Time: Thu Jun 12 18:00:29 1997 by primenet.com (8.8.5/8.8.5) with SMTP id RAA28636; Thu, 12 Jun 1997 17:52:33 -0700 (MST) Date: Thu, 12 Jun 1997 17:51:31 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: How Madison used the Bill of Rights to save the Constitution (fwd) <snip> > >http://www/aei.org > >American Enterprise Institute for Public Policy Research >Book Summary >May 1997 > >Click here for an index of Book Summary. > >>From Parchment to Power: How James Madison >Used the Bill of Rights to Save the Constitution >By Robert A. Goldwin > >This book tells the story of how the Bill of Rights was amended to the >Constitution and, more important, it explains how that addition completed >the Constitution by clarifying the status of the American people. > >The author is a resident scholar at the American Enterprise Institute and >the senior editor of the AEI Press series A Decade of Study of the >Constitution. > >>From Parchment to Power is a book about the making of the Constitution of >the United States and its Bill of Rights. The book began as a >straightforward account of why and how the first ten amendments were added >to the Constitution, but it unavoidably became much more than that. It >developed into an account of what is required, in thought and action, for a >people and their political leaders to make an enduring constitution >establishing a democratic republic. As the story unfolds, we see how James >Madison thought through, and then implemented, a design to put the >Constitution on the firmest possible foundation, a foundation of popular >support so solid that the Constitution has lasted incomparably longer than >any other in the world. > >The newly constituted government of the United States was just getting >underway in May 1789. The Constitution had been ratified by eleven states; >congressional elections had been held; the electoral college had met and >voted; President George Washington had been inaugurated; and the First >Congress was in session, with the Federalists, supporters of the >Constitution, enjoying an overwhelming majority in both houses of >Congress--five-to-one in the House of Representatives and ten-to-one in the >Senate. One would think that affairs were off to a splendid start. > >And yet James Madison was deeply concerned that the entire constitutional >enterprise was in serious danger. The ratification process had produced >harsh controversies and bitter resentments that had not been resolved or >softened. In three major states, ratification had been achieved by >dramatically narrow margins--by 19 votes out of 355 in Massachusetts, by 10 >votes out of 168 in Virginia, and by 3 votes out of 57 in New York. And the >opponents of ratification had not given up their efforts to make radical >changes in the Constitution. > >In the first weeks of the first session of the First Congress, the >legislatures of both Virginia and New York submitted applications to >Congress to call a new constitutional convention for proposing amendments, >as provided for in Article V of the Constitution. Madison was seriously >disturbed that there was strong public opinion in favor of this movement >for a second convention; a substantial minority of the general public >supported the movement because they were very uneasy about the safety of >their individual rights under an unfamiliar new government. > >In the face of this situation, Madison began to implement his plan to save >the Constitution by proposing his own set of amendments. He had two >objectives: to block the amendments others were proposing, which would have >made radical changes in the Constitution; and to win the support of the >general public by securing the adoption of his own amendments, which he >carefully designed to change not one word in the original Constitution. > >Drafting and Ratifying the Constitution > >The unresolved controversies threatening the new government had originated >in the Constitutional Convention in Philadelphia two years earlier and had >persisted after ratification. The Constitu-tional Convention had been >established by the Continental Congress, the closest thing the nation had >at the time, under the Articles of Confed-eration, to a government >institution. The Conti-nental Congress had instructed the Constitutional >Convention to recommend alterations of the Articles of Confederation and to >submit their report to the Congress for approval. But after four arduous >months, the delegates had produced much more than mere alterations; they >had recommended an entirely new form of government with a powerful >legislature that would, among other things, replace the Continental >Congress. And among their other recommendations were procedures for >ratification of the new document that violated several of the >constitutional requirements under the Articles of Confederation. > >Nevertheless, by means of one skillful maneuver after another, the >proponents of the Consti-tution succeeded in moving the ratification >process ahead rapidly through the Continental Congress, to the state >legislatures, and on to quick favorable action by the first five state >ratifying conventions. But when they arrived at the ratification convention >in Massachusetts, it looked like they were about to suffer a decisive >defeat. The outcome in Massachusetts would have a powerful influence on the >conventions in the remaining states, especially Virginia and New York. If >the Constitution lost in Massachusetts, it would almost certainly not be >ratified. > >The Pivotal State > >Massachusetts was politically polarized in January 1788 when the convention >began. The state was sharply divided, with rich against poor, eastern >merchants against western farmers, cities and towns against rural areas, >creditors against debtors, the few against the many. Those divisions >provided the context for the elections of delegates to the ratifying >convention, and opponents of the Constitution won a substantial majority of >the seats in the convention. > >Despite that majority against ratification at the outset of the convention, >ratification was achieved. The decisive turning point was the winning over >of the state's two most influential leaders: John Hancock, the governor of >Massachusetts and also the president of the convention, and Samuel Adams, >the president of the state senate. These two venerable signers of the >Declaration of Independence had serious reservations about the >Constitution, but they had been elected to the convention as declared >neutrals on the question of ratification. > >The convention had been going on for nearly a month, and a kind of >stalemate had developed. The opponents did not have enough votes for >outright rejection of the Constitution; the proponents did not have enough >votes to win ratification without amendments; and no one knew how to get >valid amendments before ratification. In the face of this stalemate, >Hancock proposed a novel solution, a major breakthrough that almost >certainly saved the Constitution from ultimate defeat. He proposed that the >convention "assent to and ratify the said Constitution" without conditions >and simultaneously recommend a set of amendments to the First Congress, to >be enacted according to the amending provisions in Article V of the >Constitution. His set of proposed amendments dealt with such things as >protecting states' powers, restricting congressional powers over elections >and taxation, limiting the powers of federal courts, and some lesser >matters. None of them touched on subjects we might have expected, such as >protection of religion, press, speech, assembly, or petition. > >Enough votes were changed to win ratification, by the slim margin of 19 >votes out of 355 cast, 187 to 168. The Massachusetts formula--unconditional >ratification accompanied by amendments seeking to diminish the powers of >the federal government and restore them to the states--was subsequently >used by six of the remaining seven state ratifying conventions. Amendments >were expected, and so, despite ratification, active opposition continued to >be widespread and stubborn in the remaining states. The Constitution was >clearly still in peril. > >Madison Comes to the Fore > >At this point in the story, James Madison took center stage. Madison had >played a leading role in the Constitutional Convention, in the Virginia >ratifying convention, and in influencing public opinion as one of the >authors of The Federalist. Now, as a congressman from Virginia, he proved >to be, in the eyes of his congressional colleagues, the most annoying and >disruptive member of the House of Representatives by insisting on proposing >amendments to the Constitution in the first few weeks of the first session >of the First Congress. This was met with a chorus of complaints that >Madison had his priorities all wrong and that it made no sense to consider >amendments before there was any experience with the Constitution that might >reveal what needed to be amended. In addition, there were urgent matters >such as raising revenue and organizing the government that ought not be >delayed. Why Madison acted as he did, and how he succeeded in his project >of amendments against almost unanimous opposition, is a central element of >the story of the making of the Constitution, and one of the great feats in >the history of constitution making. > >Madison was a towering figure in the American founding, yet he is forever >doomed to be less appreciated than he deserves. As the historian Jack >Rakove has pointed out, he had almost no commanding personal >characteristics except "the power of his intellect." He lacked the dignity >of Washington, the charm of Jefferson, the boldness of Hamilton. Thomas >Paine was a more effective writer, and Patrick Henry a far more stirring >orator. But Madison was the most profound, original, and far-seeing of all >his peers. > >Throughout the ratification process, the most strident demand of the >opposition had been for a bill of rights to be added to the Constitution. >That the original Constitution did not have a bill of rights was the result >of a conscious decision, not an oversight, on the part of the framers in >the Constitutional Convention, including Madison. When a delegate moved >that a bill of rights be added, the motion was voted down, ten states to >none. For a variety of reasons, most of the chief authors of the >Constitution thought a bill of rights was unnecessary in a constitution >such as theirs, and perhaps even dangerous to the security of rights. There >is no doubt that all of them were devoted to the cause of the rights of >individuals, and that they adhered to the principle of the Declaration of >Independence that governments are established to secure the great rights of >mankind. But they did not think such a declaration had a place in the >Constitution, and they had serious doubts about the effectiveness of a bill >of rights in securing the rights they held precious. > >The central part of the book traces the development of Madison's thought >from skeptic to advocate of a bill of rights. Madison was devoted to the >cause of securing private rights, but he had long expressed doubts that a >bill of rights was the best way to secure them. For him the fundamental >question was, what truly secures rights? He thought that rights were best >protected by a properly constructed constitution, and that by itself a bill >of rights was but a "parchment barrier," especially ineffective in >protecting the minority against an oppressive majority. How a man of such >convictions became the chief proponent of the Bill of Rights is a >fascinating and instructive story. > >In the course of a marvelous correspondence with his illustrious friend >Thomas Jefferson, then serving as the American minister in Paris, Madison >overcame his doubts and persuaded himself that a bill of rights could serve >an essential function in the American constitutional scheme. In a letter to >Jefferson, he posed this question, more to himself than to his >correspondent: "What use . . . can a bill of rights serve in popular >governments?" Only after Madison had satisfied himself that he could answer >that question did he begin the amending process that ended in his becoming >"The Father of the Bill of Rights." > >Madison was of the opinion that the task of establishing the Constitution >could not be considered complete so long as a sizable minority of Americans >continued to be uneasy about the extensive powers it granted to the new >federal government. In his view, it was not enough for the new Constitution >to have the support of the majority. He thought the Constitution had to be >an extraordinary force in American political life, powerful enough to >overwhelm and restrain an oppressive majority whenever one might arise, and >the Constitution could not be that powerful unless it had the universal >allegiance of "the great mass of the people." Madison saw his amendments as >the perfect instrument for winning that universal support for the >Constitution. The task he imposed on himself was a daunting one, to push >through an uncomprehending Congress the solution to a problem that only he >seemed to perceive. > >Executing the Plan > >The concluding part of the book picks up the story of "how" it was done, a >detailed account of the debates in the First Congress, where Madison's >amendments were proposed, debated, revised, and finally passed by the >required two-thirds majorities of both houses, and passed on to the state >legislatures for eventual ratification. After Madison overcame determined >opposition just to introduce the amendments, he commenced the long and >grueling task of persuading reluctant congressmen and state legislators to >adopt his amendments and to reject others proposed by opponents of the >Constitution, which he did with remarkable legislative skill and dogged >persistence. > >Many of the facts presented in this book are both well known and little >known--well known to historians of the founding era, but little known to >many others. Included among the list of these well-known, little-known >facts are these: that the Constitution was ratified by a very narrow >margin, and probably would have been defeated had it been submitted to a >nationwide popular referendum; that the procedure adopted for ratification >of the Constitution was a conscious violation of the requirements of the >Articles of Confederation; that although there was a widespread demand for >other kinds of amendments, most of the states expressed no concern at all >for adding provisions protecting freedoms of religion, press, and speech; >that the resounding phrase "We the People," with which the Preamble of the >Constitution begins, was something of an accident; that just about every >congressman in the First Congress, Federalist and Anti-Federalist alike, >was opposed to consideration of amendments, and that even Madison had >almost no words of praise for the amendments he himself proposed; that the >Anti-Federalist leaders, who agitated for a bill of rights throughout the >ratification struggle, subsequently voted consistently against the Bill of >Rights in the First Congress, from start to finish; that ratification of >the Bill of Rights was not a victory for the Anti-Federalists, but a >crushing defeat for them, from which they never did recover; that the final >adoption of the Bill of Rights was hardly noticed by the public, and was >hardly mentioned in the press of the day, and was certainly not celebrated. >These well-known, little-known facts add spice to a story that would be, >even without them, an intriguing one. > >We the People > >The book concludes with a reflection on the significance of the Preamble's >assertion that "We the People of the United States" are the ones who made >the Constitution the official governing instrument. But what else did the >original Constitution tell us about this remarkably powerful people, >capable of constituting a government for themselves? The answer is >startling: Nothing! After the Preamble, the original Constitution never >again mentions "the people of the United States." The powers of the several >branches were spelled out in the legislative, executive, and judicial >articles, but the Constitution said nothing about the powers (or rights) of >the people, the people who established this Constitution. But the addition >of the first ten amendments, which speak of "the people" again and again, >remedied that omission. With the ratification of the Bill of Rights, which >emphatically put the people in the Constitution and might properly be >called the people article, the making of the Constitution was at last >completed. > >--------------------------------------------------------------------------- > From Parchment to Power: How James Madison Used the > Bill of Rights to Save the Constitution > > By Robert A. Goldwin > > ISBN 0-8447-4012-8, cloth, $24.95; 227 pages > > Add $3.00 handling charge for first book, > $0.50 for each additional book. > Tennessee residents: please add local sales tax. > > Send check payable to the AEI Press to: > > THE AEI PRESS > c/o Publisher Resources Inc. > 1224 Heil Quaker Blvd. > P.O. Box 7001, La Vergne, TN 37086-7001 > > To order by phone (American Express, Visa, > or MasterCard), call 800/937-5557, > Monday-Friday, 9 a.m.-5 p.m. Eastern time. > > To order by fax, call 800/PRI-ORDER. > > >==================================================================== > >///, //// Mark A. Smith >\ /, / >. > \ /, _/ /. * * * > \_ /_/ /. > \__/_ < UNITED STATES THEATRE COMMAND > /<<< \_\_ > /,)^>>_._ \ email: msmith01@flash.net > (/ \\ /\\\ http://www.flash.net/~msmith01 > // ```` >======((`=========================================================== > The Second Amendment was created so that we can sleep good > at night - so that our politicians can't. ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.2 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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