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Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government… James Madison

Oil on canvas, 1794 by Gilbert Stuart 51 1/2 x 40 1/8 in. National Gallery of Art, Washington, D.C Stuart's repeated delays in completing work for John Jay (1745–1829) seems not to have daunted the chief justice's appreciation of the artist's talents. In 1784 in London, Jay had commissioned two portraits of himself, which Stuart left unfinished and pawned when he went to Dublin. A decade later, Jay sat for Stuart again. This new picture remained unfinished for a few months and was completed after several requests from Jay's wife. Stuart's extraordinary gift of characterization through physiognomic accuracy combined with creative choice of pose seems to have made up for the delay. Jay wrote a letter of introduction to George Washington for Stuart.

Oil on canvas, 1794 by Gilbert Stuart 51 1/2 x 40 1/8 in. National Gallery of Art, Washington, D.C Stuart’s repeated delays in completing work for John Jay (1745–1829) seems not to have daunted the chief justice’s appreciation of the artist’s talents. In 1784 in London, Jay had commissioned two portraits of himself, which Stuart left unfinished and pawned when he went to Dublin. A decade later, Jay sat for Stuart again. This new picture remained unfinished for a few months and was completed after several requests from Jay’s wife. Stuart’s extraordinary gift of characterization through physiognomic accuracy combined with creative choice of pose seems to have made up for the delay. Jay wrote a letter of introduction to George Washington for Stuart.

Liberty’s blueprint : how Madison and Hamilton wrote the Federalist papers, defined the constitution, and made democracy safe for the world New York : Basic Books, c 2008 Michael I. Meyerson Constitutional history United States Hardcover. 1st. ed. and printing. xiv, 309 p. ; 25 cm. Includes bibliographical references (p. 285-297) and index. Clean, tight and strong binding with clean dust jacket. No highlighting, underlining or marginalia in text. VG/VG

The Founders understood the permanence of constitutions and their role, as primary laws, in shaping both subsequent legal enactments and future Americans’ beliefs, values, and behaviors. Thomas Jefferson contrasted the limited protection of religious freedom that his Virginia Statute for Religious Freedom might provide with that which could be secured through a constitution:

And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

The Founders’ belief that constitutions embodied a form of law superior to the legislature’s ability to frame laws deliberately contrasted with the condition of the late 1700s in England, where their constitution had come to mean whatever Parliament said it meant and led to the assertion by the colonies that English law was unjust. Has the United States Constitution  now reached that low station in its relationship to Congress – and if so, for how long that status has prevailed and how long can it prevail and the American people be free?

Meyerson has issued a new challenge to those who question the continued relevancy of the Founders’ beliefs to law in the twenty-first century.  In this book he looks not to the Constitution itself, but to the Federalist Papers to support originalism – if not strict construction. He writes, The Federalist shows that it may make sense to be a “partial originalist.” We can rely, at least presumptively, on the original understanding of those who drafted and ratified the original Constitution for issues of separation of powers and federalism, yet feel freer to use our more evolved understanding for determining the contours of individual rights and equality.

One concern with this reasoning however, is that while the Federalist Papers serve as tremendous primary documents for understanding history and constitute a significant American contribution to both political philosophy and constitutional theory, they are not law. Their relevance to constitutional interpretation depends upon, rather than supports, an originalist perspective.

James Madison 1751–1836 by Gilbert Stuart (1755–1828)Oil on canvas, 1804James Madison, one of the nation’s most astute political thinkers, was the architect of the American Constitution and drafted the first ten constitutional amendments, known as the Bill of Rights. He later opposed the Washington administration, believing it favored too powerful a national government, and with Thomas Jefferson launched the Democratic-Republican Party (Antifederalists). As secretary of state during Jefferson’s two terms, Madison and the president initiated a policy of economic warfare — denying Britain and France raw materials and food — to counter their interference with U.S. commerce. By avoiding actual conflict, they believed that the United States could protect its rights while still maintaining a pure republican government with low taxes, citizen militias, and little debt. However, their economic warfare failed to alter the policies of Great Britain and France, and by the time Madison became the nation’s fourth president, America was already inching toward war.

James Madison 1751–1836 by Gilbert Stuart (1755–1828)Oil on canvas, 1804
James Madison, one of the nation’s most astute political thinkers, was the architect of the American Constitution and drafted the first ten constitutional amendments, known as the Bill of Rights. He later opposed the Washington administration, believing it favored too powerful a national government, and with Thomas Jefferson launched the Democratic-Republican Party (Antifederalists). As secretary of state during Jefferson’s two terms, Madison and the president initiated a policy of economic warfare — denying Britain and France raw materials and food — to counter their interference with U.S. commerce. By avoiding actual conflict, they believed that the United States could protect its rights while still maintaining a pure republican government with low taxes, citizen militias, and little debt. However, their economic warfare failed to alter the policies of Great Britain and France, and by the time Madison became the nation’s fourth president, America was already inching toward war.

Many readers are likely to find the description of the working relationships between Hamilton and Madison to be of greatest interest. The men apportioned work among themselves based on expertise and time allowances and did seek counsel in drafting their essays. Madison and Hamilton become close friends through this process. Their alliance indicates the broad legal and intellectual appeal of the Constitution even among people with radically different visions for the new nation [who] held irreconcilable political agendas

Meyerson offers a competent analysis of Federalist #10 in explaining Madison’s position that functional interests can override rights in a democracy by creating a tyranny of the majority, and how ironically Madison devised the use of multiple factions to temper the power of a majority within any one faction. The argument that Madison saw the Constitution as a means of checking the use of political power to serve personal interests can also be seen as a reason for the split between the crafters of the Federalist Papers after ratification.

The author convincingly asserts that the ratification process depended upon a popular appreciation of legal and theoretical arguments contained in both the Federalist and Anti-Federalist Papers, and offers a strong rebuttal to those who minimize a popular or democratic voice in the process. This presentation  concerning the separation of powers to counter some of the recent arguments. Meyerson provides a good argument for believing that the Founders conceived of the workings of the federalist system, including indirect elections, the separation of powers, and distinctions in state and federal authority, not as attempts to impose an upper-class check on democracy, but rather to protect  political minorities from the unchecked power of a majority while safeguarding rights from self-serving political actors.

What is absent from the book is John Jay‘s contribution. As the author of the second, third, fourth, fifth, sixth and sixty-fourth articles his contribution was significant and they all reflected his belief that, Real Christians will abstain from violating the rights of others, and therefore will not provoke war. Almost all nations have peace or war at the will and pleasure of rulers whom they do not elect, and who are not always wise or virtuous. Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest, of our Christian nation to select and prefer Christians for their rulers.

Jay was also the great partner of Hamilton in arguing for a strong central government criticizing the Articles of Confederation when he said, The Congress under the Articles of Confederation may make war, but are not empowered to raise men or money to carry it on — they may make peace, but without power to see the terms of it observed — they may form alliances, but without ability to comply with the stipulations on their part — they may enter into treaties of commerce, but without power to enforce them at home or abroad… — In short, they may consult, and deliberate, and recommend, and make requisitions, and they who please may regard them.

Since he was a strict constructionist always arguing against dangers from foreign force and influence and would turn down the chance to be the first Secretary of State in order to be the first Chief Justice of the Supreme Court it is easy to see how Meyerson may be intimidated by him but that does not justify his exclusion. Jay would on the one hand write an opinion that made the action of individual States subject to judicial review – an opinion largely reversed by the 11th Amendment – and then would separate the new nation from the old in perhaps the most democratizing way of all when, in Georgia v. Brailsford, he gave juries the right to decide questions of law as well as questions of fact.

The facts, so often overlooked and so conveniently ignored, that the American government was founded on the most liberating document – save always Holy writ – in the history of mankind. Like Holy writ it was based on fundamentals that make it a guide for the ages and not for a season and while Meyerson may contribute to our understanding his contribution is far from complete and we doubt it would survive editing by Hamilton, Madison or Jay.

Alexander Hamilton, full-length portrait, standing, facing left by T. Hamilton Crawford

Alexander Hamilton, full-length portrait, standing, facing left by T. Hamilton Crawford

 

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