Tuesday, January 14, 2014
Constitutional Framers, Founders, and Fathers: The Myth of Original Intent
Today, one frequently hears people talking about the intentions of the ‘Founding Fathers’ and/or the ‘Framers of the Constitution’ … as if one were talking about a clearly identifiable set of views that were unified and shared among the progenitors of democracy in America. Aside from the question which closed the last chapter -- namely, that even if one were to accept the idea that all Founding Fathers and Framers of the Constitution thought about things in the same fashion, one could still ask why what they said more than two hundred years ago should be incumbent on people today – the fact of the matter is that there was no unified perspective among the Founding Fathers and Framers of the Constitution.
Instead, the ideas of the ‘Framers/Founders’ shared what was referred to by Ludwig Wittgenstein as a ‘family resemblance’. In other words, certain words and terms used by such individuals might appear, on the surface, to give expression to a common theme or set of common themes, but when one examines things more closely, one comes to realize that one is dealing with a collection of somewhat overlapping themes which bear similarities to one another without necessarily exhibiting any given property that is common to all such themes
‘Democracy’, ‘self-governance’, ‘freedom’, ‘liberty’, ‘rights’, ‘federalism’, ‘the common good’, ‘justice’, ‘reason’, ‘truth’, and so on were all part of the lexicon of democracy during the latter part of the eighteenth century – as is also the case today. However, what people meant – or mean now -- by such words and how those terms and ideas are woven together to form a political and/or legal perspective tends to vary from person to person.
In this chapter, I will take a look at five perspectives concerning the nature of governance that were influential during the early stages of America’s formation as a constitutional democracy. These perspectives are: republicanism, as well as the ideas of: Madison, Jefferson, Hamilton, and George Mason.
The point of this exercise is to show how there is a considerable diversity of ideas and approaches that existed in early America. Moreover, given such diversity, the notion that one can talk -- in any consistent, plausible, unified manner -- about what the Founders/Framers allegedly intended should be done by subsequent generations is more of a myth than a reality.
As has been noted earlier in this book, the philosophy of republicanism played a central role in shaping the creation of the Philadelphia Constitution. Yet, with one exception, republicanism is more of a subtext of the Constitution than it serves as a set of articulated principles within that document.
The aforementioned exception is found at the beginning of Article IV, Section 4. More specifically, “The United States shall guarantee to every state in this Union a republican form of government...”
The foregoing section of the Constitution is one of the least discussed aspects of that document. Yet, it goes to the heart of what the Framers/Founders were trying to accomplish through the Philadelphia Convention in the summer of 1787.
Republicanism is less a theory of government than it is a theory of political leadership. As such, this philosophy seeks to regulate, in a moral way, the political behavior of those leaders who will occupy positions of authority.
In fact, the structural character of the Constitution – with its three branches of government, two bodies of Congress, and the federal/state dynamic – gives expression to a republican way of approaching the issue of governance. In other words, the Constitution was structured as it was in the hope that no one segment of society would be able to obtain dominance and, as a result, political forces would tend to constrain one another so that republican virtue would have an opportunity to do its work for the good of society.
However, one can devise any combination of: Congressional bodies – such as a House and Senate – executive offices (whether consisting of one, two, or a council of individuals), and judicial system, one likes. Nonetheless, unless the people who serve in those Congressional bodies, executive offices, and the judiciary can be trusted to do the ‘right’ thing, then government becomes largely an empty form without much, if anything, in the way of substance or integrity.
What was the ‘right’ thing to do? For the Founders/Framers it was to act in accordance with ‘Republican’ principles
There have been a variety of ‘Republics’ that have dotted the landscape of history. These include: Rome, Sparta, Athens, Thebes, as well as some of the Italian City-States, Dutch provinces, and Swiss Cantons.
Consequently, one might suppose that republicanism has something to do with following the example of the foregoing historical forerunners. However, the facets of government to which the Founders/Framers gave emphasis was less a matter of the particulars of this or that form of doing things than it was a matter of the quality of the intentions through which such things were to be engaged.
Intentions should be rooted in a commitment to truth, justice, reason, and character. According to many of the Founders/Framers, if one’s intentions were shaped by a search for truth and justice in a rational and principled fashion, then, surely, the ramifications that ensued from putting such intentions into active form would be colored and oriented by the quality of those underlying commitments.
The problem is that truth, justice, rationality, and morality often mean different things to different people. As a result, oftentimes, one person’s republicanism turns out to be another individual’s anti-republicanism.
Approached from a slightly different perspective, republicanism can be thought of as being the offspring of the Enlightenment. Politically speaking, republicanism was, more or less, a synonym for what was meant by enlightenment.
To be enlightened was to be someone who was: rational, given to critical inquiry, equitable, open, judicious, honest, fair, impartial, unbiased, balanced, opposed to corruption, virtuous, compassionate, and inclined to public service. To be enlightened was to be committed to republican values, and such values were referred to as republican because many of the individuals who were studied during the Enlightenment – for example, Virgil, Tacitus, Cicero, and Sallust – and who wrote about such qualities of character were trying to establish the nature of the principles and ideals for living in a republic .
Those who were inclined toward the perspective of the Enlightenment as given expression through various Republican authors believed that the highest, fullest form of human excellence was achieved through participating in the life of a self-governing society (i.e., a Republic) in accordance with a set of values (i.e., republicanism) that enhanced both collective and individual liberties. Whereas the idea of monarchy – the prevailing mode of governance in the 18th century -- was rooted in considerations of kinship, patronage, fear, and tyranny, the idea of republicanism was rooted in considerations of character, virtue, integrity, and a willingness to work for the common good through leaders that had the best interests of the citizens at heart … which was to induce people to aspire to a republican way of life.
To be a sovereign individual, one could not be a subject of someone else’s agenda. One had to be one’s own master.
To be one’s own master meant that one was free from the forces of tyranny that were capable of corrupting and biasing one’s perspective. According to the Founders/Framers, to become autonomous in this fashion, one had to pursue and implement the qualities of republicanism.
However, monarchies were not the only threat to republican values. Commerce could also undermine such values.
If one depended on the market to earn a living, then one’s allegiances would be colored by this dependence. Therefore, according to the philosophy of republicanism, laborers, artisans, and others who were dependent on the vagaries of the market, were vulnerable to the sorts of forces at work in such economic turbulence that were capable of compromising one’s sense of justice or biasing one’s understanding of, or search for, the nature of truth.
According to the perspective of many of the Founders/Framers, earning an income through charging other people rent was supposedly, compatible with republican values. Yet, given the nature of the contingent character of the relationship between one who earns rental income and those who pay such rent, one might wonder why the proponents of republicanism didn’t understand that a relationship of dependency existed in such situations since if there was no one to pay rent or who could afford the rental fee, then, in many ways, the one who rented out property was just as vulnerable to the exigencies of economic turmoil as were laborers and artisans, and, therefore, such individuals were also vulnerable to the corruption to which that sort of dependency might incline an individual.
In fact, the act of establishing the price of rental or enforcing that price with respect to people who could no longer afford to pay it might be considered as acts that were exceedingly vulnerable to the sort of self-interest that was an anathema to republicanism. Moreover, one might note in passing that the property being used to earn income through rentals often had been confiscated from Indians in manipulative, unethical and coercive ways. So, one has difficulty reconciling such a lack of integrity and disinterestedness with the supposed principles of republicanism.
Similarly, in America, the proponents of republicanism often extolled the idea of the gentleman farmer, or yeoman, who would work his land and, thereby, become self-sufficient and independent from the world of commerce and power politics. Yet, many – although not all -- of these yeoman farmers seemed oblivious to the fact that they were dependent on slaves to ensure a life of independence for said ‘gentlemen farmers’.
The foundations of financial independence in America were often rooted in behavior that was not consistent with the principles of republicanism. In many respects, one could only become an advocate of republicanism if one first launched one’s ship of independence from a corrupted dockyard.
Of course, once one was out to sea, then one could forget about what was necessary to get underway. Once one was sailing the open oceans of life, then possibilities were only limited by one’s own imagination and willingness to work to maintain one’s independence from the corrupting influence of politics, patronage, and commerce … although one might have to keep an eye on those deckhands who helped one sail the open seas as an ‘independent’ person because they sometimes could be quite unreasonable in the way they wished to be treated in accordance with, say, republican principles.
Oddly enough, one of the motivations underlying the Founders/Framers desire to jettison the Articles of Confederation in favor of the Philadelphia Constitution involved a desire to increase commercial activity. Furthermore, many of the Founders/Framers were entangled in various schemes involving land speculation and the attempt to enhance their property holdings or the value of such holdings.
Presumably, those individuals among the Founders/Framers who were concerned with bringing certain aspects of commercial activity under the control of a federal government had some faint appreciation for the possibility that having a well-managed commercial sector likely would have implications for their own sources of income (i.e., the value of their property would likely be enhanced if commercial activity increased in America, as would the diversity of commercial uses to which such property might be put). If so, this is hardly an expression of the sort of disinterestedness that supposedly was a hallmark of the philosophy of republicanism.
In addition, the lines of demarcation drawn by those among the Founders/Framers who were proponents of republicanism between such land transactions and the corruptible world of commerce often appeared to be rather arbitrary at best. While one could understand the importance of enhanced land-holdings to the goal of a life of independence, nevertheless, the acquisition of land was usually accompanied, in one way or another, with pushing people (whether Indians, slaves, tenants, or poor farmers) deeper into dependency in order that those latter individuals could help subsidize one’s aspirations for republican independence.
Under monarchical forms of government, the links connecting individuals, families, towns, state, religion, and the ruler were numerous. Loyalty, patronage, blood, fear, and duty all boiled together in the same pot, and the brew that resulted from this was an intensely hierarchical society.
The philosophy of republicanism was supposed to be an attack on all forms of hierarchy. Indeed, one of the purposes of republicanism was to dismantle the system of hierarchy that was rooted in monarchy and replace it with a horizontal form of self-governance.
Yet, almost to a man, the Founders/Framers believed in the idea of a ‘natural aristocracy’. All of them considered themselves to be charter members of such an aristocracy.
Consequently, there was a deep component of hierarchy that was built into the means – i.e., republicanism – through which government was supposedly going to rid society of hierarchy. Only members of the natural aristocracy were capable of redeeming society and government.
Moreover, because the Framers/Founders considered themselves to be members of this natural aristocracy, they felt that they had both the ability and a duty to fulfill the responsibilities of such a ‘natural aristocracy’.
Consequently, public service was a calling. Such a sense of responsibility was an expression of the way in which the philosophy of republicanism believed that the highest form of fulfillment came through participating in the public sphere and utilizing the principles of republican values to serve the common good. However, in order to properly serve that good, one had to do so according to qualities such as disinterestedness, integrity, honesty, equality, judiciousness, and the like.
In short, one had to be totally unbiased and fair in the administration of government. This is what it meant to be a responsible representative of the natural aristocracy.
Unfortunately, the members of this natural aristocracy appeared to be completely blind to their own biases concerning themselves and their suitability for ruling others. For instance, if the members of the natural aristocracy were to act in accordance with the principles of republicanism, they should have been disinterested in any possible gain they might accrue from establishing a self-governing form of democracy.
Yet, they were all very ambitious individuals. Can one really suppose that none of them envisioned themselves serving in some ‘humble’ capacity within the framework of the federalized sort of government they were proposing?
Once they wrote the Philadelphia Constitution, why didn’t they just walk away from things? Of course, one might suppose that the reason why virtually every person who participated in the Philadelphia Convention in the summer of 1778 took such an active role in the ratification process in the different states was because they were convinced that they were correct, but they, themselves, indicated that this was not necessarily the case.
They acknowledged that there were many things wrong with the Constitution. However, they also felt it was, perhaps, the best that could be achieved under the circumstances.
There is a certain disconnect in the foregoing juxtaposition of ideas. On the one hand, the Founders/Framers considered themselves to be members of a natural aristocracy who had all the understanding, knowledge, skills, talents, wisdom, and abilities that were necessary to effectively govern. In addition, they considered themselves to be proponents of the philosophy of republicanism which equipped them with the necessary commitment to truth, justice, and virtue to ensure that such effective government would also be a fair and impartial form of governance.
On the other hand, despite, allegedly, being the brightest and most capable individuals of their generation and who, as well, possessed the potent philosophy of republicanism, the best that the Founders/Framers could do was to produce a document that they acknowledged to be flawed. Moreover, as indicated earlier, they suggested that this was the best that could be done.
In fact, they appeared to be so convinced that no one could improve on their efforts they continuously insisted that the ratification conventions should not introduce any amendments during such deliberations and that the Philadelphia Constitution needed to be accepted as written. Moreover, throughout the various ratification conventions they took very active roles in beating back any attempt to amend their document.
The foregoing sort of concerted activity on the part of the Founders/Framers sounds less like an expression of a belief that the Philadelphia Constitution could not be improved upon than it was an expression of a desire to continue to be the ones who would control the post-Philadelphia Convention environment so that the reins of power would remain in their grasp. The Founders/Framers of the Philadelphia Convention were trying to wrestle power away from the existing establishment (i.e., the Articles of Confederation and the Continental Congress), and they were opposed to anyone who might wish to do the same to them … and they saw the attempt of people in different state ratification conventions to introduce amendments as threats to their plan for ascending to power via the Philadelphia Constitution.
In any event, if the Founders/Framers couldn’t develop a constitution that was free of flaws, if 39 signatories and three dissenters could not resolve such acknowledged flaws in the Constitution, and if those 39 individuals were resistant to receiving any assistance in this regard from the ratification conventions, then what made them think they would be able to run a government that would not become entangled in the very problems they failed to solve. Seemingly, they were recklessly trying to steamroll a country into adopting something that their alleged commitment to the principles of republicanism should have told them was a massive conflict of interest – between, on the one hand, their ambitions and self-serving biases (if not arrogance), and, on the other hand, the welfare of 3.1 million people who inhabited America at that time, along with countless more millions in subsequent generations.
Where were their principles of republicanism when the Founders/Framers disregarded the instructions of the Continental Congress? Where were those principles when the Founders/Framers encouraged Americans to disregard the Continental Congress, Articles of Confederation, and the state legislatures? Where were those principles when the Founders/Framers conspired in secrecy to come up with a way to overthrow the existing government … however peacefully? Where were the principles of republicanism when the Founders/Framers sought to manage the various ratification conventions in order to arrive at certain pre-determined conclusions and, in the process, betray their alleged commitment to reason, justice, fairness, integrity, and unbiased deliberations?
When push came to shove, many of the Founders/Framers abandoned their philosophy of republicanism. Yet, Americans were supposed to have faith in the idea that such a philosophy would ensure that all decisions in the future would be in accordance with the requirements of such a philosophy.
Without some sort of moral compass to guide government administrators through the many treacherous reefs and shifting sandbars which were likely to populate the political/social oceans of the future, then the constitutional machinery that was invented in Philadelphia was relatively worthless. Having three branches of government that were to be run by people who, when it served their purposes, had shown a willingness not to act in accordance with the very noble aspirations of republican philosophy did not auger well for succeeding generations of Americans.
If the very first generation of natural aristocrats displayed such an unreliable commitment to principles of virtue, integrity, disinterestedness, and fairness, then what implications did this have for ensuing generations of administrators? If the principles of republicanism were capable of being jettisoned by the natural aristocrats for the sake of their ambitions and convenience, then just what sense could be made of the guarantee they had given in Article IV, Section 4 of the Constitution, and what would be the obligation of succeeding generations of government leaders to honor that guarantee if they didn’t subscribe to the principles of republicanism?
If the Founders/Framers actually had lived in accordance with their philosophy of republicanism – the one which is enshrined in the Philadelphia Constitution -- then other problems aside (and there are many such problems), the underlying intention of the Constitution might be considered to be truly radical because for the first time in the West, republicanism called for government officials to regulate their own conduct through the qualities and principles of an ethical system (i.e., republicanism) which claimed to ensure that citizens would be governed through principles of virtue, justice, liberty, disinterestedness, impartiality, fairness, and so on. Unfortunately, the Founders/Framers often did not live in accordance with the requirements of republicanism, and, as a result, dysfunctional government soon began to grow like a cancer and, in the process, debilitated the body politic.
American society today continues to be negatively impacted by the failure of the Founders/Framers to abide by the principles of republicanism that, at least theoretically, had been introduced into the constitutional framework that was to govern the United States. Government officials of this and past generations have followed the precedent established by the Founders/Framers and, as a result, they too have largely disregarded putting into action the guarantee – not promise -- of republicanism that is entailed by the opening words of Article IV, Section 4 of the Constitution.
More than two hundred years of applying such an anti-republican precedent has placed this country on life-support. Surely, our current, near-death status as a viable democracy is an iatrogenic-like problem in which the social diseases that are ravaging America have been caused, in no small part, by not only the structural character of the political system itself but, as well, by the failure of the practitioners of political medicine to treat citizens with the sort of ethical integrity which the philosophy of republicanism guaranteed, but the Founders/Framers and their successors have not, for the most part, delivered.
James Madison was born in 1751. His family was among the power brokers of Virginia, and they were owners of slaves … slaves that such families used to work their plantations. Land, slaves, and commerce of one kind or another anchored the power base of those families.
For a variety of reasons, Madison (at least prior to the late 1790s) tended to be wary of those people who were dissimilar to himself. Madison placed a very limited amount of trust, if any at all, in people who were not members of the power elite, or people who had not received the benefit of a liberal education (he went to the College of New Jersey, later known as Princeton), or people who might be passionately opposed to the way in which the ‘natural aristocracy’ (i.e., power elite) dominated society and commerce.
His experience as an elected representative in Virginia led him to worry that there might be entirely too much democracy going on in America. He was concerned about the way elected representatives increasingly seemed to be enabling the unbridled passions of those who were not members of the ‘natural aristocracy’ and, therefore, who lived in opposition to the way Madison believed the world should operate.
Madison considered himself to be a member of a minority – which, in effect, members of the power elite always have been – and, therefore, he sought to protect himself, and others like himself, from the hordes (i.e., the majority) whom Madison perceived to be storming the Bastille (metaphorically speaking) via their elected representatives. Consequently, although many people refer to Madison as being the father of the Philadelphia Constitution (because, in a number of respects, it was based on the Virginia Plan that he drew up prior to the Philadelphia Convention during the summer of 1787) as well as the father of the Bill of Rights (because he initiated the process in Congress … although the final Bill of Rights was quite a bit different from the proposed list of amendments that Madison introduced into the first session of the new Congress), nonetheless, one might want to bear in mind that Madison was not so much interested in promoting democracy for the majority of people as much as he was interested in establishing a political system that would be capable of protecting a certain minority of which he considered himself to be a member.
Madison’s understanding of political life was not just informed by his three years, or so, of experiences in the Virginia state legislative assembly. He also took to heart his years of participation in the Continental Congress that was set in motion through the Articles of Confederation.
In fact, one might wonder if the way in which the Continental Congress operated for a number of years as a body that had not been legally sanctioned prior to being ratified by the states in 1781 might have helped shape Madison’s willingness to use the Philadelphia Convention in a similar fashion. In other words, he might have been prepared to treat the Philadelphia Convention as a body that operated without legal authority but which sought to provide solutions to ongoing problems, just as the Continental Congress tried to do before the Articles of Confederation were ratified.
In any event, during his years of participating in the Continental Congress, Madison came to see that the fulcrum of power in the Confederation pivoted about the states. Consequently, since the Articles of Confederation required a unanimous vote among the states to pass legislation involving taxation, import duties, and so on, the central government (i.e., the Continental Congress) could not raise the money it needed to: Pay national debts, defend the country, or institute policies that might enhance commercial activity in the United States.
Similarly, and as previously noted, when Madison served in the Virginia assembly, he felt that the people were becoming too powerful and, in the process, Madison came to believe that the generality of people were thwarting the ability of the central government (of which the Virginia state legislature was a part) to provide effective governance. In other words, as Madison saw it, the people constituted the same type of problem within the state of Virginia as the states did on the national level in conjunction with the Continental Congress.
Prior to the late 1790s, Madison was a centralist. In other words, he believed that centralized authority operated by a ‘natural aristocracy’ was the best vehicle for delivering competent governance, and as a result, he felt that the people on the state level, along with the states on the national level, were interfering with the capacity of centralized authority to fulfill its function. As far as Madison was concerned, on both the level of individual states as well as states collectively considered (i.e., the nation or Confederation of States), the real problem of governance in America consisted of people who were not part of what Madison considered to be the ‘natural aristocracy’ – that is, those who were gifted by nature with the requisite intelligence and talent to lead others.
According to Madison, the majority of people – especially those who were representatives in state legislative assemblies -- did not share his views about the Enlightenment, republicanism, or the meaning of public service. Those individuals sought to use government to advance their narrow self-interests (or those of their constituents) rather than to support that which was honorable, virtuous, and for the good of the nation.
Naturally, Madison view of what constituted the ‘good’ of the nation reflected his personal ideas about how the world ought to operate. However, anything which was inconsistent with such ideas was considered to be an expression of an anti-republican orientation.
Therefore, to a certain extent, Madison’s approach to the world of politics could be seen as being just as self-serving as was the manner in which many of his fellow legislatures engaged political activity. Nevertheless, Madison believed that what he was interested in doing was, somehow, more honorable, virtuous, and enlightened than were the interests of those who were not members of the natural aristocracy and who saw things differently than he did.
For example, Madison was upset that he continuously had to make compromises in relation to his attempts to reform the judicial system in Virginia. Madison, however, never seemed to question whether the reforms which he was interested in instituting were as conducive to democracy as he supposed them to be. Instead, he merely thought of such proposals as being “skillfully” constructed ideas that were being undermined by, and thwarted through, anti-republican sentiments.
Consequently, to argue that the Madison of pre-1798 vintage was not necessarily a proponent of democracy per se is not as crazy as it might first appear to sound. Indeed, as previously noted, the Madison of pre-1798 vintage advocated a system in which centralized authority would be elected through popular vote (at least the members of the House were … the members of the Senate were selected by state legislators, and the President was elected through the Electoral College) and, then, such centralized authority – which was to be drawn, via elections, from the natural aristocracy of society -- was to be exercised in accordance with the ethical principles of republicanism.
However, republicanism does not really say that what is done must be democratic in nature … assuming one could agree on what was meant by the idea of democracy. Rather, republicanism is entirely about the manner in which one brings to fruition whatever it is that one does.
Theoretically, a monarch could conduct himself or herself in a republican fashion. If such a monarch attempted to decide issues in a fair, rational, virtuous, impartial, equitable, disinterested, and unbiased manner, then such a monarch would be subscribing to the philosophy of republicanism.
In order to be considered a proponent of republicanism, a person didn’t have to be committed to democracy in the sense of wanting to provide the majority of people with a form of direct self-governance. In fact, Madison saw democracy as the process through which the electoral power of the people was merely a process through which to leverage the votes of people in order to place power in the hands of those individuals – the ‘natural aristocracy’ – who, hopefully, would offer governance through qualities such as: integrity, honor, disinterestedness, fairness, and virtue.
From Madison’s perspective, if government activity were conducted in a republican manner, then whatever issued forth through that kind of activity would be shaped, colored, and oriented by the appropriate kinds of values and, therefore, should serve the common good. However, people often differed in their ideas about what, precisely, was meant by: virtue, integrity, disinterestedness, rationality, and fairness.
People might agree that people should be governed by the principles of republicanism. What this meant in practice was often less subject to agreement.
One could have a sincere intention to conduct oneself in an honorable, impartial, judicious, virtuous, equitable, disinterested fashion. However, someone else might always be able to sincerely and legitimately raise questions about whether, or not, what was taking place was as honorable, and so on, as had been claimed or intended.
Republicanism required that people should not be judges in their own cause. Yet, advocates of republicanism often presumed that what they were doing was republican in nature, and, therefore, they were acting as judges concerning the quality of their behavior vis-à-vis their own cause … namely, republicanism.
If Madison had had his way in the Philadelphia assembly which took place in the summer of 1787, then the sort of Congress which he initially envisioned -- prior to, and during the early portions of, that convention -- would have had the power to veto any, and all, state legislation that might be considered to conflict with the policies of centralized authority. There is nothing democratic in such a proposal, but, rather, such an idea is all about the right – nay, duty -- of those in government to push their policies onto both the states and the people as long as, presumably, such pushing was done in a republican fashion.
Interestingly enough, in the late 1790s, Madison did a virtual 180 degree turn around from his starting position in relation to the 1787 Philadelphia Convention. More specifically, when Madison joined forces with Jefferson and others in the late 1790s to resist the tyrannical character of the Alien and Sedition Acts that were passed during the administration of John Adams, Madison became an ardent advocate for state rights.
Gone was Madison’s belief that the central authority should be given carte blanche in its policies. In addition, under the circumstances of the late 1790s, Madison was more willing to trust the judgments of a majority of the people in the states than he was willing to trust the monarchical-like tendencies of the federal government.
One might suppose that President John Adams felt that he was acting in a purely republican manner when he signed tyrannical legislation into law in 1798. Moreover, one might suppose that the younger Madison felt that he was acting in a purely republican manner when he proposed that the central authority should have the right to veto whatever state legislation the central, federal authority considered to be antithetical to its own policies. Furthermore, one might suppose that the older Madison felt that he was acting in a purely republican fashion when he fought for state rights over federal rights in the late 1790s.
Herein lies part of the problem. The meaning of republicanism seemed to be impacted by changes in circumstances, interests and concerns.
Although Madison did not get his way during the Philadelphia Convention in the summer of 1787 with respect to the issue of the central government’s right to veto any and all state legislation, Madison, nonetheless, did everything he could to create a strong central authority in the federalized system that was being proposed via the Philadelphia Constitution. Furthermore, throughout the administration of George Washington, Madison worked closely with the President to lend definition to the idea of a strong, central authority through the establishing of various executive departments as well as by introducing provisions that would help strengthen, as well as distinguish, the executive role relative to Congressional activity.
One could even put forth the argument that Madison’s willingness to initiate the congressional process that eventually would lead to a Bill of Rights was done more out of a desire to place constraints on the people’s desire to have more control over their own affairs, and, thereby, preserve the authority of centralized government, than his act of introducing amendments to Congress was necessarily due to any desire to serve the needs of the generality of people. To be sure, Madison did act in a way that was consistent with the philosophy of republicanism when he sought to honor what he felt was a duty with respect to a prominent theme in many ratification conventions – namely, the persistent call for amendments to the Philadelphia Constitution – by introducing a package of amendments to the newly formed Congress, but, presumably, Madison also felt he was acting in a republican fashion when he limited the kinds of amendments that were introduced for Congressional consideration to ones that would not pose any serious threat to the ability of central authority to conduct its business.
In effect, the younger Madison – the Madison of the Philadelphia Convention and the Presidency of George Washington – created problems for the older Madison of the late 1790s. In other words, all the efforts of the younger Madison to create a strong, central government came back to haunt the older Madison during the administration of John Adams.
One might wish to argue that Madison always was sincere in his desire to act in compliance with the philosophy of republicanism. Nonetheless, this desire gave expression to very different priorities, objectives, interests, and behaviors across time and changing circumstances, and this facet of variability probably was one of the reasons why people like John Adams wondered if ‘republicanism’ had ever actually existed because establishing a clear understanding of that idea as it manifested itself in actual circumstances could be quite a slippery challenge.
So, which, if either, of the foregoing editions of James Madison give expression to the ‘real’ nature of what is meant by a constitutional democracy? Apparently, as was the case with Madison, the answer to this sort of question varies across time and circumstances.
One could, of course, try to answer the foregoing question by saying that both editions of Madison reflect the ‘real’ nature of a constitutional democracy. However, if one does this, then the idea of constitutional democracy runs the risk of becoming almost anything one wants to believe it is.
Under such circumstances, the criteria one uses for justifying one constitutional perspective rather than another seem quite arbitrary. In other words, although one might be able to explain why, say, one edition of Madison acted in one way, while another edition of Madison acted in a different fashion, there doesn’t seem to be anything which is common to the two editions and by means of which one might be able to construct a plausible, unified theory concerning the intentions of the Founders/Framers with respect to how subsequent history should be constitutionally engaged.
Was Madison entitled to change his ideas about governance? Of course, he was.
Was Madison entitled say that he was opposed to the notion of central authority being envisioned by Alexander Hamilton or John Adams … that their ideas were not what he had in mind when he advocated for having a strong, central government? Again, the answer is: ‘Yes’.
The problem emerges when one tries to determine who -- if anyone -- was right in their conception of how central authority should operate. Was the younger Madison correct? Was the older Madison correct? Were they both correct in some sense? Was Hamilton right? Was Adams correct?
The foregoing questions all share one thing in common. They all lead to further, more basic questions.
Asking who, if anyone, is correct in her or his manner of engaging and understanding the Constitution does not probe the underlying issues with sufficient depth or rigor. One also must ask why any of the individuals named previously – and many others who might be named -- is correct and according to what criteria, and, in addition, what justifies using those sorts of criteria rather than some other set of criteria to evaluate those matters?
Madison is considered by many to be the father of the Constitution. If this were really true, nearly four months and many hours of disputation would not have been required to come up with the document that eventually arose out of the Philadelphia Convention.
However, even if one were to adopt a very simplistic interpretation of historical events and suppose that Madison was the sole architect of the Philadelphia Constitution, one must grapple with the fact that Madison had at least three ideas about the role of central authority within a constitutional democracy. At one point (the Virginia Plan), Madison believed that states should have no real authority. At another point (the Philadelphia Constitution), Madison believed that states should have some power but that the authority of the central government should prevail in many, if not most, circumstances. Finally, at yet another point in time (the late 1790s), he believed that states should have much more power than he earlier believed to be appropriate.
Moreover, if one were to restrict oneself to considering only the views of Madison with respect to the idea of constitutional democracy – and there is really no justification for doing so – there does not seem to be any consistent theory of constitutional interpretation capable of reconciling his different perspectives. Furthermore, even if there were such a unified theory, one still would be faced with the following question: Why should anyone feel, or be, obligated to comply with Madison’s understanding of such matters?
There is one further issue to add on to the foregoing discussion. Madison’s Virginia Plan -- which was favored over William Patterson’s New Jersey Plan -- became the basic template that the Philadelphia Convention worked on in order to generate a final constitutional product. To a large extent, the Virginia Plan was a response to the many problems that Madison experienced during his years as a member of the Continental Congress and the Virginia state assembly … problems that had to do with the way in which the generality of people in America seemed to eschew republican principles and, instead, pursued what Madison considered to be narrow, selfish, passion-driven interests.
Consequently, one would like to know what made Madison think that things might be different from his previous experiences in government if the Philadelphia Constitution were to be adopted by a sufficient number of state ratifying conventions. In other words, if the problem with state and national government up to 1787 was, among other things, due to the manner in which people were not properly morally oriented to do the ‘right’ thing – the republican thing -- when it came to governance, then what made Madison believe that this same problem would not carry over into a new system of governance filtered through the Philadelphia Constitution.
The problem facing Madison in 1787 was not necessarily a system problem. It was a people problem.
Madison – and the other participants in the Philadelphia Convention – invested a lot of time in the assumption that if one fixed the framework of governance, then, everything else would fall into place. Yet, they all knew that the overwhelming history of the world – even in the case of their beloved ‘republics’ of the past -- tended to indicate otherwise.
The people in the Continental Congress could not be depended on to do the ‘right’ thing … the republican thing. The people in the state legislatures could not be depended on to do the ‘right’ thing … the republican thing. Why should one feel confident that the people in the new Congress, judiciary, and presidency would do the ‘right’ thing … the republican thing?
Many of the people who participated in the Philadelphia Convention were allegedly committed to the principles of the philosophy of republicanism. Yet, the activities of that convention were rooted in some rather questionable behaviors with respect to issues of disinterestedness, honor, duty, loyalty, judiciousness, fairness, integrity, equitability, and truthfulness – the mainstays of republicanism.
Whatever the merits of the Philadelphia Constitution might be relative to the Article of Confederation, republicanism is not measured by the value of the document one produces but by the quality of how one goes about producing such a document. In that respect, the Founders/Framers failed because there are many key aspects of the manner in which they conducted themselves in Philadelphia that really can’t be reconciled with the philosophy of republicanism.
Given their disregard for the existing system of governance (the Articles of Confederation), as well as their disobedience concerning the authorization that had been extended to them through the Continental Congress, along with their efforts to urge the states – in the form of ratification conventions -- to by-pass the system that had been authorized by the Articles of Confederation (and already ratified by the states), and given their manner of seeking to dictate the terms under which a new constitutional system would come into being (i.e., Article VII in the Philadelphia Constitution which arbitrarily stipulated that if nine states ratified the Philadelphia Constitution, the Constitution would be adopted), the Founders/Framers had not been true to their republican principles. The ends (a new constitution) could not justify the means (the abandonment of republicanism), because without the principles of republicanism to give ethical life to governance, the proposed Constitution was relatively worthless.
The truly radical dimension in the ideas of the Founders/Framers was not the Philadelphia Constitution. The philosophy of republicanism gave expression to the real radicalism inherent in their ideas.
To propose that governance should be conducted in accordance with standards of ethical principles – namely, republicanism – was nothing short of breathtaking for the 18th century … for any time actually. However, the Founders/Framers fell short of this standard during the Philadelphia Convention and, afterwards, during the process of ratification.
The Founders/Framers guaranteed (they did not promise or recommend this) that the states would each be the beneficiaries of a republican form of government. This was done in the form of Article IV, Section 4 of the Constitution.
Those 16 words are the most revolutionary set of words in the entire Philadelphia Constitution. They are the same 16 words that, for the most part (and there have been some notable exceptions) have gone unheeded by virtually every ensuing body of governance in the history of the United States.
Madison was faced with a people problem in 1787 (that is, people in government who did not abide by a set of ethical principles). The Philadelphia Convention did not solve that problem but merely camouflaged it.
Thomas Jefferson did not participate in the Philadelphia Convention of 1787. He was in Europe acting on behalf of the Continental Congress.
Consequently, there is a sense in which Jefferson was not among the Founders/Framers of the Philadelphia Constitution. One wonders what, difference if any, Jefferson’s presence might have made to the assembly out of which that document arose … as one could wonder what difference, if any, the presence of Tom Paine, Sam Adams, Patrick Henry, William Findley, and Richard Henry Lee … all of whom were much more radically inclined – each in his own way – than was James Madison or many of the other participants in the Philadelphia Convention.
Of course, 11 years earlier Jefferson had played a leading role on the committee that drafted the Declaration of Independence (and it is important to keep in mind that Jefferson did not act alone with respect to that document). Yet, there is a revolutionary fervor – for obvious reasons -- present in the Declaration of Independence that – with the exception of Article IV, Section 4 -- is missing in the Philadelphia Convention.
The aforementioned revolutionary character also was present in a letter that Jefferson had written to William Stephens Smith -- nearly two months after the Philadelphia Convention concluded its business. Jefferson wrote: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
Nowhere in the Philadelphia Constitution does one find anything which remotely resonates with the foregoing sentiments. There are, of course, provisions in the Constitution for removing people from office for ‘high crimes and misdemeanors’ or other untoward behavior, and there are provisions in the Constitution for changing that document through Congressional votes, state amendment conventions, and the like, but the aura of revolution has disappeared from the Philadelphia Constitution.
The Philadelphia Convention was revolutionary in character because it constituted a rebellion against the way things in government were, and, as well, it was a peaceful attempt to overthrow the established, legal way of doing things in America. However, the Philadelphia Constitution itself was, for the most part, not revolutionary in character.
The constitutional document was not about freeing the people. Instead, it was a set of procedures that would free the practitioners of governance from the people in substantial ways so that the ‘natural aristocracy’ could do whatever it deemed to be “proper and necessary” to carry out its various policies.
Therefore, although there is a very real sense in which Jefferson helped shape some of the conceptual landscape out of which the Philadelphia Convention operated, there is much less of a sense in which Jefferson helped shape the structural character of the Philadelphia Constitution. In light of this distinction, one wonders whether, or not, Jefferson can be considered one of the Founders/Framers … or, stated in another way, while there is a sense in which Jefferson is among the Founders of America, there is much less of a sense in which he is a Framer of the Constitution.
There is another factor which muddies the water when it comes to trying to figure out Jefferson’s place in the realm of democratic thinking. While Jefferson had great rhetorical style – both spoken and written -- that verbal style was not always backed up with behavior that easily could be reconciled with the democratic-sounding flourishes of his mouth or pen.
Jefferson had a vision of what he believed democracy to be, but he was often ideologically driven concerning that vision. As a result, he tended to be somewhat inflexible concerning the way he believed his vision should be put into operation.
In other words, Jefferson was not immune to the idea of interfering with the liberties of others if such individuals got in the way of his attempt to realize his own vision of things. Moreover, Jefferson was not opposed to the idea of censoring ideas with which he disagreed … and Jefferson’s participation in the ugliness of slavery is but one piece of evidence in support of the foregoing contentions.
On the one hand, Jefferson ‘talked the talk’ when, on many occasions, he advocated against the institution of slavery. On the other hand, Jefferson did not ‘walk the walk’ when one considers his willingness to flog his slaves or to go after them if they tried to escape.
In addition, while Jefferson condemned the idea of blacks and whites genetically commingling with one another, there is considerable genetic evidence concerning his (or someone in his household’s) relationship with Sally Hemings suggesting that he – or a mysterious other -- seemed to be a proponent of the school of: “do as I say, not as I do.’ Again, there appears to be a ‘disconnect’ of sorts between what Jefferson said and what he did or permitted to happen.
Whereas Madison sought to wed the philosophy of republicanism to the Philadelphia Constitution, Jefferson was more interested in having the principles of republicanism manifest themselves in the manner in which independent, yeoman farmers would conduct themselves in the world of subsistence living and/or in the realm of commerce. Whereas the pre-1798 Madison was something of an authoritarian centralist, Jefferson was more inclined toward some form of decentralized authority in the form of yeoman farmers regulating themselves in accordance with principles of republicanism.
Both Madison and Jefferson, however, suffered from the same sort of problem. They each were proponents of the philosophy of republicanism, and, yet, they didn’t always comply with the requirements of that philosophy.
Just as one could ask of Madison why he would believe that subsequent generations of government officials would abide by the philosophy of republicanism when those who participated in the Philadelphia Convention and the subsequent ratification conventions often ignored such precepts when it was convenient for them to do so, one also could ask of Jefferson why he would believe that subsequent generations of yeoman farmers would comply with the principles of republicanism when Jefferson, himself, often did not do very well in this respect.
Like Madison, Jefferson considered himself to be a member of the ‘natural aristocracy’ – that is, individuals who had been gifted by nature with considerable intelligence, talent, and ambition. From the perspective of those ‘natural aristocrats’, they were individuals who, as a result of such gifts, ought to be leaders (whether publically or privately) of others.
Nevertheless, if members of the ‘natural aristocracy’ could not – each in his own way -- live up to the standards of republicanism, then why did they believe that anyone else would be able to do so? Yet, both Madison and Jefferson – each in his own way – believed that the philosophy of republicanism would be the salvation of government, society, economics, and individuals.
Jefferson was a student of the Enlightenment. He believed in pushing boundaries concerning the nature of politics, economics, religion, society, and science.
There is nothing necessarily wrong with such a belief. Problems do arise, however, when one supposes that one’s way of pushing such boundaries is necessarily the ‘right’ way or the ‘better’ way of engaging such issues and, as a result, one seeks to impose those ideas on other people.
Thomas Jefferson, James Madison, George Mason, Patrick Henry, Samuel Adams, Tom Paine, William Findley, John Adams, and any number of other individuals who might be mentioned here all had their unique take on how to push the boundaries with respect to the search for truth, justice, wisdom, and personal fulfillment that was promulgated by the Enlightenment. Their critical and skeptical inquiries all had their individual signatures … the pattern that gave expression to the degrees of freedom with which they were comfortable – each in his unique way -- within the context of such exploratory behavior.
Consequently, there was not one theory of the Enlightenment. There were many ideas – as many possibilities as there were individuals -- about what constituted a “correct” understanding of: knowledge, justice, truth, reason, and wisdom.
Similarly, there was not one theory of republicanism. There were many ideas about how to be honorable, disinterested, unbiased, judicious, fair, impartial, loyal, and dutiful.
Herein is the problem. How does one derive a consistent theory of constitutional interpretation from such diversity?
One cannot say, with any substantial degree of justification, that the Founders/Framers, as a whole, meant this or that, or intended this or that, or believed this or that … if by ‘this or that’ one is alluding to some underlying unified perspective concerning the nature of life – politically, socially, individually, scientifically, religiously, or spiritually. What is more, even if one could do this, so what?
It is one thing for the Founders/Framers to all have their individually-tweaked, Enlightenment-influenced ideas about the nature of things. It is quite another thing to try to argue that there was unanimity or consensus among the Founders/Framers concerning such matters or that everyone in succeeding generations should be bound by their understanding of things.
Jefferson was an accomplished musician, linguist, natural scientist, and draftsman. He was an aficionado of good wines and fine foods.
As such, he proved that one’s evaluation of people should be based on merit rather than on one’s social background. After all, if family pedigree were the deciding factor in Jefferson’s case, he would forever have been tainted by a father who was fairly wealthy but exhibited few of the qualities of the Enlightenment.
On the other hand, the wealth which was acquired by Jefferson’s father played a role in Thomas Jefferson’s subsequent development. If not for that wealth, Jefferson might never have attended the college of William and Mary or gone on to attend law school … institutions where he began to explore the sensibilities of the Enlightenment, along with becoming adept at music and language.
There was a certain skewing of the scales when it came to the ‘natural aristocracy’. Undoubtedly, Jefferson, like many others among the Founders and Framers, brought considerable potential to the table, but they also had the opportunity to realize such potential because they were not slaves, or indentured servants, or the working poor, or Indians, or women.
Jefferson, like many of his fellow members of the ‘natural aristocracy’ appeared to be blind to the manner in which the realization of their potential depended on the existence of inequalities in the surrounding society. Wealth may accumulate due to the hard work and sound decisions of an individual, but, almost invariably, wealth also accrues because of the way in which different groups of people – for example, slaves, the working poor, women, Indians, and children --need to subsidize the accumulation of that wealth.
The ‘natural aristocracy’ was not entirely natural. It grew from the manure of political, social, and economic inequalities.
Jefferson talked about how ‘all men are created equal”, but in the process of doing so, he appeared to be blind to the existence of slaves, women, the poor, and the powerless. Jefferson talked about the ‘natural aristocracy’, but in the process of doing so, he seemed to be blind to the fact that such an ‘aristocracy’ was, in many ways, the product of something which was not natural but, rather, was the result of considerable social, political, and economic engineering.
Whereas Madison envisioned the task of the natural aristocracy to provide effective governance to work toward the common good, Jefferson considered the task of the natural aristocracy to be a matter of leading the general public toward greater civility and sociability. Madison believed in the mechanisms of government to achieve the common good, but Jefferson believed that the common good was best realized not through government, per se, but by means of those who were ‘enlightened’ to lead people to the same ‘Promised Land’ as was enjoyed by the ‘enlightened’.
Jefferson had faith in the ability of people to become ‘enlightened’ (in his sense of the term) if they were led – and not necessarily just in a political way --by the right sort of individuals … that is, people who were schooled in republican values and principles. Jefferson had faith that the generality of people had the capacity to recognize members of the natural aristocracy and to follow such individuals – whether politically, socially, educationally, or otherwise – toward enhanced forms of civility and sociability … two hallmarks of the “Enlightenment”
On the other hand, pre-1798 Madison was relatively indifferent to the enlightenment of the generality of people. He was more interested in getting the people out of the way (i.e., to participate in elections and, then, become quiescent) so that the natural aristocracy would be able to generate effective governance free of interference from the people.
Jefferson envisioned a social revolution of sorts. The Madison who helped negotiate the Philadelphia Convention envisioned a political renaissance of sorts that would enable America to solve its economic and political problems and, thereby, become a viable nation on the world stage.
Both Jefferson and Madison believed in the existence of a ‘natural aristocracy’. However, they each envisioned the members of that group operating on society in different ways.
The society which Jefferson sought to bring about was rooted in an Agrarian Utopianism. He believed that if more and more people were able to gain control over their economic lives through the ownership of small, independent farms, then they would not be vulnerable to the same forces which had ravaged Europe as the confiscation of limited land pushed people into the cities in search of work … a social phenomenon that led to poverty, disease, exploitation, and an array of other social problems.
For Jefferson, the salvation of society was not effective governance per se. Instead, the salvation of society was an agrarian model of life that encouraged individual independence.
Jefferson was less interested in altering the way government was related to people (as Madison tended to be) than he was interested in altering the way people related to one another. For Jefferson, the viability of society was more dependent on the civility that people might be engendered to have with respect to one another via the enlightened leadership of the natural aristocracy than the aforementioned social viability might be dependent on the establishment of this or that form of government … with its attendant bureaucracies, laws, and tyrannical inclinations toward ruling over people.
Whereas many of the participants in the Philadelphia Convention which took place during the summer of 1787 looked upon events such as Shay’s Rebellion in western Massachusetts as a reason why a new form of governance was needed, Jefferson did not see that uprising as much of a problem but, instead, considered it to be a part of the natural order of things … like a storm that helped clear the atmosphere.
People such as Madison – which included most, but not all, of the other Framers of the Philadelphia Constitution – were interested in establishing clear lines of nationhood and power. Jefferson was much less interested in such projects.
Jefferson wanted a social revolution in which people would be able to break free from the shackles of ignorance that came from a failure to struggle toward a life of ‘enlightenment’, along with the civility that Jefferson believed such an understanding made possible. From this perspective, a nation/state was the place where such things occurred rather than being the purpose for which such things occurred.
During the 17 years that separated the end of his presidency (1809) and his death in 1826 (on the same day as John Adams passed away), much took place in America that led Jefferson to feel deeply disillusioned with respect to the future of democracy. Despite his successful struggle to establish the University of Virginia, there was much going on in America with which he was concerned.
Evangelical religion was on the rise and Jefferson saw this as antithetical to his ideas about the role which rational discourse should play in establishing enlightened civility in society. Moreover, society was becoming more democratized and, as a result, people were less inclined to follow the leadership of the natural aristocracy and more inclined to go in their own individual directions … whatever those might be.
When one adds to the foregoing considerations such problems as: wars involving Indians and the British, widespread economic problems, and growing conflict concerning the spread of slavery in places such as Missouri, the prospects for civility and sociability seemed rather dim. There appeared to be less and less opportunity for Jefferson’s dream of an agrarian utopianism to be realized.
Furthermore, America was becoming increasingly commercialized, and Jefferson did not care for the direction in which he saw things headed. While he always believed in the necessity of some degree of commercial trading, the extent to which America was becoming a place of constant commercial trafficking of every conceivable kind was distasteful to Jefferson … such intense, omnipresent commercialization was not what a cosmopolitan, civilized, enlightened life should be about.
As a result, in the years between 1809 and 1826, Jefferson became increasingly provincial and dogmatic in his outlook. He disengaged himself from the political process and even, to a large extent, discontinued trying to acquire much knowledge about what was happening politically in the country.
In retirement, Jefferson adopted a position that was 180 degrees opposite of the one that James Madison had taken in the Virginia Plan which the latter individual had introduced into the Philadelphia Convention. More specifically, whereas in 1787 Madison believed that the federal government should have the right to veto all state legislation if this was deemed to be necessary, Jefferson now believed that states should have the right to veto all federal legislation.
For a time, the two individuals had collaborated in the middle when they joined forces against the Alien and Sedition Acts in the late 1790s. However, although Madison subsequently became interested in trying to ‘balance’ state and federal rights (whatever this might mean), in the end, Jefferson became, almost exclusively, an advocate of state rights.
Many people today approvingly quote the later Jefferson – that is, the ideologue of state rights. Nonetheless, the later Jefferson is at considerable odds with the earlier Jefferson who sought to realize an agrarian utopia in which independent farmers – yeomen – would live a life of cultivated, rational civility that would bind people together quite apart from governmental activity and bureaucracy … just as the later Madison (vintage 1798 and later) is at odds with the earlier Madison -- although in a different fashion than is the case with respect to Jefferson.
The Founders/Framers of the Philadelphia Constitution did not have either the early Jefferson or the later Jefferson in mind when they crafted that document. On the other hand, the Philadelphia Constitution could be seen as a sort of utilitarian tool that might be used to advance policies that were quite consistent with either the earlier or the later Jefferson.
As such, the Philadelphia Constitution doesn’t really have any purpose in mind except in the very general, undefined sense of the Preamble to the Constitution which alludes to issues such as: justice, tranquility, the common defense, and liberty. In other words, the Constitution is a procedural means of implementing public policy in whatever way one might be able to justify as advancing the principles of the Preamble and still be consistent with those procedures … and the criteria for what constitutes “consistency” are quite mysterious, if not fairly arbitrary.
If the foregoing perspective is true, this would render ‘We the People’ vulnerable to whatever agenda a given Congressional, Judicial, or Executive session wanted to pursue. Moreover, there would be nothing to prevent all three branches of government from pursuing conflicting programs.
The Constitution enables power to manifest itself in a way that serves those who hold the reins of power. Moreover, once the reins of power are taken up, the people discover that it is not so easy – if possible at all – to reclaim that which has been usurped from them because once the voting is done, the Constitution is primarily about protecting the interests of those who have been voted into power.
Jefferson’s understanding of democracy is no more favored by the Constitution than Madison’s understanding of democracy is … or the understanding of Washington, Adams, or anyone else concerning the issue of democracy. This is because the Constitution is not a document of democracy.
The Constitution is a set of procedures that, once acquired via election, enables people to use the power that an election puts into play to bring about pretty much whatever such elected officials decide to do. Moreover, this can be done quite irrespective of whether, or not, those activities are agreeable to the people whose votes have been leveraged for purposes of harnessing that power.
Quoting Jefferson, Madison, Adams, Washington, or anyone else concerning the meaning of democracy is quite irrelevant to the actual nature of the Constitution. The Constitution is about the uses to which power can be put, and as such, that document is not a procedural plan for how to go about and realize democratic ideals … except incidentally so -- such as in the case when someone who actually had a thoroughly democratic perspective and wanted to use the Constitution in accordance with the principles and values of republicanism somehow stumbled into being elected.
Virtually every candidate professes that they are such a person – that is, the person who will actually serve ‘We the People’ by actively seeking to realize democratic ideals concerning” rights, liberty, tranquility, justice, and the common good. However, once those people are elected – and assuming they were ever sincere in their professions concerning democracy -- the corrupting influence of power has its way with such individuals, and principles of republicanism and democracy fade into insignificance.
Although many people generally think of individuals such as Jefferson and Madison when they asked to reflect on what they suppose the meaning of the Philadelphia Constitution to be, Alexander Hamilton may have understood the possibilities inherent in that document better than anyone … even its primary architect: James Madison.
The collection of essays that have come to be known as The Federalist Papers were largely written by Hamilton – and, indeed, he was the individual who initially conceived of such a project -- with about a third of the essays being contributed by Madison and a further 5% coming from the hand of an ailing John Jay. These essays were published in various New York City newspapers during the ratification debate in that state and were an effort to explain and defend the ideology of federalism that was at the heart of the Philadelphia Constitution, and, therefore, those essays are frequently cited, and quoted from, by those who subscribe to a federalist ideology.
As previously indicated, Madison’s views on federalism were strongly influenced by his experiences in the Virginia state assembly as well as the Continental Congress. Therefore, much of his Virginia Plan -- which served as a template for the Philadelphia – was an attempt to find a way of countering the sorts of influences and narrow interests that Madison found so distasteful and ill-conceived with respect to his earlier experiences in state and national governance.
Madison conceived of effective governance as being a function of the principles of republicanism … principles which would be capable of controlling the untoward impulses that Madison believed increasingly were being manifested through state governments and other legislative forums. Hamilton also believed in effective governance, but he was interested in harnessing the power of federalism to serve what he considered to be national interests that were evaluated in accordance with a metric composed, in equal parts: glory, honor, power, and empire.
Madison knew what he wanted to avoid and helped structure the Philadelphia Constitution accordingly. Hamilton knew what he wanted to secure through that document and exploited it accordingly.
While Hamilton did strive to terminate the institution of slavery in New York, he was not an advocate for the people, per se, and had little faith in them. He and Jefferson were polar opposites in relation to one another in that respect, and this is just one of the differences that fueled a continuing feud between the two individuals for more than 17 years.
Hamilton believed in democracy to the extent that it might enable him to do what he wanted to do. He had ambitions for himself and for his adopted country, and ‘democracy’ was seen as the midwife for those ambitions.
Hamilton did not spend a lot of time theorizing about democratic ideals like: rights, individual sovereignty, or civil liberties. In fact, Hamilton had indicated in 1804 that he considered democracy to be precisely what was wrong with America … that democracy was destroying the possibility of establishing and maintaining an American empire.
Hamilton was a different kind of theorist. He had ideas about how to: administer government, run an economy, institute a banking system, and build a strong military.
For Hamilton, the purpose of government was not to serve democracy. Instead, for him, the purpose of democracy was to serve the state … to build an empire that was capable of taking its place on the world stage … to construct a nation of glory and power.
In many ways, Hamilton’s life exemplifies some people’s idea of the American Dream. He was born an illegitimate child in the British West Indies, abandoned by his father when Alexander was 10 years old, and orphaned entirely when his mother passed away when he was 13 years old.
Yet, in spite of the foregoing sorts of handicaps, Hamilton’s natural talents, gifts, and intelligence manifested themselves at an early age. As a result, he was given, and was able to take advantage of, a number of opportunities to improve his life that had come via various influential and wealthy patrons.
Hamilton ended up in New York, where he attended King’s College (now, Columbia University). In 1775, Hamilton went to war on the side of the American revolutionary forces.
At the age of 22 he became a lieutenant colonel and was assigned to George Washington’s military staff. Hamilton, however, was not content with being an aide to Washington and wanted a field command, and this was realized in the form of a light infantry battalion operating out of New York State.
From an early age, Hamilton longed to escape his troubled life in the British West Indies. One of the ways in which he envisioned himself doing so was through war.
For Hamilton, war was about glory, honor, bravery, and power. He was willing to risk both his own life and the lives of his men to realize the hidden treasures of war, and there are a number of accounts from the revolutionary war which indicate how he did exactly that.
This attitude concerning conflict carried over into the rest of his life. It drove both the manner in which he conducted himself within, and outside, government, and, eventually, it was the reason why he lost his life in 1804, at the age of 49, during a duel with Aaron Burr who happened to be the sitting Vice President of the United States at the time … which, among other things, means that Dick Cheney was not the first, active Vice President to shoot someone.
At the age of 27, Hamilton was elected to the Continental or Confederation Congress. Through that body, Hamilton came to know James Madison, and as a result, the two began to work toward the idea of improving on the form of governance that existed in America … but they each did so with different goals in mind.
Finally, Hamilton married into one of the most powerful and wealthy families in New York. Moreover, he went on to become the first Secretary of the Treasury during the administration of George Washington.
Thus, the journey from problematic origins to the heights of accomplishment was realized by Hamilton. In this respect, he was a success, and, for many people, the arc of ascent traced out by the events of his life gives expression to what some refer to as: ‘The American Dream.’
Hamilton’s version of The American Dream was not about struggling for the rights of the people or seeking to ensure that there was economic fairness or social justice in America. Moreover, Hamilton was not committed to rooting out tyranny wherever it might be found.
Hamilton’s orientation was entirely aristocratic in character. He firmly believed in the idea that people such as himself should have the power they needed to realize whatever their ambitions concerning: honor, glory, and power might be and quite independently of how any of what he did might affect the vast majority of Americans.
Although Hamilton fought for the Philadelphia Constitution during the ratification debates, he did not view that document as the royal road to democracy. He had always been an admirer of the form of governance in Britain and harbored doubts as to whether any form of governance that was different from the British model would be able to succeed.
On the other hand, Hamilton went with what was available – i.e., the Philadelphia Constitution – and understood that it could be adapted for purposes of bringing about a form of governance that, in its own way, would be capable of reflecting many of the sorts of things that he admired in British government … namely, a central banking system, a strong military, a vibrant commercial sector, and aspirations for empire.
Washington appointed Hamilton as the first Secretary of the Treasury. More importantly, Washington had a relationship with, and affection for, the much younger Hamilton that permitted Hamilton degrees of freedom with respect to the exercise of independent authority that were not necessarily available to other members of Washington’s cabinet such as Henry Knox (Secretary of War) or Thomas Jefferson (Secretary of State).
Other cabinet members were required to report to Washington and take their directives from him. Hamilton, on the other hand, dealt directly with Congress and often didn’t consult with Washington on many matters.
At least from the perspective of Hamilton, his relationship with Washington seemed to reflect the way things were done in Britain. More specifically, Hamilton often considered himself to be something of a prime minister to the king-like status of Washington.
Hamilton sought to shape other aspects of American national governance to better reflect the British model that he idolized. For instance, the British system was built around the role that patronage played in getting things done, and so, Hamilton developed his own system of patronage in which he used the perks of power to buy the loyalty of different commercial interests and members of government.
He didn’t consider such uses of power as expressions of corruption. Rather, like the British system which he so admired, Hamilton was convinced that certain practical considerations were necessary in order to be able to stabilize governance … and patronage issued through the exercise of power was one of these considerations.
Madison believed that the glue which would bind society and governance together was republican principles. Hamilton believed that the glue of political life was patronage.
People – whether lawyers, merchants, bankers, speculators, government officials, or professional people – wanted to make money. Consequently, those individuals could be depended on to engage in a game of quid pro quo with the federal government, but they couldn’t necessarily be depended on to do the ‘right’ thing in a republican sense.
Hamilton’s plan to create a central bank is a case in point here. Although the ostensible purpose for establishing such a bank was to enhance the credit standing of the United States in the world community, and although Hamilton knew that many of the primary beneficiaries of such an institution would be the rich and powerful, nonetheless, he went ahead with his plans for a central bank in order to engender stronger ties between such people and the national government, and, thereby, help make America a more powerful country.
Similarly, Hamilton’s proposal to have the federal government take over the obligation of the states with respect to paying back their war debts had the same sort of underlying motive. His intention was to re-direct the focus of creditors away from the states and toward the national government and use that focus to serve national interests even as such creditors would make money off the federal government in the process.
Hamilton wanted to create a world-class power that was saturated with glory. He was willing to increase the wealth of businessmen, speculators, and other individuals to accomplish his aristocratic purposes.
A number of Hamilton’s ideas not only were opposed but were considered to be unconstitutional, and this was especially the case with respect to the idea of a national bank. Hamilton – at the urging of Washington – responded to such allegations by citing the “necessary and proper’ clause of Article I, Section 8.
There are a number of problems surrounding the “necessary and proper’ clause. For example, from what perspective should one engage the meaning of “proper” or “necessary”?
One meaning of “necessary” generally has to do with outlining a scenario that shows how doing things in a given way serves to bring about a given purpose … although there might be other ways of achieving such a purpose. However, there is another sense of “necessary” which indicates that achieving a particular purpose can only be done in a certain way.
Thus, to get to the other side of the road, it is necessary to cross the street. How one does this – whether by bicycle, running, walking, crawling, piggy-back, or car – is not necessary to the task at hand since they all would serve the task of reaching the far side of the road, but to the extent that one is looking at things from the perspective of the need at hand – i.e., to get to the other side -- each of the alternative ways of crossing the street could be considered somewhat necessary.
If one specified that one must get to the opposite side of the street without assistance and in an ambulatory fashion, the means of satisfying such conditions are narrowed considerably – to perhaps one or two possibilities (walking or running). Walking and/or running then become the necessary means of reaching the other side of the street because they, alone, satisfy the conditions as stated.
At this point, one could ask whether, or not, getting to the other side of the street is actually necessary? For instance, one might ask: Why do I need to go there? What purpose is served by my crossing the street? What if I don’t want to go there? This raises the question: How does a given action become a necessary one?
The fact that something is considered necessary – whether in a utilitarian sense or in a manner that is some way integral to being able to do a task at all – doesn’t automatically make such a ‘necessary’ act proper. In order to rob a bank, I might need a plan and a gun, but such ‘necessities’ don’t necessarily render the bank job proper.
Like the term “necessary”, the idea of being “proper” can be understood in several senses. On the one hand, something can be “proper” if it is capable of being an effective way of doing something … for instance, walking across the street might be considered to be the proper manner in which to cross to the other side of a road, whereas crawling across that same street might be considered to be a less effective way of accomplishing the goal at issue.
On the other hand, there is a possible meaning of “proper” which concerns whether, or not, some given way of doing something is appropriate in terms of a given set of rules or principles. Thus, walking across the street when the light is green is “proper” in a way that forcing someone at gunpoint to carry one across the street is not.
What makes an activity of government proper? From one perspective, an activity is proper if it is done in accordance with the procedural rules set forth in the Constitution.
From another perspective, making reference to the Constitution as a way of justifying an activity is not enough. One also must be able to demonstrate that the Constitution itself is a proper set of procedural principles … and under those circumstances, the propriety of the Constitution would have to be evaluated in terms of some extra-constitutional and, therefore, extralegal set of criteria which, in turn, must also be capable of being justified.
From the perspective of pure governance – and quite aside from any considerations of democracy, rights or individual sovereignty – something is necessary and proper if the government deems it to be integral to its policies and purposes. Under such circumstances, the government says: “We need to do ‘x’ and it is proper to do ‘x’ because we believe that ‘x’ will further the cause of liberty, tranquility, defense, justice, or the common welfare.
In saying such things, has the government shown that what it wants to do is proper and necessary. Not necessarily.
The claims of the government are more like an ‘if-then’ statement. More specifically, governments tend to argue that if it were the case that it wanted to do ‘x’, and if ‘x’ will serve certain values that exist in the Preamble, then doing ‘x’ is both necessary and proper with respect to the realizing of such values.
The foregoing perspective notwithstanding, one could still ask: Is ‘x’ really necessary to the realization of one, or another, value of the Preamble to the Constitution? One also might ask: Is ‘x’ really a proper way of realizing such a goal?
For example, one way of ensuring a certain amount of tranquility and providing for the common defense would be to institute martial law. As such, martial law might be considered as a necessary and proper way of realizing the values of tranquility and providing for a common defense.
However, what if there were other ways of achieving tranquility and providing for the common defense. For instance, what if someone were to argue that one might realize the desired values by instituting public policies that are geared toward establishing social justice and equitability in the use and distribution of resources?
How does one distinguish between the two possibilities – namely, martial law and social justice – with respect to the issue of what is “necessary and proper” in relation to realizing the values of tranquility and providing for the common defense? What are the criteria that should be used to decide such a matter and what justifies the use of those sorts of criteria with respect to that issue?
There is absolutely nothing in the Constitution which is capable of settling the foregoing sorts of questions concerning the meaning of what is “necessary and proper” with respect to the actions of Congress.
The foregoing problem does not just exist in conjunction with the “necessary and proper” clause. It casts a shadow over every power that has been delegated to Congress via the Constitution.
For instance, according to Section 8, Article I of the Constitution, Congress has the power to “constitute tribunals inferior to the Supreme Court”. What is the necessary and proper way to constitute such tribunals? In terms of what theory of justice should such courts be constituted and what justifies doing so? What are the “necessary and proper” purposes of such inferior tribunals, and whose purposes are served by such tribunals?
Having the power to do something does not answer the question of how such power is to be used or in accordance with what goals. Having the power to do something does not justify the exercise of power.
To be sure, if one has the power to do something, then there is a sense in which whatever plan one comes up for putting that power into play is necessary and proper for the exercise of that power. However, the logic here is circular, and when one talks about what is “necessary and proper” to the exercise of a power, one is, I believe, alluding to something more than the fact that a given policy is needed in order to give expression to that power.
Indeed, one is asking for the exercise of such a power to be justified in terms other than the power itself. However, the Constitution is not capable of offering such a justification.
Congress has the power to declare war. Yet, one still can ask: What are the conditions that make that declaration “necessary and proper”? Proper and necessary according to whom and on the basis of what criteria, and what sort of justification will be able to render the use of those criteria acceptable to most people in a plausible, reasonable, and demonstrable manner?
The Constitution cannot answer such questions? So, in what sense does the Constitution authorize the use of powers for purposes that fall beyond the horizons of the Constitution’s ability to justify any given exercise of power as being “necessary and proper”?
In passing, one might note that Hamilton liked war. He saw war as a way -- if necessary -- of subjugating rebellious states and inducing them to comply with the policies of the national government, and he also considered war to be a ‘necessary and proper’ way through which to engage the warring nations in Europe or to expand the size of the American empire.
Hamilton wanted Congress to declare war in the late 1790s because he considered war to be the solution of choice for realizing a variety of ambitions that he harbored for the United States and himself (namely, glory, honor and power). Fortunately or unfortunately (depending on one’s point of view) Hamilton’s ambitions came crashing back to earth when, in 1799, John Adams initiated his peace offensive in relation to France, but Hamilton’s affection for war as a tool of empire and means to glory has resonated with all too many people in subsequent generations.
Was Hamilton’s penchant for war as a way of solving problems a necessary part of government policy? Was his inclination toward war a proper expression of the government’s power to declare war? Congress may have the power to declare unjust and unnecessary wars, but it doesn’t necessarily have the right to do so?
Who gets to decide this and on what basis? To claim that these sorts of questions fall within the purview of the judicial system begs the issue, because one also would like to know with what justification a given jurist, or set of them, will decide such issues.
Almost everything jurists have to say on such matters will be extra-constitutional in character. In other words, although they might cite this or that Founder/Framer, or this or that session of the Continental Congress, or this or that session of the ratification conventions, or this or that session of the Philadelphia Convention, or this or that pre-Constitutional piece of historical evidence, nevertheless, such a citing and referring process (which is part of the process of establishing and identifying precedents) must itself be justified.
For example, Hamilton had a different perspective concerning the nature of governance than Madison and Jefferson did, just as Madison and Jefferson were different from one another with respect to the issue of governance. Moreover, Madison and Jefferson had different ideas about governance at different points in their lives.
So, which of the views -- if any -- of the foregoing individuals should become the “intentions’ of the Founders/Framers that are cited by jurists as constituting what is “necessary and proper” for succeeding generations to follow? How does one justify such a judgment? According to what theory of law, justice, truth, and/or morality?
Moreover, if someone disputes such theories, then how do those ideas become obligatory on the individuals who dispute them? A majority perspective may give someone the power to force people to do that with which the minority disagrees, but rights are not a function of what the majority says.
Indeed, rights exist to protect minorities against the majority. Rights exist independently of majority opinion and are intended to trump such opinions. The only thing which limits those rights is the comparable rights of another person.
Congress may have the power to declare war or constitute tribunals inferior to the Supreme Court. However, Congress needs to be able to justify the exercise of those powers and to demonstrate in clear terms how certain actions are both “necessary and proper” for the purposes set forth in the Preamble to the Constitution.
What is justice? What does it mean to promote the general welfare, and what do we mean by welfare? What kinds of blessings of liberty do we want to preserve for ourselves and our posterity? How do we provide for the common defense?
The Constitution is silent on all of the foregoing matters. What the Constitution does say, however, is something that is actually quite irresponsible – that is, the Constitution enables elected people to do pretty much whatever they like as long as they follow a set of procedural rules which they often get to interpret in self-serving ways according to their own theories about what is “necessary and proper” for the country to be governed – allegedly -- effectively.
Even the meaning of the idea of effective governance cannot be answered by the Constitution. The Philadelphia Constitution is nothing more than a mechanism for enabling the channeling of power according to certain procedural requirements … procedural requirements that are, themselves, often rather ambiguous and vague, if not entirely arbitrary.
Hamilton understood the foregoing aspect of things very well. He exploited and leveraged it for his own purposes. That is, Hamilton wanted to use the federalized form of government in America as his primary tool for working toward realizing his aspiration to shape America to become more like his idol – i.e., the British government … aspirations that were realized, to some extent, in a number of ways – administratively, militarily, commercially, and financially.
If one mentions the name: ‘George Mason’ most Americans will draw a blank … although they might reply with something like: “You mean George Mason University?” However, even if they are familiar, to some extent, with the university, they may not know who George Mason was or what role he played in American history.
Yet, George Mason had as much to do with the founding of America as did Jefferson. Moreover, Mason participated in the Philadelphia Convention of 1787 while Jefferson did not take part in that series of meetings.
George Mason was one of the three individuals who stayed in Philadelphia throughout the summer of 1787 but who were not prepared to sign the Philadelphia Constitution. The other two individuals were: Edmund Randolph, Governor of Virginia, and Elbridge Gerry who was from Massachusetts.
Mason was one of the most active participants in the Philadelphia Convention. He: gave speeches; made recommendations; asked questions; and noted problems with respect to the constitutional document being constructed in Philadelphia. He helped shape some of the language that would be used in that document.
In the end, however, Mason could not bring himself to add his name to the list of people who were prepared to go forward with the Philadelphia constitutional project. Although there is some mystery surrounding the precise nature of the reason or reasons that led George Mason to reject the Philadelphia Constitution rather than accept that document with its acknowledged flaws as a number of other participants (perhaps most) in the Philadelphia Convention had done, there is no mystery surrounding the nature of the problems which Mason believed were inherent in the form of the Philadelphia Convention that was released to the public in mid-September of 1787.
When the Committee of Style presented its final report on the constitutional project to the Philadelphia convention, Mason wrote his objections concerning that document on the back of the report. He was quite clear with respect to what he found problematic in relation to the Philadelphia Constitution.
First and foremost, Mason found the absence of any sort of bill of rights to be unacceptable. Other than the general declaration of the Preamble, there was very little in the Constitution which indicated a willingness to protect and preserve specific civil liberties such as the right to a trial by jury in civil cases (although the right to a trial by jury was preserved in Article III, Section 2) or the right of the press to be free from censorship.
In addition, Mason was concerned that there were no provisions in the Constitution preventing the existence of standing armies during times of peace. Like many of the people on Nantucket island, Mason considered standing armies to be a potential threat to the people.
George Mason was also concerned about the “necessary and proper” clause in Article I, Section 8 of the Constitution. He felt the clause was replete with dangers for abusing power in ways that would undermine the freedoms of the people as well as diminishing state power.
Mason considered the Senate to be far too powerful, and he believed the term of office for senators was too long – especially since, at the time, Senate members would be chosen by the state legislators and, therefore, were neither necessarily answerable to, nor representative of, the American people. He disliked the fact that the Senate, and not the entire Congress, would have the authority to approve the appointment of ambassadors and many government officials. Furthermore, Mason found the fact disquieting that the Senate – without the assistance and approval of the House -- would be able to approve treaties that might carry problematic ramifications for all Americans and, yet, become part of the supreme law of the land.
Moreover, Mason was unhappy with the absence of what he considered to be sufficient safeguards in the case of the Executive Branch of government. He felt that the Executive Office was too vulnerable to the possibility of being manipulated by government officials who were motivated by self-interests and, as a result, this set of circumstances would permit a variety of forms of oppression to creep into governance via their advice to the Executive Office.
Another criticism which Mason had concerning the presidency revolved around a president’s power to grant pardons – especially to those who might have been entangled in treasonous behavior. One of his concerns with respect to this sort of a power is that a president could authorize someone to commit such acts and, then, by pardoning that individual, a president would be able to conceal his own role in such activity.
Mason also considered the position of vice president to involve a violation of the separation of the three branches of government. On the one hand, the vice president was aligned with the Executive Office, and, yet, that same person was President of the Senate and, as a result, was empowered to break tie votes in that body and, thereby, could affect what the Senate might be able to do or not do.
Finally, George Mason believed that the Philadelphia Constitution increased the likelihood that the five southern states – which produced a variety of crops – would be at the mercy of the eight northern states. More specifically, the Philadelphia Constitution enabled Congress, via simple majority votes, to pass navigation laws that affected commercial trade, and Mason was concerned that this rule of simple majorities (Mason preferred that a majority vote of two-thirds be required) might be exploited by the northern majority to force southern crop states to either pay exorbitant transportation charges and/or accept low prices for thier crops.
Many of Mason’s criticisms of the Philadelphia Constitution re-surfaced during the ratification debates. This was especially so in states such as: Massachusetts, New Hampshire, Virginia, and New York where there was considerable debate during their respective ratification conventions concerning the issue of amending the Constitution … and, in fact, approval of the Philadelphia Constitution was forthcoming in such states only when the delegates to the different conventions were led to believe that something would be done about the matter once the Philadelphia Convention had been adopted.
Mason was not opposed to the idea of a strong central government. He was among those who believed that things could not continue on in the way they had under the Articles of Confederation.
Yet, he also believed that the defects which he had outlined with respect to the Philadelphia Constitution could easily be fixed prior to the ratification conventions. Furthermore, apparently, until such flaws were corrected, he did not feel he could lend his signature to the Philadelphia Constitution.
In October 1787, following the termination of the Philadelphia Convention, Mason sent a somewhat revised list of his foregoing criticisms to Washington. During that communication, Mason indicated that he was not interested in preventing the Philadelphia Constitution from being adopted, but, rather, he simply wanted to improve the document.
On another occasion, Mason expressed his fervent hope that all of the state ratifying conventions would meet at the same time and be able to communicate with one another for the purpose of developing a coherent and consistent list of amendments which could be incorporated into the Philadelphia Constitution and be adopted by America. His hope was unrequited.
During the ratification debates, there were two groups who were proponents of the idea of amendments. One group – to which Mason belonged – wanted amendments to be made prior to any ratification vote, whereas the other group wanted amendments but were prepared to accept the promise that such amendments would be addressed at the earliest convenience of the first Congressional session.
Consequently, not everyone who ended up voting in favor of ratifying the Philadelphia Constitution believed that such a document was acceptable as it was. The existence of the aforementioned second group of advocates for amendments played a fundamental role in why the Philadelphia Constitution was ratified rather than rejected because across much of America, the majority of people were opposed to the Constitution as it had been written in Philadelphia.
George Mason continued his efforts to introduce amendments into the Philadelphia Constitution during the ratification convention in Virginia. He, along with a number of other delegates – including Patrick Henry – wanted amendments to be incorporated into the Philadelphia Convention before any ratification vote was taken, but they were overruled by a coalition consisting of those who were proponents of the Philadelphia Constitution-as-written, together with those who were not proponents of the document in its current form but who were prepared to have faith that the first session of Congress would address their concerns.
Once again, Mason voted to reject the proposed constitution. Once again, he came out on the short end of the vote.
Mason was fairly bitter with respect to the ratification vote. Moreover, a number of people felt Mason had behaved badly, via intemperate speech, both during certain stages of the ratification convention as well as afterwards.
Among other things, Mason considered Edmund Randolph – who had stood with Mason in rejecting the Philadelphia Constitution during the final vote of the Philadelphia Convention – to be something of a quisling. Apparently, prior to the start of the Virginia ratification convention, Randolph had received a letter from Governor George Clinton of New York which suggested that, in some fashion, New York and Virginia should co-ordinate their efforts during the ratification process in relation to the Philadelphia Constitution, yet, Randolph had not disclosed the existence of such a letter to the ratification convention.
Conceivably, Governor Randolph might have thought that introducing such a letter into the Virginia ratification convention would constitute an inappropriate sort of interference in the ratification process. On the other hand, such pro-ratification advocates as George Washington – who was not participating in the Virginia convention – thought nothing of writing a letter (at the urging of James Madison) to a Maryland ratification delegate (Thomas Johnson) in the hope of inducing the latter individual to work to make sure that Maryland did not adjourn its ratification convention since this might affect what went on in both South Carolina and Virginia.
On the other hand, it is also possible that Governor Randolph did not inform the Virginia ratification convention concerning the existence of the letter from Governor Clinton of New York because Randolph was fairly young and still had political ambitions. If so, Randolph – like Governor John Hancock of Massachusetts – was willing to place his own self-interests above the possible interests of people in Virginia and elsewhere in America in relation to the ratification issue.
In any event, earlier in life, George Mason had been one of the primary architects of both the Virginia Constitution and its Declaration of Right. A number of years later George Mason had a tremendous impact on the structure and wording of different sections of the Philadelphia Constitution, and, as well, he had assumed a leading role during the Philadelphia Convention that led to the generation of such a document.
In fact, some historians believe that Mason had a role at the Philadelphia Convention which was equal to that of: James Madison and Edmund Randolph, both who were from Virginia; Benjamin Franklin from Pennsylvania; James Wilson from Pennsylvania; William Patterson from New Jersey; and Rufus King from Massachusetts. Yet, Mason rejected the very document on which he had worked so assiduously and which he had played a leading role in helping to shape in different ways.
What is one to make of Mason’s intentions concerning the possible relationship between the Philadelphia Constitution and the meaning which subsequent generations should give to that document? On the one hand, there can be little doubt that George Mason was one of the Founders/Framers of the Philadelphia Constitution, but there also can be little doubt that Mason harbored considerable ambivalence concerning that very same document … sufficiently ambivalent that he rejected it twice.
The views of Madison, Jefferson, Hamilton, and Mason bear a family resemblance to one another – that is, they are connected together by a set of overlapping interests and concerns, and, yet, when one begins to examine what they each believed concerning the nature of governance, there is no underlying themes of commonality which ties them all together. One could add any number of Founders/Framers to this stew of family resemblance, and upon sufficient examination, one would come to the conclusion that there really is no underlying theme of commonality which ties them altogether in a coherent and consistent fashion … despite the presence of similar terms and ideas that populate their writings and speeches.
This absence of an underlying or essential commonality constitutes a significant problem for anyone who seeks to argue that: (1) The Founder/Framers collectively intended ‘this’ or ‘that’ by what they said or did’; or, alternatively, (2) based on such ‘precedents’, later generations are justified in claiming that the meaning of the Philadelphia Constitution can be clearly stated in terms of what kind of democratic document it is. Rationalizations can be given as to why this or that action or policy is “necessary and proper” in terms of things that the Founders/Framers said or did, but rationalizations are not the same thing as justifications.