Sunday, September 6, 2009

Jefferson and Madison on Constitutional Interpretation

Some controversy has arisen in our comments section, charging "Machiavellianism" in the federalist and "textual" approaches to judicial philosophy. The names of Thomas Jefferson and James Madison came up. And so, let go to the horses' mouths:

“The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign affairs...”

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

---Jefferson


Which is OK, but I like Madison even better:

"It is to be the assent and ratification of the several States, derived from the supreme authority in each State -- the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act."

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."


Machiavellianism has nothing atall to do with it. In fact, it's those who substitute their interpretations of the Constitution over its meaning when it was ratified who are guilty of it.

38 comments:

J said...

You're cherry picking quotes again. Maybe quote Jefferson on Judicial review--which does relate to the original intent of the Constitution:

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

http://etext.virginia.edu/jefferson/quotations/jeff1030.htm

True, Jefferson does not mention the M-word. That's called an inference.

Tom Van Dyke said...

Jefferson lost that one---Marshall [and Story] won, as I helpfully chronicled for you but somehow don't appear to have read.

But I'm an opponent of such judicial supremacy, and in fact, it's "living constitutionalism" that claims it and exercises it, not the people you demonize.

Pinky said...

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Of course, I drop back to Shain as is usual on these issues.
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The power of America was and is vested in its people.
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In those days, Americans were almost totally content to live in their local communities. (You can look to Talcott Parsons for a description of what made up the local community.)
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For all intent and purposes, they lived out their entire life within their local community and saw the central government as an outside force. Yet, they knew the importance of protecting America from foreign powers.
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The people were most heavily influenced in the local congregations where they gathered for religious instruction.
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J said...

Not about "demonizing"--you're the moralist here.

The AC crew often claim, at least implicitly, that the Framers were in agreement on all issues, politically or religious. The historical record does not support that claim. In regards to the power of the judiciary (a rather key issue, even to "states rights" types), they were not in agreement.

Adams appointed John Marshall, and initiated SCOTUS. Marshall consolidated the power with various decisions which strengthened the power of the SCOTUS (Marbury vs Madison being the foremost). Jefferson protested Marshall and the "standing court," but did not lose . The President himself cannot simply dismiss judges at will--though Jefferson actually argued for something like that, or at least subjecting the judiciary to legislative power.

TvD's Wiki-quote History of the US does not quite capture the complexity of the battle between states/legislature and judges--arguably one of the issues which resulted in the civil war (regardless of which team one roots for).

Tom Van Dyke said...

But of course you're demonizing, J. Invoking Machiavelli is demonizing.

I agree about the Wiki, but it's good for basic info that my correspondent is not acknowledging.

As for agreement among the Founders, I continually argue against that, specifically trotting out Adams and Jefferson without substantive support from other Founders as well. There were a lot of Founders.

But yes, Jefferson lost, Marshall won.

Pinky said...

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J writes, "The AC crew often claim, at least implicitly, that the Framers were in agreement on all issues, politically or religious. "
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Aha! Now I get it--finally.
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The issue of Machiavellian leadership. Maybe the Framers just knew that they HAD to go along with certain issues in order to maintain their positions of leadership?
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I'll buy that.
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Tom Van Dyke said...

Certainly Jefferson, which is why he concealed all the arguments that today are often trotted out as relevant and probative.

J said...

Not exactly.

You're simply not reading. Maybe start by reading a bit of Hamilton, say in Federalist papers. Then read say RH Lee, or the crypto-jacobin, Jefferson. Or Locke.

I'll give you another hint (though Jefferson's bon mots on the link in my first post quite adequate): Hamilton's not concerned with justifying rights, or really even with democracy. He wants to build an orderly society, even if that entails great divisions between rich and poor, and duplicating British institutions in law and business. He wants a king-like Chief Executive as President. He sounds like a Tory (and was accused as such, as was Adams). Federalists may not have been complete mafiosi, but certainly had strong-arm elements, ala Machiavelli. In fact Hamilton has been called an "American machiavelli." (google it) A bit general, but will do for a start.

The states rights' people objected to those toryish elements of the Federalists.

Tom Van Dyke said...

You keep arguing like we're disagreeing. Everybody here is well acquainted with what you're saying: it's rather elementary stuff. Hamilton was a fascist, Jefferson liked the French Revolution.

What's your point? The subject is textualism, federalism, and judicial supremacy.

J said...

How about this, tough guy: step in a ring, Burkean mormon man.

Yeah? Sort of Federalist-style honor, Marquess of Queensbury style, legal & proper, gloves...or no.


Bada....bing

You simply don't know what you're talking about, and in fact you're the one making the elementary generalizations.

Many scholars have noted Hamilton's machiavellian aspects. Then you approve of Scalia and Rehnquist, so that probably doesn't phase you.

Pinky said...

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But, moreso, it appears that most national leaders subscribe to Machiavelli when it comes to winning the approval of the great majority.
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Look how vague President Washington was in his personal beliefs.
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And, most recently, see G.W. Bush.
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So, what's all the commotion about?
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J said...
This comment has been removed by the author.
J said...

Well, machiavellianism could be a problem--at least to those of us who value Truth and Justice-- whether in terms of the legal business (ie say, SCOTUS judges lying about some important matter--like Bush/Gore 2000--in order to stay in power, further the GOP's goals, etc ), or in terms of abuses of executive power--like lying about WMDs, or at least greatly misrepresenting the danger to rally support for a foreign war which might be very profitable for some (both leading repugs and demos, actually).

So, in the case of BushCo, and even most 'Merican presidents (and judges appointed under the Reagan era) I agree. But I don't think the founders (apart maybe from Hamilton, though Adams seems fairly totalitarian at times as well) intended to create some quasi-machiavellian regime--or dare we say fascist. The Jeffersonians did not (Jeff. detested Napoleon, for one). Of course they have other problems (though Abe Lincoln sought to rectify those problems).

(So, Mr. Burkean-honor dude, Mano a mano, o no. Legal, of course. Choose a locale, LA way)

Tom Van Dyke said...

What's your point?

J said...
This comment has been removed by the author.
Pinky said...

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Not that I'm choosing sides; but, I'm asking the same question, Tom.
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What's the point?

I expect people can be machiavellian for totally different reasons--some good and some otherwise.
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But, the question remains, based on whose standards.
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I'm sure Bush and Company believed what they did was for the good of civilization.

I think they had very little faith in the basic goodness of people and believed they knew best.
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Now, where does that put me? Do I know what's best? Do I put little faith in others?
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What about ethics?

I know a lot of lawyers and I know a lot of police officers. Some are good guys and some aren't.
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What can we say about Hamilton and Jefferson?

I think they were both, probably, pretty good guys.

I would have liked to have known them both--especially T.J.
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Brad Hart said...

I think the arguments made in "An Economic Interpretation of the Constitution" (Beard) and "Unruly Americans" (Holston) is applicable here. Tom, you may be right that the "spirit" of the Constitution was to leave many if not most issues to the states, but this was NOT due to a love or trust in state governments. Madison, Hamilton and many others argued that the states simply could not be trusted with "important" issues (like taxes, trade, etc.). The fear of too much democracy being exercised in the states was a palpable fear for many in the Const. Convent.

Tom Van Dyke said...

Well, the thing is, we try to stay away from current events on the partisan end because it degenerates into silliness and ugliness, as we see here.

"Machiavellian" is an unhelpful term, just below "Hitler" as a synonym for evil, and simply poisons the well.

But I think you're using it correctly here---not being straight with the people for their own good. However, "Bush Lied People Died" might seem like polite conversation to some people, but I think it's a blood slander and a conversation-ender.

In fact, I stopped discussing Dubya on political blogs even before he left the presidency. All it turns into is ranting past each other.

As for Scalia, whom I didn't mention by name here, he was mindlessly slandered in an earlier comment. As counterargument, I simply printed him in his own words, which to my mind were quite reasonable.

So too, I found support for his judicial philosophy of textualism in Jefferson and Madison, which I printed here.

In fact, the Madison quote was something I've been hunting down for awhile, that even the deliberations of the Framers are irrelevant, and only the understanding of the Ratifiers is of relevance and value. The Constitution and Amendments didn't come with an instruction book.

And so, I hope I've explained myself, and why the blogfathers here are in agreement that current partisan issues should be given the soft-pedal, because it results in stuff like hothead partisans challenging very mellow, thoughtful and nice people to fistfights.

Tom Van Dyke said...

Well, Brad, taxes and trade were explicitly surrendered to the federal gov't.

But no, I wouldn't argue that they trusted the state govt's. But as you see in Madison's explicit assurance to them, the Constitution was ratified by the states, as representatives of their people.

And to properly appreciate the Founding in terms of 100 Founders and not just a handful of "key" ones, that's the only way the states would ratify---as Madison explicitly writes, as a federal gov't, not a "national" one.

[In fact the word "national" as in prohibiting a "national" religion was deleted during the First Amendment discussions, so as not to give implicit assent that it would be a "national" government.]

Pinky said...

Hamilton and Jefferson, both, had little respect for the idea of democracy for the entire nation. They both thought it might work well in small townships.
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It is--precisely--a problem in the way human beings communicate with each other.

Until the late nineteenth century, America was under the authority of what James Carey refers to as vertical communication. That is a hierarchical form in which everything was handed down from the top at the local level. Beginning late in the nineteenth century, something he refers to as horizontal communication began to take effect on the way Americans got their information. Rather than local people getting their ideas from their local leaders, the new phenomena was that information was disseminated from New York, Boston, and Washington.

That changed everything.
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I think some of us might be trying to apply twenty-first century thinking on eighteenth century reality.
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It won't get us any place.
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James Carey.

Tom Van Dyke said...

I think some of us might be trying to apply twenty-first century thinking on eighteenth century reality.

It won't get us any place.


Not if man's perennial problems are perennial.

Which I believe they are---and if they're not, there is no reason to study history, let alone philosophy.

...which would be kind of nihilistic, eh?

Pinky said...

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Right.
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The study of History is cultivated in the fields of Communications studies.

When we look back in history, we are considering the communication methods of the times involved. Technology during the eighteenth century put a great limit on Revolutionary and Founding-era American's ability to think like we think. And, it is almost impossible for us to curtail our thinking to what was available 225 plus years ago.
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Tom Van Dyke said...

I dunno. They sent each other letters, which gave them more time to think about what they were writing, and even more time to think about what they read.

We in the 21st century have no excuse for shorting either.

Angie Van De Merwe said...

How is it that when it is impossible to "get to the bottom" of 18th century reality as it pertains to interpretation, that we suppose that we can prove this a "Christian nation"?

A "Christian nation" presupposes that we understand what "Christian" means, and has been discussed, there are many definitions of "Christian".

Pinky said...

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Some people know where they are going before they get started.
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Was America founded to be a Christian nation?
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Was America a Christian nation at its founding?

Different questions.

I think we can get a pretty good idea about our eighteenth century ancestors and about what they believed.
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Angie Van De Merwe said...

Christianity at our Founding was Puritanical. But, as has been said on this blog site, the Founders were not Puritans, some were not Trinitarians, as they were unitarians.

The values of "ordered liberty", balanced power underwrote individual libery, in limited government.

You are right, Pinky, thands for "setting my thinking" straight. We must know what our Founders said in their writings before we can "maintain" the liberty that was "won" in our Revolution.

Pinky said...

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It appears the liberty the Revolutionaries had in mind had nothing to do with individual liberty; but, it was the right to be self governed.
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Angie Van De Merwe said...

Self-government is individual liberty, isn't it? Maybe I confuse terms, as TVD said about rights and choice.

To me, individual liberty means I have a right to choose as a self-governed individual. Understanding what one's ultimate value is means that I will seek to fulfill that value within society.

I understand that we are not islands, but we are free to choose, otherwise, we hold to slavery. Slaves had no right to choose. Isn't this America outlawed slavery because it denied slaves their freedom of choice and individual liberty?

Tom Van Dyke said...

I don't see why the rather nebulous word "choice" is being introduced here. "Liberty" should do just fine, so "choice" is redundant at best, or at worst, is sub rosa for some other concept that the Founding wouldn't recognize.

Pinky said...

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I used to believe that the Colonials were rugged individualists.
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But, Shain has convinced me to the contrary.

He explains a variety of ideas regarding liberty.

The main form of liberty appears to have been the idea of collective self government and not of anything to do with the individual.
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That came later in the nineteenth century and, you're right in a way. Individual liberty evolved out of civil liberty.
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The Colonial Americans were

Angie Van De Merwe said...

I am imagining that Shain's argument is for pragmatic reasons. If so, what are his reasons; order, business profitability, group cohesion, or what?

The Founders were individualists I would imagine as they "thought outside the box". It was in creating a more "perfect union" that they created our form of government.

Cahya said...

Best regards and peace.

Pinky said...

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Shain, more or less, is saying that his reasons for discovering the mind set of Revolutionary and Founding Era Americans are to obtain a better understanding of our American history.
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Your comment, Angie, that you imagined the Founders were individualists seems to be saying that they were so in the same sense that we understand the word.

I think they were more the vanguards of individualism. And, that is part of the issue with which we have to deal.
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J said...

TvD's censorship is the key topic of this thread--along with his usual "homogenizing" impulse (typical of AC).

Jefferson and Hamilton were at odds, for one. Jefferson had issues but he routinely pointed out the potential dangers of judicial power and SCOTUS, led by his nemesis Marshall (and Jefferson also suggests the Constitution may have not been sufficiently binding on the judiciary--).

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