.

  Articles of Confederation (submitted to the states November 15, 1777; ratified March 1, 1781)

  B.

  Washington’s “Legacy” Letter to the States (June 8, 1783)

  C.

  Virginia Plan (May 29, 1787)

  D.

  Committee of Detail Draft (August 6, 1787)

  E.

  Original United States Constitution (submitted by the Federal Convention September 17, 1787; ratified June 21, 1788)

  F.

  Madison’s Draft Amendments (June 8, 1789)

  G.

  Initial Set of Constitutional Amendments (twelve amendments submitted by Congress September 25, 1789; ten ratified December 15, 1791)

  H.

  Constitutional Amendments 11–27

  Acknowledgments

  Notes

  Index

  PREFACE: THE HISTORICAL CONSTITUTION

  On September 17, 1947, the United States Constitution was taken for a ride, transported by a red, white, and blue diesel-electric locomotive christened The Spirit of Seventy-Six. Starting in Philadelphia, the document’s birthplace, and journeying for more than a year, it was viewed by reverential crowds at some three hundred stops in all forty-eight states.

  The precious cargo aboard the “Freedom Train” included not only the Constitution but also the Magna Carta, Thomas Jefferson’s draft of the Declaration of Independence, and 124 other documents deemed critical to establishing and preserving America’s freedom. Some key amendments to the Constitution, however, failed to make the passenger list. The Fourteenth, with its promise of “equal protection,” and the Fifteenth, which prohibits racial discrimination in voting, were denied passage. At some stops in the South, the Freedom Train played to segregated audiences, whites entering the mobile museum at one time and blacks at another.1

  Today, traveling over the Internet and broadcast media, the Constitution is once again viewed by segregated audiences. The separation is voluntary this time, with the division following ideological lines that can be as uninformed and as stringent as bygone racial ones. People see in our governing document only what they wish to see. It is not a unifying force, as its authors had intended, but a wedge that widens the partisan divide.

  Lost in our battle over the Constitution is the actual historical record. Constitutional Myths reintroduces that record and lays it alongside commonly accepted views. Based on in-depth accounts from founding times, not on later interpretations by interested citizens, professional historians, or even Supreme Court justices, it reveals how far our stories about the Constitution have strayed.

  That historical record is both extensive and accessible. In the summer of 1787, as men we now call the framers conjured and debated evolving drafts of the Constitution, one of their number, James Madison, took meticulous notes. Seated immediately in front of the presiding officer, “with other members on my right & left hands,” Madison did not miss “more than a casual fraction of an hour in any day, so that I could not have lost a single speech, unless a very short one.” Other delegates to the Convention in Philadelphia took less comprehensive notes. After the framers released their handiwork and submitted it to the states for approval, thousands of other American citizens weighed in. These public debates, both written and oral, were recorded and preserved. Then, as the First Federal Congress struggled to put the Constitution to work, those proceedings were recorded as well. During this pivotal time in our nation’s history, men who played key roles in writing, ratifying, and implementing the Constitution wrote privately and extensively to each other, discussing both broad ideas and specific provisions.2

  To make sense of the abundant sources,
Constitutional Myths constructs narrative timelines and sticks closely to them. Using the tried-and-true tool of basic chronology, it explores the context of what people said and did, for without context we have no history, just a jumble of things that happened. Citing the Constitution or the views of prominent founders without referring to context is great political sport, but it is also the quickest route to falsification. Political arguments are peppered with such phrases as “Hamilton believed …”, “According to Madison …”, or “As Jefferson says …” Even serious scholars and jurists fall into the trap when they try to integrate statements made by a particular founder at various times and differing contexts into a single, coherent philosophy. Jefferson, Madison, and Adams engaged in political life or commented on politics for over half a century each, Washington and Franklin for four decades, Hamilton for twenty-five years. Was Hamilton really a monarchist? What did Jefferson think about slavery? These questions, without further definition, make little sense. History does not demand consistency.3

  Nor can history be understood by treating the past as if it were the present. Much has happened since the founders’ time: national expansion on a shrinking planet, nuclear and biological warfare, Internet and broadcast technologies, and so on—more than two centuries of subsequent history. Compare then and now. On October 15, 1789, President Washington set out from New York with only two aides and six servants to tour New England. In his diary, he chronicled the first day of his journey:

  The road for the greater part, indeed the whole way, was very rough and stoney, but the land strong, well covered with grass and a luxurient crop of Indian corn intermixed with pompions [pumpkins] which were ungathered in the fields. We met four droves of beef cattle for the New York market (about 30 in a drove) some of which were very fine—also a flock of sheep for the same place. We scarcely passed a farm house that did not abd. in geese.

  Washington was traveling through what is now the Bronx, traversed by interstate highways and expressways, not stony roads, and home to some 1.4 million people packed tightly within apartments. If the country Washington observed was very different back then, so too was the manner in which he observed it, close up and literally on the ground, experiencing every stone on the road. He could meet his constituency directly, without intervention from an advance team, a press corps, or a small army of secret service agents.4

  Some changes directly affect the Constitution. In the founding era, when nations went to war, they declared war, but the United States, despite extensive military engagements in Korea, Vietnam, Iraq, and Afghanistan, has not declared war since World War II, two-thirds of a century in the past. In today’s world, in which military conflicts no longer feature armies of belligerent nations lining up and firing weapons at each other, declaring war can appear as anachronistic as fighting a duel. So how do we treat Article I, Section 8, Clause 11 of the Constitution, which stipulates that only Congress has the power to declare war? Is that provision simply obsolete, or if not, how can it be adapted to changing circumstances?

  Historical changes include the evolution of language, the medium of the Constitution. When the founders used the word “Republican,” they were not referring to a political party but to a governmental philosophy that most of them championed: people elect their own leaders at reasonably frequent intervals, and those leaders decide what’s best for the country. “Democracy,” meanwhile, had a somewhat negative connotation. While all the founders believed good government must be rooted in the people, most viewed direct popular control of government warily. Yet now we call ourselves Democrats or Republicans, and in the name of “the people,” we try to influence every public act. In fact, the framers of the Constitution had hoped to keep any political party from manipulating or capturing the government.

  The most fickle word is federal. Today, we speak of the national government located in Washington, DC, as the federal government, yet people claiming they are true to federalist principles resist central authority and demonize the city that houses the federal government. There is some historical precedent for this muddle. In 1787, twelve states sent delegates to a federal convention to address possible changes to the Articles of Confederation. During that convention, delegates who wanted to continue the old Confederation, with a few amendments, called themselves federalists, while those who wanted to abandon the Articles and create a stronger central government were considered nationalists. Afterward, proponents of the plan that emanated from the Federal Convention (that’s what everybody called it, not the Constitutional Convention) assumed the term federalist for themselves, even though they had been nationalists at the Convention. Alexander Hamilton, James Madison, and John Jay, advocates of the new plan, wrote a series of essays they titled The Federalist, which many now call The Federalist Papers.

  Opponents of the proposed plan fought back, signing their essays A Democratic Federalist, A Republican Federalist, or Federal Farmer, but the Constitution’s supporters won the battle of words: Federalists they would be. The Constitution’s opponents were thus denoted Anti-Federalists, even though few called themselves by that name.

  Confusing? Of course, and federal is just one word. Imagine the linguistic problems created by the entire Constitution, written at a much different time but applied to situations today.5

  Which is to say: if you want to know the historical Constitution, pay attention. Release for a moment what you think you know, and listen. “The past is a foreign country,” people say. “They do things differently there.” Although we all might agree with that statement on some level, this particular past—the framing and ratification of the Constitution—is our country too. Because it lives with us today and even determines our actions, it clouds the distinctions between past and present and tempts us to forget the most fundamental of all historical truths: that was then and this is now.6

  In 1787, George Washington, James Madison, Alexander Hamilton, and others believed that government, such as it was under the Articles of Confederation, was broken. In response, they created an entirely new form.

  Today, we hear from all sides that “government is broken,” and we are again at a crossroads. We are not about to throw off the old rules this time—by and large they have served us well, and we have too much vested in them by now—but how can we make government work within our constitutional framework?

  Many turn to the founders for guidance: what would they do if they were alive today?

  We cannot even begin to address this question without considering a prior one: what did they do during their own time, not in our terms but theirs, when they wrote and ratified the Constitution? That is the primary inquiry of this book.

  A second inquiry follows closely: how and why have Americans conjured phantom constitutions and substituted these for the historical one?

  Finally, we come to the sweeping question that affects us all: what does the Constitution, written at a different time, mean for us today?

  CONSTITUTIONAL

  MYTHS

  1

  A REVOLUTION IN FAVOR OF GOVERNMENT

  Myth: The framers of the Constitution opposed a strong federal government.

  The Constitution is the fundamental law of the nation that limits government and guarantees the rights and liberties of every American.

  —Website of the James Madison Memorial Fellowship Foundation, an independent agency of the executive branch of the federal government1

  The Founders designed the federal government to be weak and inefficient to secure the sovereignty of the states and the people. The framers knew all too well the abuse rendered by a large, centralized government.

  —Letter to the Redwood Times, a community newspaper in California2

  Kernel of Truth

  When citizens of thirteen colonies along North America’s eastern seaboard were still part of the British Empire, they considered themselves Virginians, Pennsylvanians, or New Yorkers, not Americans. Once independent, each of the former colonies created a distinct government that wa
s empowered to pass laws, tax citizens, and draft soldiers. These sovereign states formed an alliance called the Articles of Confederation, but the “United States, in Congress assembled,” the body it charged with running the Confederation, was not permitted to levy taxes, draft soldiers, or pass laws operating on individual citizens. Having been oppressed so recently by a strong, distant government, citizens were in no hurry to create a new central authority that might pose the risk of subjugating its own people. Guarding against that danger was a fundamental condition of the creation of the Confederation: each state must retain “the sole and exclusive right” to govern its internal affairs. The American revolutionaries, in short, jealously protected the rights of the states and of the citizens within each state.3

  But …

  That was plan A, but was it working? People like George Washington, James Madison, and Alexander Hamilton didn’t think so. By 1787 the fledgling United States was under severe economic, political, and social duress, they felt. Congress was flat broke. Massachusetts was rocked by a major insurrection, and when called upon to put down that uprising, Congress balked, for it lacked money and commanded but a few soldiers, scattered in western outposts. Often, Congress did not even muster a quorum, conducting no business at all. Meanwhile, European powers were perched and ready, prepared to take advantage of what appeared to be the imminent implosion of the not-so-united states.

  It was time to consider plan B, these prominent leaders determined. Perhaps the United States, to live up to its name, required not merely an alliance among sovereign and independent states, but an actual government that could make laws that operated on individuals, tax citizens, and raise armies. And so it was that delegates from twelve states gathered in Philadelphia in the summer of 1787 for what they called the Federal Convention. They would stage a new revolution, one that supported an “energetic” government with sufficient “vigor” (favorite words of the framers) to lead the United States from the brink. For almost four months, they labored to form its structure.4