James Madison - The United States Constitution - Part 3 of the American Document Series! - a podcast by Christy and Garry Shriver
from 2020-07-18T00:00
James Madison - The United States Constitution
Hi, I’m Christy Shriver.
And I’m Garry Shriver, and this is the how to love lit podcast. We have been steering away from traditional literature for the last three weeks to look at three foundational documents of American history that have been noteworthy not just for their historical importance, but also for their literary value. We started with Patrick Henry’s speech to the virginia convention with the famous phrase, Give me Liberty or Give me Death. Last week, we analyzed the Declaration of Independence, and this week we are looking at the Constitution of the United States of America- all three of these I’m sure many have heard of, but maybe have never had the opportunity to explore.
I think that was certainly true for me for most of my life. As you know, I didn’t grow up in the United States, so although I had heard of these documents, and actually to be honest, I had even seen them on display in Washington DC at the Archives (well not Patrick Henry’s Speech)- but, honestly, I had never really looked at them or even really understood entirely their rhetorical context, except to say they were what the country was founded on.
I think that’s pretty common- even for many who have studied in American schools- sometimes these documents are discussed in junior high or elementary school and just never revisited when students are old enough to understand them on a more nuanced level. The American Revolution has also been leveraged really since its happened to promote all sorts of political agendas throughout the years and this has created all kinds of confusion as to authencity of even the most basic facts and circumstances of this era. We must remember, that unlike Antigone or the Odyssey The story of the American Revolution a human story of real people- not mythology- and so has been met deservedly with mixed reviews over the years that have to do with what I hope is “progress” in human values and not just an evolution of human values. America was not an empty space “discovered” in the way one might “discover” the moon. 17 million people lived here. Also, everyone who came to America did not necessarily want to be here, and of course that story has never been more eloquently told than through the voice of Frederick Douglass. I would encourage anyone who hasn’t gone back and listened to those podcasts, to check them out. However, the what the American colonists established on this land was unique in many ways and has been utilized by many peoples all over the world as a model- not for what they failed to do- that’s easy enough to find and is undistinguished from all kinds of population migrations around planet earth over the history of the last thousand year or so- but for the things they did right- and in that way there is genuine uniqueness to the American story- and what they did right- comes down to today’s episode- the creation of a constitution- what Madison called “an experiment for mankind” of “good government” a new way of organizing men to live together in a way that would better create honest respect between people and protect the most vulnerable in communities- and these ideas shocked a world that had always been evolutionary- in other words- based up upon the concept of the survival of the fittest- on conquest and subjugation.
When we left off last week, Americans were gloriously soaking up their defiance to the mean and arbitrary King George and telling him off in that famous break-up letter better known as The Declaration of Independence. The writers awkwardly sent it away to Europe to be delivered to the King, but at the same time they were hectically were running around spreading copies and getting everybody all psyched up to stand up to the mean tyrant.
Yes- and that bravado was all great until until guns fired- Jefferson was right, King George was sending over troops by the thousands and not as a gesture of love. They were moving in- literally. I think those of us who have had the blessed fortune to have only known peace in our lifetimes don’t understand that in warfare when soldiers come, they force themselves on local populations, they move into the homes and sleep in their bedrooms, eat their food, and literally take over their communities
- Isn’t that’s what’s called “quartering troops”, if you look at the language of the constitution?
Exactly- And this was happening, most famously in the Northeastern colonies. Some Americans were loyalists and welcomed the fighters from across the ocean- like most in New York city. Others were resentful and struck back- again most notably in Boston. This isn’t a history podcast, but bottom line- we had what we today call the revolutionary war. It was long, difficult, bloody and disease-ridden- like all wars. General George Washington famously led the poorly clad and poorly armed troops, but the Americans held their own long enough, the French intervened and finally in 1781 Cornwallis surrendered in Yorktown and the war was over. However, the end of the war is only the beginning. The Americans were getting ready to learn the first rule of country creation.
And what is that?
Well, really, it’s a law of nature- but what they learned is tearing something apart- even if that is awful and costly- is still a lot easier than building or creating something. And organizing a play where everyone agreed on the common rules, and where there were safeguards so the powerful don’t exploit everybody is else- is much more difficult most of us today even really understand.
In some since, I’ve seen that principal at work in my own life. I remember when I started teaching, I knew everything better than those who had been doing it a long time, and wanted to tell them how to do it, but after getting my rear end kicked for a couple of years, I learned there were actual reasons for why people did things certain ways based on how things really worked not just theories in peoples heads- and eventually I learned to shut up and listen…the idea once we get in the creating game after just being in the criticizing game -we often have to eat crow- there’s a really English expression for you, btw- it means to eat something you really didn’t want to eat because it was gross- like a crow- or metaphorically – to forced to humiliate yourself..
That’s a good way to think of it. What the Americans wanted first and foremost was a government that left you alone, so they created this progressive document called the Articles of Confederation that did that. We talked about this last week, every colony thought of themselves as an independent country- and they wanted to hang on to that independence. They were primarily worried about two things: a monarchy developing and a aristocracy developing (aristocracy being this ruling class of rich people). According to their design each colony elected their own president (Christy, you’ll be interested to know that New Jersey let women vote), although most states made you have property to be a voter. The Articles of Confederation was basically something like the UN today- resolutions were discussed and passed, but did not have any real power to enforce anything- each colony contributed to the finances of the confederacy on a volunteer-like level (you know how that goes). Every state would send a delegate, and they would discuss common problems, but this group didn’t have any real power. Theoretically Congress as explained in the Articles of Confederation could coin money, make treaties with other countries, and maintain an army. However, it could not tax or regulate commerce- it was basically a nothing. Continental money was worthless and nobody wanted it. Everyone was basically relying on the currency of other countries to trade. After a few years of getting their rears kicked by independent rule- really even before the end of the war, more and more Americans were ready to beg England to take them back. You have to imagine how bad things were getting considering we had just finished a war that had been bloody and difficult. It became obvious that self-rule is not easy- and this libertarian plan of everyone just contributing selflessly wasn’t going to work. The colonies were a mess and unless something happened, the entire country was headed toward anarchy and implosion.
I was reading about this and it seems everyone saw the problems, but no one really knew what to do about it. A friend of George Washington said in one letter I read, “The prejudices, jealousies, and turbulence of the people at times almost stagger my confidence in our political establishments, and almost occasion me to think that they will show themselves unworthy of the noble prize for which we contended.” Basically meaning, we are too stupid to deserve the prize of independence and self-rule.
True, Washington himself said, “What a triumph for our enemies to verify their predictions! What a triumph for the advocates of despotism to find that we are incapable of governing ourselves.”
So, to the credit of the leaders trying to take charge, the states realized they had to agree on some common ground for survival, they had to take into account the real nature of human beings, not some idealized version of what we wish we were like, and they needed to start having conventions to figure out how to fix this mess. How do you create a system that is fair, but respectful?- no one had done it. Nothing is ever fair- the world is by nature competitive there’s some laws of nature for you!
And so enters James Madison- who honestly, no one would ever peg to be the genius to figure it out. He was a sickly kind of guy. He wasn’t charismatic at all. He was younger than Jefferson and Washington, but he was, like those two, a Virginian. You’ll see that a lot of early American history centers around this state which in some ways is surprising. But Madison was a nerdy rich kid, so to speak- he had a very privileged background, to use modern language- not the kind of guy to want to protect the little guy- there’s a pun!!!
I’ve always liked that He was a small man, five feet 4 or something I think,- go small people! I know this is tangental, but I want to bring up this another thing I like about James Madison has to do with his presidency- which I know doesn’t really fit into the context of what we’re talking about- but I want to make it fit- Dolly Madison, his wife- was an unusual woman and a power-broker as a first lady. It seems she had one of the biggest and most outgoing personalities in American history. Her specialty was apparently throwing amazing parties- but they weren’t just arbitrary- they were strategic. She used the power of personal personality and really femininity to be a real influencer in her day- she seems to truly have influenced the presidency and American policy at large.
True, Dolly was definitely one of a kind, and the Madison’s were definitely what today we might call a power couple. But of course her best move came during the war of 1812, when the British burned down the White House, she risked her life to save the art in the White House- including the portrait of George Washington that we have a replica of in our study.
I’ll put that picture on the Instagram page- Dolly the painting savior!
So, back to james..and getting us to that constitutional convention- he was raised on a Virginia plantation, Montpelier and his family was just like all the other Virginian planters. They had slaves- and although Madison seemed relative kind- if you can even use that word in regard to slavery (he didn’t split families and even paid some of them enough money to purchase their own freedom later on in life), he was very much a part of this system he was born into- and I know that’s something that people want to know about these early American leaders. He lived a gentleman’s life. He went to the university of his choice, Princeton, and was really typical of an 18th century Virginian gentleman farmer. What was a bit unusual and perhaps providencial about Madison is that he was extremely interested in classical history, government, political theory even before the revolution and basically came along at just the right time to be interested in the things that were absolutely needed at that unique moment in history.
James Madison was particularly bookish- maybe like no one else, except maybe Jefferson. He intensely studied political works like the Law of Nature and of nations, and all those many European authors from the enlightment and before – he was interested in the ancients like Plato and Plutarch, who speculated on all this stuff, but never had an opportunity to implement- not like this.
When James Madison walked into the Continental Congress he had a real informed central vision as to what was wrong with the Articles of Confederation and what needed to be done to create a workable set of rules for people to live by. Madison believed that a confederacy could not hold together without a strong federal center. He didn’t just make that claim based on his observations of the Ameican experience. He had studied ALL the confederacies he could find in the anciety world, and he said they all had that same problem. Confederacies don’t work because the centralized power is too weak and can’t hold the confederacy together. That seems obvious from our perspective, but people were resistant to this idea. No one wanted another King George and they didn’t want to voluntaryily enslave themselves again. That was the driving fear and He said, that was our problem.
From today’s perspective, that seems obvious.
Maybe it does, but you have to remember- these were independent places, and they did not have agreement on moral issues. Some of them had slaves, like Madison himself, others didn’t and were vehemently opposed- like his wife’s Dolley’s Quaker family. Some of them had religious freedom; others forced specific religions on their citizens. These are big deal issues; and I just threw out two issues. There were more.
I did find interesting that although Madison was clearly a man of the times in regard to slavery, he did talk a lot about religion that today we would see as more progressive. It seems that in Virginia at that time, All the best people were Anglicans, and state taxes funded the Anglican churches- and it was sort of a rigged system. The priests basically had to bow to the powerful rich farmers of the area and tell everyone to do what was in the best interest of the money people. I read a couple of stories where Madison, even as a child, saw some mean things targeting “the Baptists” and I know ,today, in the US at least, that group seems mainsteam, that wasn’t true then and they were literally persecuted- houses burned, that sort of thing, and he remembered some of that.
Madison himself, by the way, was a probably a deist, and although had a firm belief in God did not believe in forcing certain doctrines, beliefs or practices on others. What he saw happening in Virginia, even though he was a member of the Anglican church and a farmer with money, he didn’t think what they were doing was right. He said famously, “religion must be left to the conviction and conscience of every man. He believed and openly said government support for any religion led to “superstition, bigotry and persecution.” Madison believed that the role of government was “protecting every citizen in the enjoyment of his religion with the same equal hand which protects his person and his property, by neither invading the equal rights of any sect, nor suffering any sect to invade those of another.”
So, he said this all at the congress?
No- this is all stuff he’s writing about before hand- but these are the ideas you will see are present all over the constitution. So, to get back to the narrative, In 1787, in Philadelphia the states come together to figure out how to live together. Madison had written many essays on how to create government before this- and was ready to go. When he got there, even though he was only 36 years old, he was the dominating spirit of the convention.
Goes to show you the importance of preparation.
For sure, and there were problems to be anticipated…deep suspicions of each state trying to create a system that would give them an advantage moving forward or more influence. These suspicions were well-founded and difficult. This is the deal, so every state is not the same. There are small states with a small populations; there are large states with large populations- all the small states wanted each state to be treated as an equal- the large states were against that saying we’re bigger- we are not like you. The small ones would fire back, but we want our own say. We are own people; we have our own way of life, and just because you have more people than us doesn’t me you get to tell us how to love. Madison was from a very large and rich state, but also understood, acknowledged and accepted this other way of looking at things,. This is an aside, but it’s not unlike the argument Americans have every four years about the electoral college. The big states want it to be one person one vote, and this sounds very logical from their perspective- but then the little states, like Tennesssee, say, no- that’s not the deal we made in 1776- we get a say and you don’t get to run over us just because you have more people- we’re the United STATES- and each STATE gets to have a voice as a state defending our local culture. It’s also the very exact same argument you see today in Europe as Europeans wrestle with making the EU work. How do you live in a place where the big guys, in Europe’s case like Germany and France, not run over the little guys like Greece or Portugal. There’s no easy answer, and this debate was central in coming up with what today we accept as just standard government- the concept of separation of powers, three branches of government, with the legislative branch having two houses- one established based on population, in the other each state gets the same voice. By doing this the founders managed the creation of a central government with enough authority to provide national solutions to real problems. The only real problem was the slave issue, which they decided to kick down the road for later generations to solve. They really mistakenly thought it was going to die out naturally.
Of course, that was a definite point of contention that we know from history ended poorly. But another thing I find amazing, is that after they thought this up, they had to actually implement it and sell it- really not knowing for sure if it was going to work.
So what they came up with was a pretty straightforward document. The Constitution is divided into seven articles. Each article is further divided into sections that explains each of the three branches we talked about and how to make changes to the constitution itself should the need ever arise- Madison wanted the document to be flexible to account for things that would need to change over the years. But he also wanted it to be clear, that this is the supreme law of the land- it supercedes state laws.
- Article I deals with the legislative branch of government
- Article II the executive branch of government
- Article III establishes the Supreme Court as the highest judicial power in the United States
- Article IV defines the relationship between the states
- Article V describes the procedure for amending the Constitution
- Article VI declares itself, the Constitution, as "the supreme Law of the Land"
- Article VII ratifies the Constitution
Madison also believed and stated publicly that this was the first constitution that had ever been written that was based on science, what he meant was, he didn’t just dream it up, he used data from confederacies and republics in the past to really create a plan that could work. By the end of the convention, the delegates really truly had to have faith it was GOiNG to work- it HAD to work. They were out of options.
Yes, and now the business of selling this new plan, especially after they had blown it so badly on the first plan. Just believing you have a good idea, from a rhetorical standpoint, is not enough. You have to sell this this giant crazy scheme- as being awesome- this new unheard of kind of government with all these different “branches” and “checks and balances” which are probably terms that seemed weird- how do you sell it to people who’ve been burned on your last plan.
Believe me, they clearly understood, this was not going to be easy. Never mind that this new government was going to have the power to tax people. If you remember, they haven’t really liked taxes.
And that’s where James Madison the writer really makes his mark- enter the Federalist papers. In a lot of American Lit textbooks they’ll have excerpts of these documents, and I thought about analyzing them on the podcast, but really most students get bored reading them in their entirely- and I was afraid I’d kill the podcast.- but the Federalist Essays are basically a series of essays, composed mostly by Madison, but also by Alexander Hamilton and John Jay, designed to convince people that this new plan was fool proof. They needed to show this was the best idea ever devised on planet earth to create a world that wouldn’t let powerful manipulate the system and become despotic- like we saw the Russians Czars had been or what happened in France. Most scholars that I read have basically agreed that the Federalist papers are the single most important contribution the Americans have ever made to the canon of world political theory. They are articulate, organized, well-argued defenses of this strange new- non-totalitarian form of self-rule built basically on the idea that no one should ever trust anyone because we are all at least in part= a little bit evil- and we have to have an eye on each other at all times. Another thing I like about the Federalist papers- is that Madison called himself Publius- which is fun if you’re a Julius Caesar fan, which I am. Anyway- that’s an aside.
Well, you simplified a lot there- but back to what you were saying- yes- Madison saw as the biggest problem in government that different interest groups would try to take control and rig the system for themselves and the main problem of a government is to prevent any group or person from getting too strong. He, or Publius, famously said in Federalist #10, ‘if men were angels, no government would be necessary.” In federalist 48 he said that not only were businesses and commercial entities to be kept in check, but also the government itself. Everyone must be accountable to everyone else all the time in order to halt what he called, “the encroaching spirit of power.” So, that’s what the constitution was designed to do. The men at the constitutional convention debated for four months on how to do this. It was grueling, but they finally ratified this document that most Americans just take for granted and rarely think about. Three men dissented. But that wasn’t the end of the process. After the congress agreed to this, all the separate delegates had to go back to the states and 9 out of the 13 states had to ratify it- in other words, they had to agree to go by it. And this was a problem, not even Virginia was willing to sign off on it. They didn’t trust it. James Madison himself, actually had one big problem with it, and the problem was that the constitution did not have a bill of rights.
And what exactly is a bill of rights?
It’s a list of protected liberties that are always guaranteed, even if the government wants to make a law against them for any reason. This was not a thing the Americans invented. The English had already created this concept with the Magna Carta and the English Bill of Rights, and some states had already had their own, including Virginia and Massachusetts. But it was a legitimate concern that James Madison shared.
And so he wrote the first ten amendments to the constitution which today we call the Bill of Rights.
Yes, and a year later, these were debated and adopted into the constitution specifically on Decenber 15, 1791. So, I realize that was a lot of background information, but you wanted rhetorical context. Are we ready to read this thing. Are we going to read the whole thing?
No, that would be way too boring. And thank you for the explanation of rhetorical situation. We are going to look at the entirely of the preamble thought, specifically at the claims and arguments inherent in the beginning.
Like you mentioned, the whole thing is extremely straightforward- the paperwork I signed to get my cellphone was twice as complex as this document. I really do think there is genius in that- everyone can understand the words even if we want to argue about exactly what is meant by each article of the constitution. It’s starts with the preamble which is less than 60 words, then the 7 articles you mentioned which are subtitled and easy follow and then the Bill of Rights which are enumerated and also easy to follow. So, let’s start by reading the preamble- it in itself is pretty famous.
Absolutely, but the word preamble- it’s kind of a word no one uses any more.
Yeah- it’s a fancy word that means introduction-
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common justice, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.
Well, clearly this is the most famous part of the whole thing. The Line “We the People” has meant so much over the years to so many. But just in terms of language, again, we have one long periodic sentence with a lot of details climaxing at the end of the sentence.
‘We the People” historically has been a very very central phrase in understanding American core values. We- the people- it’s not a union of states- we are looking out for people- all people-
and so we have this hierarchial arrangement of values implied in this sentence
Yes- this definition has expanded over the years- and gives voice to all kinds of groups that are disenfranchised because their voice is smaller- “We The People”- who does this include? We are the American people- a group of people that have no common culture, no common DNA, no common religion, no common anything- we are not a single people group. This was different then, and it’s more so today- the constitution has informed who “We the people” are- what we have in common are common responsibilities towards each other- something different than what had traditional been foundations of tribes- we weren’t ever a tribe with shared ancestry and beliefs- things that have traditionally held people together- and that’s what the rest of this sentence has given voice to- it lists the accepted responsibilities towards each other that would inform this people- the responsibilities would be at the heart of our agreement to live together- these are important words: establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty. Joseph Story in his Commentaries explained the role of the preamble this way. He said it serves, “to expound the nature and extent and application of the powers actually conferred by the Constitution.”
Good grief, these claims are very large- a lot to promise- insure domestic tranquilty, establish justice, promote the general welfare, secure liberty..
For sure, and no paper can guarantee that, but it was the responsibilities- the virtue of these responsibilities that were laid out or spoken. If you think about it, it’s a complex way of looking at the world- we are all going to give up some of our power, some of the freedom we could take for ourselves, to do certain things for ALL people. It’s an agreement- a contract.
So, writing-wise, it is kind of simple. First is the preamble, which we just saw, then there’s the articles.
There have been twenty-seven amendments to the Constitution but we’re not going to get into those today, although we’ve talked about them in the podcasts about Frederick Douglass and Elizabeth Cady Stanton= but for now it’s just it’s The first ten amendments are What we call-, the Bill of Rights. These are designed to guarantee fundamental rights of individuals, including freedom of religion, speech, press, assembly, speedy jury trial in criminal cases, right to bear arms, protection against excessive bail, and cruel and unusual punishment.
In some ways, it’s kind of interesting that it’s kind of short, really. It has less than 7,000 words.
True- but most constitutional scholars would argue that it’s the brevity that is its strength- it’s a flexible document, and over the years, it has certainly evolved, been refined, some would say even redefined. But- for effect, just so everyone who’s unfamiliar with it can kind of get the feel for how it’s written, Christy, ready for us the first article.
Okay- well, here goes, here’s Article 1, section 1 of the Constitution of the United State.
“All legislative Powers herein granted shall be vested in a Congress of the United State, which shall consist of a senate and a House of Representatives.
Section 2.
The house of Representatives shall be compsed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifictions requisite for electors of the most numerous branch of the state legislsture. No person shll be a representative who shall not have attained to the age of 25 years, and been seven years a citizen of the United States, and who shall not, when elected, ben an inhabitant of that State in which he shall be chosen….keep reading til end of section 2
So, you kind of get the idea. It’s very easy to understand. Hats off to Madison. You have to be 25. Elections to the House of Representatives will be every two years. It’s just easy to understand. The Bill of Rights are equally very clear- as you pointed out- much more clear than the average cellphone contract, the contract to buy your car, and much much simpler than buying a house. Give it a read..
Amendment I- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
We can read as many of these as we want.
At the convention, the house actually passed 12 of these amendements, but the states only ratified 10 of them. If you remember, how to change the constitution is article 5 of the constitution.
Ugh- well, we’re starting to get into legalese, and that’s rough. But hopefully, we got the jist of it.
I know it can be a little dry, and definitely not poetic. But, it’s important. I know everyone expects a history teacher to feel this way, but it’s incredibly important to put some thought in this sort of thing. Supreme Court Justice Sandra Day O’Connor said in 2008, “The strength of these rights and freedoms depends on how firmly they stand in the hearts of our citizens.” She’s basically echoing the concept voiced over 200 years before her in this contractual document. This is a contract between people- different people- all kinds of people- and on it rests our ability to live together- our vision of freedom basically depends on how willing we understand and personally agree to the responsibilities set forth in this original document.
No small and easy thing to do.
Not at all.
So, hats off to Madison and the rest for giving it a go.
I think so- so thanks for listening to our discussion today of the constitution of the United States. That concludes our unit on American documents. Next week for our poetry supplement we’re going to be back at some traditional literature with the poetry of Phyliss Wheatly- the great American poet who introduced the term Columbia to most of us. Such a remarkable woman and legacy, so we can look forward to that. Don’t forget, if you like our podcasts, please support us by giving us a five start rating on your podcast player and even more than that- send an episode to a friend. When you share, we grow.
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