Originalists They Are Not.

There are a lot of folk out there, mainly from the right wing of the political spectrum, who tend to go on about the "original intent" of the Founders when it comes to United States Constitution. These "originalists" as these people like to call themselves, are for the most part wasting their time. It's not like the Constitution is the Ten Commandments, written in stone, and never changing. The Constitutional Convention was made up of a coalition of men, who in spite of what you've been told, were not all of one mind. They understood that not everyone in the Pennsylvania State House that hot summer of 1787 would be able to agree on how government should behave. In some cases they did agree, and so certain principles were set in stone, such as the separation of powers and the ability for those powers to check one another. In other cases they could not agree, and so they compromised, the most famous example being the Great Compromise. In still other cases they knew they would not be able to agree. In such cases, the Founders chose one of two strategies: they left the issue up to the States (the most infamous example being the issue of slavery), or they deliberately left things all murky-like. This had the effect of leaving the issue, and thus the Constitution open to interpretation and debate - and boy did it, right from the get go, and would very quickly lead to the birth of party politics in the 1790s. Is this a bad thing? Some of the Founders thought so, but the way I look at it, what we have with this loose, murky, wording, such as "promote the general Welfare," as found in the preamble, and the part in Section 8 which gives Congress the authority “ To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” is the ability to have a conversation on what the role and scope of government should be. What all of this DOES mean to all of the originalists out there is that if you are looking for a firm answer from the Constitution about what the role and scope of government is, YOU WILL NOT FIND IT. You are wasting your time. Now if you want to argue the role and scope of government on the basis of some economic theory of your choice, go right ahead, but don't look to the Constitution. I suppose then, that the only true originalist is one that argues that the Constitution is a living breathing framework for government, and nothing more.

Thoughts on Democracy in 1787

Charles Pinckney of South Carolina

According to Madison's Notes on the Constitutional Convention, on this day, Charles Pinckney of South Carolina moved, "'that the first branch of the national Legislature be elected by the State Legislatures, and not by the people.' contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it."

This is yet another example of how concerned many of the founders were about democracy. On the second day of debates Roger Sherman of Connecticut said that he "opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want [lack] information and are constantly liable to be misled."

Of course Pinckney and Sherman did not get their way. It was decided that members of "The House of Representatives shall be composed of Members chosen every second Year by the People...", but this was not so for members of the Senate. Originally, Senators from the States were, "chosen by the Legislature thereof, for six Years...". This would be the case until 1913, after the Seventeenth Amendment was ratified. All of this flies in the face of the idea that these men we call founders wanted to establish a democracy in this nation. Looking at what some of "the People" think about government these days it makes one wonder if Pinckney and Sherman weren't wrong.

The Grand Federal Convention (a.k.a. The Constitutional Convention) Washington Admits He is Human

The Grand Federal Convention began yesterday (That's when I meant to post, ah well...); General George Washington was nominated to preside over the convention. He accepted. Here is James Madison's account of what happened:

General Washington was accordingly unanimously elected by ballot, and conducted to the Chair by Mr. R. Morris and Mr. Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.

Now there is something you don't hear from today's politicians, an admission that they are human and that they might make a mistake; or an apology when they do. It reminds me of the other George W, George W. Bush who could never admit he made a mistake, even during a presidential debate. That is what separates great men from the the lousy ones...

From: Bernard Bailyn's The Ideological Origins of the American Revolution

On such fundamental issues - representation and consent, the nature of constitutions and of rights, the meaning of sovereignty - and in such basic ways, did the colonists probe and alter their inheritance of thought concerning liberty and its preservation. To conceive of legislative assemblies as mirrors of society and their voices as mechanically exact expressions of the people; to assume, and act upon assumption, that human rights exist above the law and stand as the measure of the law's validity; to understand constitutions to be ideal designs of government, and fixed, limiting definitions of its permissible sphere of action; and to consider the possibility that absolute sovereignty in government need not be the monopoly of a single all-engrossing agency but (imperium in imperio) the shared possession of several agencies each limited by the boundaries of the others but all-powerful within its own - to think in these ways, as Americans were doing before Independence, was to reconceive the fundamentals of government and of society's relation to government. (230)