Sunday, April 10, 2011

Pauline Maier on the Ratification

How shall we interpret the Constitution?

Lordy, so many theories! If we look to the Founding, we make a big deal out of the Framers and the constitutional debates, mostly from the the famous notes James Madison took.

But wait---what's not so well-known is that Madison kept his notes unpublished until a competing version was to come out in 1821. Because to Madison, the Framers weren't the authorities on the meaning of the Constitution---it was the states and the people who ratified it:

"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."
---Letter to Thomas Ritchie, September 15, 1821

The Framing debates, so well-studied and picked over (and argued in the Supreme Court!) are just a "curiosity"---it's the Ratifaction that gives the Constitution "all the authority which it possesses."

And so, Pauline Maier's new Ratification: The People Debate the Constitution, 1787-1788 is well overdue, as she is "the first American scholar to write comprehensively on these ratification debates," per John R. Coyne Jr.'s review over at AmSpec :

Maier is scrupulously fair to the Anti-Federalists, and refuses to call them that. Because of objections from men like William Findley, who called it "a name of reproach," she "preferred to type out 'critics of the Constitution' and its synonyms over and over."

And in fact, Maier believes, casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading. Nearly everyone, she maintains, was for a federal government stronger than the one provided for by the Articles of Confederation. But the reluctance of the Federalists to allow amendments before ratification aroused opposition among those who saw in it a threat to the rights won during the Revolution.

In the end, the Federalists won. But Maier believes their opponents also won a good deal more than historians acknowledge or perhaps realize. Congress met many of their concerns by expanding the House of Representatives, approving the Judiciary Act of 1789, modifying the plan to levy direct taxes except in times of war, and proposing a series of amendments.

"Without their determined opposition, the first ten amendments would not have become a part of the Constitution for later generations to transform into a powerful instrument for the defense of American freedom. "We the People" of 1787 and 1788 inaugurated a dialogue between power and liberty that has continued, reminding us regularly of the principles of 1776 upon which the United States was founded and that has given us direction and national identity. Their example might well be their greatest gift to posterity."

So, as we see, according to Madison, the Ratifiers and the ratification debates are of highest importance next to the text of the Constitution itself, and "Anti-Federalist" turns out to be a pejorative plastered on them by the Federalists. The name stuck because the Federalists won and they got to write the history, as Maier shows.

I mean, just think of today's rhetoric. If you want to make somebody look bad---and unreasonable---just give them a name with "Anti-" in front of it. Enemies of Progress!

But as Coyne writes, "Meier believes casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading. Nearly everyone, she maintains, was for a federal government stronger than the one provided for by the Articles of Confederation. But the reluctance of the Federalists to allow amendments before ratification aroused opposition among those who saw in it a threat to the rights won during the Revolution."

So, the Anti-Federalists weren't anti-Constitution after all. They just didn't think it was constitutional enough, and now we have the Bill of Rights, the first 10 Amendments passed immediately thereafter. The Ratification wasn't the Feds beating the Anti-Feds, not the brute exercise of the power of one faction over the other by majority vote. Ratification was achieved by reaching consensus, the true secret of good government and "consent of the governed."

It was a hard thing, but it was a beautiful thing. [Is not the Constitution a beautiful thing?] The United States of America's government is now the longest-running show on earth---often imitated, never equaled.

Pauline Maier is a highly respected, uncontroversial and mainstream scholar, so there's nothing really radical or revisionist here. That it's 230-odd years since the Ratification, and she's the arguably the first American scholar to take the ratification as seriously as James Madison did...

Well, it reminds us all that the ink on our history isn't yet dry even after all this time. This little blog keeps on ticking by looking back at the original documents. If a Pauline Maier could find new and important stuff in documents a couple centuries old---and she did!---shows that if you wanna do history, the best place to start is always the beginning.

16 comments:

Pinky said...

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That is some really good stuff, Tom.
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Thanks for posting it.
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Angie Van De Merwe said...

Thanks, Tom!

James Hanley said...

Huh, something Tom Van Dyke and I actually agree on. How about that. Maier is indeed one of our best historians of the founding era.

There were, however, some opponents to the Constitution who were not satisfied simply by amendments. George Clinton, governor of NY, opposed it out of pure self-interest, not wanting to surrender any of his authority and prestige as leader of an independent state. Others were quite certain that they saw in the Constitution the foundations of tyranny. At least one thought the president would become a military king--he may have had the time-scale wrong, but that does appear to be where we are heading.

Mark in Spokane said...

Thanks, Tom. Yet another reminder of the complexities of the Founding period -- and of the importance of James Madison in understanding this period.

Daniel said...

I have argued that the reason we focus so much on the "key framers" is the danger of becoming immersed in detail if our focus is more broad. Focus on a few individuals makes the task look manageable. If ratification is the focus, then we must focus on hundreds of individuals and more.

To amass enough of that breadth of information to be representative, then to synthesize it into a readable work is an impressive feat. I look forward to seeing it.

Jason_Pappas said...

It should be an interesting read that gives us a glimpse into the mind of the average citizen. Of course, the "voters" don't always get what they think they are getting. I prefer Madison's first thought: "legitimate meaning of the Instrument must be derived from the text itself." After all, isn't this why, unlike the British, we have a written constitution?

Mark in Spokane said...

The problem is, what do you do when the plain language of the Constitution doesn't help you figure something out? What does "due process" mean? It isn't defined in the 5th or 14th Amendments. Just looking at the plain language doesn't help you if you are trying to decide whether beating a confession out of suspect or denying a party the right to appeal a lower court decision are permitted.

This is part of the genius of Alexander Hamilton -- to have recognized this simple fact. He then developed a method of constitutional application that was flexible enough to take into account that the Constitution had to be interpreted and construed, but not so flexible as to extend beyond the boundaries of its basic purposes.

Madison's view -- to look to the text and then to the ratification debates was in effect an effort to find a middle way between Jeffersonian textual fundamentalism and Hamilton's broader approach. That was Madison's basic approach on almost everything -- to try to find a middle way.

Tom Van Dyke said...

Thx, all.

My addition to the subject and subversive intention was to propagate the Madison-to-Ritchie quote, which remains far more obscure than it should be.

I think it's a principled and historically relevant to any discussion of "originalism." Where the text is unclear to modern eyes, Ratification was where it's at in interpreting the Constitution, and "the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."

Jason_Pappas said...

Mark, I have a problem with the idea that the constitution has to be “interpreted and construed” instead of understood and applied. Thus, I have a problem with Hamilton’s judicial philosophy. It reeks of post-modern subjectivism. If I expose my bias on this matter it is without any shame.

I made a similar point yesterday when I suggested, in this venue, that you can understand Christianity by reading the Bible. Rather than received as the self-evident truth that it is, it was again rejected as problematic and contrary to the notion of the “interpretation” principle.

Perhaps I’m old-fashioned but collective subjectivism, even when expressed by James Madison, is just the classical logical fallacy of ad populum
http://www.csun.edu/~dgw61315/fallacies.html#Argumentum%20ad%20populum

Mark in Spokane said...

Jason,

The problem is, how do you understand the meaning of plain words when those words are used in phrases that are undefined? What does "due process" mean in the context of the 5th and 14th Amendments? The Constitution does not tell us. It simply doesn't. At that point, if we want to make the Constitution's protections meaningful, we have to look at something other than the plain language of the document to help us understand what those terms mean. That was the basic point that Hamilton and Madison agreed upon.

What they disagreed on is what to look at. Madison said: "state ratifying conventions." Hamilton's approach was to look at the purposes and structures of government set up by the Constitution. But both Madison and Hamilton agreed that the plain language of the Constitution was sometimes insufficient to resolve a question of constitutional law.

Jason_Pappas said...

I don’t disagree that one needs more. Obviously one needs a 18th century dictionary on the American English language. One also needs the context. Every text is written with an audience in mind and assumes a certain context; not everything is explicated. Doing all this work doesn’t “interpret” the text in that it allows for flights-of-fancy to imagine anything one wants. I concede that understanding requires hard work and a good background of the history up to that point.

I don’t accept that taking a virtual Gallop poll of the impressions of the population in 1790 gets the job done. That is interesting and it would tell us about the people of the times but it would be inadequate to the task of understanding the constitution. Let’s remember that popular elections are a poll of the population and the Bill of Rights purposefully prevents the results of such polls from determining law in important cases, i.e. whenever you read “Congress shall make no law ...”

If we are to be a nation of laws and not of men, we need to proceed with the premises that hard work will help us discover the meaning, not create an interpretation, to the text. If polls and popular opinion can determine that “no” doesn’t always mean “no” then we have no constitution.

jimmiraybob said...

This post caused me to look longingly at my "to read" bookshelf, but having just finished Maier's From Resistance to Revolution and having three other books in progress, it'll be a while before it gets opened in a serious way.

However, when you say that, "So, the Anti-Federalists weren't anti-Constitution after all," I find it hard to believe that this is generally correct or a Scripture conclusion. Patrick Henry comes to mind. Often tagged as a leading Anti-Federalist, Henry was a major opponent of the Constitution (capital C) and the "new plan of government." He actively led opposition in Virginia, voted against the Constitution in convention, and then actively sought a second convention when his anti-Constitution stance wasn't successful. And certainly he was not a lone wolf.

Consider the plea of Candidus*

Articles of Confederation Simply Requires Amendments, Particularly for Commercial Power and Judicial Power; Constitution Goes Too Far

Or of Montizuma of the Aristocratic Party of the United States**:

A CONSOLIDATED GOVERNMENT IS A TYRANNY: We the Aristocratic party of the United States, lamenting the many inconveniences to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble-and holding in utter detestation that frontispiece to every bill of rights, "that all men are born equal"-beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our Friends in the first class for their inspection, the following defense of our monarchical, aristocratical democracy.

Maybe the so called Anti-Federalists weren't anti-constitution (with a small c) in principle, as long as the constitution did not provide for a strong or dominant national/central government (a constitution similar to the Articles of Confederation) or didn't assign too great a measure of equality to the lower ranks.

*Taken from two letters by "Candidus" which appeared in the [Boston] Independent Chronicle, December 6 and 20, 1787.

**"MONTEZUMA," regarded as a Pennsylvanian, wrote this essay which showed up in the Independent Gazetteer on October 17, 1787.

Tom Van Dyke said...

I see your point, but Coyne writes,

Meier believes casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading.

I'm sure there were some like Henry as you note, or "Montezuma." The question is if they were a significant part of the opposition. Maier seems to say no, but perhaps you're right and Coyne's wrong about what she's actually saying.

jimmiraybob said...

Tom,

I wish I had more time to flesh out something better but Coyne’s reading of and Maier’s apparent assertion that “casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government” just seems to fly in the face of considerable evidence to the contrary.

Coyne – “…But the reluctance of the Federalists to allow amendments before ratification aroused opposition among those who saw in it a threat to the rights won during the Revolution.”

Coyne – “And in fact, Maier believes, casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading,…”

It wasn’t Federalist reluctance to include amendments that aroused the considerable opposition to the Constitution under consideration; opposition already existed on the basis that the proposed new plan of government created an entity that would dwarf the states and overburden the citizens, but mostly subdue the states (Henry and others wanted to change “We the People to “We the States”). The Federalists, including Madison, did not think the amendments necessary or even prudent for the protection of the liberties of the citizens. The Federalists and “the opposition” hardly disagreed that individual rights needed safeguarding. And, to the best of my knowledge, the Federalists and “the opposition” agreed that some additional power had to be directed to the central government, but I don’t know that this was unanimous. Certainly a whole new constitution as opposed to some amendments to the AofCon was not unanimously agreed upon.

It seems indisputable that the Constitution that was presented to the states contained provisions that stoked deep fears of too strong of a central government, especially given the provision to tax. Does this constitute a “fight for ratification in terms of a struggle between proponents and opponents of strong central government?” I think so. This conventional history doesn’t seem too misleading to me.

- Cont below

jimmiraybob said...

While Maier’s direct quotation seems evidently true to me, “Without their determined opposition, the first ten amendments would not have become a part of the Constitution for later generations to transform into a powerful instrument for the defense of American freedom,” there is certainly evidence that Coyne’s paraphrase, “And in fact, Maier believes, casting the fight for ratification in terms of a struggle between proponents and opponents of strong central government, as conventional history would have it, is misleading,” is, I believe, either a misreading of Maier* or Maier short changing the reader; there certainly seems to have been a struggle between proponents and opponents of strong central government or at least in what constituted a strong central government. Having just finished her From Resistance to Revolution she doesn’t seem to be one to short change the reader.

*Maybe Maier means that it is misleading to focus only on the dichotomy of opposition to or support of a strong government at the expense of a more nuanced understanding of the complexities. I guess that I’m going to have to bump the book up on the list.

Note: All Levy quotes are from my copy

jimmiraybob said...

This disappeared and should go between the comment at 3:02 and 3:11 PM.

Reading Leonard W. Levy’s* Origin of the Bill of Rights**, it’s apparent that the issue of inclusion of written amendments to the Constitution was in large point a political ploy on behalf of at least some (most?) of the Anti-Fed…..those opposed to the Constitution on principle and who sought a tactic to forstall the adoption of the Constitution, then under consideration, until other methods of subverting or “mutilating” it could be employed (for instance a second constitutional convention).

page 32 – “James Madison was one of the Federalists who finally realized that statecraft and political expediency dictated a switch in position. At the Virginia ratifying convention in June 1788, Madison had upheld the usual Federalist arguments for the omission of a bill of rights, but finally voted to recommend such a bill in order to avoid previous amendments. He later conceded that the Constitution would have been defeated without a pledge from its supporters to back subsequent amendments.” [jrb - The Anti-Federalists had been calling for a second constitutional convention and some Federalists realized that that could be a death knell given the contentiousness of the first. Madison’s fear was that the purpose of a second convention would be to “…’mutilate the first (constitution),’ …’especially as to the power to tax’ and that, ‘Lack of that power” would ‘be fatal’ to the new federal government.” (p. 34)]

page 34 – “Madison correctly believed that many Anti-Federalists favored an effective Union on the condition that a bill of rights bridle the new government. His strategy was to win them over by persuading the First Congress to adopt protections of civil liberties, thereby alleviating the public’s anxieties, providing popularity and stability for the government, and isolating those Anti-Federalists whose foremost objective was ‘subverting the fabric…if not the union itself.’”

page 34 – “On June 8, 1789, he [representative Madison] made his long, memorable speech before an apathetic House, introducing amendments culled mainly from state constitutions and state ratifying convention proposals, especially Virginia’s.”

page 36 – “Although many federalists preferred to give the new government time to operate before amending the Constitution, supporters of Madison exulted, largely for political reasons. Hugh Williamson of North Carolina, a signer of the Constitution, informed Madison that the Anti-Federalists of that state did not really want a bill of rights. William R. Doyle, who had been Williamson’s colleague in the Convention, gleefully reported to Madison that his amendments had ‘confounded the Anties exceedingly.’ Edmund Pendelton of Virginia wrote of Madison’s amendments that ‘nothing was further from the wish of some, who covered their Opposition to the government under the masque of uncommon zeal for amendments.’ Tench Coxe of Pennsylvania praised Madison for having stripped the Constitution’s opponents of every rationale ‘and most of the popular arguments they have heretofore used.’”

*http://en.wikipedia.org/wiki/Leonard_Levy

**http://books.google.com/books?id=gxPqTAaFFL0C&dq=origin+of+the+bill+of+rights&source=gbs_navlinks_s