• The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
• The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
• The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threating to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.
Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.
Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.
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About the Author
Read an Excerpt
The Forgotten Origination Clause
The Forgotten Legislative Powers Clause
The Forgotten Establishment Clause
The Forgotten Fourth Amendment
The Forgotten Tenth Amendment and the Inflated Commerce Clause
IN THE KILLER ANGELS, MICHAEL SHAARA REMINDS READERS that Stephen Crane wrote The Red Badge of Courage “because reading the cold history was not enough; he wanted to know what it was like to be there, what the weather was like, what men’s faces looked like.” He warns his readers, “You may find it a different story from the one you learned in school.”1
I hope this book tells a different story from the one you learned in school, even if (perhaps especially if) your school was a law school. I don’t purport to be another Shaara or Crane. But like them, I wanted to give readers some glimpse into “what it was like to be there.” What was it like to live under King George’s tyranny? What was it like for those who participated in the “miracle in Philadelphia” and produced our Constitution? If this book succeeds, it will help you feel as if you were right there at the pivotal moments of history, experiencing the rise and the fall of the constitutional provisions that I call the “Lost Constitution.”
To that end, I have taken some dramatic license on several occasions in telling these historical backstories. In no instance have I knowingly departed from what I have found in the historical record. But I have, for example, imagined what Alexander Hamilton might have said when he confronted a lynch mob at his college. And I have imagined some of what might have transpired behind closed doors at a dinner and special session of the Philadelphia Convention when Ben Franklin proposed the compromise that saved the Constitution.
At the outset of this project, I expected to use far more dramatic license than I have taken. In the course of my research, I was pleasantly surprised to find that the historical record is more dramatic than anything I could have imagined. It is also far more illuminating. As a result, with only a few exceptions, I found myself writing not historical fiction but history.
MY LOVE FOR THE U.S. CONSTITUTION TOOK ROOT IN MY EARLY years. From the time I was a young child, my parents taught me about the separation of powers, checks and balances, due process, equal protection, and the limited role of our federal government. It never really occurred to me that I was being taught about the Constitution; these were just conversations we had from time to time around the dinner table, in the car, and whenever the subject of government happened to arise. Before long, I learned what it meant to be an appellate lawyer because every time my siblings or I would disagree with our parents’ decisions about bedtimes or chores or allowances, they would say, “Make your case. You’re probably not going to win, but we’ll listen.”1
When I was about ten years old, I started routinely accompanying my dad whenever he argued cases before the U.S. Supreme Court. As kind and wise a man as I’ve ever known, he was the founding dean of BYU’s law school, and in 1981 he became the solicitor general of the United States, the federal government’s chief advocate before the Supreme Court. I’d watch with bated breath as the black-robed justices fired questions at him. He had a way of answering their questions in a manner that was not only responsive but also carefully calculated to advance his case. The verbal jousting I saw between lawyers and justices wasn’t quite as raucous as the debates at our dinner table, but after the oral argument ended, my dad would be so excited that he reminded me of a giddy child on a sugar high.2
My dad didn’t win every argument at the Supreme Court, but he did win most of them. More important, however, he had a near-perfect batting average at home. He could simplify even the most complicated of concepts, and I hung on his every word. I didn’t always understand everything he said, but I sure made an effort—especially because he had a way of making almost any subject seem interesting, and he loved it when any of his children showed genuine interest in the Constitution. I still remember how pleased he seemed when, as a fourth grader, I replied to his explanation of America’s long-standing abortion debate by asking, “Shouldn’t this issue be addressed by the states rather than by the federal courts?”
My dad could hardly contain his joy. I was only nine or ten years old.
A year or two later, the same issue arrived at our front door—literally. It was a cold morning in March. My parents had taken my three younger sisters shopping. My older brother was at a basketball game. The only people in the house were me and my older sister Wendy; and because she was still asleep, I was the only one who saw the most peculiar of vehicles pulling up in front of our house: a huge Greyhound bus.
Ours was a quiet suburban street in McLean, Virginia, many miles from the nearest bus stop. But even more unusual than the bus was the behavior of the dozens of people who poured out of it. I watched with wide-eyed curiosity as they began pacing the sidewalk in front of our house. They seemed to be chanting something, but exactly what I wasn’t sure. Determined to figure out what was happening, I went outside, which made it easier for me to see and hear what they were saying. Their chant was simple and consistent with the words written on the signs they were carrying: “Keep your laws off our bodies!”
Immediately, mischievous thoughts flowed through my eleven-year-old mind. Should I turn on the sprinklers? I wondered. Should I deploy my secret stash of firecrackers? Like the boy in Home Alone,I instinctively felt the need to defend my parents’ home, and startling these protesters sounded like an awfully fun way to do it.
Fortunately, I was (barely) mature enough to resist my first instincts. If I do that, it’ll be on the news, I thought. That will end up causing problems for my dad, and I don’t want to do that.
Instead, I decided to calmly approach and speak to the strangers who had arrived without invitation or warning on our sidewalk. I found the woman who appeared to be in charge and said, “I live in this house. Can you tell me why you’re here?”
“Well, little boy,” she said in the most condescending way imaginable, “we’re not here to hurt you. We just really disagree with some of the things that your daddy is doing in his job.”
It can be a little jarring when the first thing people tell you is that they don’t mean you any harm. That’s sometimes the first indication that the opposite is true.
In this case, I knew enough about my dad’s job and the abortion debate to realize they were angry about arguments he had presented to the Supreme Court. I later learned that the case was City of Akron v. Akron Center for Reproductive Health, a case involving the constitutionality of a city ordinance requiring second- and third-trimester abortions to be performed in hospitals and requiring minors to obtain either parental or judicial consent before obtaining an abortion. Appearing on behalf of the U.S. government (as amicus curiae or “friend of the court”), my father argued that, in adjudicating such constitutional questions, the Supreme Court should give due deference to states and local legislative bodies, especially where fact-laden questions of public policy are concerned. But that still didn’t explain why these people were in front of my house.
“That’s fine,” I said, “but why do you have to do it here? Why do you have to do it in my front yard?” After all, their signs said, “Keep your laws off our bodies.” Was it too much to ask them to keep their bodies off our lawn?
Apparently it was. She told me, “We’re being very careful not to step on your grass. I’m sure that you have lots of fun playing with your friends out here. We’re just staying on the sidewalk.”
Boy, I thought to myself, she is really missing my point. I wasn’t concerned about the grass. My concern went beyond the technical distinction between private property and public easements. I had meant to make a fairly obvious point: You can disagree with people, but that doesn’t mean you should go where they sleep and eat and raise children, attempting to subject them and their families to public shame, scorn, and humiliation.
After a while, a concerned neighbor found me and asked, “Hey, are you okay? Are you scared?”
But as soon as he saw the smile on my face, he knew I was just fine. I loved discussing important questions of public policy, and my usual sparring partners at the dinner table were a lot tougher to debate than the obtuse protester on my sidewalk. While I was a little startled, I was having the time of my life.
For the next two hours, men, women, and even a few children—apparently oblivious to the irony, they had brought children to an abortion-rights protest—marched up and down our sidewalk, always careful not to step on the grass. A news crew came and went. Neighbors gawked inquisitively from time to time, but the whole affair didn’t seem to hold anyone’s attention very long—including that of the protesters themselves. The sign-wielding activists whose voices became so familiar to me that day eventually grew tired of waiting for their much-anticipated, face-to-face confrontation with my father, who was still running errands with my mom and my three younger sisters. With disappointment showing on their faces, they climbed back into their bus and called it a day.
Within seconds after they left, my parents pulled into the driveway. In a stroke of bad luck for the protesters—who had traveled all the way from New York and New Jersey to criticize my father—they had missed him by less than two minutes.
I was standing next to the basketball goal at the end of our driveway, chomping at the bit to tell my parents about all the excitement they’d missed. But before I could get out a word, my dad beat me to the punch. “There was a huge Greyhound bus going out of the neighborhood,” he said with a baffled look on his face. “Do you know anything about that?”
• • •
Although I disagree with the message of those protesters and believe they should have found a more appropriate place to march than the private residence of a public official, I admire their passion. At least they cared about the Constitution and the essential role it plays in limiting the power of government. At least they were willing to view government action with a critical eye, refusing to ignore what they perceived as a constitutional overreach. I wish more Americans—even those who read the Constitution differently than I do—shared their passion for identifying and enforcing constitutional limits on the power of government.
I wrote this book for people who share my lifelong love of the Constitution and my growing frustration with legislators, judges, and presidents who ignore and distort it. In one sense, this is a book about heroes and villains—those who inspired, crafted, and respected liberty’s safeguards and those who have tried to tear those safeguards down. But in another sense, this is a book with a message: The “Lost Constitution” should be restored, and it can be, but only if we remember the people and the stories behind it.
My wish for you is that you share your time not with me but with them.
Ducking and Dodging the Constitution
I KEEP TWO TOWERS OF DOCUMENTS IN MY SENATE OFFICE. THE first is only a few inches tall. A collection of all the legislation passed by Congress in 2013, it contains about eight hundred pages.
The second tower, which is eleven feet tall, is a collection of regulations proposed and adopted by federal agencies in 2013. It contains about eighty thousand pages.
These extraordinarily unequal towers illustrate a startling reality: The U.S. Congress no longer passes most of the federal laws, rules, and regulations that are imposed on the American people. While a mountain of those rules are decreed by an army of unelected federal bureaucrats, only about 1 percent of the rules we must live by are enacted by the most accountable branch of government—Congress.
Using a classic duck-and-dodge strategy, Congress routinely enacts legislation that purports to solve a genuine problem but provides no specific solutions. Congress then delegates to executive-branch bureaucrats the power to make legally binding rules or “regulations,” which will themselves determine the law’s real-world impact. It’s a brilliant plan; Congress gets all the credit for the popular goal and none of the blame for the controversial particulars of regulation.
One prominent example of this kind of lawmaking can be found in the Clean Air Act. The act essentially declares that “we shall have clean air” and then outlines a broad vision for limiting air pollution from both mobile sources (like cars) and stationary sources (like factories). The act contains relatively few details as to how its laudable objectives will be achieved. Instead, it authorizes the Environmental Protection Agency (EPA) to make and enforce legally binding regulations that, far more than the act itself, restrict air pollution.
This approach certainly has its advantages, and few would dispute that America’s air quality has improved substantially since the Clean Air Act’s passage and implementation. I’m happy, as I assume all Americans are, that the Clean Air Act has improved our nation’s air quality. There is, however, a major problem with this method of lawmaking: It insulates lawmakers from voter accountability and thereby undermines one of our Constitution’s most important features. It insulates members of Congress by giving them plausible deniability; they can blame the executive agencies for anything the voters don’t like. The bureaucrats at those agencies, in turn, become a unique and privileged class of lawmakers; they are insulated from voter accountability because they are never required to stand for election.
Thus, when the EPA adopts a new regulation carrying the force of law, those who find that law unnecessary, unreasonable, or even harmful are left with little recourse. Understandably, they might complain to those who have been elected to represent them in Congress. Members of Congress instinctively respond to such complaints by expressing empathy for those harmed by the law and frustration with the EPA and then adding something like “Well, that regulation was put in place by the EPA. That is where you should take your complaint.” Of course, the people at the EPA—as hardworking, well educated, and well intentioned as they may be—tend not to be terribly concerned about citizen complaints because they cannot be voted out of office.
It can be hard for most Americans—that is, those who don’t work in Congress or monitor its operations on a full-time basis—to understand how far our government has drifted from the Constitution’s vision and in many cases its actual stated provisions. Many Americans probably assume that our lawmakers understand our founding document and are devoted to defending it. Unfortunately, that assumption is in many ways incorrect.
Far too many members of Congress don’t understand the Constitution they’ve sworn to defend—not because they can’t understand it but because they make little or no effort to do so. Some Supreme Court justices aren’t much better; too many of them understand our founding document but refuse to acknowledge that its most important function is to limit and check power. Presidents are often even worse; they pay lip service to our nation’s governing document with their words, but their actions frequently betray a lack of real commitment to its restrictions.
People serving in each of these positions have raised their right hands and sworn some variation of an oath “to preserve, protect, and defend the Constitution of the United States.” Most, if not all, of the people who have made such a vow intended at the outset to keep it. Maybe they believe they are keeping it. But far too often they are not. The truth is that our Constitution is being subverted by many of the very people who have solemnly promised to protect it.
Most of the destruction is done by well-meaning government officials who believe that our governing document is more of a starting point than a necessary set of boundaries. Those who espouse this view tend to profess a kind of reverence for the Constitution but talk about its restrictive structure with a combination of detachment and disdain. They make it clear that they think the idea of restraining government power by means of a written governing document is a topic better suited for an ancient-history class than for a contemporary political discussion. Adherents to this viewpoint will occasionally say that the Constitution was crafted by and for an “agrarian society”—meaning that it is a sort of quaint document written for a society that is nothing like our own. As far as these critics are concerned, we don’t need to follow a bunch of rigid rules put in place by Americans who grew their own food and whose most sophisticated mode of transportation involved a horse and buggy.
When I arrived in Washington, I found it awash with people who viewed the Constitution as a nuisance. There was an attorney general who, contradicting experts within his own Department of Justice, vouched for the constitutionality of a legislative proposal that would give the District of Columbia representation in Congress, even though the Constitution makes clear that only states are entitled to such representation. There was a president who had bullied and badgered the Supreme Court after it issued a free-speech decision with which he disagreed. And there was an outgoing Speaker of the House who, when asked which provision of the Constitution gives Congress authority to make Americans buy health insurance, answered with scorn and incredulity by simply replying, “Are you serious? Are you serious?”1
Rather than considering the Constitution important enough for their consideration, many senators and congressmen now punt constitutional questions to staff, who in turn defer (often excessively) to the courts in construing the Constitution. If you ask senators or congressmen about the constitutionality of a particular legislative proposal, they might well answer, “Experts on my staff have assured me that, if this bill becomes law, the courts will not invalidate it.”
Relying on court decisions is no substitute for legitimate, independent constitutional analysis, which should take place within every branch of government. Every elected official has an affirmative, independent obligation to act within the Constitution’s limits, regardless of whether courts are likely to intervene. Lawmakers who don’t move beyond the question of what the courts will permit are like children trying to get away with a kind of rule breaking their parents aren’t likely to catch.
It was this state of affairs that convinced me to run for the U.S. Senate in 2010, challenging a three-term incumbent from my own party. It bothered me that even in the Republican Party, far too many elected officials have been reluctant to engage the public in a meaningful constitutional discourse. Although the GOP purports to stand for principles of constitutionally limited government, not every Republican lawmaker is willing to engage in a thoughtful constitutional dialogue—one that attempts to identify limits on federal power and extends beyond a facile assessment of how likely the courts might be to invalidate a particular law.
Sometimes government officials overlook serious constitutional defects in a legislative proposal because they see that some features of the proposal may be popular. It is politically advantageous for them to defer all constitutional questions to the courts, which can then carry all responsibility (and any accompanying blame) for the proposal’s unconstitutionality. President George W. Bush, for example, signed the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act), even though he knew major parts of it violated Americans’ right to free speech. He explained that “certain provisions present serious constitutional concerns”; that “questions arise under the First Amendment” regarding a limit on individual campaign contributions; and that he had “reservations about the constitutionality” of another major provision restricting political advertising.2 But in a shocking abrogation of his constitutional duty to defend the Constitution, Bush signed the bill, meekly explaining, “I expect that the courts will resolve these legitimate legal questions as appropriate under the law.”3 In so doing, he forced upon the American people an onerous set of legal obligations that he himself recognized were constitutionally infirm. Americans had to either humbly submit to an unconstitutional law or go through the time-consuming, expensive, and politically risky exercise of challenging the law in court.
Eight years after Bush acknowledged this law’s constitutional defects but refused to veto it, the Supreme Court invalidated parts of it. Liberals went wild, demanding a constitutional amendment to repeal part of the First Amendment and heaping on the Court the criticism that Bush had deflected and that continues to this day.
Even though the Supreme Court righted some of Bush’s wrongs, many of our constitutional rights cannot (or, for one reason or another, will not) be addressed by the courts. To put it simply, the Constitution has to be defended by all three branches of government. Now more than ever, we need our elected officials to think about these things and enforce provisions of the Constitution that courts have not been willing to enforce.
Our Lost Constitution tells the stories behind some of the most important of those provisions. Each of the chapters in part 1 describes the story behind the rise and fall of a particular constitutional provision. Why was that provision included in the Constitution? What does it mean? And how did we forget it? In every case, the clause at issue fell victim to the dangerous and deliberate choices of powerful people—some well intentioned, others more malevolent—who put their own agendas above the fundamental values of our Constitution.
Part 2 explains how the Constitution’s lost clauses can be brought back to life. Each of part 2’s chapters describes a different mechanism for resurrecting the Lost Constitution—from the power litigants have demonstrated in their fight for the Second Amendment to the potential for legislators to rein in executive abuse by controlling the purse and passing new laws to the importance of voters making informed choices based on candidates’ commitment to aggressively protect the Constitution they will (if elected) swear to uphold. No single one of these mechanisms is sufficient. We will reclaim our Constitution only when litigants, judges, elected officials, and (most important) voters decide that the Lost Constitution must not remain lost forever.
The Lost Clauses
The Compromise That Saved the Constitutional Convention . . . and That Should Have Saved Us from Obamacare
THE FORGOTTEN ORIGINATION CLAUSE
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
—UNITED STATES CONSTITUTION, ARTICLE I, SECTION 7
IF GAMBLERS HAD TAKEN BETS IN 1787 ABOUT THE FATE OF the Constitutional Convention, the smart money would have been on failure. Thirteen different states—each with its own economic interests, each with its own ideological inclinations—had something to lose under a federal government able to impose taxes, pass laws, and make war, and none of them agreed on how much power to give a central government, how federal power should be divided within that government, or how much power each state should wield in choosing the officials who would run that government.
In many ways this final issue was the trickiest. The large states wanted representation in Congress to be based on the size of each state’s population—the more people in a state, the more votes that state would have. The small states wanted every state to have equal representation in Congress—otherwise, they feared, the larger states would bully them. All states wanted as much power as possible, and there was only so much of it to go around.
With so many differences and divisions among the thirteen states, it is little wonder that a year after the Constitutional Convention, George Washington called the Constitution “little short of a miracle.”
There is, however, something amiss about Washington’s epithet. Calling the Constitution a “miracle” gives its framers too much credit—and too little. It confers too much credit because the process that produced the Constitution was far messier than what one would ordinarily associate with a miracle. The delegates argued with one another. They insulted one another. At times they were angry and dejected. There were days in the sweltering heat of Philadelphia when the writing of a constitution looked less like turning water into wine and more like turning swine into sausages.
In another sense, calling the Constitution a “miracle” gives its drafters too little credit, because miracles can seem easy. It took no time and little effort for Moses to raise his walking stick and spread his arms before the Red Sea. But making the Constitution was painfully hard. It required delegates to embrace ideological compromises and submit their states to economic sacrifices. Delegates had to accept the risks that accompany all great experiments and explorations into the unknown. And most difficult of all, every man there, no matter how educated or wealthy or esteemed, had to, in Ben Franklin’s words, “doubt a little of his own infallibility” and “pay more respect to the judgment of others.”1
At the heart of our country’s creation was this impassioned acrimony, which almost sank the Constitution, and the Origination Clause, which saved it. The compromise enabled by the Origination Clause in 1787 may or may not qualify as a miracle. But Congress’s willingness to evade it today is a tragedy.
Alone in a Philadelphia tavern in mid-May 1787,2 James Madison sat engrossed in a volume of Diderot’s Encyclopedia, a gift from a friend in France—the American ambassador, Thomas Jefferson. Jefferson sent histories, biographies, and political tracts by the hundreds, and Madison consumed them as quickly as they arrived. The thirty-six-year-old Princeton graduate was still a student, and these books were his teachers.3
The little man with the big mind was, in the words of a colleague, “no bigger than half a piece of soap.”4 But there was strength in the surprisingly prominent muscles that defined his face and a steeliness that was reflected not just in his all-black attire but also in his blue eyes’ calm intensity. He was a quiet man but not a passive one. The wheels in his mind never stopped spinning.
In the spring of 1787, Congressman James Madison’s mind focused almost exclusively on the future of his country. There were many people, both in the United States and abroad, who saw the American experiment in republican government as a failure, and painful evidence in recent years lent credence to that belief. The new nation was deeply in debt. Its economy was in shambles. Lawlessness and anarchy were on the rise. The republic’s toothless federal government was distrusted and disrespected by foreign powers.
The U.S. Congress was unable to address a single one of these problems because the Articles of Confederation had created a federal government too weak to fix them. Ratified in 1777, before the bonds of union had been forged by victory over Great Britain, the Articles of Confederation constructed a loose confederation of states somewhat similar to leagues of independent nations established in Europe at the end of the Middle Ages. The Articles provided for no federal executive branch and no federal courts. Although the Articles established a Congress, it was a mere extension of state governments because state legislatures, rather than individuals, chose federal representatives. Congress could not regulate interstate commerce or raise taxes to fund the federal treasury. In fact, Congress was empowered to do little more than make recommendations about regulations and revenues—recommendations that each state was free to ignore.
Madison wanted to replace the Articles of Confederation with a Constitution. The new Constitution would create three branches of government, provide for representatives who would stand directly accountable to the people in their respective states, and empower Congress to raise revenues and regulate interstate commerce. To make that vision a reality, Madison had been working for the past year to persuade state legislators and his fellow congressmen to call for a constitutional convention.
After resolutions were passed by six states,5 beginning with Madison’s Virginia, Congress finally endorsed a resolution providing that “on the second Monday in May next a convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation.”6 And that’s why, in the spring of 1787, Madison was in a Philadelphia tavern—waiting.
The immediate problem for Madison was that Congress could not force the states to send delegates. The “second Monday in May” had come and gone, and thus far delegates from only two states had arrived.7 That was nowhere near enough delegates to form a quorum of seven states for the convention Madison imagined. Nor was there any certainty that, even if enough delegates arrived, they would agree with him on the need for a strong national government. Having fought a war of independence at great cost against an intrusive central government in London, the country was suspicious of enhancing the power of a federal government hundreds of miles away from most American farms, businesses, and dinner tables.
Many thinking people, including some of his own relatives back home in Virginia, thought Madison was fighting for a lost cause. But still he waited. And waited. And waited.
He knew he didn’t need every politician.
He didn’t even need every state.
He only needed . . . enough.
Suddenly, the little Virginian heard the tavern door fly open and felt a welcome spring breeze waft past him. He turned his head, hoping to see a new face in the doorway, but it was just the tavern’s owner. Madison returned his attention to his drink—and to his thoughts: the book from Jefferson; the nation in peril; and the men with the power to save their republic by joining his cause or to doom it by denying the people a government able to govern.
As Madison studied the twenty-eight delegates in the assembly room of the Pennsylvania State House on May 25, 1787, he was elated. Around him were other brilliant minds like New York’s Alexander Hamilton, patriarchs of famous families like Virginia’s Edmund Randolph, and the most admired man in the Western Hemisphere, General George Washington. Although several states’ delegates had not yet arrived, a quorum of seven states were represented, and the product of his patience and persistence—a “federal convention” to correct the errors of the Articles of Confederation—was finally about to begin.
The assembly room’s gray walls surrounded curving rows of Windsor chairs, and green cloth covered both the small desks of the delegates and large sections of the tall windows—closed despite the summer heat to keep eavesdroppers from the secret deliberations. It was in this room, nearly eleven years earlier, that fifty-six delegates to the Second Continental Congress had defied their king and declared their new nation’s independence, and quite a few of these same delegates had been here then. But as the convention was called to order, Madison’s thoughts turned to the absence of some of the prior assembly’s brightest stars.
Madison’s friend and mentor, Thomas Jefferson, had become famous the world over for writing in that summer of independence that “all men are created equal,” that they are entitled to “life, liberty, and the pursuit of happiness,” and that Americans would defend those principles by pledging their “lives,” their “fortunes,” and their “sacred honor.” But now Jefferson was thousands of miles away, serving as ambassador to France. And across the English Channel from him was the ambassador to Great Britain, John Adams. It was a pity, thought Madison, that he and his fellow delegates would have to save their country from the Articles of Confederation without two of the sharpest minds of their generation—as if the obstacles facing the convention were not already tall enough.
To create an effective government would take all the courage that had been present here in 1776, along with a virtue less necessary eleven years ago: a willingness to compromise both local self-interests for the good of the nation and firmly held beliefs for the sake of consensus. Delegates from large states would be asked to give small states more representation in Congress than their populations warranted. Delegates from small states would be asked to give up some of the disproportionate representation in Congress they currently enjoyed. And all present would need to create a stronger federal government, even though they had been educated at the altar of local control and small government.
Madison knew that concessions from each delegate would be necessary, but he was not yet sure how many principles he could in good conscience compromise. He was, in particular, wedded to the belief that because Virginia was the biggest state, it should have the most representatives in Congress. For all his many attributes, Madison did not enjoy a reputation for compromise. He was still a relatively young man, and like so many young men, he believed he had all—or at least most—of the answers.
As Madison looked around the large gray hall, the man most eager to achieve consensus in Philadelphia had not yet arrived. Forty-five years older than Madison, he was a publisher, inventor, and diplomat who had proven instrumental in the adoption of the Declaration of Independence and indispensable to America’s victory over Great Britain. The eighty-one-year-old had written Pennsylvania’s constitution about a decade ago and was familiar with the political wrangling required to establish a government. Although many delegates believed that his presence at the convention, in light of his age and deteriorating health, would be mostly symbolic, Madison hoped that Dr. Benjamin Franklin still had a few tricks up his sleeve.
Fortunately, Franklin’s wisdom wouldn’t be needed today. Warring proposals for the outlines of new constitutions would come later, as would debate over those outlines, proposed amendments to them, and then more debate over those amendments. The final stage would be the drafting of a full constitution by a “committee of style,” which would put on paper the rules these men agreed should govern the government—if enough of them could ever agree. But all of that was the work of another day. Today’s order of business was to appoint a doorkeeper, messengers, a secretary, and, most important, a chairman of the convention.
For the latter position the convention unanimously elected General George Washington.
“I Would Rather Submit to a Monarch!”
Two weeks later, on June 9, more delegates had arrived at the convention, and Madison was pleased that they shared his disaffection with the Articles of Confederation and his desire to design a more effective national government. A slim majority had reacted warmly when Edmund Randolph had introduced Madison’s plan to abolish the Articles of Confederation and replace them with a new Constitution. Madison proposed to create an executive branch and a judicial branch, replace the current single house of Congress with a House of Representatives and a Senate, and empower the new national government to “legislate in all cases to which the separate States are incompetent.”8
It wasn’t until this point that a significant alternative was presented to challenge Madison’s vision. But when it arose, it did so with ferocity, from the mouth of an Irish immigrant who, like Madison, was a Princeton graduate with strong opinions and a petite physique: New Jersey’s William Paterson.
After a morning spent debating a proposal for state governors to elect the president—which received the support of no state’s delegation—Paterson rose from his seat and delivered the convention’s first rhetorical broadside. “The basis of our present authority,” bellowed Paterson, “is founded on a revision of the articles of the present confederation.” Congress and state legislatures had endorsed a “federal convention” in Philadelphia and had authorized delegates to amend the Articles of Confederation. But neither the states nor Congress had authorized the delegates to abolish the Articles and replace them with a “national” government, rather than federated government. “Can we on this ground form a national government?” asked Paterson. “I fancy not!”
Madison knew that Paterson was not truly opposed to a new government. A crafty lawyer who had served as attorney general of New Jersey and who would one day sit on the U.S. Supreme Court, Paterson was an experienced negotiator. For the first two weeks of the convention he had remained silent, biding his time. Now he delivered a rhetorical right hook against the unsuspecting big-state delegates, pretending to object to any new Constitution. That way, he could “compromise” on a new Constitution that protected small states like New Jersey from being overpowered by large states like Virginia and Pennsylvania.
In fact, it wasn’t long before Paterson tipped his hand. “Shall I,” he asked rhetorically, “submit the welfare of the state of New Jersey, with five votes in the national council, opposed to Virginia who has sixteen votes?” According to Paterson, Virginia would be able to oppress New Jersey just as Britain had been able to oppress the American colonies. “Suppose, as it was in agitation before the war, that America had been represented in the British parliament and had sent two hundred members. What would this number avail against six hundred? We would have been as much enslaved in that case as when unrepresented—and, what is worse, without the prospect of redress!”
The comparison of Madison and his supporters to King George III and the British parliament was probably the most inflammatory language the convention had yet seen, but Paterson wasn’t quite finished. “I therefore declare,” he said, staring directly at James Madison, “that New Jersey will never confederate on the plan before the Committee. She would be swallowed up. I would rather submit to a monarch, to a despot, than to such a fate, and I shall not only oppose the plan here but, on my return home, do everything in my power to defeat it there!”9
Although Paterson’s hyperbolic rhetoric took some of the delegates aback, the substance of his message was no surprise. Small states could not be expected to give up their disproportionate power without a fight, and if their delegates lost that fight at the convention, they would surely wage it in the ratification debates that would follow.
Six days later, Paterson formally presented an alternative to the Virginia Plan. In many ways, it was like Madison’s, with new powers for Congress and provisions for executive and judiciary branches. But Paterson’s New Jersey Plan included one seemingly nonnegotiable difference: Each state would enjoy equal representation in the legislature. One state. One vote.
The battle lines were now drawn.
And the convention’s brief period of relative tranquility was history.
“Fatigue and Disgust”
Excerpted from "Our Lost Constitution"
Copyright © 2016 Mike Lee.
Excerpted by permission of Penguin Publishing Group.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Author's Note ix
Chapter 1 Ducking and Dodging the Constitution 7
Part I The Lost Clauses
Chapter 2 The Compromise That Saved the Constitutional Convention… and That Should Have Saved Us from Obamacare: The Forgotten Origination Clause 17
Chapter 3 From Congress to a King: The Forgotten Legislative Powers Clause 47
Chapter 4 The Supreme Court's Klansman: The Forgotten Establishment Clause 77
Chapter 5 Liberty: "A Reality or a Shadow"?: The Forgotten Fourth Amendment 103
Chapter 6 "But Structure Means Liberty": The Forgotten Tenth Amendment and the Inflated Commerce Clause 131
Part II Reclaiming the Lost Clauses
Chapter 7 Reclaiming the Constitution Through the Courts 157
Chapter 8 Reclaiming the Constitution Through Legislation 175
Chapter 9 Reclaiming the Constitution Through the Power of the Purse 187
Chapter 10 What You Can Do to Reclaim the Constitution 199