by Ray Raphael
29.Annals of Congress, 1:445.
30.Ibid., 1:685–86, 730; Thomas Harley to Jasper Yeates, August 16, 1789, Veit et al., Bill of Rights, 279.
31.Annals of Congress, 1:734–35. Sherman based his argument on the premise that the original Constitution was the product of the people’s exercise of their constituent power—the power to constitute a government—and that any amendments, the products of the Article V amending process, should follow to make their origins and history clear and distinct. Several representatives supported Sherman: Congress could amend but not alter the original text, which must “remain a monument to justify those who made it,” and besides, since the Constitution was already “lodged in the archives of the late Congress, it was impossible for this House to take, and correct, and interpolate that without making it speak a different language.” The original must “remain inviolate, and not be patched up, from time to time, with various stuffs resembling Joseph’s coat of many colors.” Further, if they altered it, they would have to expunge the signatures of Washington and the other framers, who had not at that moment signed on to such changes, and nullify the ratification of the state conventions, which likewise did not approve the amendments at that time.
Others supported Madison: the Constitution, as amended, should form “one complete system.” A document with numerous amendments tacked onto the end would appear “like a careless written letter,” with “more attached to it in a postscript than was contained in the original composition.” Further, separate amendments would invite embarrassing comparisons with the original document, leaving it unclear how to resolve any apparent conflicts, and, finally, an isolated list would confuse the document’s meaning. Madison had placed his amendments in specific places, making it easier to understand their intent. Several amendments, for instance, were to be inserted in Article I, Section 9, which specified limitations on the powers of Congress. Restrictions against intrusions of rights by the states, on the other hand, were to be placed in Article I, Section 10, where similar constraints on state authority were listed. Madison wanted freedom of conscience and the press, along with trial by jury in criminal cases, to be protected from state as well as federal abuse, a provision he called “the most valuable amendment in the whole lot,” but the House eventually struck his proposal from the list (Annals of Congress, 1:734–44 for the debate on placement and 1:1145–46 for Madison’s quotation).
When the question was called, Madison’s position prevailed. The amendments, if adopted, would appear within the Constitution, not listed separately at the end—until six days later, when the House repeated its earlier debate but reversed its decision. A separate listing of rights, seen then as a matter of form rather than substance, squeaked in at the last moment, over and above the strenuous objections of James Madison, their primary promoter within Congress, but much to the pleasure of Roger Sherman, a leading opponent of amendments (Annals of Congress, 1:795).
Madison remained disgruntled over this decision. On August 24, immediately after the House approved the amendments and sent them to the Senate, he wrote to Alexander White (a Federalist representative from Virginia who had been absent from these debates), “It became an unavoidable sacrifice to a few who knew their concurrence to be necessary, to the dispatch if not the success of the business, to give up the form by which the amendts. when ratified would have fallen into the body of the Constitution, in favor of the project of adding them by way of appendix to it. It is already apparent I think that some ambiguities will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superceded, by the supplemental act.” Veit et al., Bill of Rights, 287–88; Schwartz, Bill of Rights 2:1139–40.
32.Annals of Congress, 1:774–75 (August 15). Items that did not evolve into what we now call the Bill of Rights included a preamble reminiscent of that in the Declaration of Independence (but with no mention of equality), a general call for the separation of powers, a limitation on the number of people a congressman could represent, and a prohibition against Congress raising its own compensation until after the subsequent election. (The full text is in appendix F below.) The first two were dropped by Congress, the last two were not ratified by three-quarters of the states. The compensation amendment was revived two centuries later and in 1992 became the Twenty-seventh Amendment to the Constitution. See Richard B. Bernstein, “The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment,” Fordham Law Review 61:3 (December 1992): 497–557.
33.Annals of Congress, 1: 786–92 (Gerry and Tucker, August 18); 1:761–76 (right of instruction, August 15); 1:790 (“expressly delegated,” August 18); 1:780–81 (standing army, August 17); 1:797–802 (federal control of elections, August 21).
34.Annals of Congress, 1:803–7.
35.Butler to Iredell, August 11, 1789, Veit et al., Bill of Rights, 274; Morris to Francis Hopkinson and Morris to Richard Peters, August 24, 1789, Veit et al., Bill of Rights, 278, 288. Madison was not pleased with the Senate’s changes: “The Senate have sent back the plan of amendments with some alterations which strike in my opinion at the most salutary articles.” For Madison’s particular objections, see Madison to Edmund Peterson, September 14, 1789, and Madison to Edmund Pendleton, September 23, 1789, Veit et al., Bill of Rights, 296–98. In the end, the Senate approved twelve amendments. First on the list was the limitation on the number of people that a congressman could represent, next came the stipulation against Congress augmenting its own compensation unless an election of representatives shall have intervened, and then the ten amendments we know today as the Bill of Rights. Differences between the House and Senate versions were ironed out in conference, accepted by both chambers, and passed on to the president on September 25. One week later, on undated single sheets of parchment signed by the Speaker of the House and president of the Senate, copies of the twelve amendments were sent to the eleven states then in the union for ratification. (North Carolina and Rhode Island had not yet ratified the Constitution.)
36.Madison to Richard Peters, August 19, 1789, Veit et al., Bill of Rights, 281–82. Lee to Francis Lightfoot Lee, September 13, 1789, and to Patrick Henry, September 14 and 27, 1789; Maier, Ratification, 461 (for Henry’s complaint); Grayson to Patrick Henry, September 29, 1789, in Veit et al., Bill of Rights, 299–300, 294, 295, 299, 300.
37.John Adams to Abigail Adams, July 3, 1776, Charles Francis Adams, ed., Familiar Letters of John Adams and his Wife Abigail Adams, during the Revolution (New York: Hurd and Houghton, 1876).
38.Francis Hopkinson, Account of the Grand Federal Procession, Philadelphia, July 4, 1788 (Philadelphia: M. Carry, 1788); “Order of Procession,” broadside printed by Hall and Sellers, 1788; Van Horne, “Federal Procession of 1788”; John C. Van Horne, “The Federal Procession of 1788,” website for Carpenters’ Hall, http://www.ushistory.org/carpentershall/history/procession.htm (consulted May 27, 2012).
39.Jefferson to governors, March 1, 1792, Schwartz, Bill of Rights, 2:1203.
40.For the lack of contemporary denotations of the first amendments as the “Bill of Rights,” see Maier, Ratification, 459–63.
8. Originalism
1.Clarence Thomas, Wriston Lecture to the Manhattan Institute, October 16, 2008, Wall Street Journal, October 20, 2008, http://online.wsj.com/article/SB122445985683948619.html.
2.Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), 45. Justice Scalia does qualify this remark: “Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena.” As I argue below, the term “not very often” is not a fair empirical assessment of the number and intensity of disagreements.
3.A weaker version of originalism features the framers but bypasses the troublesome notion of intent: when examining a particular motion put forth at the Federal Convention,
we don’t need to know the intent of its author to learn how his fellow delegates understood it, which is the key question. Even here, though, we confront problems. How, exactly, are we to surmise a delegate’s understanding? The vow of secrecy curtailed private correspondence, whereas the delegates’ speeches, recorded by Madison and others, must be viewed in a political light. Inferring the intentions of delegates to the ratification conventions is also problematic. Jack Rakove explains the problems of focusing on intent in any form: “Both the framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree. The discussions of both stages of this process consisted largely of highly problematic predictions of the consequences of particular decisions. In this context, it is not immediately apparent how the historian goes about divining the true intentions or understandings of the roughly two thousand actors who served in the various conventions that framed and ratified the Constitution, much less the larger electorate they claimed to represent” (Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Random House, 1996), 6.
4.This is true, of course, for all political speech. Today, when we hear some public statement, we are quick to factor in the probable intentions of the author. When addressing alleged “commentaries” on the Constitution by the founders, however, we sometimes let down our guard, accepting statements at face value.
5.In the extreme version of the “single tablet” approach, the source was God himself. For example: “We have to learn the basic truth about the Constitution: God wrote it. It comes directly from the government instituted by Moses when he led the Children of Israel out of Egypt. That system was re-instituted in England around 450 A.D. by the Anglo-Saxon rulers Hengist and Horsa. The Founding Fathers, led by Thomas Jefferson, copied the Constitution directly from the ‘ancient constitution’ of the Anglo-Saxons” (http://www.theatlantic.com/national/archive/2010/10/all-patriots-know-that-moses-wrote-the-constitution/65353/).
6.Annals of Congress, 1:574, 544 (June 18, 1789).
7.See Ray Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Knopf, 2012), 166–69.
8.Ibid., 182–88.
9.Ibid., 188–93. In a related matter, the House demanded the president send it papers relating to the treaty, but Washington refused to do so, claiming executive privilege over the presidency’s own affairs.
10.For Congress interpreting the Constitution, see David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997). For “popular constitutionalism,” see Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004). For competing Fourth of July celebrations, see Len Travis, Celebrating the Fourth: Independence Day and the Rites of Nationalism in the Early Republic (Amherst: University of Massachusetts Press, 1997), 69–106.
11.Madison, Papers, 16:295. Madison suggested a similar position in 1791, when arguing against a national bank: “In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide. Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties” (Rakove, Original Meanings, 352 [emphasis added]). In 1821, he repeated it forcefully: “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…. [T]he 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” (Madison to Thomas Ritchie, September 15, 1821, Farrand, Records, 3:447–48).
12.Madison to Ritchie, September 15, 1821, Farrand, Records, 3:447. Even one-third of a century after the fact, Madison scrawled “Confidential” on his letter to Ritchie. He said “it has not been my intention that they [his notes] should remain for ever under the veil of secresy,” but “of the time when it might not be improper for them to see the light,” he had “formed no particular determination,” although he thought it “might be best to let the work be a posthumous one.” That, in the end, is what happened. Madison arranged for the publication of his notes after he and all the other framers had passed. He died in 1836, having outlived his peers from the Convention; his notes were published in 1840.
13.Annals, 2:2004–5 (February 7, 1791). Gerry was speaking in support of a national bank, which Madison opposed, and his comments here were in response to Madison’s contention that “the meaning of the parties to the instrument, if to be collected by reasonable evidence,” could be “a proper guide” in resolving constitutional issues (see n. 11 above). Through the 1790s, other representatives and senators cited evidence from the ratification conventions, which they believed rested on firmer ground than evidence gleaned from proceedings of the Federal Convention. During the debate over Jay’s Treaty, Benjamin Bourne, a representative from Rhode Island, said, “the real inquiry was, what opinion was entertained on this subject by those who ratified the Constitution” (Rakove, Original Meanings, 359).
14.Annals, 2:1954 (February 3, 1791). Ames was speaking in favor of Hamilton’s national bank. Here is the full passage: “If Congress may not make laws conformably to the powers plainly implied, though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years’ labor is lost, and worse than lost to the public, for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution. Any words but those used in that instrument will be liable to a different interpretation. We may regulate trade; therefore we have taxed ships, erected light-houses, made laws to govern seamen, &c., because we say that they are the incidents to that power. The most familiar and undisputed acts of Legislation will show that we have adopted it as a safe rule of action to legislate beyond the letter of the Constitution.”
15.Annals, 2:1945 (February 2, 1791); Rakove, Original Meanings, 351. Although the Federal Convention rejected Madison’s motion to grant Congress powers of incorporation, the debate on September 14 was primarily about canals and only incidentally about banks. Two arguments against incorporation clearly referred to canals. Roger Sherman said, “The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut,” and Rufus King noted, “The States will be prejudiced and divided into parties by it,” since they would fight over where canals should be built. Incorporating banks did worry some delegates, though. King said, “In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.” George Mason added that he was “was afraid of monopolies of every sort.” James Wilson, meanwhile, thought “mercantile monopolies” were “already included in the power to regulate trade,” while Mason did not think “by any means” the mercantile monopolies were “already implied by the Constitution.” The range of the discussion reveals the problems inherent in trying to determine the sense of the full Convention, as Elbridge Gerry aptly noted.
16.Hamilton, unlike Madison, was not shy about using the Federal Convention as a guide. In 1796, when Madison argued that the House as well as the Senate needed to approve Jay’s Treaty, Hamilton, writing under a pseudonym, inquired rhetorically how treaty making “was understood by the Convention, in framing it, and by the people, in adopting it.” He challenged Madison to deny that the framers thought treaty-making powers were “sufficiently guarded” by the president and the Senate (Rakove, Original Meanings, 357–58). Madison, o
f course, could not do this, knowing full well that on September 7 the Convention had resoundingly rejected James Wilson’s motion to include the House in the ratification process. Madison himself, on September 7 and 8, had participated actively in determining exactly what fraction of the Senate must concur for a treaty to be ratified. Washington, too, appealed to the Federal Convention when claiming Jay’s Treaty did not need to be approved by the House. He wrote formally to the House of Representatives: “Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject, … that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two thirds of the Senators present concur” (Washington to House of Representatives, March 30, 1796, Washington, Writings, 35:3–4).
17.Dred Scott v. Sandford, 60 U.S. 393 (1856), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0060_0393_ZO.html.
18.Reynolds v. United States, 98 U.S. 145 (1878), http://law2.umkc.edu/faculty/projects/ftrials/conlaw/reynoldsvus.html. Chief Justice Waite, writing for the Court, determined that while there was indeed a “wall of separation between church and state,” a federal law prohibiting bigamy in United States Territories did not in fact violate that First Amendment, as Jefferson conceived it.
19.Woodrow Wilson, “What Is Progress,” from The New Freedom II, 1913, http://teachingamericanhistory.org/library/index.asp?documentprint=2553. Black’s dissent in Griswold at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZD.html.