Guest Appearance on Constitutional Chat

Constituting America has organized a series of Zoom chats on the Constitution. The chats are hosted by actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) and Cathy Gillespie, co-founders of Constituting America. On the panel will also be "We The Future" Contest winners Dakare Chatman and Tova Love Kaplan.

I've been invited as a guest presenter for September 15, 2020. The subject will be The Preamble & The Constitutional Convention. You can sign up for the remaining sessions at this link (scroll down).

Tuesday September 1:     Countdown to Constitution Day Series, Articles IV & V

Tuesday September 8:     Countdown to Constitution Day Series, Article VI & VII

Tuesday September 15:   Countdown to Constitution Day Series, Preamble & Constitutional Convention

Thursday September 17: LIVE VIRTUAL CONSTITUTION DAY PROGRAM

Happy Birthday, Mr. Madison

March 16, 2014 marks the 263rd birthday of James Madison. 

In his later years, James Madison protested being referred to as the Father of the Constitution. He said the document was not “the off-spring of a single brain.” Our Constitution was actually the off-spring of fifty-five brains, although none were as potent as Madison’s. James Madison was arguably the most important Framer—before, during, and after the Constitutional Convention of 1787.

James Madison

Before the Constitutional Convention

In 1786, the country was at peace, but struggling. Congress called for a convention at Annapolis to offer amendments to the Articles of Confederation, but the meeting never convened due to the lack of a quorum. James Madison and Alexander Hamilton made a pact to promote another convention for the following year in Philadelphia.

Voting rights in the Constitution

Some accuse Constitutional Conservatives of wanting to return our country to slavery and restricted voting rights. This is deflection. Constitutional conservatives want the government to adhere to the Constitution, including amendments, so this argument is specious. Amendments have solidified American positions on these issues and these amendments are part of the supreme law of the land.

Many also harbor misunderstandings about how the main body of the Constitution addressed slavery and voting rights. Despite obvious shortcomings, by 1775, the American colonies were the most democratic places on earth. In Britain, voting rights were far more limited than in the colonies. Less than ten percent of men could vote in Britain, and those who could vote were selected by local nobility. A far larger segment of men voted in the colonies and the requirements were set by law, not officials. Voting rights traced back to the earliest history of the colonies. Within days of landing in Jamestown, for instance, the first colonists elected an executive officer. Only six men were allowed to vote in this embryonic colony, but from that moment forward, colonists expanded the right to vote to broader segments of the population.

The Anti-Constitution Mercenaries

In the past, I blogged at What Would The Founders Think? One of my articles was titled, “The Founders Fear.” The article asserted that the Founders architected a limited government because they feared unrestrained power. This was written way back in 2011, but I received a scolding from a troll last week. Reeve wrote: 

A Time of Civil Debate

A rowdy debate consumed nearly everyone in the United States between the Constitutional Convention and ratification. The population of the country was about four million and possibly a quarter of that number were activists during the Revolution and founding. What did people think about a constitution written in secret? We don’t have to guess. A prodigious number of articles and pamphlets were published by proponents and opponents.

Can Tempest at Dawn be taken seriously?

Tempest at Dawn is a novelization of the Constitutional Convention. As a novel, it is not bound by the rigorous constraints of a nonfiction history book, but it does not deviate from the historical record except for modernizating language, re-sequencing of debates for logical presentation, and attributing a few speeches to a different delegate because that person was already established as a character. It’s confusing to tell a story with more than sixty characters, so I had to choose a representative sample and occasionally attribute to them the words or actions of others.

The real story of our nation's founding.

James Madison’s comprehensive convention notes provided a solid framework for what happened inside the locked doors of the Pennsylvania State House. The events outside the State House occurred, but literary license was used because there were very few recorded details about them. For example, Franklin’s dinner, the John Fitch Steam Boat demonstration, horse races, and George Washington having a carriage built were all outside activities during the convention.  The Fourth of July celebration happened pretty much as portrayed, and delegates did witness a two story house being moved down the street. 

Other than speeches, conversations were speculative, but based to a large degree on what must have been discussed in private meetings to shift the votes and opinions expressed in the proceedings.

How to study the Constitution

The study of the Constitution can seem daunting to those who want to gain a greater understanding of this unique document. To begin with, there are eight historic periods that shaped our Constitution. 

1. Constitutional Convention
2. Public debate on Constitution as reflected in the Federalist and Antifederalist Papers
3. State Ratification Conventions
4. First Congress and Bill of Rights
5. George Washington precedents
6. Supreme Court Rulings
7. Amendments beyond the Bill of Rights
8. Executive encroachment with emphasis on Jefferson, Lincoln, Wilson, FDR, and Obama

As a constitutional conservative, I recommend starting with the convention and the Framers. Besides, it’s always a good idea to start at the beginning.

There are countless history books on the Constitutional convention. In these books, the convention is usually presented in one of two ways: chronologically or by subject.

The Atlantic Joins the Chorus: Constitution Defunct

Alex Seitz-Wald

“America, we've got some bad news: Our Constitution isn't going to make it.” That is the lead sentence in The Atlantic article: “The U.S. Needs a New Constitution—Here's How to Write It,” by  Alex Seitz-Wald, Salon's political reporter. Seitz-Wald quotes none other than Thomas Jefferson to justify his claim that “it's time to think about moving on.” Jefferson had famously written that Constitutions should be rewritten every nineteen years. Jefferson certainly qualifies as a founding father, but he had nothing to do with the Constitution. He was in Paris in the summer of 1787 and returned miffed that he had been left out. None of the actual delegates wanted to repeat the convention experience, and all believed they had written a constitution for what George Mason called “millions yet unborn.”

Seitz-Wald  writes, “If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now.” I suspect those wise men and women would all be required to think in lockstep with Mr. Seitz-Wald.  Again, not true of the 1787 delegates who possessed myriad ideas and perspectives.

The Heritage Guide to the Constitution

A reference Book for Every American Home

Many Americans have taken to carrying a copy of the Constitution. No one will want to lug around The Heritage Guide to the Constitution, but the book is an indispensable reference companion. The first words in the book read, “The Heritage Guide to the Constitution is intended to provide a brief and accurate explanation of each clause of the Constitution as envisioned by the Framers and as applied in contemporary law.” It achieves this goal admirably.

As you would expect from the Heritage Foundation, this is an Originalist reference book, and the editors have done an excellent job of explaining the Constitution as envisioned by the Framers. But it also explains the Constitution as applied in contemporary law, which means the book describes how courts have interpreted the Constitution.

Most Americans confuse the Declaration of Independence and the Constitution

The Constitution means different things to different people. While there has been resurgence in the interest and study of the Constitution, most Americans remain ill-informed. Last Constitution Day, the James Madison’s Montpelier’s Center for the Constitution held a celebration that attracted nearly 300 people. Those who attended were asked questions that had already been answered in a national poll. Here are some of the results from the multiple choice quiz:

Only 35% of the general population identified “We the People” as the first words of the Constitution. 85% of attendees selected this answer. 

78% of attendees knew that James Madison was the “father of the Constitution.” In the national poll, only 20% answered correctly and 50% thought Thomas Jefferson fathered our Constitution. 

62% of attendees correctly identified 1787 as the year the Constitution was written. 55% of the national poll respondents thought the Constitution was written in 1776, and only 13% knew the correct answer.

What happened in those secret meeting in 1787?

“Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?”—James Madison

Fifty-five men came to Philadelphia in May of 1787 to secretly plot the overthrow of the United States government. At first, a coup was not subscribed to by all the participants, but most of them soon acquiesced to framing an entirely new form of government. At the time, this conclave was called the Federal Convention; today we refer to it as the Constitutional Convention.

James Madison, circa convention

One of the first acts of the convention was to declare the proceedings secret. There was a general fear that newspapers would excite Congress and the populace against abandoning the Articles of Confederation. The windows were nailed shut and guards posted at the doors. Delegates were lectured by George Washington never to whisper a word to anyone about what was happening inside the chamber. The official minutes are scanty, recording little beyond an official tally of the votes. A few delegates made private notes, but of those, only one attended every day and wrote everything down. James Madison purposely sat in front so he could take extensive notes of all the deliberations. He recorded the proceedings in his own shorthand, and then transcribed his daily notes into longhand. When finally published in 1840, Madison’s notes exceeded 230,000 words—all written with a quill pen.

Constitutional Dichotomy

“What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established.” Constitutional delegate William Paterson, author of the New Jersey Plan

What does the Constitution mean? What is its purpose? Is it meant to be followed verbatim or is it a living document? With a few inconsequential exceptions, all Americans revere the Constitution. But people see it differently. Very differently.

National Constitution Center 

Perspectives on the Constitution generally fall into two classes.

Learning about the Constitution

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  This is backward.  The Constitution was never written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land. The first outsized words of the Constitution read We the People.  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

In order to preserve, protect, and defend the Constitution, Americans need to understand it. Luckily, there are some great learning tools available. These include an online course at James Madison’s Montpelier Center for the Constitution, Hillsdale College Online Courses, Constitutional essays at Constituting America, and several good books, including The Heritage Guide to the Constitution, Tempest at Dawn, and Decision in Philadelphia.

James Madison’s Montpelier, Center for the Constitution

The Center for the Constitution at Montpelier conducts a series of seminars on the Constitution. For those who cannot attend in person, the Center has created a free course on their website. The interactive online course includes text instructions, video discussions with constitutional scholars, and quizzes to test the student’s knowledge. I have taken the first of seven sessions and found it to be accurate, not politicized, and paced to keep the student’s interest. The seminars and online course were originally designed for teachers, but work well for any inquisitive student of the Constitution. Continuing Education Units (CEUs) are available after successful completion of the entire course. The course is free, but it cost $25 to claim CEUs.

Constitutional Protection of Property

“Government is instituted to protect property of every sort … This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.” James Madison

Does the Constitution protect private property? All rights, not just property rights, appear to have received scant attention during the Constitutional Convention. Most of the delegates believed it would be far more effective to limit government with enumerated powers than to compose a list of rights because they feared an overly powerful government would trample those rights, despite written restrictions to the contrary. If the national government’s powers were held in check, then it was believed that common law and state declarations of rights provided sufficient safeguards to protect all rights. That is, until ratification. Several states unofficially conditioned their ratification on a Bill of Rights being added to the Constitution. The First Congress thus proposed the first ten amendments to the Constitution.

There were only a couple provisos in the base document that protected property rights. States were prohibited from impairing the obligation of contracts, and intellectual property was protected, giving “authors and inventors the exclusive right to their respective writings and discoveries.”

Surely the Bill of Rights rectified this absence of protection for private property. Not entirely. The takings clause in the Fifth Amendment is one of the few outright protections of property. It reads, “nor shall private property be taken for public use without just compensation.’’ It would appear that this clause protects property owners from government confiscation, but cities and states became increasingly brazen in taking property for public domain purposes.  In 2005, Kelo v. City of New London defined public domain so broadly that it effectively included any action forecasted to increase the tax base. The takings issue is an illuminating object lesson that proves the Framers were right on the issue of protecting rights—unchecked power trumps protections written on a piece of parchment.  The clause is clear, yet it has proven a weak shield against the abusive exercise of determined power.

"Mike Reads" reviews Tempest at Dawn

The "Mike Reads" blog has reviewed Tempest at Dawn. This is not exactly a New York Times book review, but I liked it because Mike took away from the book what I intended. I love writing Westerns and like the freedom to plot my own stories, but Tempest at Dawn was a five year labor of love. It was a huge responsibility to write about the founding fathers and such an important event in American history. I read or seriously scanned over 100 history books on the Constitutional Convention, and used at least 3 biographies for each of the major characters in the story. And yes, it was a story—a great story with great characters, intense conflict, and hopeful resolution.

Tempest at Dawn continues to be well received by readers and historians. At the time of this writing, and five years after publication, the Kindle version is still ranked #28 for books about the U.S. Constitution. 140 Amazon customers have reviewed the book for 4.4 stars, and 387 readers on Goodreads have given the book an average rating of 3.9.

I'll probably never again tackle a book as challenging as Tempest at Dawn, so it's gratifying that it still sells well and continues to receive attention from readers and reviewers. Thanks.

John Adams, The Philosopher Rebel

“Let us dare to read, think, speak and write.”  John Adams

John Adams is best known today for a presidency cut short by the Alien and Sedition Acts. In truth, he was the greatest expert on government in the colonies ... at least until James Madison stepped to the forefront. Harvard educated, Adams was a champion of the founding principles, a firm proponent of Enlightenment teachings, and a scholar of constitutional government. He was a pious man of honor and character. Granted, he could be argumentative and self-righteous, but he was generally correct in his positions.

Adams was an early and fervent advocate for independence. He opposed the Stamp Act in speeches, articles, and a widely circulated dissertation (Essay on the Canon and Feudal Law). He served in the first and second Continental Congresses, where he was engaged in over ninety committees, many of which he chaired.  Adams nominated George Washington to be commander-in-chief, and headed the Board of War and Ordnance, which was responsible for supplying Washington’s army. He succeeded in getting an early resolution passed for independence that eventually led to the Declaration, and then served on the committee that wrote the Declaration of Independence. Twice during the war he served as an envoy in Europe. In later Years, Thomas Jefferson said that Adams was “the pillar of [the Declaration's] support on the floor of Congress, its ablest advocate and defender against the multifarious assaults it encountered.”

A Most Audacious Letter

Governments are instituted among men, deriving their just powers from the consent of the governed. —Declaration of Independence

In February of 1787, Congress sanctioned a convention in Philadelphia “for the sole and express purpose of revising the articles of confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein as shall when agreed to in Congress, and confirmed by the States, render the federal constitution, adequate to the exigencies of government and the preservation of the union.”

The instructions were clear. The convention was to recommend changes to the Articles of Confederation, and submit them to Congress and the state legislatures for approval. Instead, the Federal Convention wrote an entirely new constitution—one that would dissolve the existing Congress and take away some state power. How in the world would they get this thing approved? It threatened every political figure in the country. The answer was simple. As stated in the Declaration of Independence, the Founders believed that all political power emanated from the people. They would bypass Congress and the state legislatures, and go directly to the people for ratification of their work.

There was a problem, of course. Congress and the state legislatures to might not agree to being marginalized. The convention’s solution was to send Congress a letter. The first draft was a convoluted rationalization for their actions and a long winded declaration that their motives were pure. No one thought it was convincing, so in the end, they just told Congress what to do and how to do it.

Letter to Congress from Federal Convention

A Capacity to Annoy or Injure

“There is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” Alexander Hamilton, Federalist 81

 During the Constitutional Convention and state ratification conventions, the judiciary was the least discussed branch of the national government. From a design perspective, almost all of the debate and alarm seemed to have been focused on the executive and the legislature. The simplest explanation is that the judiciary was familiar and non-controversial. Hamilton wrote in Federalist 78, “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” 

Every delegate knew what a judge did and understood their role in the government, and their only concern was insuring their independence. A few anticipated that judges might legislate from the bench, but most of the delegates were more concerned about politicians putting undue pressure on judges. The Framers solution to this threat was to give justices life tenure.

For nearly one hundred and fifty years, the Supreme Court restricted itself to evaluating laws based on what today would be called an originalist perspective. The Commerce, General Welfare, and Necessary and Proper clauses and Bill of Rights were interpreted on a generally narrow basis. The court took the enumerated powers seriously, showed deference to state authority, and restricted interference with contracts.

Protecting Liberty

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one…”   James Madison

When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that the Founders believed that liberty depended on each part of the government acting as an effective check on all the other parts of the government, and that meant not only between the three national branches, but also between the states and the national government.

Patrick Henry, "Give me liberty, or give me death"

The Founders believed in limited government in the form of a representative republic. They distrusted a direct democracy, because majorities had historically taken advantage of minorities. A limited representative republic was the best form of government to safeguard minority rights. James Madison constantly preached against any system that allowed special interests (factions) to gain control of major elements of the government. He showed that throughout history, majority factions tyrannized minorities, whether those minorities were based on race, wealth, religion, political affiliation, or even geography.

Checks and balances were not enough, however. They also wanted to specifically define powers to limit the intrusion of government into personal lives. The Constitutional Convention looked at two different ways of defining national powers. They debated long and hard about whether to call out each power individually or, alternately, to list restrictions on general powers. Basically they had to decide whether to write down what the federal government could do or what the federal government could not do.

Happy Constitution Day!

Today is the 226th anniversary of the signing of the Constitution. On May 25, 1787, George Washington officially convened what was called the Federal Convention, which we now call the Constitutional Convention. Fifty-five delegates struggled for four months to define our constitutional form of government. It was a blisteringly hot Philadelphia summer, and all the heat did not come from the weather. Several times the convention nearly collapsed, but these patriots refused to allow the American Experiment to fail.

The Framers would be proud that we continue to celebrate our Constitution, but probably say we picked the wrong date. They would prefer June 21, the date in 1788 when New Hampshire became the ninth state to ratify the Constitution, which made it the supreme law of the land. After all, the delegates did not believe they held the power to define a government. Each firmly believed this power resided with the people.