Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (7 page)

James Madison (1751-1836) played a major role in assembling the Philadelphia
Convention but had a checkered constitutional record thereafter. In the Convention, Madison attempted to create a national, instead of federal, government with military power to attack states that did not comply with federal mandates, a Congress
with unlimited legislative powers and a veto on state legislation, and courts with unlimited jurisdiction. He soon knuckled under to Virginian pressure for amendments, but he intentionally provided
amendments without serious effect. As a congressman, he enunciated a strict constructionist reading
of the Constitution in 1791, but he flip-flopped on congressional authority to charter banks in 1816.
His Bonus Bill Veto Message (1817) sounded like the Madison of 1791, as did his criticism of Marshall's
McCulloch v. Maryland decision, but his confused response to nullification was both disingenuous
and destructive. Madison was as unpredictable an oracle as the Pythia at ancient Delphi.

Not coincidentally, the various contentious issues roiling the American
political waters today-flag burning, abortion, state government recognition of religion (say through public prayer), and homosexual marriageare not among those the federal courts were given power to decide by the
federal Constitution written in Philadelphia. Had the Hamilton-Madison
axis had its way, the federal courts' purview would have been greater. But
the point is that the Hamilton-Madison axis did not prevail, and the Constitution the people ultimately ratified gives the federal courts no scope to
interfere in or rule on these issues. Nor did the Federalists, when they
advocated ratifying the Constitution, pretend otherwise.

This might surprise those "educated" in modern "constitutional law."
But it should not surprise anyone familiar with the factors leading to the American Revolution. After all, the people who advocated, in the 1760s
and 1770s, a national authority to bind the states "in all cases whatsoever" were called Tories or monarchists, and they lost.

The Patriots, on the other hand, had argued for home rule, for the right
of the individual states to govern themselves through their elected representatives. They had won the Revolution. And then they won in Philadelphia. But, alas, the fight was not over.

he arguments that were made for ratifying the Constitution are
yet another subject most law students aren't taught. But these
arguments are vital to the so-called original understanding-the
real meaning-of the Constitution.

By law, Congress had to send any amendment to the Articles of Confederation to the states to be ratified. So even though the Philadelphia
Convention was proposing more than an amendment, it sent the proposed new constitution to Congress, which forwarded it to the states for
their consideration.

Even before the Philadelphia Convention ended, many delegates returned
to their states to organize opposition to the proposed constitution. They
were bolstered when three prominent delegates, who had stayed to the
end of the Convention on September 17, 1787, refused to sign the Convention's final product: the unamended Constitution.

Among these non-signers was Virginia's governor, Edmund Randolph,
who had presented the Virginia Plan at the beginning of the Convention.
Randolph had many criticisms of the new Constitution, including that
Congress's powers were not well enough defined, that the boundary between state and federal authority was not clearly demarcated, that the
federal courts' jurisdiction had not been sufficiently circumscribed, and
that there was no bill of rights in the Constitution guarding traditional
rights of Englishmen against federal infringement. (Many states had their
own bills of rights.)

Guess what?

-.' Virginia's state
constitution of
1776 was the
first American
constitution (and
the first written
constitution adopted
by the people's
representatives in
the history of the
world).

-sW There was nothing
in the Declaration
of Independence,
the Articles of
Confederation, or
the ratification
process of the
federal Constitution
that created a
national (rather
than a federal)
government.

Randolph's fellow Virginia delegate George Mason also refused to sign
the Constitution, and for similar reasons. Mason had argued that the Constitution should ban the importation of slaves immediately and that a
congressional super-majority should be required for passage of any tariff
law; otherwise, he said, the northern majority in Congress would abuse
the South to favor the North's interests-as it had tried to do in changing
John Jay's negotiating instructions with Spain in 1786. A deal between
New England and Deep South delegates on these issues defeated Mason's
positions-to the everlasting detriment of the country.

Of more concern to Mason, however, was the omission of a bill of
rights. Mason was the chief author of Virginia's state constitution of
1776-the first American constitution and, more significant, the first
written constitution adopted by the people's representatives in the history of the world. As chairman of the committee that drafted that constitution, Mason had also played the leading role in drafting the 1776
Virginia Declaration of Rights, which-in the manner of the English Glorious Revolution of 1688-set traditional rights of Englishmen in stone
before the new republican constitution based on them was adopted.
Mason, a self-described "man of 1688," insisted that basic rights had to
be protected first.

When he raised the issue of a bill of rights in Philadelphia, however,
Mason was rebuffed. A bill of rights was unnecessary, his fellow delegates
insisted. This new government would have only the powers the Constitution gave it. As the Constitution was not going to give Congress power
to infringe on the freedoms of speech, the press, or petition, the right to
keep and bear arms, or any of the other English-descended rights Amer icans had always taken for granted, it would have no such power. There
was no need, then, to provide against it.

Mason was not persuaded. As Madison wrote, he left Philadelphia in
a very ill humor.

Advocates of ratification took the name "Federalists," while their
opponents-particularly in Virginia-called themselves "Republicans."
Federalists called Republicans "Anti-Federalists," however, and historians, never slow to take sides, have been nearly unanimous in calling
Republican opponents of ratification "Anti-Federalists."

The chief issue in dispute in the ratification campaign was whether
the proposed constitution would be consistent with the state-centered
constitutionalism that the Patriots had fought for during the Revolution.
Federalists insisted it would, while Republicans feared it would not.

Framers vs. Ratifiers

We hear a lot about the "framers" of the Constitution. But who were they? The framers were the
people who wrote the Constitution; what they did had no legal effect at all. The ratifiers, on the
other hand, were the people who put the Constitution into effect; it was their act that made it
binding, and their understanding that is significant. Just as today we don't care what some congressman's legal counsel thought when writing a legal provision, but look instead at the congressman's own understanding of and intent regarding it, so when it comes to the Constitution, what
matters is not what the draftsmen thought they were doing, but what the people with legal
power to put it into effect thought they were doing.

What a
Patriot Said

"Is the relinquishment
of the trial by jury and
the liberty of the press necessary for your
liberty? Will the abandonment of your
most sacred rights tend to the security of
your liberty? Liberty, the greatest of all
earthly blessings-give us that precious
jewel, and you may take every thing else! ...
Guard with jealous attention the public
liberty. Suspect every one who approaches
that jewel."

Patrick Henry, speech to the
Virginia Convention, Richmond,
Virginia, June 5,1788

The most influential argument in favor of
ratification was made by Pennsylvania's
James Wilson in a speech at the Pennsylvania
State House on October 6, 1787. Wilson, a
prominent Philadelphia Convention delegate
and future Supreme Court justice, had been a
nationalist at the Convention, but his version
of the Constitution on that October day was
thoroughly federal (or, in the language of the
day, "foederal").

Wilson said opponents of the proposed
constitution were not doing it justice, reminding the delegates that an important distinction
needed to be made between state governments and the federal government. The people had invested their state representatives
with "every right and authority" that the people themselves did not explicitly reserve.
"But in delegating foederal powers," Wilson
said, congressional authority comes "not from
tacit implication, but from the positive grant." As a result, in the state systems, "everything which is not reserved, is given: but in the latter [the
federal government], the reverse of the proposition prevails, and every
thing which is not given, is reserved. The distinction being recognized,
will furnish an answer to those who think the omission of a bill of rights,
a defect in the proposed constitution: for it would have been superfluous
and absurd, to have stipulated with a foederal body of our own creation,
that we should enjoy those privileges, of which we are not divested either
by the intention or the act that has brought that body into existence."

In other words, it was ridiculous for the Constitution to guarantee
rights that Congress had no power to violate, and the federal government had only those limited and expressly stated powers granted it by the Constitution. Wilson went further and said that including a bill of rights
might be dangerous, because if such a bill said that Congress could not
infringe the freedom of the press, it would imply that Congress might
have had implicit power to do so, and that it might have the power to
restrict other unenumerated rights.