The Founders Series Part 2

Founding Fallacy

In 1787, a tall, strongly-built man with powered white hair, in period dress, descended from a hill in Philadelphia, and, in a voice that sounded remarkably like Charlton Heston’s, handed down two tablets containing the Constitution and the Bill of Rights. The multitudes cheered; many fell to their knees in awe and gratitude.  Timeless words, hewed in stone, expressing all the accumulated wisdom and truth, for all eternity. 

You have to admit, it would make a great movie. 

One of the peculiarities of the way we think about our history is our conflation of the drafting and signing of the Declaration of Independence, and adoption of the Constitution.  It’s actually the Declaration that made the film—a musical.  It’s July 4^th, 1776 (actually, July 2^nd) and there they all are, in the Trumbull painting, stout of character and resolute.  Tallest amongst them is Jefferson, author of the powerful words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

I love that image.  I know what preceded it was a year of listless and pointless debate, as George Washington’s Army, under-funded and under-supplied, did its best to stave off crushing defeat.  I know there was very substantial opposition to the idea of independence from many of the people in that room, and they mirrored the doubts of the population at large. John Adams was obnoxious and disliked, it cannot be denied.  And I know that the moment itself would not have been possible without a shameful tabling of the issue of slavery.  

But still, it seems to belong to me—and even the reason my grandparents crossed the ocean a century ago to come here—the singular moment in time when “We” stopped being subjects of a distant King and became possessed of unalienable rights.  It is the moment when we owned our own destinies.  Jefferson’s words are simplicity itself, and immutable. From this date henceforth, we are free. They marked an ending, and a beginning.

That is not what occurred with the adoption of the Constitution.  The Constitution is an acknowledgement of the limits of freedom.  What Washington, and Madison, Hamilton, and Jay understood was that the right to say no to everything, to go your own way on all points, to always be governed by your personal self-interest, whether the “you” was a person, a town, or a state, was incompatible with the growth of a nation. To the contrary, they believed that the 13 original states inability to act in concert created an existential risk to the very idea of freedom itself.   The British surrender at Yorktown and Treaty of Paris notwithstanding, the Brits really weren’t going away, and the rest of Europe took little note of us.  This had to be fixed.

So, if the Declaration was a glorious Big Bang, the Constitution began the organization of the galaxies, solar systems, and planets.

That one step—organization out of disorder, meant, by definition, that a lot of power was passing from one set of hands to the other.  Every signer of the Constitution had lived under a monarchy, and the monarchy could act decisively without additional consent.  The act of political regicide that was the Declaration released those restrictions and dissipated that power.  Now, the people who came to be called Nationalists (and later, Federalists) were proposing to reconstitute that power, only in a form that was more representative.

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The Founders Find The Invisible Hand

There is a core incongruity at the center of the Constitution.  It might even be described as a core incompatibility. By every historical example available to the drafters at that time, it shouldn’t have worked.

Republics, to the extent they existed, had either grown large, autocratic, unwieldy, and then collapsed on themselves (like the Roman Republic), or remained small and un-influential, like the numerous Swiss Cantons, each of which had their own armies, border controls, and currencies.

In effect, Madison, on behalf of the Nationalists, was arguing three things, all of which were open to dispute.  The first was that the system created by the Articles wasn’t working, and the nation was the lesser for it. The second was the reason the Articles weren’t working was because of the weaknesses of the republican system: The “democratic” elements that existed in each state—local government, a state legislature, a chief executive, bred insularity and a tendency to be dominated by special interests.  Madison abhorred factionalism.  But the third was a peculiar elide.  The same system that did not work on the state level could and would work if applied nationally.  

There was obviously vigorous “political” opposition. The larger and more powerful states liked their heft, and the smaller ones liked their autonomy.  In their respective communities, within their fiefdoms, the new structure might have had some flaws (a bankrupt national treasury and unpaid soldiers came to mind) but, at home, it looked pretty good to them. State government was certainly more representative and less dictatorial than a distant King, and it was unquestionably more representative of their interests.

But, even if you agreed, politically, with the first two of Madison’s points, where is the intellectual justification for the third? If each state was an example of a smaller form of republic, with an executive and a state legislature, and local municipalities, all tending to local interests, why wouldn’t that same lack of broader vision also apply to a Federal Government?  In fact, why wouldn’t a more powerful central structure amplify the very shortcomings Madison was critiquing—more factionalism, more pettiness? 

David Stewart, in his recent book, “Madison’s Gift” says Madison’s solution is “mechanistic, suitable to an age in which clockworks were a powerful metaphor.”  In effect, Madison would build a better mousetrap, where systemic checks and balances would create an environment of vigorous debate, followed by both consensus and decisiveness. 

Stewart’s formulation is in line with most contemporary evaluations—the Constitution as a marvelous and enduring machine, begun as a contract, or better yet, a compact, between consenting adults, self-correcting and perfect.  As a lawyer, it appeals to my sense of order and of bilateral obligations. 

But, I don’t find it fully satisfying.  Madison was too intelligent to believe that the small state government model was fully scalable.  First, to create a muscular new nation, you needed muscle at the top.  That involved an element of coercion—not as much as his fellow author of the Federalist Papers, Hamilton, wanted, but nevertheless, someone, or some body, had, at certain times, to be King. You could devise a system where the respective parts of government could review each other’s actions, and even reverse them (the power of the purse, Judicial Review, the veto, veto-override, etc.) but that process had to have limits.  

Second, I just don’t think Madison trusted men enough to think any system he or anyone else devised would always be up to the task.  The very things Madison worried about— "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time" are not fully resolved by his schematic, and he had to have realized that.  His own “first draft”, the Virginia Proposal, which presumably reflected his true desires, was far more top-heavy than what was ultimately adopted.  And, he initially opposed the Bill of Rights, switching sides after he saw it as a political necessity, not necessarily a philosophical one.

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Founders Series Part 1

When it comes to the challenges of sustaining the American Experiment, particularly in the Age of Trump, it's important to remember how challenging it all was at the inception.  Here are two pieces that remind us:

The Founders Flee to Philadelphia

In early May, 1787, George Washington, well tailored and well appointed, stepped into a fine coach, bid a farewell to his beloved Mount Vernon, and, attended by three men, headed for Philadelphia for a Convention that would change the course of American history.

We are at a moment in time where the viability of the new American nation is at risk.  The War for Independence has been won, but the British are not exactly speeding their way out of town (or country).  The government envisioned by the original Articles of the Confederation really doesn’t work, and the major movers in the country (Washington, Franklin, Jefferson, Hamilton, Madison, John Jay, etc. all know it.)   The national currency, such as there is one, is basically worthless script.  There is no ability as a nation to do much of anything collectively, because each state guards its own priorities and privileges—and those priorities do not include giving up much power to a central government.

Not everyone agrees that something has to be done.  It has taken many months to even get people to come to a convention—and the word “Constitutional” is so fraught for some states that it can’t really be used.  But, eventually, enough of them buy into the idea that they are willing to send representatives—if for no other reason to make sure that not one iota of their authority is in any way abridged.

Washington’s trip is filled with irony from the start.  The three men escorting him north are not really whole men at all, at least in the eyes of the law.  All three are slaves—his personal manservant, a coachman, and a groom.  One wonders what thoughts might have been going through their minds, or how they might have felt when they learned that the leading men of the country had assigned their lives a 3/5 value. 

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The Founders Head For The Kitchen

There is a great story about George Washington’s taste in food. He, and Martha, were apparently fond of English-style cooking, and particularly meat pies.  For Christmas one year, their kitchen turned out a favorite—a savory delicacy made of a bushel of flour for crust, stuffed with five different types of boiled fowl—pigeon, partridge, duck, goose, turkey, all baked on high heat for four hours.

When you think about how the Founders actually came to create the elegant mechanism known as the Constitution, you should disavail yourself of the notion that it emerged, somehow whole, as a product of a few men’s transcendent genius, arrived at after erudite discussion at the very  highest plane of thinking.  Rather, think of George and Martha’s groaning table, and all the grinding, steaming, and plucking that brought them holiday cheer. 

It is Spring, 1788, and George Washington has left Mount Vernon and arrived in Philadelphia for the Constitutional Convention.  He is, as always, punctual in the extreme, and so is one of the first people to get there.  Ultimately, nearly eighty delegates join him, and when they are not eating, drinking, dancing, and otherwise entertaining themselves (Philadelphia being a party town) they get down to the business at hand, conceptualizing the framework of a new government.  While much of the work is being done in the kitchen below, Washington is the center of attention, and the elephant in the room.     

It is hard for any of us to fully grasp the esteem in which Washington was held.  As a frame of reference, in 1788 there were no political parties, so we didn’t have 2/3 of the country immediately forming a fixed, partisan opinion.  There were no trails of emails or text messages, no inappropriate tweets, no votes on obscure riders that could be held against them, and no primary voters demanding fealty to a long set of articles of faith.  People judged Washington on his service to the fledgling nation, which was considered unsurpassed.   They saw him as incorruptible man, honor-bound to duty first.   Poems and songs were written about him, in the very best of 18^th Century fulsomeness.  

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Dred Scott Strains the Mystic Chords--On 3Quarksdaily

"We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."

—Abraham Lincoln, March 4, 1861, First Inaugural Address  

Irony. History offers an inexhaustible supply of it. Lincoln stood on the podium that March morning across from the one man who may have most helped put him there—the Chief Justice of the United States, Roger B. Taney. Four years earlier, on March 4, 1857, Taney performed what he considered a far more pleasant duty: to swear in his fellow Dickinson College Alum James Buchanan. Then, just two days after, he lit the first match to Buchanan's Presidency by reading from the bench what was probably the most consequential, and certainly the worst Supreme Court decision ever, Dred Scott vs. Sandford.  

Dred Scott was born a slave in Missouri, owned by an Army Surgeon named Emerson, who often traveled to new postings. For roughly a decade, they lived in Illinois, a state where slavery was prohibited by both the Northwest Ordinance and its own constitution. Later, Dr. Emerson was posted to Fort Snelling in Minnesota, then a territorial area where slavery had been forbidden by the Missouri Compromise. They finally returned to Missouri, and, after Emerson died and "title" to Scott passed to new owners, he sued for his freedom and that of his wife and children. Scott won at the trial court level, then lost in Missouri's Supreme Court. At that point, he turned to the federal courts. Finally, in 1856, the matter reached the U.S. Supreme Court. The question was achingly simple on a human level, yet agonizingly complex from a public policy perspective: Was Dred Scott entitled to freedom by virtue of the amount of time spent in free areas? Scott contended he was. Scott's master insisted that a "pure blooded" African and descendent of slaves could never be a U.S. citizen, and so therefore was not qualified to access the U.S. courts. The case was argued in February of 1856, then reargued en banc that December to specifically address two key points.

No one would argue with the idea that the issues were timely. Slavery was always timely; it was the intractable, incurable American Original Sin. The Constitution itself was jury-rigged to accommodate it, with painful concessions to which neither side ever fully reconciled itself. Conflicts arose continuously, not just over the Peculiar Institution itself, but by anything that it touched—internal improvements, trade and tariffs, even foreign policy. Every few years there would be a flare-up, sometimes resolved by quiet compromise or concession, sometimes by grand bargains, sometimes, as in the case of the South Carolina Nullification and Secession crisis, by the application of a combination of Jacksonian tact and Jacksonian brute force.

And still, it went on. Lynchings, raids, arson, smashing of presses, intimidation. The country seethed, quieted down, then seethed again. Preachers read from different sections of the Bible to claim spiritual support for their sides. Politicians alternated between bile and eloquence; newspapers wrote inflammatory, pointless editorials; and Congress debated endlessly.

The questions remained: Could slavery be regulated or prohibited in the vast new territories? Was a slave entitled to freedom if he resided in a free state or territory? Could a slave be a citizen of the United States, entitled to the protection of its laws? Dred Scott placed these questions before the final arbiters of the law.

Taney answered no to all three, and did so in an emphatic way designed to show the majority's desire to end further discussion. First, he ruled that African Americans could never be citizens of the United States, whether they were slaves or free. At the time the Constitution was adopted, he wrote, blacks were "regarded as beings of an inferior order" with "no rights which the white man was bound to respect." It was clear he believed they still were. Then, he went on to declare that, even though there were individual states where slavery was barred, that did not change the nature of Scott's servitude when he resided at length in a free one—once a slave, always a slave, unless his master decided otherwise. In the Territories, where Congress had authority, that authority was organizational and administrative, and in no way included the right to exclude slavery. Any extant legislation to the contrary, and, specifically, 1820's Missouri Compromise, was unconstitutional, and therefore void. Slaves were property, nothing more, and a property owner could take his property wherever he wanted and use it as he saw fit. To do otherwise was, in Taney's formulation, a violation of the slave owner's Fifth Amendment rights against the seizure of property without due process. With a stroke of a pen, 80-plus years of Constitutional interpretation, political solutions, and actual practice were erased.

But why did Taney do it? Why did he, and the Court, choose the path of a maximalist ruling when the general practice was to find the narrowest grounds to decide? They didn't need to (a simple decision that Scott was subject to Missouri Law would have sufficed), and, initially, it appears they didn't intend to. Six votes for a surgical dismissal of Scott's claim were there from the outset: the five Southern-born Justices (Taney, James Wayne and John Campbell of Georgia, John Catron of Tennessee, and the Virginian Peter Daniel) plus Samuel Nelson of New York.
The conventional explanation has been that a sweeping ruling was Taney's desire all along—that he felt it was necessary to vindicate the rights of those with whom he had always sided: the slave owners and slave states. Dred Scott was an opportunity to settle for all time what the South had previously been unable to achieve either legislatively or judicially.

Some of the focus on Taney is wholly logical and credible—he was the author of the opinion, he was Chief Justice, and it was his language, aloof to human considerations in some places, dismissive and indisputably harsh in others, that defines the tone. He became the lightning rod for Northern anger, dogged by accusations that he had colluded with James Buchanan on both the timing and substance of the decision.

Yet, the Buchanan-Taney conspiracy theory was probably not true, or at least not true in the sense of a binary, exclusive relationship. Other Southern Supreme Court Justices were acting in a manner we would find intolerable today. Wayne was corresponding with fellow Georgian Alexander Stephens (then Senator, later Vice President of the Confederacy). And Catron, rather incredibly, was exchanging correspondence directly with the President-Elect himself.

But the exact "how" a narrow decision became the Dred Scott of infamy is a bit murky. The conferences amongst the Justices began on February 14, 1857, and initially it appeared that taking the narrow route would prevail: Scott had returned to Missouri, Missouri law controlled, and Missouri had decided, so the case was over. Justice Nelson was directed to and actually prepared a draft majority opinion to that end. But Nelson's effort was buried by the strenuous objections of the Southern members, and, in particular, the opportunistic Justices Daniel and Wayne. Wayne was an ardent, dogmatic defender of slavery; Daniel was best described as a fanatic, and extraordinarily undisciplined in his prejudices and language. It was Wayne (encouraged by Alexander Stephens) who pushed the idea of Taney writing a broad opinion.

There is a disagreement among some historians and an ambiguity in the record as to what was ultimately decisive. Taney's defenders later claimed that Curtis and McLean actually induced a broad decision by preparing extensive dissents, including on issues not raised in the narrow Nelson opinion. The Southerners urged Taney not to let those words go unanswered. But this charge makes no sense, either legally or politically. Dissents are just dissents and have no force of law. As for a possible political subtext (supposedly McLean had an itch for office), the claim borders on irrational. Not only was he already 70, but why would he risk encouraging the majority to be even more punitive?

Whatever the actual motive, Wayne won the argument and Nelson's draft was put aside. That left a larger political problem for the Southern Justices. They wanted to win, but didn't want a sweeping decision to be based on a narrow majority where all the votes came from them—they needed the legitimacy that only a Northern vote would give.
They found it through the actions of Justice Catron, who contacted Buchanan again to urge him to get his fellow Pennsylvanian and friend, the amiable but weak Judge Grier, on board. Buchanan agreed, "made the call," and Grier took the hint. He had long known what Buchanan's priority was—the Southern-sympathizing President-Elect wanted finality. A broad Supreme Court ruling would spare him having to do the dirty work himself, all the while, to his thinking, restoring unity to his Democratic Party, and undercutting the Republican Party's very reason for existence. So, quite willingly, Grier became Taney's fig leaf, the sixth vote.

There was one additional peculiarity, which no doubt fed into the idea of conspiracy: By tradition, Opinions and Dissents had been read from the Bench and then immediately filed with the Clerk for formal publication. Curtis did that—he filed his Dissent and then took vacation, leaving a copy with a Boston newspaper. But Taney didn't, giving rise to rumors that his was being extensively revised. When Curtis heard about it, he asked the Clerk for a copy and was refused. It turned out that, once Curtis and some of the other Justices left Washington, Taney, Wayne, and Daniel privately agreed on a special rule that, this one time, the Opinion would be sealed until formal publication in the Term volume. Curtis would not be allowed to see it.

A charged set of exchanges between the Chief and Curtis then ensued, with Taney vociferously insisting that he had merely made modest additions. But when Curtis finally reviewed the published volume in May, he realized Taney had added 18 pages of direct rebuttal to Curtis's dissent, all written after Curtis had filed. That September, Curtis resigned in disgust.

By this time, whatever inside baseball there was amongst the Justices was made irrelevant by the public response, and the enormity of the miscalculation of the winning side. The reactions were swift and often unfiltered; gloating from the South, fulsome praise from Buchanan's closest supporters, and outrage from virtually everyone else.
Nothing worked out the way the "conspirators" expected. Republicans were angry and energized, not neutralized. And Democrats, rather than being unified, split regionally. While Stephen Douglas loyally (and somewhat inexplicably) defended the decision in a widely reported speech that June, Northern Democrats, except for the most loyal Buchananites, realized their party was now openly captive to the South on the slave issue.

Taney, for his part, was appalled, stunned, and angry at the reaction of the general public, and dismayed at the sharp erosion in the prestige of the Court. He seemed not to have grasped the raw emotional value of the issue, nor the impact that the highly charged words in his opinion (and, more particularly, Daniel's lacerating and offensive Concurrence) would have on readers. Perhaps he had spent too much time dealing with abstractions, but, in his desire to seize the moment, he had failed to realize something basic that Stephen Douglas intuited with his now Court-repudiated Popular Sovereignty Doctrine: Slavery would not be welcome in places where people didn't want it. Every attempt to impose it on them, whether that be legislatively by a Southern-dominated government in Washington, or judicially, by a Southern-dominated Supreme Court, would be resisted.

That resistance never abated. Republicans, Free-Soil politicians, and the press picked up the theme, many of them a bit intemperately; The Chicago Tribune predicted a time where slaves would be bought and sold on the streets of its city. "Slavery is now national," the Tribune editorialized. "Freedom has no local habitation nor abiding place save in the hearts of Freemen. Illinois in law has ceased to be a free State!" William Seward made a Senate speech that so angered Taney that he later said he would have refused to administer the Oath of Office, if Seward had been elected President.

Lincoln, as fit his nature, waited until after Douglas committed himself to counterpunch. His speech, given on June 26, 1857, is worth reading on its own. Its power lies not just in its imagery in discussing the plight of the slave, but also its naked honesty. It includes perhaps the plainest statement of Lincoln's core belief about race, about liberty, and about the intent of the drafters of the Declaration of Independence: "I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.' This they said, and this meant."

Dred Scott was an instant and sustained political catastrophe for the Democrats. The harshness of the decision and the insistence of Southern Democrats to refer to it as part of their platform killed chances to appeal to more moderate voices, particularly those who previously had rejected the Abolitionist call as being too radical. Republicans flipped the House in the 1858 midterm elections and picked up five Senate seats. In 1860, Democrats split in three, among Douglas, John Bell, and John Breckinridge, paving the way for Lincoln to be elected without a single vote from 10 states, and bringing us to that indelible Lincoln/Taney Inaugural moment.

Hindsight allows us the luxury of wondering how so many intelligent people could so misjudge the situation. It is not out of the question that some didn't—particularly the Fire-Eaters in the South, who wanted secession anyway and welcomed this as an accelerant. But perhaps the real problem was that too many people subscribed to a certain set of beliefs with such certainty that their ability to feel empathy for those who didn't agree was completely erased.

I'll leave Lincoln, in his Second Inaugural Address, to acknowledge the final irony:
"Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding."

The original of this appeared on March 5, 2018, in 3quarksdaily.com
Dred Scott Strains the Mystic Chords