Friday, August 21, 2015

The American Constitution -- What a Story!

“The Articles of Confederation were found insufficient and were replaced by the Constitution.” That's it, that's what I remembered from Mr. Abrams' high school American history course at Lower Merion High, and that's what I knew. Then it was on to the Civil War!

Yes, I had been a history major at Harvard (or history “concentrator,” as Harvard so preciously termed it, can't be like everyone else, can you?), but I studied mostly medieval and modern European history, especially French history. I figured I wanted to be An Educated Man, which is a lifetime's work, so starting at the beginnings of the modern world, and thus starting with the Old World continent of Europe, and not being seduced by American chauvinism, made sense. And in so doing I missed what is probably the most important governmental revolution in modern history. All these years later, it seems that being interested in American history isn't so chauvinistic at all. Maybe American exceptionalism has a point.

I'm having this late epiphany from reading Joseph Ellis' great new book, The Quartet: Orchestrating the Second American Revolution 1783-1789. The specific time was important, because “... the Founders occupied a transitional moment in the history of Western civilization that was postaristocratic and predemocratic.” How long had aristocratic civilization lasted? At least centuries, and I really think millennia. There was no precedent for the large scale republican democracy which began with the American Revolution. And amazingly enough, the Founders found the answer, or rather, invented it. Reading the history of this period it's hard not to believe in the Great Man theory of history, or in this case, Great Men. Maybe Margaret Mead's was right when she famously said that “A small group of thoughtful people could change the world. Indeed, it's the only thing that ever has.”

The 1776 revolution was undeniably great and heroic, no question. But in terms of significance for the future, that part of the revolution wasn't really the big one. The first one cast off the past, as most revolutionaries were fighting for “freedom from” oppression of Mother England. But casting off the past only gets you so far. The really big deal was inventing the future, and that's what happened after the war, from 1783-1789. The American Constitution in fact really was one of the most significant advances (culture bound judgement, perhaps, OK) in world history, and the Articles of Confederation weren't, not at all.

Inventing a Future

“Inventing a future” is such an interesting concept. Talk about something really hard to do. The best guide to the future is the present, because that is actual, something that has a chance of being true because it is true, and because people stick to habit. The past was once true, so that is another realistic guide, although it's problematic if a past could be true again. I think thesis-antithesis-synthesis is probably a better guide than return-to-the-past. But still, some groups look at the present and prefer the past – think Islamic State. Some groups minimize the past and the present and think of a distant future where “everything will be different.” Think Communism with the “new man,” think science fiction. Some despair of future and past and see the present as the only alternative. Think Luddites, I guess. Some just resist speculation and don't think about the future significantly. Think most of us.

The whole concept of a progressive future is unique in itself, I have read. Cultural historians tell us that most traditional societies see the world as unchanging, or at best cyclic. They say that it took the Hebrews (and the Christians) to envision progress and a future, and the Enlightenment to base it on factual understanding, analysis, and even science. A reading of history shows us that most change has be borne of the desire to conquer others, not to bring more justice to the world. Think modern miracle, the United States Constitution. (Although it has to be said, conquering the West and its Indians was central to the Quartet's thought.)

How the Quartet Evaluated the Confederation and Invented the Future

The Great Men, Mead's “small group” were Washington, Hamilton, John Jay, and Madison. Their experience during the Revolutionary War and under the Articles of Confederation showed from their individual experience how glaringly obvious it was that the Confederation could not work. Remember Valley Forge? Why were the ragtag Washington forces starving and freezing? Because Congress couldn't raise the money from the states to support them! Taxes were “voluntary!” These four saw how far that went, especially Washington and his Adjutant, Hamilton.

Jay negotiated the Peace of Paris in 1783 representing a fictitious entity, the United States of America. There was no such entity at all! Jay's genius was to make it up, and then to disobey the orders of the Congress (hey, they were six weeks away) and not include the French and the Spanish in the treaty making as he had been ordered, because he saw he could get a better deal just dealing with the British, who were willing to cede land up to the Mississippi, which the self-interested Spanish and French were not. Jay also saw how the states would take their own advantage from his station in New York. The State of New York under Governor George Clinton ignored the terms of the Treaty of Paris and confiscated the estates of Tories in New York, and they imposed state duties in the busy harbor of New York no matter what the Confederation said. Jay knew a confederation wouldn't work.

And to skip ahead to Madison's final arguments in the Constitutional Congress, he argued successfully against the immensely eloquent Patrick Henry that the entire world's history of confederations was an unending tale of failure, of discord, of dismemberment, boringly time and time again. Confederations fell apart, they were picked off by larger countries, and they disappeared. This was not what the revolutionary generation had fought for. The Quartet had sunk costs in the founding and they were damned if they were going to see their work go for naught, and that prospect of investment going for naught was was exactly what they saw right before their eyes.

Indeed, the Confederation was so weak it was hard to get a quorum! The notables of the states had better things to do than to attend the meetings of something that didn't mean much to them, that they intended to ignore anyway. There was a need to regulate interstate commerce (interesting how this very issue persists in the history of federalism, as we know, up to the present day.) Hamilton got the Confederation to call a special meeting in Annapolis to attack the problem, and there was no quorum. Rather than give up, the brilliant and audacious Hamilton got this rump body to call for the Confederation to consider how to change and strengthen themselves by a special meeting of the Confederation just for that purpose. (How they are deciding to take this guy off the ten dollar bill is a bureaucratic outrage, because, Jacob Lew says, it's the ten dollar bill's turn to be redone and they need to put a woman, any woman, “somewhere.” What have we come to, one wonders? But onward)

What chutzpah! What a coup! What a man.

And then meet they did, finally achieving a quorum, although Rhode Island, and I hadn't known this, continued its passive aggressiveness by not showing up once again. No matter. As always, the great movement turned on the intricacies of politics. Washington was very hesitant to join the meeting, because he feared that his prestige would collapse against the mounted up small minds devoted to the Luxembourgian model of small states. There would be those who wanted no change – a majority – and those who wanted to strengthen the Articles a bit, and a smaller radical faction who wanted to dump the Articles and start over. They feared the first faction would be predominant and Washington was opting out of that failure preemtively.

But Madison, who corresponded endlessly with confederates and friends in the various states, discerned a chance. The first faction, the conservatives who wanted no change, would not dignify the proceedings by their presence – one wonders if the Russians regret their boycotting the UN so the Security Council could declare a police action in Korea! The Quartet saw a chance, and Madison and Hamilton convinced Washington that his sunk costs and his posterity would only be honored by taking this chance.

Writing and Passing the New Constitution

So meet they did, in Philadelphia in the very same room where the Declaration of Independence was produced, a not so coincidental reminder of momentous work to be done. It was a foregone conclusion that Washington, the greatest man in America, would be in the chair. Again, it's really hard not to believe in the Great Man theory when you read this stuff.

At the Constitutional Convention, the policy argument was carried by many, but the spark plug was Madison. (Although let it be said, since I'm still a loyal Philadelphia native, that it was Pennsylvania's Gouverneur Morris who actually wrote the thing, and it was he alone who changed the Preamble from “We the States” to “We the People,” to quiet assent from Madison, with momentous theoretical consequences.) Madison worked harder than anyone, arriving at the convention with the Virginia Plan. He who produces the first draft has the momentum. While the Constitution was revolutionary, it also built on English and American precedents, and especially English political theory. To appreciate how indigenous it was, is to understand how one can't just up and create a constitution in a place that doesn't have established habits of working that comport with the new creation (any chance for the Iraq constitution, I wonder?) It was especially difficult to span the gulf between states' rights and federal rights, and in many ways it an agreement of the delegates simply couldn't be reached. Therefore, what Madison brilliantly did was to be vague, and to say in effect that much of this would be decided “later,” when specific cases arose. Thus, Ellis states, Scalia's “originalism” is a chimeric vision of what never was. (Here, here.) Madison thought his compromise was a failure, but in fact the resulting federalism, with its flexibility, might have been one of the great inventions of all time in governance.

His most brilliant theoretical invention, perhaps, was the vision enunciated in the famous Federalist 10. (After Harvard I didn't stop studying, and when I was in Washington with the US Public Health Service I took a class in American Political Theory at Georgetown, so Federalist 10 was of course fully discussed there. Interestingly, though, the genius of this invention was not highlighted – that had to come to me from Ellis.) Montesquieu had thought that democracy was only possible in small areas where everyone knew each other, but Madison's insight was that democracy would actually work better in a larger state than a smaller one, because interests would balance one another out, whereas in a smaller arena a tyranny of a majority was much more possible and dangerous. It actually sounds like a rationalization, because they wanted a republic, and they saw that large size was crucial, but how to reconcile that dilemma with Montesquieu's opinion? Answer: have another opinion. But, genius seems to have worked.

And as for politics, no matter how lofty the achievement of public policy, in the end it still needs to be pushed through the political sausage machine. Just read Robert Caro's The Passage of Power to see how great legislation turns on powerful sponsors who attune their efforts to each small center of power. Clearly, the Quartet's politics in convening the Constitutional Convention was superbly orchestrated. Passing the Constitution also required clever politics, and the Quartet found that they still had it in them. For instance, even though the Articles said that all issues had to be approved unanimously to take effect, the Convention declared that if nine states ratified the new Constitution it would be declared passed. They just did it, against the rules. How this got done, I'm not sure, but it had to be done, obviously, so they did it.

Then they did something more – they fast-tracked it. They said that the states could only vote it up or down, and not amend it. Wow! It turned out that the states went ahead and did send in amendments anyway, but the Convention had leeway to handle them without rules, only with political sensitivity. They used their freedom of action responsibly, cutting down the dozens of amendments to just 10, as we know – I think this is the reason, by the way, that although many different clauses are put together in the various amendments as though they fit together logically, they really don't, it's sometimes just a list of items. We all know that the Bill of Rights came after the Constitution was written, and we think that it was Jefferson who wrote them. Nope. Jefferson wrote from Paris that he thought a Bill of Rights was a good idea, but basically, they were written with politics in mind, to assuage the opinions of the consenting states. Again, necessity breeds genius.

But that was after the fact. To jump backwards, the first problem was to get the Constitution passed, and they recognized the difficulty of doing so since the largest and most powerful states, Virginia and New York, looked to be set against it. But, Jay could manipulate some of the delegates in New York despite Governor Clinton's powerful opposition, that was one good thing. The second good thing was the power of the calendar. By God's good grace, the states that were inclined to vote for the Constitution decided on their own to hold their state conventions before those who looked to be against it. Since it only took nine to pass, the states who came later, if it had already been passed by nine states, would face the choice of joining the union and being powerful within it, or staying outside and being isolated. It seems luck played a role, as it always does, ask Lefty Gomez.

Then it came down to Maryland to be the ninth state to ratify. It was crucial that they do so. But they dithered, and were about to vote to disband the convention and come together later. This word was relayed to Washington, and he did a wonderful thing. He simply wrote to them and suggested that they not disband and that they vote at once. Ellis writes that a suggestion from Washington was regarded at this time as a virtual order from on high, so they duly voted in the Constitution. Then, under pressure of being left out, the others followed, even, eventually, little Rhodie.

So, as I said, the Articles of Confederation were found inadequate and had to be replaced, so replaced they were. On to the Civil War! Where, let us remember, we heard that “a new nation, conceived in liberty, and dedicated to the proposition that all man were created equal.” (not really, Ellis says, it wasn't a new nation for some time.) But, truly, “testing whether that nation, or any nation so conceived and so dedicated, can long endure.” Ah now, that was quite true. So conceived and so dedicated – basically, by the Quartet.

Difference from the French Revolution

I started out studying European and French history, thinking this it was more basic knowledge for an Educated Man. But it turns out that going back to the American Revolution helps me understand France. I'm almost through another book, a longer book, an 800 pager, Napoleon, A Life, by Andrew Roberts. For the first time I think I now understand the 1789-1815 era in France. I sure understand why the Americans wanted to stay away from the unending European wars! And I think I can now answer the examination question: Napoleon – embodiment of the French Revolution or death of it?

America was a middle class nation, and the aristocracy they had wasn't anything like the aristocracy in France. So France had work to do that America didn't – equality before the law, get rid of the wealth and power of the church, establish meritocracy. They did that, and it was a huge achievement, plus the agenda of the Enlightenment, such as recognizing science, regularizing law in the Code Napoleon, the metric system (which Napoleon himself didn't like) and a lot more.

But what France didn't have so much as America had was a powerful parliament as background, and English common law, and English political thought. They also didn't have an American Cincinnatus named George Washington. As a consequence, Napoleon made society better, he made government better by rationalizing it and introducing meritocracy, but as he faced the opposition of the Old Order in Europe, he became like them, pressing the national interests of France against them, but acting just like them and even becoming an Emporer.

So, Napoleon was the embodiment of the Revolution in one way, but in another, because the revolutionaries couldn't come up with a decent form of government themselves, he was was the death of it.

Interesting that when I asked Mr. Warren, my high school Modern History teacher, what was the most important thing of what we were studying, he said, look at what we spent the most time on. It was the French Revolution. I took it from there and regarded that revolution as the key to the modern world. But now I think that, although America was a sidelight in the world at the time, and great as the French Revolution was, when it comes to government, the big deal was the American Revolution.

Budd Shenkin

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