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1798 United States House of Representatives elections in Rhode Island

From Wikipedia, the free encyclopedia

Rhode Island used at-large districts, but elected the candidates on separate tickets instead of using a general ticket.

District Incumbent Party First
elected
Result Candidates
Rhode Island at-large
(Seat A)
Thomas Tillinghast Federalist 1797 (Special) Incumbent lost re-election.
New member elected.
Federalist hold.
John Brown (Federalist) 65.4%
Thomas Tillinghast (Federalist) 34.6%
Rhode Island at-large
(Seat A)
Christopher G. Champlin Federalist 1796 Incumbent re-elected. Christopher G. Champlin (Federalist) 97.5%
Others 2.5%

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Transcription

>> From the Library of Congress in Washington, D.C. >> Jane Sanchez: Hello, everyone. Welcome to the Law Library of Congress's 2017 Constitution Day Program. Each year the Law Library is happy to sponsor a talk, or somehow commemorate the event, for the Nation's Constitution Day. My name is Jane Sanchez. And I have the honor to serve as Law Librarian of Congress. It is my pleasure to welcome each and every one of you today. Please note that today's program is being live streamed on the Library of Congress's Facebook page and the YouTube channel, so all remarks including comments and questions will be captured on the video. Also, if any of you have cell phones, please silence them now. Constitution Day, officially known as Constitution Day and Citizenship Day, is observed each year to commemorate the signing of the U.S. Constitution on September 17, 1787. Constitution Day recognizes all who, excuse me, Constitution Day, and I quote, recognizes all who, by coming of age or by naturalization, have become citizens, end quote, of our great Nation. We can thank Senator Robert C. Byrd of West Virginia, who included key provisions designating September 17th as Constitution Day and Citizenship Day in the Consolidated Appropriations Act of 2005. Who said budget acts don't also include something important? The Act required all public schools and governmental offices to provide educational programs in an effort to promote a better understanding of the U.S. Constitution. For the Law Library of Congress, excuse me, for the Library, the Law Library annually develops a program or talk to honor the history of the U.S. Constitution, and the freedoms that the Constitution grants to all American citizens. The U.S. Constitution, signed 230 years ago, has undergone many amendments. However, it remains the longest surviving charter of government to inspire democratic ideals, and principles of freedom throughout the world. In fact, in 1791, the Polish Constitution was the first European Constitution adopted after the American Constitution. Established May 3rd, 1791, less than two years after the U.S. Constitution, it reflected the American ideals of equality, federalism and individual liberties. Ultimately it inspired democratic changes throughout Europe. And now a little bit about the Law Library. The Law Library of Congress, with more than 2.9 million volumes of American, foreign and international legal materials, is often called upon to assist countries that are writing their constitutions. For example, in 2016, we provided legal research to the Sri Lankan Parliament as they prepared to write a new constitution as they regrouped after a civil war. Likewise, the Law Library has worked with legislators in emerging democracies. For example, we have provided legal research to the House Democracy Partnership, a commission of the U.S. House of Representatives. So it is quite fitting that we are hosting the Library's Annual Constitution Day Program. Although we're a little early this year since it officially is September 17th. And now I'd like to introduce our speaker. We are honored today to host Constitutional Law Professor Michael J. Klarman, the Kirkland and Ellis Professor of Law at Harvard Law School. Professor Klarman has won numerous awards for his teaching and scholarship in the areas of constitutional law and constitutional history. He has written a number of books including "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality," which won the 2005 Bancroft Prize in history. Today Professor Klarman will describe how the Framers drafted and ratified the Constitution, despite many clashing interests. He has documented this in his new book "The Framers' Coup: The Making of the U.S. Constitution," which is an Oxford University Press publication, 2016. Professor Klarman's book is available for purchase just outside the room. At this time, please join me in welcoming Professor Michael Klarman to the stage. [ Applause ] >> Michael Klarman: Thank you. Happy Constitution Day almost, everybody. I bring you warm greetings from Red Sox Nation. I've heard you have a decent baseball team in Washington this year. Hopefully, we'll see you in the World Series, at which point I will cease wishing you good luck. I'm going to talk about three different, I'm going to talk about two different things today. First, I'm going to give you sort of three explanations for why I thought this book was worth writing. And then I'm going to tell you three things about the book that I hope hang together. So three reasons for writing this book, which originally was going to be something very different. There's been some terrific scholarship written about the origins of the Constitution, ratification, the Philadelphia Convention. But nobody's actually told the story in one place. So there's no place that you could go to to read within two covers a book about the problems with the Articles of Confederation, a book that talks about the conflict over fiscal and monetary policy in the states, talks about the Philadelphia Convention, discusses the struggle over ratification, the differences in ideas between the antifederalists and the federalists, and then the Bill of Rights, which as you may know came two years later. So one thing that I've tried to do is I've tried to condense a huge body of scholarship into one volume. Second, I've tried to tell the story to the extent possible in the words of the participants. I did that both because I think it makes the story more vibrant, but also because I think it enables people to decide for themselves whether they're convinced by the interpretations that I offer. It's only possible to do this because of the extraordinary documentary histories that have been created in the last 30 or 40 years. So people have literally ransacked the world looking for every newspaper article, diary entry, piece of correspondence that relates to the making of the Constitution. And that stuff has been digitized in the last 15 or 20 years. So it makes it possible to do something that would have been I think almost impossible just a generation or two ago. And then, third, and finally, I've tried to put a sharper edge to a story that's been out there for a long time, and that I basically agree with, which is that the Constitution is a kind of conservative counter-revolution against egalitarian and redistributed forces that were set in motion or accelerated by the Revolutionary War. So I'll say a little bit as I go along about how exactly I'm trying to put a finer edge on that interpretation. But that interpretation I don't claim any originality for putting it forward. It's been around for a long time. And, as I said, I mostly agree with it. Okay. So I'm going to now talk about three points that are made in the book. First of all, this first point has two sub-parts. I apologize for this. I'm a lawyer. I tend to think in lots of subcategories. Two points to the first part. I'm going to tell you two ways in which the Constitution differed from what most people probably wanted the Philadelphia Convention to do, and certainly expected the Philadelphia Convention to do. Those two different ways were the Constitution is much more nationalizing, by which I mean simply shifting power from the state and local level to the national level. And then second, the Constitution is democracy constraining or antipopulist. And I'm going to use those as synonyms for one another. By those terms I simply mean the people who are writing the Constitution don't want direct democratic influence to be as powerful at the national level as it's been on the state level in the 1780s. Second point that I'm going to try to explain how it was that the Framers in Philadelphia were able to write this constitution that was so different from what most people wanted and expected. And then third, and to me in some ways most interestingly, how in the world did they get the country to approve this thing in what was a fairly democratic process? Now to call it a democratic process we immediately have to qualify that. It's not democratic from our perspective today. Women weren't participating in politics. Most African-Americans were enslaved, even those who were free, not necessarily allowed to vote. Every state had property qualifications, so people who don't own real estate are not participating. Doesn't sound that democratic to us. But situating it within its historical context, the United States had the broadest suffrage of any country in the world, probably to that date in history. So it's fairly participatory from that perspective. And the question is, why would people ratify a Constitution? One important point of which, as I've already suggested, was to take away direct populist influence from the people. Okay. So I'm going to start by briefly describing the nationalizing features of the Constitution. Then I'll talk about the antipopulist features. First of all, the Constitution gives the national government virtually unlimited taxing authority. Now that doesn't sound that striking to us, but you have to compare it to the relevant baseline, which is the Articles of Confederation, which was the document that governed the country before the Constitution. Under the Articles of Confederation, Congress had no taxing power. It simply had a power to issue requisitions, which are just like they sound, they're requests for money, which the states might or not comply with. Usually they didn't. And Congress had no coercive force to ensure the implementation, the effectuation of these requisitions. Under the Articles there had been proposed amendments to give Congress a very limited taxing power, basically the authority to impose import duties. But those amendments have been defeated. So you're moving from no taxing power to a proposal for very limited taxing power to the Constitution that provides for almost unlimited taxing authority. Second point, the Constitution authorizes Congress to raise armies, create a navy, call state militia into federal service, virtually without restriction. Now, again, you need to compare that with the Articles. Under the Articles Congress could requisition troops from the states. But, again, that was a request. And Congress could do nothing if states decided not to comply with such a requisition for troops. So now you have Congress that can raise an army, not only during wartime, but during peacetime, with no limits as to number, no limits as to duration, no limits as to whether they have to get a supermajority commitment in both houses of Congress. That's an extraordinary shift in power to the national government. Especially given at the time they thought that standing armies were potentially very dangerous to liberty, because the executive might use a standing army not to fight the enemy, but rather to suppress political dissidents, for example. Third, the Constitution gives Congress unlimited authority to regulate foreign and interstate commerce. There was nothing like that granted to Congress under the Articles of Confederation. Fourth, Congress has implied powers under the Constitution. Under the Articles of Confederation one of the Articles expressly provides that Congress may only exercise those powers that are expressly delegated. Whereas, under the Constitution, the Constitution clearly authorizes implied powers. So those of you who are familiar with the Constitution, Congress's powers are listed in Article I, Section 8. There's 17 specific grants of power. And then there's an 18th that provides that Congress also has the authority to pass laws that are necessary and proper to the implementation of the other powers of the government. That is an explicit authorization for Congress to exercise implied powers. That was an intensely controversial provision in the ratifying contest. It was agreed to at the Philadelphia Convention, virtually without dissent. Fifth, and finally, the Constitution supplies a mechanism for the enforcement of federal supremacy. For example, a mechanism that would enable Congress to implement treaties which are clearly within the authority of the Confederation Congress, but which the Confederation Congress had no effective way of implementing. Madison had proposed at the convention one particular mechanism for establishing federal supremacy. He would have given the national government the authority to veto any state law that it felt like vetoing. Now that was too nationalist even for this very nationalist group of delegates. Instead they came up with a three-part provision for establishing federal supremacy. Part one is the Supremacy Clause, which is in Article VI of the Constitution. It makes it clear that federal law of any sort, the Constitution, federal statute, federal treaty is supreme over state law to the contrary. Second, the Constitution creates a federal court system. There were no federal courts of general jurisdiction under the Articles. Under the Constitution there is a United States Supreme Court created by the Constitution. And Congress is authorized, but not required, to establish lower federal courts. So the idea was now you've got an explicit grant of federal supremacy, and you've got federal judicial officials who will enforce that federal supremacy. And then the third provision is a Substantive Rule of Law. It's in Article I, Section 10 of the Constitution. And it limits state governments. It says no state shall make anything, but gold or silver legal tender. And it provides that states shall not impair the obligation of contract. That was directly addressed to relief legislation, economic relief legislation, paper money laws, debtor relief laws, which states had been passing, a majority of states had passed, in the mid-1780s in response to a severe economic downturn. Modern historians, economic historians regard the mid-1780s as the worst economic period in the country's history, other than the Great Depression. A majority of states that enacted relief legislation, most of the Framers regarded that legislation as almost an official form of theft. You were stealing property from creditors, redistributing it to debtors. And they wanted to suppress that through the Constitution. But it's important, I think it's worth taking note of the fact that a majority of states had passed these laws in the mid-1780s, yet the Philadelphia Convention unanimously voted to suppress them in the Constitution. That right there should tell you something about how unrepresentative the convention was of opinion in the country. All right. So those are the nationalist provisions. Now let me turn to the antipopulist provisions in the Constitution. The provision I just mentioned is both. Article I, Section 10 is both an antipopulist measure, but it's also a nationalizing measure, because it's now shifting to the national level, the rule that states are not allowed to pass populist economic relief legislation. Other than that though, let me mention a couple of other mechanisms for ensuring that the national government remains largely immune from populist pressures. First were long terms in office. This is both relative to the Articles and relative to state constitutions. Under the Articles congressional representatives served one-year terms in office. Under state constitutions the Lower House of every state legislature but one had annual terms in office, or more frequent elections. Two New England states actually held their elections for the Lower House of the legislature every six months. A majority of states had governors who served annual terms in office. Some state senates had annual terms in office. As you know under the U.S. Constitution congressional representatives serve two years, senators serve six years, presidents serve four years. Most of the delegates actually wanted to go even further in extending the term in office for state delegations, not delegates from individual states, for state delegations voted at one point for lifetime tenure for the president. There's a scary thought for you. Donald Trump as a lifetime president. Many delegates wanted senators to serve nine years. Madison favored nine years, rather than six years. Hamilton wanted senators and presidents to be lifetime-tenured. He thought that was the only way that you could adequately protect property rights in a representative form of government. They made concessions to the need for ratification. That's why they reduced the terms in office to two, four and six years. Second, the Framers adopted indirect elections, both for senators and presidents. As you may know, senators were elected by state legislatures for the first 125 years of the republic. That remained the case until 1913 and the 17th amendment. Presidents were, and still are, selected by electors who are chosen by a method specified by state legislators. Today we assume that means popular election. That's not what the Framers assumed. And that's not what lots of states did at the time of the founding. Rather state legislatures would just choose the electors. It didn't matter. Nobody was voting for president. State legislators chose electors who then independently deliberated and chose the president. The reason for that is they distrusted the people to play a role as important as choosing the nation's chief executive. George Mason, who was an important delegate from the state of Virginia, said at the Philadelphia Convention that, quote, it would be as unnatural to refer the choice of a proper character for chief magistrate, meaning president, to refer that choice to the people as it would be to refer a trial of colors to a blind man. Think about that. Think about running for office sometimes on that platform. Right? The people can't possibly be trusted to choose their chief executive. They'd be like a blind man choosing between colors. The Framers also insulated even the House, which obviously was the most populous branch, direct election of congressional representatives who would serve two-year terms in office. But they even structured the House so that it would be significantly insulated from direct popular opinion. First point is they created a very small House of Representatives. That meant that individual congressmen would be elected by very large constituencies. Now not like today. Today a House member represents six or 700,000 people. Back at the time of the founding, it was more like 30 or 40,000. But you still need to compare that to like a state legislator in Massachusetts who might have represented 14 or 1,500 people. So you're talking about the constituency 20 times as large for the House as it would be for the Lower House of Massachusetts Legislature. Right? Very large constituencies over fairly large geographic areas. The point of that was twofold. First of all, they would ensure that the quote-unquote better sort would be elected to office. People who were well known, had larger reputations, were more affluent, large property owners. They would be more likely to be elected from large constituencies. And in addition the larger the constituency the greater the physical and metaphorical distance between a representative and that representative's constituents. So the original house was 65 members, compare that to the Lower House of the Massachusetts Legislature, which was over 300 delegates. Three hundred for a Massachusetts State Legislature. Sixty-five for the entire country. Next point, along the same dimension, the Constitution actually authorized Congress implicitly to ensure that the constituencies for Congress were even larger. So Article I, Section 4 of the Constitution provides that Congress can change state regulations for the time, place and manner of federal elections. That may sound complicated. But what they really had in mind, or at least part of what they had in mind, was that Congress could say to a state legislature, "We insist that you elect your congressional representatives at large, rather than by district." So Virginia, for example, was by far the largest, most powerful, most important state at the time. The founding Virginia had ten representatives. And today we assume they have to be in district constituencies. You break down Virginia into ten different district constituencies. The Framers apparently contemplated that Congress could and would say to Virginia, "You need to elect all ten congressional representatives from the entire state." That is, you give every Virginian ten votes. Give them a list of people. And every Virginian votes for every representative. That, of course, would be an even more enormous constituency where you would be even more likely to get the quote-unquote better sort elected, and where they would be even more insulated from the direct supervision of their constituents. Finally, the Constitution omits provision for instruction recall and mandatory rotation in office. Each of which I'll mention in a second, I'll elaborate on in a second. But the key point here is under the Articles of Confederation these things existed. Under state constitutions they often existed. But the Framers consciously left them out of the federal Constitution. Instruction is pretty much what it sounds like. It's a mechanism that allows constituents to instruct their representatives how to vote. It would be sort of a modern analog would be referendum where people actually get to vote directly on legislation. They didn't have that, for the most part, back then. But a New England town meeting could say to its representative, "We want you to vote this way on raising taxes, or that way on declaring independence from Great Britain." And if you didn't do what your constituents had instructed you to do, you'd be morally obliged to resign your seat. The Constitution doesn't provide for that. Recall. Under the Articles of Confederation congressional representatives served one year in office. But during that year, at any point, they could be recalled by their state legislatures. So you can be sure that congressional representatives did the bidding of their state legislatures, or else they would be immediately removed from office. The Constitution doesn't provide that. And mandatory rotation, which again is just like it sounds, term limits. Under the Articles you could only serve three out of every six years. After serving those three years, you were rotated out of office. That's a way to prevent officials from getting entrenched in office. Okay. The Constitution avoids those three democracy-enhancing provisions. And it includes these other democracy-constraining provisions. And the reason why is not really a mystery. It's because they want the federal government not to be susceptible to the populist political impulses that have overwhelmed the states in the mid-1780s, and they want the national government to be able to shut down state debtor relief legislation, if any state tries to pass it again going forward. Okay. So that's the first part of my talk. The second part is explaining how the Philadelphia Convention managed to do these things that were different from what most people expected and probably wanted. One leading contemporary critic of the Constitution, I'm going to call them antifederalists, which is what they were known at the time, the people who opposed ratification, one leading antifederalists said, and I think this is largely accurate, quote, the democratic and aristocratic parts of the community were disproportionately represented in Philadelphia. And the question is why. Why were the democratic parts and the aristocratic parts differently represented in Philadelphia? Here are several discrete points that together maybe add up to an explanation. And when I said at the beginning of my talk that I was going to try to put a finer point on this traditional interpretation of the Constitution as a conservative counter-revolution, this is where I want to put the finer point on it. I don't think anybody has sufficiently explained why the Philadelphia Convention was so unrepresentative, and then how did they manage to convince the American people to ratify something that would deprive them of significant influence over the national government. So here are a few points. First, state legislatures elected the delegates for the Philadelphia Convention in every state but one. In South Carolina the governor picked the delegates. And Rhode Island actually didn't send delegates to Philadelphia. But in the other 11 states legislatures chose the delegates. And the question is, how did they choose the delegates? And the answer seems to be they simply chose their most eminent, well-known, large reputationed citizens. So in Virginia they send George Washington, they send George Mason, they send James Madison, the governor Edmund Randolph. In Pennsylvania they're going to send, probably the most famous man in the world, Benjamin Franklin. They're sending their most eminent citizens, people who have large reputations. The legislatures were choosing people who were well-known, eminent citizens. And usually the way you would acquire such a reputation is either through having served in the Confederation Congress and/or serving in the Revolutionary Army. A majority of delegates had served in the Confederation Congress. And a majority of delegates had served in the Revolutionary Army. If you think about it, both of those are profoundly nationalizing experiences. If you served in the Confederation Congress, you're used to thinking in national terms, rather than parochial terms. And serving in an army that creates a nation is a profoundly nationalizing experience. You just fought and risked your life to create a nation. And in addition many people who served in the Revolutionary Army actually learned to distrust the states. For example, George Washington or John Marshall, the Great Chief Justice. Their biographers talk about how their experiences serving in the National Army, where they saw the states often as being obstructive, refusing to ante up men, refusing to ante up money, it turned them into nationalists for life. In addition these people of large reputation tended to be well-educated, fairly affluent, large landowners. Those characteristics correlate pretty closely with not being a big fan of populist influence on government. Second, the opponents of a nationalizing antipopulist project really had no reason to mobilize in advance against that agenda, because they had no reason to suspect that that's what the Philadelphia Convention would be up to. It turns out that the agenda of the Philadelphia Convention mostly existed in the head of one man, James Madison. Now that's not because Madison was one of the most eminent people in Philadelphia. He was 35, 36 years old. He had served in the Confederation Congress. He had served in the Virginia Legislature. He was well-regarded. He was obviously quite brilliant. I think people liked him. But he was not a formidable speaker. Often the reporter in a legislative session had to write down when Madison was talking could not hear what he said. He was sickly. He did not have a commanding presence. He was not large like George Washington, Thomas Jefferson. Madison played a large role because he was the best prepared man in the room. One of the delegates who did character sketches of the others in Philadelphia, that's what he said about Madison. Always the best prepared person in any debate. Madison was the only one who had spent the months before the Philadelphia Convention systematically analyzing the history of ancient and modern confederacies, diagnosing the problems that they tended to suffer from, and proposing solutions. So Madison did that. Then he came up with his ideas for the convention. He coordinated among his Virginia co-delegates telling them to show up early in Philadelphia. They did arrive early. And they spent a couple hours every day talking through their ideas for the new government. They coordinated with the Pennsylvania delegates, conveniently all of whom lived in Philadelphia, so they were already there. And together these two large states, the three largest states at the time were Virginia, Pennsylvania and Massachusetts, so Pennsylvania and Virginia they're there early. They're the two largest states. They're coordinating on a fairly nationalist antipopulist agenda. And it gets introduced the first day of the convention. It's called the Virginia Plan in honor of the Virginia delegates. And it turns out that that proposal was very nationalist and antipopulist. Now Madison didn't win on everything he wanted in Philadelphia. Indeed he lost on a lot of things he cared a lot about. But obviously where you end up depends on where you start. And they started on a very nationalist and antipopulist point on the spectrum. Third, some appointed delegates, about eight or ten of them, decided to turn down their appointments. Now some of them intriguingly, like Patrick Henry of Virginia, Richard Henry Lee of Virginia, Samuel Chase of Maryland, they actually became leading antifederalists. They were appointed to the Philadelphia Convention. They didn't go. And then they became leading opponents of ratification. Now it's hard to know exactly why they didn't go with some of them. We don't have any evidence. With others we have the evidence what they said. But it's not entirely clear that we ought to credit that. It's a fairly small sample size. So it's dangerous to speculate and generalize. But I would simply offer what is candidly a piece of speculation. One possibility is these people didn't go because they had very little sympathy for the mildly nationalizing project they thought was under way. They didn't have any interest in it. But they also didn't have any reason to rally against it. But they didn't know what was really going on in Philadelphia was a fairly revolutionary reform project. And if they'd known about that, they might have gone to fight against it. But they didn't know that was what was going to happen. And they weren't interested in what they thought was going to happen. So they didn't go. Fourth point, there was a decision made by some delegates who did go to the Philadelphia Convention, didn't approve of its nationalizing and antipopulist direction to leave early. This is people like Robert Yates and John Lansing of New York. That when they left that deprived the New York delegation of its vote, because it left only Alexander Hamilton, who was the most nationalizing antipopulist of them all. But under the rules one delegate couldn't vote for his state. So once Yates and Lansing went, that nullified New York's vote. Luther Martin was another one of these who left the convention early. And then became one of the leading antifederalists in Maryland. Now you can understand why they left. Their point was the Philadelphia Convention was ignoring its instructions. It was doing something illegitimate. And they didn't want to confer legitimacy on it by staying. But, of course, it's always a very difficult choice to make. You can walk out and try to delegitimize the project you disagree with, or you stay and fight against it, and try to make it less objectionable. They chose to leave. And in retrospect, that was probably a mistake. Fifth point, the delegates made the critical decision to close the doors of the Philadelphia Convention. Now they had good reasons for doing so. Madison said later, and I think this is probably right, if they hadn't done this, they might not have been able to come up with any Constitution at all. But one effect of closing the doors was it liberated delegates to take very extreme antipopulist and nationalist positions. Positions that might have endangered their subsequent political careers if they were making these statements with the press in the galleries. And in addition, and maybe more importantly, closing the convention meant that the antifederalists, the people who were going to oppose the Constitution, actually were deprived of about four months of rallying opposition. The convention was meeting from about May 25th to September 17th. And if the antifederalists had known what was going on, they could have started immediately organizing their opposition. But in fact they didn't know until the convention unlocked its doors and issued its report on September 17th. Last point along these lines, the delegates made a momentous choice in Philadelphia that they were going to seize the moment. Leading up to the convention, Madison is writing letters to his Virginian compatriots, his mentors, Washington, Jefferson, his friend Edmund Randolph, who's the governor. Madison is airing his ideas. He's thinking through his ideas by talking about them. And in his letters with Washington they find to their mutual satisfaction that they agree that the convention should not pursue what they call "temporizing expedience." They actually want the convention to do something more radical. Go and write the best form of government you think you can get ratified, give up on the idea of incremental reform, do something more drastic. When Randolph introduces the Virginia Plan, which he gets to do because George Washington is immediately appointed president of the convention, that makes Randolph the most senior Virginian, he's the governor, he introduces the Virginia Plan. And according to Madison's notes, this is what he said. He, Randolph, would not as far as dependent on him leave anything that seemed necessary undone. The present moment is favorable and is probably the last that will offer. So they went for broke. This was their last chance to get the form of government they really wanted. They were not going to pursue temporizing expedience. They were going to pursue some sort of more radical reform. Always taking into account that whatever they were to come up with had to be ratified. So they did trim their sails to some extent to ensure a likelihood of ratification. But they weren't just going to make a few small changes. They were going to radically overhaul the government. Okay. So how did they get this thing ratified? The third part of my talk. How'd they get this ratified when it's so different from what most people were expecting and probably wanting? The first point to note is not an explanation. It's simply a point of emphasis. You shouldn't assume this was inevitable. In fact it was a highly contingent series of events that enabled the Constitution to be approved. It almost failed. Two states rejected ratification before later changing their minds. That's Rhode Island and North Carolina. New Hampshire, at its first convention, probably was inclined to vote "no," but the federalists, the supporters of the Constitution, had deftly arranged for the convention to be adjourned when they saw they were going to lose, and they could come back several months later and fight again. And in addition in three of the five largest states, the vote was so close that it's obvious it could have come out the other way. So in Virginia the vote was 89 to 79 in favor. In New York it was 30 to 27 in favor. And in Massachusetts it was 187 to 168 in favor. Those are three of the five largest states. If one or two of them had rejected the Constitution, it's doubtful that the Constitution could have successfully gone into operation, even if nine states, which was the number specified in the Constitution to make it effective, even if nine states had ratified, you couldn't do without Virginia and Massachusetts. Two of the three largest states. All right. So how did the federalists manage to win this battle? And the answer is, first of all, they actually had a bunch of built-in advantages. This is not a rigged system. It's not scam. But it just turns out for reasons that I'll elaborate on it, wasn't entirely a fair fight. It wasn't entirely an even playing field. First, the federalists' advantage were advantaged by malapportionment in some state conventions, especially South Carolina. In South Carolina 20% of the white population, and remember obviously only the white male population, and only those who own a significant amount of land are voting, although I don't want to make it sound like it's as exclusionary as it would have been in Britain at the time, probably 50 or 60% of adult males in South Carolina could participate in the voting for the Ratifying Convention. Twenty percent of the population lives in coastal areas along the Atlantic seaboard. Support for the Constitution is very strong in those areas. And that 20% elects 60% of the delegates at the Ratifying Convention, because of malapportionment. Basically as the population moved from east to west, the legislature didn't reapportionment, because people who have political power tend not to be altruistic in sharing it, so this has been a story throughout American history. You get malapportionment as people move either from farms to cities, or from east to west. So a majority of the population in South Carolina, according to most historians, oppose the Constitution. But because of severe malapportionment, two-thirds of the delegates at the South Carolina Convention voted in favor. Second, the press overwhelmingly favored ratification. Ninety percent of Americans lived outside of cities in 1787, 1788. But newspapers, for obvious economic reasons, were published almost exclusively in cities where subscribers and advertisers, the two economic engines of the newspaper industry, tended to be overwhelmingly supportive of the Constitution. Any federalists, again the opponents, had a hard time even getting their essays reprinted in many states. Aedanus Burke, who was a leading antifederalist in South Carolina, complained that, quote, the whole weight and influence of the press was on the side of the Constitution. Only about 12 of the 90 newspapers then in circulation in the country published any significant amount of antifederalist literature. Right? So it'd be like today having a debate about some political issue, and you've only got Fox News. You've got nothing on the other side. Third, several conventions were held in coastal cities where support for the Constitution tended to be almost universal across class lines. So, for example, in New York we know 19 out of every 20 voters who was participating in electing delegates to the New York Convention, 19 out of every 20 voted for a federalist delegate. This had an effect, this overwhelming support for ratification, in these cities where many of the conventions were held, had an effect both inside and outside of the state ratifying conventions. All of the ratifying conventions were open to the public, unlike the Philadelphia Convention, which was closed. That means that the galleries tended to be dominated by spectators. And, because these were cities, they tended to be dominated by federalist speakers, federalists spectators, who were not shy about voicing their opinions. So when any federalists would get up to speak in the Connecticut Convention, they would be his staff, they would be booed, people would stomp their feet, making it difficult for any federalist even to get their opinions voiced. Outside of conventions, for example, in South Carolina the local planter elite, which overwhelmingly supported the Constitution, which tells you something about their perception of the Constitution, strong support for slavery, they would hold open houses at their homes during the duration of the South Carolina Convention. They would adjourn to their homes after the day's deliberations were over. And you can be sure that they were whispering into the ears of the delegates positive things, glowing praise for the Constitution. Fourth point, fourth federalist advantage, federalists just had an easier time organizing their supporters. People in cities tended to be federalists. People close to the Atlantic seaboard tended to be federalists. This is an era of very rudimentary transportation and communication. People on the western frontier tended to oppose the Constitution. People in backwoods' areas that were removed from commercial connection, remote from roads, they tended to oppose the Constitution. Even if you assume that federalists and antifederalists were about equal in number, which might be about accurate to assume, the federalists would simply have an easier time organizing their supporters than the antifederalists would. Fifth point, the "better sort" as they called them, the well-educated, reasonably affluent elite, overwhelmingly supported ratification everywhere but in the state of Virginia. In Virginia the elite was actually split down the middle. But in other states the elite overwhelmingly supported the Constitution. That was a big advantage for federalists in those ratifying conventions where delegates were actually open to having their minds changed, which was some of the conventions and not others. Backwoods' farmers could not quote Cicero in the original Latin. They were often intimidated by their oratorically more gifted, better-educated opponents. For example, at the Massachusetts Ratifying Convention leading antifederalist, Amos Singletary, complained of, quote, these lawyers and men of learning and moneyed men that talk so finely and gloss over matters so smoothly to make us poor illiterate people swallow down the pill. Right? Anti-elitism 225 years ago. The last of the advantages of the federalists, and then I'll mention a couple other points and I'll be done, and I'm happy to take some questions, the genius of Article VII of the Constitution was a huge advantage for the federalists. Nine states under Article VII could put the Constitution into operation. Although no state could bind any other. Now under the Articles you needed unanimous state consent for any amendment. And the Articles were never successfully amended. But under the Constitution once nine state conventions had approved, the Constitution would be up and running, the other four states would be free to do as they like. They couldn't be bound without their consent. But they also wouldn't be part of the country unless they ratified. Now that was important, because it might sound like it's preserving every state's independent right to go its own way. In fact the pressure on states ten through 13 was enormous. Once nine states had ratified, the other states could be, because they're not in the country, you would have a new country, they're not being guaranteed military protection. They could be subjected to foreign trade discrimination, because they're not part of the country. So you could set up tariffs against Rhode Island the same way you're setting up tariffs against British goods. And, finally, they would be cut out of any important decisions that were made by the first new Congress. Once the new Congress met, it was going to have incredibly important decisions to make, like where to place the permanent national capital, whether to adopt amendments to the Constitution. And if you were not part of the nation, you wouldn't be participating. So as a practical matter once nine states ratified, the other four states wouldn't have much choice. That turned out to be critically important. And they just made it up at the Philadelphia Convention. Heading into the convention everybody had thought, because Congress had said it and so had the call for the Philadelphia Convention said it, that anything proposed in Philadelphia will have to be approved first by Congress, and then by all 13 state legislatures. And they just changed the rules, and saw whether they could get away with it. And the answer was they could. Now the federalists also benefited from some antifederalist miscalculations, especially in New York and Virginia, where any federalists agreed to late conventions. The New York Convention, New York and Virginia conventions didn't meet until June of 1788, which is nine months after the Philadelphia Convention had ended. I think they were calculating that that would give them more time to rally their supporters in opposition to the Constitution. But what they ultimately did was they made themselves irrelevant. By the time the New York Convention was underway in late June, New Hampshire had become the ninth state to ratify. Then while the New York Convention was continuing to deliberate in the first week in June, they got news that the Virginia Convention had been the tenth state to ratify. And that just hugely changed the calculus in New York. Previously the question was do you like the Constitution or not? Now the question is whether you like the Constitution or not, do you want to be part of a new nation, which is going to exist whether you join it or not? And, by the way, the nation's capital was in New York. And they were going to lose the capital obviously if they didn't join the union. That was going to cost them at least 100,000 pounds a year in hard currency, which was a lot of money back then. If either Virginia or New York had chose to go earlier, I think they probably would have rejected unconditional ratification. That would have undercut the momentum that was being built up in favor of ratification. And it quite possibly might have influenced later states. Last important point I want to emphasize, the federalists managed to do one other thing that I think was incredibly important. And this is something I learned while working on the book. This wasn't something I knew going into it. It was critically important to their success to keep intermediate options off the table. They wanted to force a choice between the Articles of Confederation, which most people agreed were deeply flawed, and the Constitution, which at least half the country also thought was significantly flawed. They wanted to deny people a choice on the spectrum somewhere in the middle between the Articles and the vastly more nationalist and antipopulist Constitution. Now the two most likely ways to have arrived at an intermediate solution were the following procedural mechanisms. One was a demand for antecedent amendments, meaning let's amend the Constitution before it gets ratified, rather than afterwards. And the other procedural mechanism would have been let's hold a second convention after the first. Now the antifederalists, the opponents, made pretty good arguments for why these were sensible procedural paths to follow. The argument for antecedent amendments was pretty straightforward. "Who in their right mind," Patrick Henry said this at the Virginia Convention, "You'd have to be a lunatic to sign a contract with another party when that party then gets to change the terms that you've already agreed to." He said, "That's like agreeing to a Constitution with a vague promise of subsequent amendments to come. You should insist on seeing the amendments in advance." Which sounds pretty reasonable. The argument for a second convention was the country just had a big debate on a Constitution that was unveiled after a secret convention and did not map on to what most people expected. We've now had a big national debate. People have told you about their concerns. Now let's go ahead and vote for more delegates who can gather up all this information, go to Philadelphia, and write a Constitution closer to the intermediate position, which is where most Americans were at. Federalists made legal arguments against those procedural paths, and they made practical political arguments. But I think the actual reason why they opposed these alternatives is because they understood there's no way that a second convention, or antecedent amendments, would allow them to preserve the core of what they had done in Philadelphia. And what they wanted was not to get arrived at a position that most Americans agreed with. What they wanted was to get the Constitution they had written in Philadelphia approved, because they thought this was what was necessary for the nation's good. Now in this regard, consider the proposal that Randolph had made to Madison before the convention. Randolph, the governor of Virginia, and Madison are corresponding before the convention. Madison is playing with his ideas. And Randolph says in response, "Whatever we write in Philadelphia, we should submit it to the country in a kind of detachable form so people can approve what they like, and disapprove what they don't like." Madison was horrified by that idea. And he ridiculed the notion that ordinary Americans could have informed opinions on something as important as designing a system of government to govern them. This is what Madison said to Jefferson later that year, towards the end of 1787, quote, in Virginia where the mass of people have been so accustomed to be guided by their rulers on all new and intricate questions, the matter of whether to ratify the Constitution certainly surpasses the judgment of the greater part of them. Another good platform to run for office on some time that most people are too ill-informed, or not bright enough to actually participate meaningfully in deciding what governing structure should exist at the national level. Okay. So to just sum up in one minute. The Constitution is more nationalist, more antipopulist than most Americans expected, or probably wanted. The Framers took advantage of the element of surprise to get it drafted. Then they barely got it ratified, benefiting from some circumstances that proved advantageous, some miscalculations by their political adversaries, and some luck, portions of which they helped to create for themselves. Whether you agree with what they did in Philadelphia, whether you think it's legitimate or illegitimate, I think you have to stand back, and express some admiration for what they accomplished, because the Constitution genuinely was a kind of coup against public opinion. This is not what most Americans had bargained for. So thank you very much for your patience. And I'm happy to take some questions. I don't know how much time we have, but-- [ Applause ] Don't be shy. [ Inaudible Speaker ] Yes, sir. Over here. We've got a microphone that's on its way over. >> One thing you didn't mention was the Bill of Rights. And that must have played a big part in both the convention and the eventual ratification, or did it not? >> Michael Klarman: So, yeah, the Bill of Rights is tackled in the last substantive chapter of the book. There is no Bill of Rights in the Constitution. George Mason proposed the addition of a Bill of Rights on the last day of the convention. And he was seconded by Elbridge Gerry of Massachusetts. But no state delegation supported them. The federalists, during the ratifying convention, had to explain and defend the absence of a Bill of Rights. That was clearly the main, of all the objections the antifederalists made, the number one objection was there is no Bill of Rights, there's no protection for freedom of speech, freedom of the press, free exercise of religion, so forth, and so on. The federalists had a number of arguments for why a Bill of Rights was actually unnecessary, why they thought the existence of a Bill of Rights would be dangerous. I can go into that. I think what I want to say is actually it's not clear to me whether they would have opposed a Bill of Rights had it been proposed earlier in the convention. But they'd been in Philadelphia for four long, hot, contentious months. And they thought this would be opening a Pandora's box to suggest a new topic for debate. So I think the other delegates just said, "We don't want to deal with this." It turned out to be clearly a tactical mistake, because this was the principle grounds of opposition to the Constitution. Madison became absolutely critical to the Bill of Rights. So Madison was running for office. He wanted to be elected to the first Congress from Central Virginia. He was from Orange County, Virginia. And Madison's constituents included a large share of Central Virginia Baptists, who had first-hand experience with religious oppression. They had been oppressed. Many Baptist preachers had been thrown in jail by the Anglican establishment within the previous decade. These people couldn't understand why Virginia had a statute of religious freedom, but there was no protection for religious liberty in the Constitution. Madison was encouraged by his friends in the district. He was actually running against James Monroe, who had been a Revolutionary War hero, opposed ratification in Virginia. And this is a district that had been gerrymandered by Patrick Henry to try to keep Madison out of the first Congress. Madison had to go home and campaign. And promised his constituents that if elected he would now support a Bill of Rights. Now that the Constitution had been ratified, he would support a Bill of Rights. So Madison gets up in Congress on June 8th, 1789. This is the first session of the Bill of Rights, first session of the new Congress. And he says, "I'm proposing amendments to the Constitution. I'm proposing a Bill of Rights." The antifederalists in Congress are not interested in the proposals that Madison's offering. What they want are structural changes. They want to limit Congress' taxing power, limit Congress' military powers, make the House of Representatives twice as large. That's not what Madison offers. What Madison offers are specific rights provisions. A right against search and seizure. A right against cruel and unusual punishment. The antifederalists don't think those are really robust significant protections. They want structural limits on national power, rather than rights' protections. The federalists in Congress say to Madison, "Okay. Now you've done your duty to your constituents. You need to sit down and be quiet, because we have really important things to do like raising tax revenue, creating the executive branch of the government, creating the national judiciary. Why in the world should we be amending a Constitution when we don't have any experience with whether it'll work without amendment?" So Madison gets neither a positive reception from the federalists or the antifederalists. He persists. He makes arguments like, "If we don't deliver on what our constituents were promised, nobody's ever going to believe us. People who are unhappy about the power of the national government are going to believe conspiracy theories about how it's never going to be amended in ways that limit it." And Madison persists. And at the end of the day he's able to get Congress to approve 12 amendments, which ten are then ratified by the states. And that's how we get a Bill of Rights. It is absolutely fascinating. Neither side of the debate in 1789 actually cares very much about the rights' provisions, largely because they think of them as parchment barriers. They think you can have all the nice rights you want in a Constitution, but if majority opinion in time of war or emergency wants to ignore them, then they won't have any weight. And that's not what we think today, because today we celebrate our Bill of Rights, and judges enforce them. But in 1789 neither side seemed to think this was a very important change in the Constitution. Yeah. [ Inaudible Speaker ] >> Within a few years of the adoption of the Constitution, most of the antifederalists had come around to supporting the Constitution. And James Madison was leading the opposition in Congress to the administration-- >> Michael Klarman: Yeah. >> And was more or less a minority leader in many of the Congresses. So I wonder if James Madison would have seen this as a greatly successful coup, and whether the antifederalists would have also rethought the situation. >> Michael Klarman: Yeah. That's a great question. So I'm going to break it into two parts. The first part is what happened to antifederalists' criticism after ratification. And the second is what happened to James Madison in the 1790s. So Gordon Wood, who's probably the most eminent of the historians of this time period, wrote an article called "Is there a James Madison Problem for Historians?" What exactly happened to Madison between 1787 and the early 1790s? So in answer to the first part the antifederalists did pretty quickly give up their legitimacy complaints. Those were a prominent form of their objections to the Constitution during the ratifying debate. This is illegitimate. There was no prep. There's nothing under the Articles allowing a convention. You've circumvented the state legislatures. You've created special ratifying conventions. You changed the rule for a ratification from 13 to nine. They argued it was illegitimate. After they lost, they largely gave up that argument. There are a couple possibilities. One possibility is the economy was booming in the early 1790s. And the federalists and Hamilton would have claimed it's actually because of the Constitution. People who are more dubious might say it's because of the wars in Europe between France and Great Britain that opened up a lot of demand for American agricultural products, and the United States remained neutral in the law. Whatever the reason is though, in times of a booming economy, people are maybe not as interested in objecting to the political arrangements which exist. So that might be one possibility. The other possibility is the Constitution, and I'm fond of this one, this is the one I'm drawn to, the Constitution quickly proves sufficiently indeterminate that the antifederalist types could make the same arguments they had made against the Constitution within the Constitution. Right? So one of the first debates is over whether Congress can charter a national bank. And Madison, who has now become one of the leaders of the opposition, says, "Congress doesn't have authority to charter a bank. There's nothing in Congress' powers. It can raise taxes. It can regulate commerce. It can fund armies. There's nothing about a bank." But Alexander Hamilton says, on the other hand, "Well, Congress can borrow money. Wouldn't it be convenient to have a bank that could lend you money? Congress can raise taxes and isn't it convenient if the bank has notes that circulate that people can pay their taxes in?" And, so, they just disagree about what the Constitution means. And that's happening from the very beginning. One of the first debates in Congress is can the president remove the secretary of state, or whether the same Senate that confirmed the secretary of state has to play a role in removing the secretary of state. That's a debate in the first Congress. 1793, George Washington issues a Neutrality Proclamation. Alexander Hamilton defends that in the newspapers. James Madison attacks it saying only Congress can declare war. So if Congress can declare war, why can the president declare peace? The Constitution turns out to be sufficiently indeterminate that the anti-federalist types can go on making their same states' rights' populist arguments under the Constitution. And indeed for much of the period until the Civil War, those people dominate the national government, first under the guise of Jeffersonians, then under the guise of Jacksonians. So what's the point of attacking the legitimacy of a Constitution when you can interview determine, you can control its interpretation? That's the first point. On Madison, you know, Madison there is a real problem. Madison seemed like a huge nationalist since 1787. He wanted national government to be able to veto state laws. That's about as nationalist as you can get. By 1798 Madison is arguing for the power of a state legislature to nullify a federal law, as you know, in the context of the Alien and Sedition Acts. Madison's writing resolutions for the Virginia legislature saying that a state audit be able to nullify a federal law that it thinks is unconstitutional. What happened to James Madison? Historians have offered lots of different interpretations. The one that I'm most drawn to is that Madison was only a nationalist when he had in mind the state debtor relief laws of the 1780s. If states are going to be redistributing wealth from creditors to debtors, Madison's a nationalist, he wants to put a stop to that. Madison never signed on to Hamilton's Mercantilist Program, which Hamilton is going to execute as secretary of the treasury. Madison doesn't think there should be a national Bank. Madison doesn't think the national government should assume the state debts. Madison doesn't think the national government should subsidize manufacturing. That's exactly what Hamilton's trying to put in place. Madison is a Virginia aristocrat. The south literally doesn't have any banks. And now Hamilton's trying to create a national bank? Virginia has already paid off its debts. Why should it support the national government assuming state debts? So Madison is representing his constituents. He's representing the state of Virginia. And I think genuinely he'd never signed on to exactly what it is that Hamilton wanted to do with national power. If there is one. I may have exhausted everybody. >> Jane Sanchez: Okay. >> Michael Klarman: Thanks a lot for coming everybody. I appreciate it. [ Applause ] >> Jane Sanchez: As a small token of appreciation, we give you some items from the Law Library. >> Michael Klarman: Thank you. >> Jane Sanchez: And we hope you will enjoy them. >> Michael Klarman: Thank you very much. >> Jane Sanchez: And once again thank you so much for coming. >> Michael Klarman: Sure. Thanks for having me. [ Applause ] >> This has been a presentation of the Library of Congress. Visit us at loc.gov.

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