The Founders ConstitutionIntroduction. This is an anthology of reasons and of the political arguments that thoughtful men and women drew from, and used to support, those reasons. We believe that those reasons and political arguments have enduring interest and significance for anyone who purports to think about constitutional government in general and the Constitution of the United States in particular. For those who know in advance that thought is at bottom reducible to interest, or who regard political argument as synonymous with ideology, such a belief is at best naive. Yet we venture to assert that that belief is not merely personal or idiosyncratic, however quaint it might appear. For our belief in the continuing relevance of the Founders' Constitution and of the arguments that centered on it is itself based on reasons. It would, however, be foolish and obstinate to deny that many teachers, students, and practitioners who might examine these assembled writings would be disposed--indeed powerfully disposed--against the premise of this work. They too would have their reasons. Common usage and custom now casually equate thought and ideology, neither caring nor wishing to strike out the sense of tendentious, partisan argumentation implicit in the latter term. Political argument, it is asserted, is apologetics for something deeper, something material, something concealed. "What's he really after?" people ask, certain that the visible argument is only discreet drapery. One would have to have lived very little in the world not to know that political life is suffused with pleasant-sounding nonsense parading as grave argumentation. The sound rule, then, would seem to be: in case of doubt, doubt. Beyond this fundamental skepticism lies another set of misgivings that work against taking these arguments of yesteryear seriously. By immersing ourselves in seventeenth- and eighteenth-century documents and arguments, we are in effect seeking to recover an "original understanding" of those who agitated for, proposed, argued over, and ultimately voted for or against the Constitution of 1787. Such an effort at recovery might be faulted on at least three grounds. The first and most obvious misgiving concerns the historical effort itself: we have no way of recovering the intentions of a widely scattered and long-since-dead generation of political actors. Being utterly dependent on the chance survival of arguments committed to paper, we are left in the dark concerning whatever else was thought but not said, said but not written, written but not saved, saved but not found. Needless to say, we are almost utterly in the dark about the manner in which arguments were made or received: the wink, the look of disgust, the detection of sophisms, are rarely matters of record and most often are matters of fanciful speculation by the reader. Very seldom indeed, then, can we speak with simple confidence of what this or that provision meant for eighteenth-century Americans. Even speaking of such an aggregation as a whole may be suspect. Notwithstanding the glowing account of "one connected, fertile, wide spreading country" as the providentially designated inheritance of "a band of brethren" (John Jay, Federalist, no. 2), America might better be seen as a collection of highly diverse, discrete settlements, more intimately acquainted with England than with one another, more closely tied to their ancestral home (three months' sea voyage away) than to their neighbors. Under these circumstances the search for a single state of mind is unhistorical, however gratifying to the historical investigator. That diversity, moreover, characterized the individual states perhaps as much as the aggregation. And, as is usually the case, the least favored, least educated, least prominent portions of the population were the least heard and the least likely to be heard two hundred years after the fact. As a record of reasons and arguments, then, a collection of surviving paper is necessarily slanted. Finally, the effort to recover past ways of thinking may be, in this instance, simply irrelevant, excusable perhaps in historians of a certain persuasion, but of little or no practical import. For does not the effort presuppose something like a coherent, guiding intention, and is not that given the lie by the fact that the Philadelphia Convention had to truck and barter, compromise and fudge, down to the bitter end in order to have any constitution at all to propose to the people? Were not the leading advocates of the Constitution disappointed and even disgusted by various features they were obliged to accept? Given the many concessions to expediency that marked the proceedings, is it not preposterous to look for and expect coherence, clarity, and consistency? Furthermore, even were a coherent political argument to be discovered, what great weight would it have? The fears and hopes of a generation some of whose members could still recall agitation over the Stuart Pretender can have little bearing on the fears and hopes of a generation preoccupied with ICBMs and entitlement programs. If the Constitution is to be a viable instrument of governance, then, it must (as it has to a great degree) cut itself free from its eighteenth-century moorings. The thought of the Founders, even to the extent it is discoverable, may be curious, even at times amusing or maddening, but it cannot be binding. These are some of the reasons--by no means trivial, and certainly current and persistent--that might incline the holder of this volume to wish to conserve time and energy and read no further. Yet we think that to act on that inclination would be a mistake, if our own experience is any guide. Prompted neither by antiquarianism nor by simple piety, we have come to discover pleasures, second thoughts, and better understanding in matters that we once believed we understood tolerably well. We are loath to dangle before the reader yet another promise that the crooked will be made straight and the rough places plain; we promise, rather, complexity and complication. The simplistic truisms (clipped coinage if ever there was such) that pass for good currency today may be detected more readily for what they are by a timely recourse to the source, the reasonings of the political actors themselves. Any fair-minded reader can discover that those actors--politicians, land speculators, philosophers, village-pump orators, historians, ordinary and not-so-ordinary lawyers, common folk with little or no schooling, statesmen with analytical powers developed through long study and closely observed experience--that all those are people whose thoughts are worth knowing better. Far from being struck by their simplemindedness or paranoia, we are impressed rather by their political literacy, the vigor and the articulateness of their arguments, and the absence of condescension from their complex, even sophisticated, reasoning. The level of their public political discourse is simply remarkable. All this, however, speaks to pleasure and the surprise of being pleased. It does not reach the core of the objections or misgivings outlined above. Can one discover what was intended? Can one trust what one does discover? Does it matter? Some things can be discovered. There is an original understanding about a number of constitutional provisions. There is the possibility of discovering how a particular concept or institutional arrangement developed, growing clear and simple or (alternatively) unclear and complex. None of such discoveries admits of unequivocal demonstrative proof, but students of history and of the law usually have settled for probable causes, and the record assembled here affords the possibility of making quite a few such cases. What weight to give to such nondemonstrative arguments is a harder question. It is impossible to presume that one has at hand a fair sample of all the arguments, all the considerations, that entered into a position or into the decision to adopt a position. Yet we do have more than the precipitate of unknowable private reasons and private decisions. Because the largest decisions were necessarily public--to propose, to support or oppose, to vote--and because those public occasions were repeated--in the Philadelphia Convention, in the press, in the courthouses and taverns where the politically relevant part of the people met and argued, and in the state ratifying conventions--there was a good opportunity for a broad range of arguments to be put forth and to leave some traces. Then, too, the larger issues stirred by the events leading up to the proposal and adoption of the Constitution were hardly novelties of 1787--88 and in many cases not even novelties of 1774--76. Self-government in America dates from the earliest charters of the seventeenth century. The practical and theoretical issues that vexed contemporary British political life and thought were not alien to American readers of Sidney and Locke, Cato and Montesquieu, Blackstone and Burgh. The issues, accordingly, were familiar, the occasion pressing, the participants attentive and broadly informed, and the resulting public debate vigorous, full, and open. Twenty-two months elapsed between the Annapolis commissioners' call for a full convention and New York State's ratification of the Constitution. Just about every-thing that had to be aired was aired and, more often than not, aired forcefully and well. Granting the possibility of all this leaves still unanswered the most difficult question: what difference does it make? In one sense, none. Clio's career in the courts has left her and the courts rather the worse for wear. Courts have had a hard enough time taking yesterday's legislative history seriously; it would be fatuous to expect very much direct effect from researches into a more remote and ambiguous record. In another sense, very much might be hoped for. The duration of the eighteenth-century debates, the quality of the participants, the wide-ranging considerations that were raised, the high degree of self-consciousness that attended the proceedings: all made for a singular moment, an occasion of rare interest and value for discovering anew the foundations of a complex political and economic order. To the extent that the Constitution still matters--as a framework, as a statement of broad purposes, as a point of recurring reference, as a legitimation of further developments, as a restraint on the overbearing and the righteous--to that extent it is worthwhile to try to enter into that world of discourse. The Founders prided themselves almost never on their lineage and rarely on their wealth, but rather on their reasonableness. It is worth taking note of the candor and quiet confidence that could state matter-of-factly: "My motives must remain in the depository of my own breast: My arguments will be open to all, and may be judged of by all" (Alexander Hamilton, Federalist, no. 1). That self-presentation might be deemed naive, perhaps hypocritical, possibly irrelevant. But after all is said, there remain the arguments, the reasons, remaining to be examined, weighed, and judged. Only those for whom reasons have no standing or value will casually cast these aside. But such perhaps are not to be counted among the readers of books. Those who read only to be confirmed in their views will find some, but not much, recompense in these pages; a judicious sampling here and there will do. But those who would run the risk of being vexed into further reflection will find their patience tried--and sometimes rewarded. It was a world of the leisurely essay, the hour-long sermon, a great hunger for the printed word, and a discerning appreciation for good argument. People are apt to savor slowly what they most enjoy, and the generation of the Founders had a great taste for political discourse. Recurring, then, to these sources of the Founders' Constitution is a precondition for being able to see that Constitution whole: the reach--and limits--of their aspirations, the preoccupations of the day and of the morrow, the principles which they chose and shaped and thought worth preserving and bequeathing. By these they wished to be judged; and as if to guarantee that they would be so judged (to the extent that mortals may guarantee any-thing), they were assiduous record-keepers, preservers of documents, copiers of correspondence. The archivist-founder is a founder who invites his successors to scrutinize his principles and acts. It was and remains a standing invitation. Confronted, however, with the sheer bulk of surviving materials, the successor might well regard the invitation less as an offer one cannot refuse than as an offer one dare not accept. At times it seems there is altogether too much irrelevant chaff to winnow. At other times the recurrence of nearly identical arguments tends to drain even the best of their force. One risks in turn being overcome by tedium or being cloyed. Our editorial selection has been guided by an awareness of those risks and by a clear sense of the use and limits of this collection. We mean to present arguments of yesteryear that are worthy of reexamination and reconsideration today either because they were weighty then or because they are still telling or might yet lead to further reflection on the problems under discussion. In the finest cases, of course, all three considerations hold and the gulf of the intervening centuries disappears altogether. But whether the reader's immediate interests are historical or theoretical or practical, he is likely to find at hand a broad array of nontrivial reasons. Here then is a sample of intelligence focused on the problems of establishing and maintaining free popular government, drawn from the two centuries between the beginnings under the early Stuarts and the end of the Marshall era. The earlier bound might not seem to require any justification: the earliest beginnings of American self-government were undertaken by Elizabethans, Jacobeans, Cavaliers, and Roundheads. The later bound is more problematic: why should the documentation of the Founders' Constitution go as far as 1835, or for that matter stop there? The short answer is that the debate did in fact continue beyond ratification, beyond the debates in the First Congress, beyond the turmoil over the Neutrality Proclamation and the Alien and Sedition Acts. The preoccupation with intentions and meanings was intense in the second generation as well--John Quincy Adams, Joseph Story, John C. Calhoun, Abraham Lincoln, come immediately to mind. But perhaps it is enough to say that some of the most extraordinary Founders were marked by extraordinary longevity. They lived long enough to observe and judge the fruits of their labors well beyond the events of '87: in the cases of John Adams and Jefferson thirty-nine years, of Jay forty-two, of Marshall forty-eight, of Madison forty-nine. Whether the same voices always spoke with the same accents is not our immediate concern. But it is a material fact that founders of this stature were in a position to supply a gloss to their earlier words and deeds. Their accounts of what they meant to do, however qualified and judged by their successors, clearly enjoy a special standing in the study of American constitutionalism. Having said all that, however, we must own that this anthology, bulky as it is, omits much of importance and very much of interest. The complex politics of ratification can be perceived only dimly in these selections. The complex dynamics of the Philadelphia Convention--the barely averted collapse, the near-misses, the bluster and bluffing, the hard listening, the give-and-take--can barely be perceived in a nonsequential selection; for that the Records of the Federal Convention remain indispensable. Finally, it would take another kind of study to recover the social and economic setting in which thirteen dissimilar and distant states managed to mitigate their fears and jealousies and particular dreams, coping with diversity and distrust within their several borders even while overcoming to some measure diversity and distrust in the Union as a whole. If these are questions and issues that are not central to this collection, it is not because we judge them trivial. Indeed, relative to the questions and issues that are central to this collection, these are hardly neglected by current scholarship and current curricula. What does strike us as sadly neglected is the Constitution itself, seen as the precipitate of hard thinking (and, yes, hard bargaining) by men of remarkable intelligence and seriousness. This collection is intended to make it easier for their intelligent and serious successors of today to come to see that for themselves. In the process, we hope, the Founders' reasons will be reexamined and their questions reconsidered, and their hope that among a self-governing people liberty and learning would support each other will come closer to fulfillment. Table of Contents
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